Rodgers, et al v. Gusman, et al

Filing 163

ORDER: IT IS HEREBY ORDERED that CCS' 146 Motion to Dismiss is GRANTED IN PART and all actions against CCS under 42 U.S.C. 1983 are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that the motion is DENIED in all other respects. Signed by Chief Judge Nannette Jolivette Brown on 4/29/2019. (mmv)

Case 2:16-cv-16303-NJB-DMD Document 163 Filed 04/29/19 Page 1 of 23

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LATASHA RODGERS, ON BEHALF OF HER
MINOR CHILD CJTJ

CIVIL ACTION

VERSUS

NO. 16-16303

SHERIFF MARLIN GUSMAN, ET AL.

SECTION: “G” (3)
ORDER

In this litigation, Plaintiff Latasha Rodgers, Tutrix (“Plaintiff”), on behalf of her minor
child CJTJ, alleges that Defendants Orleans Parish Prison, Sheriff Marlin Gusman, the City of
New Orleans, Mayor Mitch Landrieu, the New Orleans City Council, Correct Care Solutions, LLC
(“CCS”) and certain unidentified parties acting under the authority of the Orleans Parish Prison
(collectively “Defendants”), subjected CJTJ’s father (“Decedent”), a pretrial detainee at the
Orleans Parish Prison, to excessive force, assaulted and battered Decedent, and acted with
deliberate indifference to his medical needs, resulting in Decedent’s death, in violation of his and
Plaintiff’s constitutional rights under the Fourth, Eighth, and Fourteenth Amendments, and
Louisiana law.1 Before the Court is CCS’ “Motion to Dismiss.”2 Having considered the motion,
the memoranda in support and opposition, the record, and the applicable law, the Court will grant
the motion to dismiss Plaintiff’s claims under 42 U.S.C. § 1983 and deny the motion to dismiss
Plaintiff’s state law negligence claim.

1

Rec. Doc. 143 at 1–5.

2

Rec. Doc. 146.

1

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I. Background
A.

Factual Background
In the second amended complaint, Plaintiff avers that on September 24, 2015, Decedent

was a pretrial detainee at the Orleans Parish Prison (“OPP”).3 Plaintiff asserts that Decedent had
previously been diagnosed with Sickle Cell Disease and Hepatitis C, which was verified by CCS
and the Orleans Parish Sheriff’s Office (“OPSO”) during Decedent’s intake process. 4 Plaintiff
alleges that since October 2015, Decedent had experienced leg pain and medical complications in
the chest and abdomen.5 According to Plaintiff, however, the OPSO and CCS failed to provide
Decedent with his medication or take him to the hospital as needed.6
According to Plaintiff, Decedent experienced a severe sickle cell pain crisis in his abdomen
and lower extremity, chest, back, and left leg on November 11, 2015, but was not taken to the
hospital until the next day on November 12, 2015.7 While Decedent was at University Medical
Center, Plaintiff avers, his condition worsened—he became diaphoretic and unresponsive, had
problems breathing, and on November 15, 2015, he died. 8 Plaintiff alleges that Defendants’
conduct demonstrates a “wanton disregard” for Decedent’s “serious medical needs.”9
According to the second amended complaint, CCS is a “company that provides health

3

Rec. Doc. 143 at 4.

4

Id.

5

Id. at 4–5.

6

Id.

7

Id. at 4.

8

Id. at 6–7.

9

Id.

2

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services to the Orleans Parish Prison acting under the authority of the Orleans Parish Sheriff’s
Office and the City of New Orleans.”10 Plaintiff alleges that CCS was responsible for ensuring
that Decedent’s emergent and urgent health needs were met, but CCS acted with deliberate
indifference to Decedent’s severe medical needs, causing the death of Decedent.11
B.

Procedural Background
Plaintiff filed a complaint on November 10, 2016.12 On December 12, 2016, Defendant

Marlin Gusman filed an answer to the complaint. 13 On February 6, 2017, the Court granted
Defendant Orleans Parish Sheriff Office’s motion to dismiss,14 and dismissed all claims pending
against OPSO.15 On March 27, 2017, Defendants Mayor Mitch Landrieu and the New Orleans
City Council filed a motion to dismiss.16 On October 16, 2017, the Court denied the motion to
dismiss without prejudice and granted Plaintiff leave to amend the complaint to address the
deficiencies noted therein.17
On November 17, 2017, Plaintiff filed the first amended complaint.18 On March 7, 2018,
Defendant CCS filed a motion to dismiss, arguing that Plaintiff failed to state a claim because: (1)

10

Id. at 3.

