Rombach et al v. Culpepper et al
ORDER AND REASONS: IT IS ORDERED that the 29 motion is GRANTED IN PART and DENIED IN PART, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 3/8/2018. (jls)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DONNA MAHL ROMBACH, ET AL.
JOE CULPEPPER, ET AL.
ORDER AND REASONS
Defendants Chief of Police Joe Culpepper, Warden Scott Adams,
and Mayor Wendy O’Quin Perrette have filed a motion for summary
judgment. Rec. Doc. 29. Plaintiff timely filed an opposition. Rec.
Doc. 45. Defendants then sought, and were granted, leave to file
a reply. Rec. Doc. 50. For the reasons discussed below,
IT IS ORDERED that the motion (Rec. Doc. 29) is GRANTED IN
PART and DENIED IN PART.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case arises out of Gregory Rombach’s death while in
custody at the Bogalusa City Jail on July 9, 2015. See Rec. Doc.
3 ¶ 4. At 1:52 a.m. on Monday, July 6, 2015, Mr. Rombach was
arrested for shoplifting from a Walmart.1 See Rec. Doc. 29-6.
During booking, the police learned that there was a warrant for
Mr. Rombach’s arrest for failure to appear. See id.; Rec. Doc. 297. Mr. Rombach was subsequently arrested per the warrant. See Rec.
Docs. 29-6; 29-8. At 2:55 a.m. on July 6, 2015, Mr. Rombach filled
out a medical form, indicating that he had no medical conditions
It appears that Mr. Rombach stole a fishing hook that cost $2.00. See Rec.
Doc. 29-15 at 4:6-14.
other than an allergy to penicillin. See Rec. Doc. 29-9 at 1-2. In
the afternoon of July 6, 2015, Mr. Rombach was sentenced for
failure to appear to fifteen days in custody or a $250.00 fine.
See Rec. Doc. 29-10. Mr. Rombach’s arraignment for the shoplifting
arrest was set for one week later, on July 13, 2015. See id. Mr.
Rombach was then returned to the custody of the Bogalusa City Jail.
Mr. Rombach made three telephone calls from jail before he
passed away. He first called his mother in the early hours of July
6, 2015, to tell her that he had been arrested and to ask that she
bail him out of jail. See Rec. Doc. 29-13 at 3-5. He called his
parents again, likely on July 7, 2015, when he spoke with his
father. See Rec. Doc. 29-14 at 2. When asked how he was doing, Mr.
Rombach responded, “Not so good, Dad.” Id. Mr. Rombach also called
his brother, but the record does not indicate when that call took
place. See Rec. Doc. 29-15.
At some point after booking, Mr. Rombach told jail personnel
that he was withdrawing from heroin. See Rec. Docs. 29-2 ¶¶ 1011; 29-5 ¶¶ 6, 8. Scott Adams, the warden of the jail, states in
his affidavit that a nearby hospital told him that “there is no
real treatment of withdrawal symptoms and it is sufficient for the
jail to observe the inmate in withdrawal and provide plenty of
hydration, aspirin, and malox-type products to assist the inmate
with the symptoms experienced in going through withdrawal.” Rec.
Doc. 29-5 ¶ 13. According to Warden Adams, “Rombach requested and
was given a small dose of castor oil for relief of constipation.”
Id. ¶ 14. There is no other evidence in the record of whether and
how Mr. Rombach was treated for his withdrawal symptoms.
Warden Adams’ employees had similar understandings of what
jail policy required them do when an inmate was suffering from
withdrawal symptoms. Louis Clark, a jail employee, testified in
his deposition that inmates experiencing withdrawal symptoms are
given “Imodium for diarrhea[,]” “ibuprofen for pain, [and] muscle
spasm, and Emetrol [for] . . . nausea.” Rec. Doc. 45-7 at 2. Lisa
Erwin, another jail employee, echoed Clark’s testimony in her own
deposition when she testified that “[t]he only thing [the jail]
give[s] [inmates] now is Emetrol, Imodium, and ibuprofen.” Rec.
