Walcott v. Terrebonne Parish Jail Medical Department et al

Filing 23

ORDER ADOPTING 16 REPORT AND RECOMMENDATIONS. FURTHER ORDERED that plaintiff's claims are DISMISSED WITH PREJUDICE. FURTHER ORDERED that plaintiff's 21 motions for discovery and 22 Motion for perfection of service are DISMISSED AS MOOT. FURTHER ORDERED that defendants' 12 Motion to Dismiss is DISMISSED AS MOOT. Signed by Judge Ivan L.R. Lemelle on 7/14/2017.(clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
STEVEN ANTHONY WALCOTT, JR.

CIVIL ACTION

VERSUS

NO. 16-15594

TERREBONNE PARISH JAIL
MEDICAL DEPARTMENT, ET AL.

SECTION "B"(4)
ORDER AND REASONS

Before the Court is plaintiff Steven Anthony Walcott Jr.’s
(“Plaintiff”) timely objections (Rec. Doc. 20) to the Magistrate
Judge’s

Report

and

Recommendation

(“Report,”

Rec.

Doc.

16).

Plaintiff seeks review of the Magistrate Judge’s recommendation to
dismiss with prejudice his claims against the Terrebonne Parish
Jail Medical Department, Nurses Pat Naquin (“Nurse Pat”), Kimberly
Ann Boudreaux (“Nurse Kim”), Domonique Angelle Baio (“Nurse
Dominic”), and Doctor/Nurse Richard Neal pursuant to 28 U.S.C. §§
1915(e), 1915A, and 42 U.S.C. § 1997e. (Rec. Doc. 16 at 9). In
addition, plaintiff filed motions to perfect service and seeking
discovery

and

publication

of

electronic

surveillance

for

an

evidentiary hearing. (Rec. Docs. 21 at 1, 22 at 1).
For the reasons outlined below,
IT IS ORDERED that the Magistrate Judge’s Report (Rec. Doc.
16) is ADOPTED, OVERRULING plaintiff’s objections (Rec. Doc. 20);
IT IS FURTHER ORDERED that plaintiff’s claims are DISMISSED
WITH PREJUDICE;

IT IS FURTHER ORDERED that plaintiff’s motions for discovery
and perfection of service, etc. (Rec. Docs. 21, 22) are DISMISSED
AS MOOT; and
IT IS FURTHER ORDERED that defendants’ Motion to Dismiss (Rec.
Doc. 12) is DISMISSED AS MOOT.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff filed the instant complaint seeking relief pursuant
to 42 U.S.C. § 1983. (Rec. Doc. 1 at 8). The matter was referred
to United States Magistrate Judge Karen Wells Roby. (Rec. Doc.
10). A Spears hearing was held on October 31, 2016 via telephone. 1
[Rec. Doc. 11; see also Spears v. McCotter, 766 F.2d 179 (5th Cir.
1985).] On December 12, 2016, Judge Roby recommended dismissal of
the

complaint.

(Rec.

Doc.

16

at

9).

Plaintiff

timely

filed

objections to that recommendation. (Rec. Doc. 20 at 2).
During the Spears hearing, plaintiff stated he notified a
nurse in the medical department of various skin and other physical
ailments on July 8, 2016. (Rec. Doc. 16). The nurse ordered foot

1 Rec.
Doc. 16. Magistrate Judge Roby thoroughly considered plaintiff’s
allegations and wrote factual findings. Plaintiff did not dispute any of the
facts. A Spears hearing allows the court to determine whether in forma pauperis
status should be granted or dismissed under 28 U.S.C. § 1915(d). Wilson v.
Barrientos, 926 F.2d 480, 482 (5th Cir. 1991).

powder,

antifungal

cream,

Naproxen, 2 and

Keflex 3 to

treat

a

bacterial infection. (Rec. Doc. 16 at 4). On July 12, 2016,
plaintiff suffered an allergic reaction to a medication dispensed
to him the day before, resulting in whelps on his back, thighs,
legs, arms, and chest. Id. He was informed the wrong medication
was given; as a result, the nurses worked to treat those conditions
instead of referring him to a doctor. Id. at 3. Three weeks later,
Dr. Haydel Jr. prescribed antibiotics, “but it did not help and in
fact made it worse.” Id. On July 16, 2016, plaintiff returned to
the medical department complaining of a boil popping and the nurses
referred him to a doctor. Id. at 4. On July 19, 2016, he was
evaluated at Chabert Medical Center, an Ochsner facility, and
diagnosed

with

herpes.

Id.

at

5.

Plaintiff

was

prescribed

medications to treat the herpes, pain and itching caused by cuts,
burns, and poison ivy. Id. There is no further reference in
plaintiff’s medical records to his skin boils or accompanying
outbreaks. Id. “[Plaintiff] further testified that he sued the
nurses because they administered the wrong medication and failed
to timely refer him to a doctor.” Id. at 3.