11

Id. at 8–9.

12

Rec. Doc. 1.

13

Rec. Doc. 4.

14

Rec. Doc. 5.

15

Rec. Doc. 7.

16

Rec. Doc. 12.

17

Rec. Doc. 31.

18

Rec. Doc. 45.

3

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Plaintiff did not identify a policy, procedure or practice as required under 42 U.S.C. § 1983; (2)
Plaintiff’s claims do not rise to a level of deliberate indifference; and (3) Plaintiff failed to show
the breach of any duty by CCS.19 On July 18, 2018, the Court denied the motion to dismiss without
prejudice.20 The Court concluded that Plaintiff had not stated a claim pursuant to 42 U.S.C. § 1983
or Louisiana Civil Code Article 2315 against CCS.21 However, the Court noted that the parties
had recently learned that autopsy materials from Decedent’s autopsy, which the parties previously
believed were unavailable, may still exist and could shed light on the cause of Decedent’s death
and any potential liability by CCS.22 Therefore, rather than dismissing Plaintiff’s claims against
CCS at that time, the Court granted Plaintiff leave to amend the complaint by August 17, 2018. 23
On August 17, 2018, Plaintiff filed a motion for an extension of time to amend the
complaint, arguing that she was still unable to obtain the autopsy records.24 On August 22, 2018,
Defendant CCS filed a motion to dismiss based on Plaintiff’s failure to amend the complaint.25
On August 28, 2018, Magistrate Judge Knowles denied Plaintiff’s motion for an extension to
amend.26 On September 6, 2018, Plaintiff filed an opposition to the motion to dismiss, requesting
additional time to obtain the autopsy materials from the Orleans Parish Coroner’s Office in order

19

Rec. Doc. 89.

20

Rec. Doc. 110.

21

Id. at 18.

22

Id. at 17.

23

Id. at 18.

24

Rec. Doc. 112.

25

Rec. Doc. 120.

26

Rec. Doc. 124.

4

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to adequately respond to the motion to dismiss.27
On December 21, 2018, the Court held a hearing regarding an Order to Show Cause why
Plaintiff’s counsel should not be sanctioned for her failure to diligently litigate this matter. 28 At
the hearing, Plaintiff’s counsel stated that she received microscopic slides and tissue samples from
the Orleans Parish Coroner’s Office in September 2018 and that she intended to seek leave of
Court to file a second amended complaint based on this information.29 The Court granted Plaintiff
leave to amend the complaint within seven days of the December 19, 2018 hearing. 30 On
December 26, 2018, Plaintiff filed a second amended complaint.31
In the second amended complaint, Plaintiff brings the following claims: (1) a wrongful
death claim under 42 U.S.C. § 1983; (2) a survival claim under 42 U.S.C. § 1983; (3) a claim for
deliberate indifference under 42 U.S.C. § 1983; (4) a negligence claim under Louisiana law; and
(5) an assault and battery claim.32 On January 9, 2019, CCS filed a motion to dismiss the second
amended complaint.33 On January 23, 2019, Plaintiff filed an opposition.34 With leave of Court,
CCS filed a reply on February 6, 2019.35

27

Rec. Doc. 125.

28

Rec. Doc. 142.

29

Id.

30

Rec. Doc. 142.

31

Rec. Doc. 143.

32

Id. at 11–17.

33

Rec. Doc. 146.

34

Rec. Doc. 155.

35

Rec. Doc. 160.

5

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II. Parties’ Arguments
A.

CCS’ Arguments in Support of Motion to Dismiss
In the motion, CCS argues that Plaintiff’s claims should be dismissed because (1) Plaintiff

does not identify any policy, procedure, or practice by CCS that was a moving force behind the
alleged constitutional violations, (2) Plaintiff’s claims do not rise to a level of deliberate
indifference; and (3) Plaintiff has failed to show the breach of any duty by CCS.36
First, CCS contends that there is no basis to hold it liable for the alleged deprivation of
Decedent’s civil rights because Plaintiff does not identify an official policy or custom that was the
moving force behind the alleged constitutional violations. 37 CCS argues that Plaintiff’s only
allegations regarding a policy is Plaintiff’s presentation of CCS’ policy regarding screening and
an initial health assessment.38 CCS contends that the allegation regarding its policy works against
Plaintiff’s position because it proves that CCS had standards in place to provide treatment for
Decedent.39 CCS then alleges that Plaintiff’s identification of a policy is really an attempt to prove
that CCS was “not following its own internal policies,” and violated the policies in some respect.40
CCS contends that asserting a lack of compliance with a policy is not the same as identifying a policy
that itself constituted a violation of rights. 41 Therefore, CCS avers that Plaintiff fails to plead a policy

36

Rec. Doc. 146-1 at 1–2.

