Billizone v. Jefferson Parish Correctional Center et al
ORDER AND REASONS. ORDERED that defendant Jean Lovett's 16 Motion to Dismiss is GRANTED. It is FURTHER ORDERED that plaintiff's federal civil rights claims against Llovet are DISMISSED WITH PREJUDICE and that his state law claims, if any, are DISMISSED WITHOUT PREJUDICE to their being asserted in the state courts. Signed by Magistrate Judge Sally Shushan. (gec)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ERNEST BILLIZONE. SR.
JEFFERSON PARISH CORRECTIONAL
CENTER, ET AL.
ORDER AND REASONS
Plaintiff, Ernest Billizone, Sr., filed this civil action pursuant to 42 U.S.C. § 1983 against
several defendants. In this lawsuit, he asserts various claims arising from his confinement at the
Jefferson Parish Correctional Center. All parties have consented to the jurisdiction of the
undersigned United States Magistrate Judge.1
One of the defendants, Jean Llovet, filed a motion to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure.2 Because she presented matters outside of the complaint for
the Court's consideration, her motion was converted into one for summary judgment.3 See Fed. R.
Civ. P. 12(d). Plaintiff opposed that motion,4 and Llovet filed a sur-reply.5
Rec. Doc. 53.
Rec. Doc. 16.
Rec. Doc. 17.
Rec. Doc. 44.
Rec. Doc. 51.
In reviewing a motion for summary judgment, the Court may grant the motion when no
genuine issue of material fact exists and the mover is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c). There is no "genuine issue" when the record taken as a whole could not lead a
rational trier of fact to find for the nonmovant. Matsushita Electric Industrial Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
"Procedurally, the party moving for summary judgment bears the initial burden of informing
the district court of the basis for its motion, and identifying those portions of the record which it
believes demonstrate the absence of a genuine issue of material fact." Taita Chemical Co., Ltd. v.
Westlake Styrene Corp., 246 F.3d 377, 385 (5th Cir. 2001) (quotation marks and brackets omitted).
The party opposing summary judgment must then "go beyond the pleadings and by [his] own
affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate
'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986) (quoting Fed. R. Civ. P. 56); see also Provident Life and Accident Ins. Co. v. Goel,
274 F.3d 984, 991 (5th Cir. 2001). The Court has no duty to search the record for evidence to
support a party's opposition to summary judgment; rather, "[t]he party opposing summary judgment
is required to identify specific evidence in the record and to articulate the precise manner in which
the evidence supports his or her claim." Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458
(5th Cir. 1998). Conclusory statements, speculation, and unsubstantiated assertions are not
competent summary judgment evidence and will not suffice to defeat a properly supported motion
for summary judgment. Id.; Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1429 (5th Cir.
In his original complaint, plaintiff stated his claim against Llovet6 as follows:
I've been in severe pain, as upon my initial examination of Medical on my arrival in
intake booking I informed them that I was diagnosed with disc erosion in my lower
lumbar and I am usually given Naprosyn and 800 mg Motrin, but I have been given
nothing and I also have a rotor cuff strain in my right shoulder. No meds
administered and I've told medical and sent in a medical request to no avail. One
nurse has really been trying to help me but she can't administer meds and this is what
I need for my condition, in violation to my 8th Amendment, cruel and unusual
punishment, deliberate indifference, failure to act and provide prompt or proper
medical treatment, failure to supervise on Jean Lovett [sic].7
In his amended complaint, he further alleged:
Here at Jefferson Parish Correctional Center Ms. Jean Lovett [sic] is failing to
properly train or supervise some of her staff doctors and nurses that come to see you
on the tiers and the ones in the infirmary. Their attitudes towards the inmates are
nasty and unethical and very unprofessional. I myself was made to suffer unduly by
not providing me with prompt nor proper medical attention. I was not given any
meds for my chronic back pain and these medical problems are logged in their
records and has been documented for years. Usually when you come in for intake
booking on your initial exam they set everything up, and I made sure I told them yet,
I was ignored and made to suffer and had to write up a sick call to get charged an
additional five dollars to walk down to medical to give them the same information
I gave initially. I was in severe pain for over a month before they decided to give me
any medication for pain then they only gave me Motrin which did not alleviate the
pain so I continue to suffer. I informed them I was taking Flexeril and Naprosen and
she told me I wasn't getting that here. All in violation to my 8th and 14th
Amendment to U.S. Constitution, cruel and unusual punishment, deliberate
indifference, and due process and equal protection of the law.8
The remaining allegations of the complaint concern only the claims against the other
defendants in this lawsuit and thus have no relevance to the claims against Llovet and the pending
Rec. Doc. 1, p. 8.