Doc. 45-5 at 3. Erwin went on to explain that she didn’t have “any
protocols” for inmates going through withdrawal, but agreed with
Warden Adams that the nearby hospital had recommended treatment
with over-the-counter medications. See id. Erwin did not know if
the hospital had told the jail how to know when an inmate’s
withdrawal symptoms are severe enough to warrant professional
medical attention. See id.
At some point after informing jail personnel that he was in
withdrawal, Mr. Rombach was moved to a private padded cell. See
Rec. Doc. 29-2 ¶ 14. Jail personnel said that the move was “because
[Mr. Rombach] was being disruptive” and so jail personnel wanted
to “observe [Mr. Rombach] better.” Id. Jail personnel state that
when questioned about his symptoms while in the private padded
cell, Mr. Rombach “said he was fine and requested to go back to
his cell [;]” a request that was accommodated. See Rec. Doc. 29-5
¶ 11. Christopher Flot, an inmate who was in the jail at the same
time as Mr. Rombach, states that Mr. Rombach “was placed in a
private cell after he repeatedly called for medical attention.”
Rec. Doc. 45-3 at 1. Mr. Flot states that Mr. Rombach was moved to
the private cell on Mr. Rombach’s second day of incarceration,
which was likely July 7, 2015.2 See id.
Rombach’s time in jail.3 According to Mr. Flot, Mr. Rombach was
assigned to the cell next to his, where the inmates were confined
from 10:00 p.m. to 5:00 a.m. every day. See Rec. Doc. 45-3 at 1.
Both Mr. Flot and Mr. Rombach had access to the same day room when
not confined to their cells. See id. Mr. Flot states that Mr.
Rombach ate “very little food, which he vomited up.” Id. Mr. Flot
heard Mr. Rombach “ask to be taken to a hospital for medical
attention.” Id. at 2. According to Mr. Flot, a prison employee who
heard Mr. Rombach’s request said that Mr. Rombach could not go to
the hospital. See id. Mr. Flot also states in his declaration that
The parties refer to logs that document Mr. Rombach’s time in the jail, but
neither party filed the logs into the record. See Rec. Doc. 45-6 at 2.
3 The statements in Mr. Flot’s declaration are consistent with a recorded
conversation that Mr. Flot had with Mr. Rombach’s mother the day that Mr.
Rombach passed away. See Rec. Doc. 45-4.
he “personally told Mr. Otis, Mr. Lewis, [and] Ms. Knight that
[Mr. Rombach] did not feel well, was not eating and was vomiting,
and [that Mr. Rombach] needed a doctor.”4 Id. Mr. Flot also declares
that the jail employees “did not make regular inspections of the
cells when [the inmates] were on lockdown at night.” Id. at 2-3.
Another inmate was also aware that Mr. Rombach was not feeling
well.5 Chadwick Hart, who either shared a cell with Mr. Rombach or
Mr. Flot the night that Mr. Rombach passed away, told Detective
David Miller that Mr. Rombach was throwing up at 11:00 p.m. on
July 8, 2015, and that Mr. Rombach continued to throw up throughout
the night. See Rec. Doc. 45-2. These statements are consistent
with the prison report of Mr. Rombach’s death. See id. When
Detective Miller arrived at Mr. Rombach’s cell on July 9, 2015 to
investigate Mr. Rombach’s death earlier that day, he saw vomit in
the toilet in the cell. See id. An autopsy was subsequently
conducted; the cause of death was a “perforated duodenal ulcer
with peritonitis.” See Rec. Doc. 29-11 at 2. The autopsy also
revealed that Mr. Rombach had amphetamine, methamphetamine, and
opiates in his system when he died. See id. at 3.
Mr. Otis, Mr. Lewis, and Ms. Knight are all jail employees. See Rec. Docs.