37

Id. at 5.

38
Id. According to Plaintiff, the policy states: “This policy is intended to ensure receiving screenings are
performed on all inmates on arrival at the intake facility to ensure that emergent and urgent health needs are met.”
39

Id.

40

Id.

41

Id.

6

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as required under the Monell standard, and Plaintiff’s claims should be dismissed.42

Second, CCS argues that Plaintiff does not plead a claim for deliberate indifference because
Plaintiff does not allege that Decedent was denied or ignored treatment when he sought treatment
from CCS.43 CCS points to multiple dates that Plaintiff lists in the complaint as days on which
Decedent was examined by CCS.44 CCS also highlights the fact that Plaintiff includes details on
Decedent being taken to the hospital the same day that CCS examined him.45 CCS concludes by
arguing that deliberate indifference claims under the U.S. Supreme Court case Estelle v. Gamble,46
are only cognizable against individual defendants and not corporate entities.47 For these reasons,
CCS avers that Plaintiff’s deliberate indifference claim should be dismissed.48
Finally, CCS asserts that Plaintiff’s state law negligence claim should be dismissed because
Plaintiff fails to identify how CCS breached its policy or how any breach caused Plaintiff’s death.49
CCS argues that Plaintiff alleges facts showing that CCS complied with its policies, including
Decedent’s initial screening and several subsequent examinations.50 CCS contends that Plaintiff
fails to allege any facts showing what policy CCS breached on November 12, 2015 when Decedent

42

Id. at 5–6.

43

Id. at 6.

44

Id. at 6–7.

45

Id.

46

429 U.S. 97 (1976).

47

Rec. Doc. 146-1 at 6–7.

48

Id. at 7.

49

Id. at 8.

50

Id.

7

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was hospitalized, or how that alleged breach contributed to Plaintiff’s death.51 Because CCS avers
that Plaintiff does not plead a duty, breach, or causation related to Decedent’s death, CCS asserts
that Plaintiff fails to state a claim for negligence.52 Therefore, CCS contends that all of Plaintiff’s
claims against CCS should be dismissed.53
B.

Plaintiff’s Arguments in Opposition to the Motion to Dismiss
In opposition, Plaintiff asserts that she pleads allegations sufficient to prove constitutional

violations under § 1983, deliberate indifference, and negligence.54 First, Plaintiff contends that
she fully identifies CCS’ policy or custom that violated Decedent’s rights because the second
amended complaint presents CCS’ policy related to its intake procedure and then the second
amended complaint highlights CCS’ violations of its “announced policies or customs.”55 Plaintiff
points to allegations in the second amended complaint regarding CCS’ failure to record Decedent’s
medical ailments and complaints, failure to properly maintain medical documents, and failure to
promptly transport Decedent to the hospital during his sickle cell crisis.56
Plaintiff also asserts that the second amended complaint includes CCS’ chronic disease
policy which states that “CCS is to evaluate patients with a chronic disease on a continuous basis,”
and that a chronic disease treatment plan will be completed when appropriate.57 Plaintiff points to

51

Id.

52

Id.

53

Id. at 8–9.

54

Rec. Doc. 155 at 7–14.

55

Id. at 9.

56

Id. 10–11.

57

Id. at 12.

8

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allegations in the second amended complaint stating that CCS failed to develop a chronic disease
treatment plan, failed to test Decedent to monitor his medical condition, and delayed in responding
to Decedent’s multiple health complaints throughout his time at the jail.58 Plaintiff contends that
CCS’ actions fell below the medical community’s standards and CCS’ stated policies, and CCS’
failures “w[ere] the principal factor in Decedent’s death.”59 Based on these allegations, Plaintiff
asserts that she clearly pleads CCS’ policy that was the moving force behind the constitutional
violations—“that CCS would set forth appropriate policies in the abstract, but blatantly disregard
the policies in actual practice.”60
Finally, Plaintiff asserts that the complaint shows “in great detail” how CCS was
deliberately indifferent to Decedent’s condition and acted negligently in failing to properly treat
Decedent.61 Therefore, Plaintiff argues that she fully pleads each of her claims against CCS and
the Court should deny the motion to dismiss.62
C.