Rec. Doc. 7, p. 8.
In her motion, defendant Llovet argues that there has been no underlying constitutional
violation in this case. As she notes in the motion, an inmate's right to medical care under the United
States Constitution is extremely limited. Specifically, regardless of whether an inmate is a pretrial
detainee or a convicted prisoner, his constitutional right to medical care is violated only if his serious
medical needs are met with deliberate indifference on the part of penal authorities. See Thompson
v. Upshur County, Texas, 245 F.3d 447, 457 (5th Cir. 2001); Harris v. Hegmann, 198 F.3d 153, 159
(5th Cir. 1999). Llovet argues that plaintiff has shown neither a "serious medical need" nor
"deliberate indifference." She is correct.
The United States Fifth Circuit Court of Appeals has explained that "[a] serious medical need
is one for which treatment has been recommended or for which the need is so apparent that even
laymen would recognize that care is required." Gobert v. Caldwell, 463 F.3d 339, 345 n.12 (5th Cir.
2006). Although unpleasant, plaintiff's back pain and shoulder pain simply do not rise to the level
of "serious medical needs." See, e.g., Claudet v. Jones, Civ. Action No. 10-87, 2010 WL 4365512,
at *4 (E.D. La. Oct. 27, 2010) (Zainey, J.) ("Several courts also have found that neck and back pain
are not serious medical needs.").
Further, even if plaintiff's back pain and shoulder pain were found to constitute "serious
medical needs," those needs were not met with "deliberate indifference." Regarding the "deliberate
difference" requirement, the United States Fifth Circuit Court of Appeals has explained:
Deliberate indifference is an extremely high standard to meet. It is
indisputable that an incorrect diagnosis by prison medical personnel does not suffice
to state a claim for deliberate indifference. Rather, the plaintiff must show that
officials refused to treat him, ignored his complaints, intentionally treated him
incorrectly, or engaged in any similar conduct that would clearly evince a wanton
disregard for any serious medical needs. Furthermore, the decision whether to
provide additional treatment is a classic example of a matter for medical judgment.
And, the failure to alleviate a significant risk that the official should have perceived,
but did not is insufficient to show deliberate indifference.
Domino v. Texas Department of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001) (quotation
marks, brackets, and citations omitted). "Deliberate indifference encompasses only unnecessary and
wanton infliction of pain repugnant to the conscience of mankind." McCormick v. Stalder, 105 F.3d
1059, 1061 (5th Cir. 1997); see also Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999).
In support of her motion, Llovet submitted copies of plaintiff's medical records. It is clear
that such records may be used to counter a prisoner's allegations of deliberate indifference.
Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995) ("Medical records of sick calls,
examinations, diagnoses, and medications may rebut an inmate's allegations of deliberate
indifference."). Those records reflect that a medical screening was performed when plaintiff arrived
at the Jefferson Parish Correctional Center on April 22, 2014. The notes from that visit reflect that
plaintiff reported "back pain - 10 yrs" but stated that he was not currently taking any prescription
or over-the-counter medications.9 On May 24, 2014, plaintiff then submitted a sick call request
complaining that he needed pain medication, a blood pressure check, and a dental partial plate. He
was observed by the nurse who collected his sick call request, and she noted that he was in no
apparent distress.10 On May 29, 2014, he was seen by a nurse practitioner and prescribed Ibuprofen
Rec. Doc. 16-3, p. 1.