5 Two other inmates, Kelvin Jackson and Cornel Lucas, made similar statements
on the phone to Mr. Rombach’s mother the day that Mr. Rombach passed away. See
Rec. Doc. 45-4. Both Mr. Jackson and Mr. Lucas said that they had heard Mr.
Rombach vomiting for days and that Mr. Rombach had asked jail employees for
medical assistance. See id.
In January 2016, Plaintiffs filed the instant lawsuit. See
Rec. Docs. 1; 3. There are two distinct sets of defendants. All
capacities. See Rec. Doc. 3 ¶ 3.
One set is a group of John and
Jane Does, who are described as employees of “the Bogalusa Police
Department and/or of the City of Bogalusa and its jail.” See id.
defendants are liable to Plaintiffs under 42 U.S.C. § 1983 for
violating the Eighth and Fourteenth Amendments to the United States
Constitution by denying Mr. Rombach necessary medical care, which
resulted in his death. See id. ¶¶ 21, 23. The Amended Complaint
also alleges that these unnamed defendants are liable to Plaintiffs
under Louisiana Civil Code Articles 2315, 2315.1, and 2316 for
causing Mr. Rombach’s death. See id. ¶¶ 22-23.
individuals: Joe Culpepper, the Chief of Police in Bogalusa; Scott
Adams, the Warden of the Bogalusa City Jail; and Wendy O’Quin
Perrette, the Mayor of the Bogalusa. See id. ¶ 3(a)-(c). The
Amended Complaint alleges that the named defendants are liable to
Plaintiffs for facilitating Mr. Rombach’s death through negligent
hiring and training and failure to develop appropriate policies
for inmates with medical needs. Id. ¶ 24(a)-(d). These allegations
also appear to state a claim for municipal liability under the
doctrine established by the United States Supreme Court in Monell
v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). The Amended Complaint
also alleges that that the named defendants are liable for the
respondeat superior.” Rec. Doc. 3 ¶ 24(e).
The named defendants then moved for summary judgment. See
Rec. Doc. 29. Later that same day, Plaintiffs filed a motion for
leave to file an amended complaint that properly names the John
and Jane Doe defendants. See Rec. Doc. 30. The motion was referred
to Magistrate Judge Wilkinson, who denied the motion without
prejudice. See Rec. Doc. 42. Plaintiffs then filed a motion to
continue trial, with the intention of reurging their motion for
leave to file an amended complaint if a continuance was granted.
See Rec. Doc. 43. The motion to continue trial was granted and
Plaintiffs were given one week to file another motion for leave to
file an amended complaint. See Rec. Doc. 51. Because the proposed
Amended Complaint does to affect Plaintiffs’ claims against the
judgment is still before the Court.
LAW AND ANALYSIS
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). A genuine
issue of material fact exists if the evidence would allow a
reasonable jury to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“demonstrate the absence of a genuine issue of material fact” using
competent summary judgment evidence. Celotex, 477 U.S. at 323. But
“where the non-movant bears the burden of proof at trial, the
movant may merely point to an absence of evidence.” Lindsey v.
Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). When the
movant meets its burden, the burden shifts to the non-movant, who
must show by “competent summary judgment evidence” that there is
a genuine issue of material fact. See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Lindsey, 16
F.3d at 618.
“To state a claim under 42 U.S.C. § 1983, a plaintiff must
first show a violation of the Constitution or of federal law, and
then show that the violation was committed by someone acting under
color of state law.”6 Atteberry v. Nocuna Gen. Hosp., 430 F.3d 245,
253 (5th Cir. 2005). The United States Constitution entitles
pretrial detainees and convicted inmates to medical care while in
custody. See Hare v. City of Corinth, 74 F.3d 633, 639 (5th Cir.
Defendants do not dispute that the Defendants in this case were acting under
the color of state law when operating the Bogalusa City Jail. See Rec. Docs.