CCS Arguments in Further Support of the Motion to Dismiss
In reply, CCS notes that Plaintiff’s main argument is that CCS failed to comply with its

policies.63 CCS asserts that it is insufficient for Plaintiff to proffer a policy of noncompliance. 64
Instead, CCS insists that Plaintiff must actively identify a policy that itself violated Decedent’s

58

Id. at 10–13.

59

Id. at 11.

60

Id. at 13.

61

Id. at 14.

62

Id.

63

Rec. Doc. 160 at 2.

64

Id.

9

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constitutional rights.65 CCS also argues that Plaintiff does not allege in the actual complaint that
CCS was noncompliant with its policies, and “[P]laintiff cannot cure these pleading defects through
assertions made in a response to a Motion to Dismiss.”66

In directly addressing Plaintiff’s argument regarding CCS’ noncompliance with its
policies, CCS argues that Plaintiff only presents conclusory allegations of noncompliance that has
“no causal connection to any alleged constitutional violation.”67 CCS highlights that the second
amended complaint discusses CCS’ compliance in the form of conducting the intake assessment,
administering pain medication to Decedent, performing lab tests, evaluating Decedent on a
continuing basis, and transferring Decedent to the hospital on November 12, 2015. 68 CCS
therefore asserts that “[i]t is unclear [] what internal policies CCS purportedly violated in light of
these allegations.” 69 For these reasons, CCS asserts that Plaintiff does not properly allege
constitutional violations under § 1983.70
CCS also contends that Plaintiff only offers conclusory allegations regarding the deliberate
indifference and negligence claims.71 Therefore, CCS contends that all claims against it should be
dismissed.72

65

Id.

66

Id.

67

Id. at 3.

68

Id.

69

Id.

70

Id.

71

Id. at 4–5.

72

Id. at 5.

10

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III. Legal Standard
A.

Legal Standard on Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed “for

failure to state a claim upon which relief can be granted.”73 A motion to dismiss for failure to state
a claim is “viewed with disfavor and is rarely granted.” 74 “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that
is plausible on its face.’”75 “Factual allegations must be enough to raise a right to relief above the
speculative level.”76 A claim is facially plausible when the plaintiff has pleaded facts that allow
the court to “draw a reasonable inference that the defendant is liable for the misconduct alleged.”77
On a motion to dismiss, asserted claims are liberally construed in favor of the claimant,
and all facts pleaded are taken as true.78 However, although required to accept all “well-pleaded
facts” as true, a court is not required to accept legal conclusions as true.79 “While legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations.” 80
Similarly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

73

Fed. R. Civ. P. 12(b)(6).

74

Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).

75

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2008)).

76

Twombly, 550 U.S. at 556.

77

Id. at 570.

78

Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); see
also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322–23 (2007).
79

Iqbal, 556 U.S. at 677–78.
80

Id. at 679.

11

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statements” will not suffice.81 The complaint need not contain detailed factual allegations, but it
must offer more than mere labels, legal conclusions, or formulaic recitations of the elements of a
cause of action. 82 That is, the complaint must offer more than an “unadorned, the defendantunlawfully-harmed-me accusation.” 83 From the face of the complaint, there must be enough
factual matter to raise a reasonable expectation that discovery will reveal evidence as to each
element of the asserted claims.84 If factual allegations are insufficient to raise a right to relief above
the speculative level, or if it is apparent from the face of the complaint that there is an “insuperable”
bar to relief, the claim must be dismissed.85
B.

Corporate Liability Under 42 U.S.C. § 1983
42 U.S.C. § 1983 provides that every “person” who, under color of any statute, ordinance,

regulation, custom, or usage of any State subjects, or “causes to be subjected,” any person to the
deprivation of any federally protected rights, privileges, or immunities shall be civilly liable to the
injured party. “Section 1983 provides a cause of action against any person who deprives an
individual of federally guaranteed rights ‘under color’ of state law.”86 “The traditional definition
of acting under color of state law requires that the defendant in a § 1983 action have exercised
power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed

81

Id. at 678.

82

Id.

83

Id.

84

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009).

Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007); Moore v. Metro. Human Serv. Dep’t, No. 096470, 2010 WL 1462224, at * 2 (E.D. La. Apr. 8, 2010) (Vance, J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)).
85

86

Filarsky v. Delia, 566 U.S. 377, 383 (2012) (quoting 42 U.S.C. § 1983).