Rec. Doc. 16-3, p. 4.
for pain.11 That period of plaintiff's incarceration then ended when he was released from custody
no later than July of 2014.12
Although plaintiff obviously disagreed with the limited nature of the medical care he
received at the Jefferson Parish Correctional Center, an inmate's disagreement with his medical care
does not constitute deliberate indifference. Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).
Moreover, "the question of whether ... additional ... forms of treatment is indicated is a classic
example of a matter for medical judgment." Estelle v. Gamble, 429 U.S. 97, 107 (1976). Generally,
such matters of professional medical judgment are better left to the expertise of medical
professionals rather than to the legal expertise of judges. Federal courts are therefore loath to
second-guess such medical decisions in federal civil rights actions. Westlake v. Lucas, 537 F.2d
857, 860 n.5 (6th Cir. 1976) ("Where a prisoner has received some medical attention and the dispute
is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical
judgments and to constitutionalize claims which sound in state tort law."); Castro v. Louisiana, Civ.
Action No. 08-4248, 2008 WL 5169401, at *4 (E.D. La. Dec. 8, 2008) ("[M]edical judgments are
not to be lightly second-guessed in a federal civil rights action."). Plaintiff has certainly provided
no basis whatsoever for such second-guessing in this case, in that he has offered nothing more than
his own conclusory, subjective, and self-serving assessment that additional care was necessary.
Rec. Doc. 16-3, pp. 5-6.
Rec. Doc. 21. However, plaintiff was then once again arrested and began a new term of
incarceration in August of 2014.
To the extent that plaintiff is simply arguing that he should have been given something other
than Ibuprofen for his pain, that argument fails. An inmate has no right to be prescribed a particular
medication for pain. Williams v. Chief of Medical Operations, Tarrant County Jail, No. 94-10115,
1994 WL 733493, at *2 (5th Cir. Dec. 27, 1994) (a refusal to provide an inmate with the specific
pain killers he requests does not rise to the level of a constitutional violation); Jacobs v. McVea, Civ.
Action No. 14-552, 2014 WL 2894286, at *7 (E.D. La. June 25, 2014). The fact that he may have
been prescribed other types of pain medication by other doctors in the past is not determinative.
Prior opinions by such doctors were not binding on the medical staff at the Jefferson Parish
Correctional Center, and differences of opinion among healthcare professionals as to the appropriate
method of treatment do not constitute deliberate indifference. Campbell v. Martinez, No. Civ. A.
4:03-CV-299-Y, 2003 WL 22410576, at *3 (N.D. Tex. May 14, 2003), aff'd, 96 Fed. App'x 237 (5th
Cir. 2004); cf. Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996) ("Medical decisions that may be
characterized as classic examples of matters for medical judgment, such as whether one course of
treatment is preferable to another, are beyond the [Eighth] Amendment's purview. Such matters are
questions of tort, not constitutional law." (internal quotation marks, brackets, and citation omitted)).
This is true even if the pain medication administered at the jail was not as effective as an alternative
plaintiff would have preferred, because the fact that an inmate's medical care "may not have been
the best money could buy" is insufficient to establish a federal violation. Mayweather v. Foti, 958
F.2d 91 (5th Cir. 1992); see also Gobert, 463 F.3d at 349 ("[D]eliberate indifference exists wholly
independent of an optimal standard of care."); McMahon v. Beard, 583 F.2d 172, 174 (5th Cir.
1978). In fact, the federal constitution does not require even that an inmate's medical care be free
from negligence or medical malpractice. Hall v. Thomas, 190 F.3d 693, 697-98 (5th Cir. 1999); see
also Kelly v. Gusman, Civ. Action No. 07-611, 2007 WL 2007992, at *4 (E.D. La. July 5, 2007);
Cerna v. Texas Tech Medical Staff, No. 2:03-CV-0322, 2004 WL 42602, at *2 (N.D. Tex. Jan. 7,
Lastly, the mere fact that plaintiff's pain remained unresolved is insufficient to support his
claim. Where, as here, an inmate has in fact received medical treatment, federal constitutional
protections are not violated just because that treatment was unsuccessful or because pain persisted
despite the treatment. Gobert, 463 F.3d at 346; Williams v. Chief of Medical Operations, Tarrant
County Jail, No. 94-10115, 1994 WL 733493, at *2 (5th Cir. Dec. 27, 1994); Kron v. Tanner, Civ.