1996). For pretrial detainees, this right is derived from the Due
Process Clause of the Fourteenth Amendment. See id. For convicted
inmates, the right stems from the Eighth Amendment’s prohibition
on cruel and unusual punishment. See id. The government’s duty is
the same under both Amendments. See id. at 650.
An individual sued in his or her individual capacity for
failure to provide adequate medical care can be found liable under
two theories. First, an individual can be held liable for his or
her own acts or omissions. “[A] state jail official's liability
for episodic acts or omissions cannot attach unless the official
had subjective knowledge of a substantial risk of serious harm to
a pretrial detainee but responded with deliberate indifference to
that risk.” Id. “Deliberate indifference in the context of an
episodic failure to provide reasonable medical care . . . means
that: 1) the official was aware of facts from which an inference
of substantial risk of serious harm could be drawn; 2) the official
actually drew that inference; 3) the official’s response indicates
the official subjectively intended that harm to occur.” Thompson
v. Upshur Cty., 245 F.3d 447, 458-59 (5th Cir. 2001).
Second, an individual can be held liable in a supervisory
capacity for failure to supervise or train subordinate employees.
“Under section 1983, supervisory officials are not liable for the
actions of subordinates on any theory of vicarious liability.” Id.
at 459. Instead, the failure to train or supervise must be its own
plaintiff must show that “1) the [defendant] failed to train or
supervise the officers involved; 2) there is a causal connection
between the alleged failure to supervise or train and the alleged
violation of the plaintiff’s rights; and 3) the failure to train
plaintiff’s constitutional rights.” Id. “Proof of more than a
single instance of the lack of training or supervision causing a
violation of constitutional rights is normally required before
When an individual is sued in his or her official capacity,
it is really a suit against the municipality that employs the
defendant. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690
n.55 (1978). To show municipal liability, also known as Monell
liability, “a plaintiff must show that (1) an official policy (2)
promulgated by the municipal policymaker (3) was the moving force
behind the violation of a constitutional right.” Whitley v. Hanna,
726 F.3d 631, 649 (5th Cir. 2013). Monell liability can only be
imposed after finding an underlying constitutional violation by an
individual. See Becerra v. Asher, 105 F.3d 1042, 1047-48 (5th Cir.
Plaintiffs have brought section 1983 claims against various
Bogalusa city employees, all in their individual and official
capacities. See Rec. Doc. 3 ¶ 3. Plaintiffs maintain that various
unnamed defendants who work at the Bogalusa jail personally denied
Mr. Rombach medical care. See id. ¶¶ 21, 23. Plaintiffs also allege
that three named defendants (Chief Culpepper, Warden Adams, and
Mayor O’Quin Perrette) are responsible for the denying Mr. Rombach
improperly training jail employees. See id. ¶ 24. The Court will
first address the claims against Defendants in their individual
Plaintiffs have brought individual capacity claims against
the unnamed John and Jane Doe Defendants. Plaintiffs did not name
the individuals who personally denied Mr. Rombach medical care
judgment. See Rec. Docs. 3 ¶ 3(d); 30. Plaintiffs’ recent motion
prejudice, noting the possibility that it could be reurged if trial
was subsequently continued. See Rec. Doc. 42. The Court has since
granted such a continuance, allowing Plaintiffs time to seek leave
to file a second amended complaint. See Rec. Doc. 51. Therefore,
Defendants’ motion for summary judgment of the claims against the
unnamed John and Jane Doe defendants is denied without prejudice,
to be reurged if Plaintiffs do not file a second amended complaint
naming the individual jail employees who allegedly denied Mr.
Rombach medical care.
There are also individual capacity claims against the three
named defendants, Chief of Police Culpepper, Mayor O’Quin Perrette
and Warden Adams. All three assert the defense of qualified
immunity. See Rec. Doc. 29-1 at 8-11. “The doctrine of qualified
liability for damages based upon the performance of discretionary
functions if the official’s acts were objectively reasonable in
light of then clearly established law.” Thompson, 245 F.3d at 456.
“The first step in the qualified immunity analysis is to determine
whether the plaintiff[s] ha[ve] alleged the violation of a clearly
established federal constitutional . . . right.” Id. at 457. “If
the Plaintiff[s] do so, the Court must then assess whether the
defendant’s conduct was objectively reasonable in light of clearly
established law.” Id.
All three named defendants are entitled to qualified immunity
because Plaintiffs have failed to raise a genuine issue of material
fact about whether any of the named Defendants violated Mr.
Rombach’s constitutional rights. Neither the Amended Complaint nor
the evidence in the record sheds any meaningful light on how Chief
of Police Culpepper and Mayor O’Quin Perrette allegedly violated
Mr. Rombach’s constitutional rights. There is no evidence that
either ever interacted with Mr. Rombach, exerted any influence on
the medical care he received while in the Bogalusa City Jail, or
played any role in setting the policy for providing medical care
evidence, Plaintiffs have not raised a genuine issue of material
fact about whether Chief of Police Culpepper and Mayor O’Quin
Perrette personally violated Mr. Rombach’s constitutional rights.
Chief of Police Culpepper and Mayor O’Quin Perrette cannot have
acted with deliberate indifference if they were not aware of Mr.
Rombach’s medical needs. See Thompson, 245 F.3d at 458-59.
The analysis with respect to the claims against Warden Adams
is slightly different because there is evidence that Warden Adams
helped craft the medical care policy at the Bogalusa City Jail and
had some interaction with Mr. Rombach. See Rec. Doc. 29-5 ¶¶ 1, 3,
10, 13. That being said, there is no evidence that Warden Adams
directly controlled Mr. Rombach’s treatment while in custody or
that Warden Adams knew Mr. Rombach had requested additional medical
care. See Rec. Doc. 29-5. When “Plaintiffs do not allege that [a
defendant] was personally aware of [the inmate’s] situation until
after he died[,]” “the issue as to . . . qualified immunity is
whether [the defendant’s] policies were objectively reasonable in
light of then clearly established law.” Thompson, 245 F.3d at 462.
According to Warden Adams, the jail’s treatment of inmates
recommendation that “there is no real treatment of withdrawal
symptoms and it is sufficient for the jail to observe the inmate
in withdrawal and provide plenty of hydration, aspirin, and malox13
type products to assist the inmate with the symptoms experienced
in going through the withdrawal.” Rec. Doc. 29-5 ¶ 13. According
to Warden Adams, “[j]ail personnel also observe inmates for any
signs of medical distress and respond accordingly.” Id. ¶ 10.
Apparently, a “medical facility is a block away and is available
if and when something emergent and/or unusual occurs with an inmate
in withdrawal or for any other reason.” Id. ¶ 13.
policy was deficient; observing inmates going through withdrawal,
treating them with over-the-counter medication and hydration, and
seeking professional medical assistance in emergent situations is
essentially what Plaintiffs allege should have been afforded Mr.
Rombach. Instead, Plaintiffs have developed evidence in the record
that jail employees may have failed to implement the policy
described by Warden Adams. Because Plaintiffs do not allege that
Warden Adams designed a policy that denied Mr. Rombach medical
care, Warden Adams is entitled to qualified immunity. See Thompson,
245 F.3d at 462-63. This is especially true because supervisory
liability normally requires “[p]roof of more than a single instance
of . . . lack of training causing a violation of constitutional
rights,” id., and Warden Adams states in his affidavit that “[n]o
inmate has ever died in the Bogalusa Jail Facility as a result of
withdrawal from illicit drugs,” Rec. Doc. 29-5 ¶ 13.
against the named Defendants, Plaintiffs may still proceed on their
discussed above, the official capacity claims are actually claims
against the City of Bogalusa. See Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 690 n.55 (1978). But even though these claims are
brought against the municipality, Plaintiffs must still show an
underlying violation of constitutional rights. See Becerra, 105
F.3d at 1047-48. Because the individual capacity claims against
the named defendants have been dismissed, any Monell claim will
depend on the liability of individual jail employees who have not
yet, but may be, named in this lawsuit. See id. It would be unfair
and imprudent to analyze the legality of individual employees’
actions before the defendants have actually been named and given
the opportunity to participate in the lawsuit with the assistance
of counsel. Therefore, the Defendants’ motion for summary judgment
on Plaintiffs’ Monell claim is denied without prejudice.