2

A nonsteroidal anti-inflammatory drug used to treat pain caused by gout and
arthritis.Drugs.com, https://drugs.com/naproxen.html (last visited June 5,
2017).
3 “Keflex is a cephalosporin antibiotic. It is used to treat infections caused
by bacteria.”Drugs.com, https://www.drugs.com/keflex.htm (last visited June 5,
2017).

II.

REPORT AND OBJECTIONS
Magistrate Judge Roby found that the complaint against the

Terrebonne Parish Jail Medical Department, Nurses Pat, Kim, Dominic
and Doctor/Nurse Neal was frivolous and failed to state a claim
for

which

relief

could

be

granted.

(Rec.

Doc.

16

at

9).

Specifically, Plaintiff did not provide sufficient evidence to
prove a constitutional violation. Id. at 7. Plaintiff alleged
untimely medical treatment, but the medical records show continuous
treatment and eventual resolution of ailments within a reasonable
time period, without any indication of intentional or grossly
indifferent failure to provide medical care. Id. at 8.
Plaintiff

specifically

objects

that

the

Magistrate

Judge

erred in finding that the nurses’ actions were not willful, wanton
and reckless activities. (Rec. Doc. 20 at 5).
III. LAW AND ANALYSIS
Courts are authorized to dismiss sua sponte an in forma
pauperis (“IFP”) complaint as frivolous if “the plaintiff cannot
make any rational argument in law or fact that would entitle him
or her to relief” under 28 U.S.C § 1915(e)(2)(B). 4 Neitzke v.

4

This statute provides that, in pauper cases, “the same remedies shall
be available as are provided for by law in other cases.” 28 U.S.C. §
1915(e)(2)((B).

Williams, 490 U.S. 319, 327-28 (1989) (quoting Williams v.
Faulkner, 837 F.2d 304, 307 (7th Cir. 1988)). It is difficult to
determine

if

a

claim

is

frivolous

when

reviewing

only

the

prisoner’s complaints. Cay v. Estelle, 789 F.2d 318, 323 (5th Cir.
1986), overruled on other grounds by Booker v. Koonce, 2 F.3d 114,
116 (5th Cir. 1993)(recognizing that the Cay Court established
three grounds for dismissing an IFP complaint but that only two of
those grounds survived under subsequent precedent).
“Under 28 U.S.C. § 1915(e)(2)(B), the district court shall
dismiss an IFP complaint at any time if it determines that the
complaint is frivolous or malicious or fails to state a claim upon
which relief may be granted.” Rogers v. Boatwright, 709 F.3d 403,
407 (5th Cir. 2013) (citing Jones v. Bock, 549 U.S. 199, 202
(2007))5. “A complaint is frivolous if it lacks an arguable basis
in law or fact.” Rogers, 709 F.3d. at 405; see also Marcias v.
Raul, 23 F.3d 94, 97 (5th Cir. 1994). “A complaint lacks an arguable
basis in fact if, after providing the plaintiff the opportunity to
present additional facts when necessary, the facts alleged are
clearly baseless.” Berry v. Brandy, 192 F.3d 504, 507 (5th Cir.
1999).

5

This statute provides that “Notwithstanding any filing fee, or any production
thereof, that may have been paid, the court shall dismiss the case at any time
if the court determines that” “the action is frivolous or malicious [or] fails

to state a claim upon
1915(e)(2)(B)(i)(ii).

Here,

plaintiff

which

relief

believes

the

may

be

granted.”

nurses

were

28

U.S.C.

§

deliberately

indifferent to serious medical needs and delayed in referring him
to a doctor. (Rec. Doc. 20 at 2 and 8).
In order to prove medical care violated the Eighth Amendment,
prisoners must allege that prison officials were deliberately
indifferent to their serious medical needs. Norton v. Dimazana,
122 F.3d 286, 288 (5th Cir. 1997). “Deliberate indifference to
serious medical needs of prisoners constitutes the unnecessary and
wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 98
(1976). see also Wesson v. Oglesby, 910 F.2d 278, 284 (5th Cir.
1990) (a minor delay in treatment was not deliberate indifference);
Shapely v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407
(9th

Cir.

1985)

(“Mere

delay

of

surgery,

without

more,

is

insufficient to state a claim of deliberate medical
indifference”).
Mere failure to correctly diagnose a prisoner is not enough
to meet the high standard of deliberate indifference. Domino v.
Tex. Dep’t of Crim. Justice, 239 F.3d 752, 753 (5th Cir. 2001).
“Further, disagreement with medical treatment does not state a
claim for Eighth Amendment indifference to medical needs.” Norton,

122 F.3d at 292. The prisoner must prove the medical professionals
intentionally failed to treat him or “ignored his complaints.” Id.
In this case, there is insufficient evidence to show an Eighth
Amendment violation. The medical records show the nurses were not
deliberately indifferent to plaintiff’s medical needs. He was first
treated

with

foot

powder

and

antifungal

cream.