12

Case 2:16-cv-16303-NJB-DMD Document 163 Filed 04/29/19 Page 13 of 23

with the authority of state law.’”87 The Supreme Court has held that “[t]o act ‘under color’ of law
does not require that the accused be an officer of the state.”88
“Under the Supreme Court’s ‘public function’ test, a private entity acts under color of state
law ‘when that entity performs a function which is traditionally the exclusive province of the
state.’”89 “Alternatively, state action may be found where there is a nexus between the state and
the action of the private defendant such that the action is fairly attributable to the state.” 90 This
means “the plaintiff must show: (1) that the deprivation was caused by the exercise of some right
or privilege created by the state or by a rule of conduct imposed by the state, or by a person for
whom the state is responsible, and (2) that the party charged with the deprivation may fairly be
said to be a state actor.”91 A plaintiff can make such a showing by demonstrating that “the private
citizen was a willful participant in joint activity with the State or its agents.”92 However, “State
action will not accrue merely because of government acquiescence or approval of the private
entity’s actions.”93
However, a corporate entity may not be held liable under Section 1983 based upon a theory

87

West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).

88

Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970) (internal quotation marks and citation omitted).

89
Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 460 (5th Cir. 2003) (quoting Wong v. Stripling,
881 F.2d 200, 202 (5th Cir. 1989)).
90

Wong, 881 F.2d at 202.

91

Priester v. Lowndes Cnty., 354 F.3d 414, 423 (5th Cir.), cert. denied 543 U.S. 829 (2004) (citing Daniel
v. Ferguson, 839 F.2d 1124, 1130 (5th Cir. 1988)).
92

Id. at 420 (internal quotation marks omitted) (quoting Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir.

93

Id. at 423 (citing Yeager v. City of McGregor, 980 F.2d 337, 342 (5th Cir. 1993)).

1994)).

13

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of vicarious liability or respondeat superior.94 Instead, “a plaintiff must initially allege that an
official policy or custom ‘was a cause in fact of the deprivation of rights inflicted.’”95 “A § 1983
plaintiff . . . may be able to recover from [a corporate entity] without adducing evidence of an
affirmative decision by policymakers if able to prove that the challenged action was pursuant to a
state ‘custom or usage.’”96 “To satisfy the cause in fact requirement, a plaintiff must allege that
the custom or policy served as a moving force behind the constitutional violation at issue or that
[his] injuries resulted from the execution of an official policy or custom.”97 “The description of a
policy or custom and its relationship to the underlying constitutional violation, moreover, cannot
be conclusory; it must contain specific facts.”98 “A plaintiff may not infer a policy merely because
harm resulted from some interaction with a governmental entity.” 99 Finally, the “policymaker
must have either actual or constructive knowledge of the alleged policy.”100
C.

Deliberate Indifference
The Eighth Amendment protects the right to be free from cruel and unusual punishment.101

94
Green v. Albertson’s, Inc., 67 F. App’x 248, at *2, n.3 (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
691 (1978)).
95

Spiller v. City of Texas City, Police Dept., 130 F.3d 162, 167 (5th Cir. 1997) (quoting Leffall v. Dallas
Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994)).
96

Pembaur v. City of Cincinnati, 475 U.S. 469, 484 n.10 (1986).

97

Id. (internal citations and quotation marks omitted).

98

Id. (internal citations omitted).

99

Colle v. Brazos County, Tex., 981 F.2d 237, 245 (5th Cir. 1993) (citing Oklahoma City v. Tuttle, 471 U.S.
808, 820–24 (1985)).
100

Cox v. City of Dallas, 430 F.3d 734, 748–49 (5th Cir. 2005) (citing Piotrowski v. City of Houston, 237
F.3d 567, 579 (5th Cir. 2001)).
101

U.S. Const. Amend. VIII.

14

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“The Cruel and Unusual Punishment Clause allows an inmate to obtain relief after being denied
medical care if he provides there was a ‘deliberate indifference to his serious medical needs.’” 102
“Deliberate indifference is an extremely high standard to meet.” 103 “Deliberate indifference
requires that the official have subjective knowledge of the risk of harm.”104 “To show subjective
deliberate indifference, a plaintiff must present evidence: (i) that each defendant had subjective
knowledge of facts from which an inference of substantial risk of serious harm could be drawn;
(ii) that each defendant actually drew that inference; and (iii) that each defendant’s response to the
risk indicates that the defendant subjectively intended that harm to occur.”105
D.

Negligence Under Louisiana Law
Plaintiff also asserts that CSS was negligent under Louisiana law. Article 2315 states,

“Every act whatever of man that causes damage to another obliges him by whose fault it happened
to repair it,” and that “[d]amages may include loss of consortium, service, and society, and shall
be recoverable by the same respective categories of persons who would have had a cause of action
for wrongful death of an injured person.” Louisiana courts use the duty-risk analysis to determine
recovery under Article 2315.106 “For liability to attach under the duty-risk analysis, the plaintiff
must prove that the conduct in question was a cause-in-fact of the resulting harm or damages, the

102
Bias v. Woods, 288 F. App’x 158, 162 (2008) (citing Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir.
1995); Estelle v. Gamble, 429 U.S. 97, 104 (1976)).

Blank v. Eavenson, 530 F. App’x 364, 368 (5th Cir. 2013) (citing Domino v. Tex. Dep’t of Criminal
Justice, 239 F.3d 752, 756 (5th Cir. 2001)).
103

104

Id.

105

Id. (citing Tamez v. Manthey, 589 F.3d 764, 770 (5th Cir. 2009)).

106

Brown v. City of Monroe, 48,764 (La. App. 2 Cir. 2/26/14); 135 So. 3d 792, 796 (citing Barrino v. East
Baton Rouge Parish School Bd., 96–1824 (La. App. 1 Cir. 06/20/97); 697 So. 2d 27)).

15

Case 2:16-cv-16303-NJB-DMD Document 163 Filed 04/29/19 Page 16 of 23

defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant,
and the risk of harm was within the scope of protection afforded by the duty breached.”107
IV. Analysis
A.

Section 1983 Claim
In the motion, CCS argues that Plaintiff’s § 1983 claims against CCS should be dismissed

because Plaintiff does not identify a policy or custom of CCS that was the “moving force” behind
the alleged constitutional violations.108 As explained above, for CCS, a corporate entity, to be held
liable under 42 U.S.C. § 1983, Plaintiff must allege that an official policy or custom “served as a
moving force behind the constitutional violation at issue or that [her] injuries resulted from the
execution of an official policy or custom.”109 In the second amended complaint, Plaintiff makes
the following allegations regarding CCS’ policy or custom.
First, Plaintiff alleges that “Correct Care Solutions’ policy on screening and the initial
health assessment policy states that, ‘This policy is intended to ensure receiving screenings are
performed on all inmates on arrival at the intake facility to ensure that emergent and urgent health
needs are met.’ According to this policy, screening is performed on inmates upon arrival and
booking to ensure that emergent and urgent health needs are met.”110 Second, Plaintiff asserts
that “CCS and OPSO’s policy, namely the chronic disease policy, states that, ‘CCS is to evaluate
patients with a chronic disease on a continuous basis.’ It further states that, ‘a chronic disease
107
Dennis v. Wiley, 09–236 (La. App. 2 Cir. 9/11/09); 22 So. 2d 189 Hardy v. Bowie, 98–2821 (La. 9/8/99),
744 So.2d 606, 613.
108

Rec. Doc. 146-1 at 5.

109

Spiller, 130 F.3d at 167.

110

Rec. Doc. 143 at 8.

16

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treatment plan will be completed when appropriate.’” 111 Third, “Correct Care Solutions
(CCS)…violated their own Policies, Procedures, and Practices…”112 Fourth, “[Decedent] had an
emergent health need of the Sickle-Cell diseases ‘crisis,’ which Defendants CCS and OPSO did
not properly attend.”113
In detailing CCS’ alleged violations of its policies and failure to properly treat Decedent,
Plaintiff asserts that: (1) CCS failed to obtain hospital records from Decedent’s hospitalization that
occurred a month prior to his incarceration;114 (2) CCS conducted an intake screening of Decedent
on September 24, 2015, but did not record Decedent’s episodes of severe joint pain and
cramping;115 (3) CCS did not record lab studies when Decedent visited the care facility on October
13, 2015;116 (4) CCS did not render a specific disposition after Decedent received a mental health
screening on October 20, 2015;117 (5) CCS did not document any other medical visits between
October 20, 2015 and November 12, 2015;118 (6) Decedent’s symptoms had been progressing
during this time but CCS did not act to treat Decedent;119 (7) “CCS and OPSO failed to implement
a treatment plan in order to treat [Decedent] for his chronic disease even though he kept having

111

Id. at 9.

112

Id. at 5.

113

Id. at 9.

114

Id. at 9.

115

Id.

116

Id. at 5 –6.

117

Id. at 6.

118

Id.

119

Id. at 7.