Action No. 10-518, 2010 WL 3199854, at *7 (E.D. La. May 19, 2010), adopted, 2010 WL 3171040
(E.D. La. Aug. 6, 2010). As the United States Fifth Circuit Court of Appeals has expressly noted:
"Continuing back pain is unpleasant. Its existence does not, however, in and of itself demonstrate
that a constitutional violation occurred." Mayweather v. Foti, 958 F.2d 91 (5th Cir. 1992).
For all of the foregoing reasons, plaintiff has not shown that he had a serious medical need
which was met with deliberate indifference; therefore, there is no basis for this Court to find that a
federal violation occurred. Because there was no underlying constitutional violation, the Court must
dismiss any claims asserted against Llovet in her individual capacity based either on her own actions
or on her purported failure to properly supervise or train her subordinates. See, e.g., Whitley v.
Hanna, 726 F.3d 631, 648 (5th Cir. 2013) ("All of Whitley's inadequate supervision, failure to train,
and policy, practice, or custom claims fail without an underlying constitutional violation."), cert.
denied, 134 S. Ct. 1935 (2014); Wallack v. Jackson County, Mississippi, Civil Action No.
1:13cv103, 2014 WL 2154202, at *8 (S.D. Miss. May 22, 2014); Kennedy v. City of Shreveport,
Civ. Action No. 07-1049, 2008 WL 2437043, at *6 (W.D. La. June 13, 2008). Any official-capacity
claims against Llovet are likewise meritless based on the absence of an underlying constitutional
violation and must also be dismissed. See, e.g., Royal v. Spragins, 575 Fed. App'x 300, 305 (5th
In his complaint, plaintiff does not indicate that he is also asserting any claims against Llovet
under state law; however, in his opposition to the pending motion, he indicates that was his
intention. Even if that passing assertion in the opposition is considered an amendment to the
complaint,13 the Court declines to consider any such state law claims against Llovet in light of the
fact that plaintiff's federal claims against her are being dismissed. See 28 U.S.C. § 1367(c)(3) ("The
district courts may decline to exercise supplemental jurisdiction over a claim ... if ... the district court
has dismissed all claims over which it has original jurisdiction ....").14 If plaintiff wishes to pursue
claims against Llovet under state law, he must do so in the state courts.
The United States Fifth Circuit Court of Appeals has held that in a case filed by a pro se
plaintiff, the district court is "required to look beyond the [plaintiff's] formal complaint and to
consider as amendments to the complaint those materials subsequently filed." Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983). Therefore, a pro se litigant's supplemental filings that "embellish[
] the original complaint's averments" should be considered when ruling on dispositive motions. Id.
The Court is aware that numerous unrelated and factually distinct federal claims remain
pending against other defendants; however, all of the federal claims against Llovet are being
dismissed. That suffices to allow the Court to decline to consider any state law claims against her.
See, e.g., Ryan v. Illinois Dep't of Children and Family Services, 185 F.3d 751, 765 (7th Cir. 1999);
Bangura v. City of Philadelphia, Civ. Action No. 07-127, 2007 WL 3376676, at *4-5 (E.D. Pa. Oct.
15, 2007); Spearman v. Tom Wood Pontiac-GMC, Inc., No. IP 00-1340, 2001 WL 1712506, at *7
(S.D. Ind. Dec. 3, 2001), aff'd, 312 F.3d 848 (7th Cir. 2002); Kis v. County of Schuylkill, 866 F.
Supp. 1462, 1480 (E.D. Pa. 1994).
IT IS ORDERED that defendant Llovet's motion, Rec. Doc. 16, is GRANTED.
IT IS FURTHER ORDERED that plaintiff's federal civil rights claims against Llovet are
DISMISSED WITH PREJUDICE and that his state law claims, if any, are DISMISSED
WITHOUT PREJUDICE to their being asserted in the state courts.
New Orleans, Louisiana, this fifteenth day of December, 2014.
UNITED STATES MAGISTRATE JUDGE
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