Plaintiffs also bring claims against all Defendants under
Louisiana state law for negligently causing Mr. Rombach’s death.
See Rec. Doc. 3 ¶ 22 (referring to La. Civ. Code arts. 2315,
2315.1, and 2316). To successfully bring such a claim, a plaintiff
must prove a duty, breach of that duty, cause-in-fact, proximate
cause, and actual damages. See Brown v. Lee, 94-104, p.3 (La. App.
5 Cir. 7/13/94); 639 So. 2d 897, 898-99. Under Louisiana state
A police officer owes a duty to a prisoner to protect
him from harm and to preserve his safety. The police
circumstances[,] [and] . . . owes a higher degree of
care to an intoxicated person than to one who is more
capable of caring for himself. It is the duty of the
officer to see that reasonable medical service is
provided to a prisoner if and when his physical condition
discloses the need of such services.
Id. at 899 (internal citations omitted).
As with the individual capacity section 1983 claims, the Court
will not address the allegations against unnamed jail employees
until Plaintiffs have had the opportunity to amend their complaint.
employees are named in an amended complaint. However, the state
law claims against the named Defendants can be addressed now.
personally involved in the decision not to provide Mr. Rombach
additional medical care. Therefore, they could only be liable for
negligently developing the medical care policy in place at the
jail. Louisiana state law has its own qualified immunity provision
that exempts “public entities or their officers or employees” from
liability “based upon the exercise or performance or the failure
to exercise or perform their policymaking or discretionary acts
when such acts are within the course and scope of their lawful
powers and duties.” La. Stat. § 9:2798.1(B). Decisions about how
facilities” are discretionary and officials tasked with crafting
policy for prison facilities are entitled to qualified immunity
under Louisiana state law. See Jackson v. State el rel. Dep’t of
Corr., 2002-2882, p.8 (La. 5/15/01); 785 So. 2d 803, 808-09; see
also Sarasino v. State, 16-408, p.6-11 (La. App. 5 Cir. 3/15/17);
215 So. 3d 923, 927-31. Therefore the state law negligence claims
against Chief of Police Culpepper, Mayor O’Quin Perrette, and
Defendants are immune from suit.
While vicarious liability under a respondeat superior theory
is potentially viable under state law, the liable party is the
State, not the tortfeasor’s supervisors. See Anderson v. Louisiana
ex rel. La. Dep’t of Corr., No. 12-1821, 2013 WL 5707860, at *3
(W.D. La. Oct. 17, 2013); Tyson v. Tanner, No. 08-4445, 2010 WL
2216507, at *7 (E.D. La. May 7, 2010). Therefore, the state law
respondeat superior claims against Chief of Police Culpepper,
Mayor O’Quin Perrette, and Warden Adams are also dismissed with
In summary, the claims against Chief of Police Culpepper,
Warden Adams, and Mayor O’Quin Perrette (1) under 42 U.S.C. § 1983
in their individual capacities and (2) under Louisiana state law
have been dismissed with prejudice. Defendants’ motion for summary
judgment has been denied without prejudice with respect to (1) all
claims against the unnamed jail employees and (2) Plaintiffs’
municipal liability claim under Monell. Defendants may reurge
their motion for summary judgment with respect to these claims
after individual jail employees have been named as defendants and
given adequate opportunity to participate in this litigation with
the assistance of counsel.
New Orleans, Louisiana, this 8th day of March, 2018.
SENIOR UNITED STATES DISTRICT JUDGE
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