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the same Sickle-Cell crisis symptoms;” (8) when Decedent presented before CCS on November
12, 2015 with a sickle-cell crisis, CCS delayed for three hours before transferring Decedent to the
hospital, and then the private transport took an additional two hours to deliver Decedent to the
hospital;120 and (9) CCS’ delayed therapy in addressing these acute medical issues was a key factor
in Decedent’s death.121
CCS challenges these allegations by asserting that the second amended complaint does not
identify an actual policy or custom that is the moving force behind the constitutional violations.122
Rather, CCS insists, the second amended complaint only highlights an alleged failure to comply
with policies, and an alleged failure to comply cannot be a moving force behind a constitutional
violation.123 CCS is incorrect, however, when it insists that a failure to comply with medical
standards is not a sufficient policy or custom under the Monell standard.124 An entity can be held
liable under § 1983 for a policy or custom of failing to provide medical treatment.125 The true
deficiency with Plaintiff’s allegations is that Plaintiff does not plausibly allege that CCS had such
a policy of failing to provide medical care.
A plaintiff may establish a “policy or custom” under the Monell standard by showing “(1)

120

Id. at 7–8.

121

Id. at 8.

122

Rec. Doc. 146-1 at 5.

123

Id.

Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir. 1999) (“[I]nadequate medical care by a prison doctor can
result in a constitutional violation for purposes of a § 1983 claim when that conduct amounts to “deliberate indifference
to [the prisoner's] serious medical needs”, “constitut[ing] the ‘unnecessary and wanton infliction of pain’ proscribed
by the Eighth Amendment.”) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
124

125

Cardenas v. Lee Cty., Tex., 569 F. App'x 252, 255 (5th Cir. 2014) (analyzing whether Petitioner
established that county had policy of denying medical care to inmates).

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[an] express policy of violating the Constitution, (2) a widespread practice or custom—even if that
custom has not received formal approval by an official decision-making body—or (3) a decision
by an individual with express policy-making authority.”126 Here, Plaintiff clearly does not plead
that CCS had an express policy of failing to provide medical treatment. In fact, Plaintiff alleges
the opposite when she includes language from CCS’ policies on intake screening, health
assessments, and chronic disease treatment. Plaintiff likewise fails to plead that a policymaker
within CCS decided that CCS would not provide treatment for Decedent. Thus, the Court must
determine whether Plaintiff has pleaded sufficient facts to show that the CCS’ alleged failure to
provide medical care was a widespread practice or custom.
Under Fifth Circuit precedent, a custom may be evidenced by “a persistent, widespread
practice of [] officials or employees, which, although not authorized by officially adopted and
promulgated policy, is so common and well-settled as to constitute a custom that fairly represents
[corporate] policy ... Actions of officers or employees of a [corporation] do not render the
[corporation] liable under section 1983 unless they execute official policy as above defined.”127
This standard requires that “[the] actions must have occurred for so long or so frequently that the
course of conduct warrants the attribution to the governing body of knowledge that the
objectionable conduct is the expected, accepted practice of [corporate] employees.”128 “Isolated

126

Cardenas, 569 F. App'x at 255 (citing Monell v. Dept. of Social Services of N.Y., 436 U.S. 658, 690–91

(1978)).
127

Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001) (quoting Webster v. City of Houston, 735
F.2d 838, 842 (5th Cir. 1984) (en banc)).
128

Webster, 735 F.2d at 842.

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unconstitutional actions by [corporate] employees will almost never trigger liability,”129 and “[a]
customary [corporate] policy cannot ordinarily be inferred from single constitutional
violations.”130
In the second amended complaint, Plaintiff alleges that CCS failed to maintain adequate
records on Decedent, conduct laboratory tests on Decedent, create a chronic care treatment plan
for Decedent, respond to Decedent’s complaints, monitor Decedent’s condition, and promptly
transfer Decedent to the hospital. 131 A review of these allegations reveals that Plaintiff only
discusses a failure to provide treatment in regard to one person—Decedent. Though these facts
may allege that CCS failed to provide treatment to Decedent, they do not establish a persistent or
widespread failure by CCS to provide treatment. Plaintiff includes zero allegations that CCS
engaged in this behavior before or that CCS failed to provide treatment to other inmates. Thus,
Plaintiff only pleads facts that allege one isolated violation. The Fifth Circuit has repeatedly held
that “[i]solated violations are not the persistent, often repeated, constant violations, that constitute
custom and policy as required for [corporate] section 1983 liability.”132 Therefore, based on the
allegations in the second amended complaint, Plaintiff does not allege a persistent, widespread

129

Id. at 578 (citing Bennett v. City of Slidell, 728 F.2d 762, 768 n. 3 (5th Cir. 1984)).

130

Id. at 581.

131

Rec. Doc. 143 at 5–10.

132

Piotrowski, 237 F.3d at 581 (quoting Bennett v. City of Slidell, 728 F.2d 762, 768 n. 3 (5th Cir.1984));
see also Gates v. Texas Dep't of Protective & Regulatory Servs., 537 F.3d 404, 437 (5th Cir. 2008) (finding two
instances of unconstitutional conduct insufficient to evince a policy or custom); Cardenas v. Lee Cty., Tex., 569 F.
App'x 252, 256 (5th Cir. 2014) (“These two isolated failures in judgment cannot, however, establish
a custom or policy of denying medical care to inmates.”); Arshad ex rel. Arshad v. Congemi, No. 08-30061, 2009 WL
585633, at *8 (5th Cir. Mar. 9, 2009) (dismissing Monell claim for failure to show a “custom” where plaintiffs “point
to only one similar previous incident”).

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custom as required by Monell.
Additionally, Monell liability requires a showing that a policymaker was involved in
implementing the policy or was aware of the policy.133 Plaintiff does not identify a policymaker
at CCS or show that a policy of failure to provide treatment was persistent enough to be known by
a CCS’ policymaker. Where Plaintiff fails to plausibly allege that a policymaker at CCS had “either
actual or constructive knowledge of the alleged policy,” 134 CCS cannot be held corporately
responsible for the actions of discrete employees.135 “Monell and later decisions reject municipal
[or corporate] liability predicated on respondeat superior.”136 Therefore, Plaintiff does not meet
the requirements for alleging a violation under 42 U.S.C. § 1983 and all of Plaintiff’s § 1983 claims
against CCS must be dismissed.
B.

Negligence Claim
Finally, CCS asserts that Plaintiff’s state law negligence claims should be dismissed

because Plaintiff identifies no specific conduct by CCS or any CCS employee which could be in
violation of any duty owed by it.137 In opposition, Plaintiff contends that she has plead sufficient
facts to state a negligence claim, pointing to the factual allegations discussed above. 138
In the second amended complaint, Plaintiff includes CCS’ policy on intake screening and

133

See Piotrowski, 237 F.3d at 578.

134

Cox, 430 F.3d at 748–49.

135

See Piotrowski, 237 F.3d at 578.

136

Id.

137

Rec. Doc. 89-1 at 6.

138

Rec. Doc. 143 at 5–10.

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health care assessment, CCS’ chronic disease policy, and CCS’ commitment to ensuring that
urgent health needs are met.”139 Plaintiff then alleges that CCS failed to create a treatment plan
for Decedent, did not monitor his condition, and delayed in responding to Decedent’s urgent health
needs. 140 Plaintiff describes laboratory tests taken at the hospital that indicate that Decedent’s
condition “had been progressing for a period of time prior to his admission.”141 Plaintiff asserts
that CCS’ delayed treatment and failure to abide by its policies were a “principal factor” in
Decedent’s declining health and ultimate death.142
Construing these claims liberally in favor of Plaintiff,143 Plaintiff has plausibly plead that
CCS undertook a duty to provide medical care to Decedent, CCS’ actions fell below their standard,
and CCS’ actions contributed to Plaintiff’s worsened condition and ultimately his death. CCS
insists that Plaintiff does not explain or meet her burden of proving that CCS actions rise to the
level of negligence, but on a motion to dismiss, a Plaintiff need only allege enough facts to raise a
claim that is “plausible on its face.”144 The Court finds that Plaintiff’s allegations in the second
amended complaint raise a plausibly claim against CCS for negligence pursuant to Article 2315.
Therefore, the Court will deny CCS’ motion to dismiss the negligence claim.

139

Id. at 8–9.

140

Id. at 5–10.

141

Id. at 7.

142

Id. at 8.

143
Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); see
also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322–23 (2007).
144

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2008)).

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IV. Conclusion
Based on the foregoing, the Court has determined that Plaintiff has not stated a claim
against CCS pursuant to 42 U.S.C. § 1983, but Plaintiff does state a claim for relief under Louisiana
Civil Code Article 2315.
Accordingly,
IT IS HEREBY ORDERED that CCS’ “Motion to Dismiss”145 is GRANTED IN PART
and all actions against CCS under 42 U.S.C. § 1983 are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the motion is DENIED in all other respects.

29th

NEW ORLEANS, LOUISIANA, this _____ day of April, 2019.
29th

_________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

145

Rec. Doc. 146.

23