When

it

was

discovered that he suffered an allergic reaction to a treatment,
the nurses promptly adjusted his medication. As soon as the nurses
discovered
referred

that
him

the
to

a

medication
physician.

was

not

The

working,

nurses

they

timely

adequately

and

professionally responded to plaintiff’s medical issues.
Plaintiff’s “disagreement with medical treatment does not
state a claim for Eighth Amendment indifference to medical need.”
Norton,

122

F.3d

at

292.

Further,

“the

mere

delay

alone

in

receiving medical treatment is usually not sufficient to state a
claim under § 1983.” Mendoza, 989 F.2d at 1056. Here, plaintiff
saw a physician within three days after the nurses realized that
the treatment was not working and this short delay without more
does not amount to deliberate indifference. Fear v. Diboll Corr.
Ctr., 582 F. Supp. 2d. 841, 846 (E.D. Tex. 2008) (it took a year
for the prisoner to receive the correct diagnosis and treatment;
the doctor was not deliberately indifferent just because the
original treatment was not successful); see also Stewart v. Murphy,

174 F.3d 530, 532 (5th Cir. 1999) (the doctors took four months to
consult and agree on a course of treatment. The doctors’ action
was, at most, negligence, not deliberate indifference); Boutte v.
Bowers, No. 01-1084 2001 WL 1041761, at *3 (N.D. Tex. July 19,
2001) (the prisoner received consistent treatment for 11 months;
the original treatment did not work and there was a delay in
changing the prisoner’s blood pressure medication, but that did
not amount to a constitutional violation); but see Austin v.
Johnson, 328 F.3d 204, 210 (5th Cir. 2003) (waiting two hours to
call an ambulance after prisoner was rendered unconscious by
dehydration is deliberate indifference) (emphasis added).
The records show it took a little over a month to figure out
plaintiff had herpes. He received timely medical attention before
and after that diagnosis. Therefore, this court agrees with the
Magistrate Judge’s finding “that the deliberate indifference claim
arising out of the medical care [plaintiff] received [from] the
nurses and the on-staff doctor nurse is frivolous or fails to state
a claim for which relief may be granted, pursuant to §§ 1915
(e)(2)(B)(I) and 1915(b)(1).” (Rec. Doc. 16 at 8). 42 U.S.C. §
1983 is not the proper vehicle to bring negligence based actions.
Further,

plaintiff’s

claim

against

the

Terrebonne

Parish

Jail’s Medical Department cannot stand because a jail’s medical
department is not a “legal entity capable of being sued under §

1983.” Smith v. St. Tammany Par. Sheriff’s Office, No. 07-3525,
2008 WL 347801, at *2 (E.D. La. Feb. 6, 2008); Dale v. Bridges,
No. 76-9023, 1997 WL 810033, at *1 (N.D. Tex. Dec. 22, 1997) (St.
Tammany Parish Jail dismissed from case because it is not an entity
that is capable of being a party in a lawsuit); Brewin v. St.
Tammany Par. Corr. Ctr., No. 08-0639 2009 WL 1491179, at *2 (W.D.
La. May 26, 2009) (§ 1983 action against the prison medical
department dismissed because the department is not an independent
entity capable of being a party to a lawsuit); Jones v. St. Tammany
Par. Jail, 4 F. Supp. 2d 606, 613 (E.D. La. 1998) (“A parish jail
is not [a suable] entity, but a building”); Jiles v. Orleans Par.
Prison Med. Clinic, No. 09-8426, 2010 WL 3584059, at *2 (E.D. La.
2010) (“[a] jail’s medical department simply is not a juridical
entity capable of being sued”).
IV. CONCLUSION
For the reasons discussed above,
IT IS ORDERED that the Report (Rec. Doc. 16) is ADOPTED,
OVERRULING plaintiff’s objections (Rec. Doc. 20);
IT IS FURTHER ORDERED that plaintiff’s claims are DISMISSED
WITH PREJUDICE;
IT IS FURTHER ORDERED that plaintiff’s motions for discovery
and perfection of service, etc. (Rec. Doc. 22) are DISMISSED AS

MOOT. The nurses appeared, retained counsel, and filed a motion to
dismiss, and the surveillance tapes of the nurse’s station during
the month of July would not change the outcome of the case. The
medical records and Spears hearing adequately established the
relevant facts; and
IT IS FURTHER ORDERED that defendants’ Motion to Dismiss (Rec.
Doc. 12) is DISMISSED AS MOOT.
New Orleans, Louisiana, this 14th day of July, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE