Idel v. Leblanc et al
Filing
43
ORDER: IT IS HEREBY ORDERED that Defendants' 33 Motion to Dismiss is GRANTED IN PART to the extent that Plaintiff's official capacity claims against all Defendants are dismissed without prejudice, pursuant to Rule 12(b)(1). IT IS FURTHER ORDERED that Defendants' 33 Motion to Dismiss is GRANTED IN PART to the extent that Plaintiff's claims against Defendants LeBlanc, McCain, Bickham, Kelly, Tynes, Knight, Singh, Young, and McVea are dismissed with prejudice for failure to state a claim upon which relief may be granted, pursuant to Rule 12(b)(6). IT IS FURTHER ORDERED that Defendants' 33 Motion to Dismiss is DENIED IN PART as to Plaintiff's Section 1983 individual claims against Defendant Pope. IT IS FURTHER ORDERED that Defendants' prior 27 Motion to Dismiss, is DENIED AS MOOT, as Plaintiff subsequently filed an Amended Complaint and Defendants filed a new motion to dismiss. Signed by Chief Judge Nannette Jolivette Brown on 8/16/2018. (mmv)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KENNETH IDEL
CIVIL ACTION
VERSUS
NO. 17-1553
SECRETARY JAMES M. LEBLANC ET AL
SECTION “G”(4)
ORDER AND REASONS
Before the Court are Plaintiff Kenneth Idel’s (“Plaintiff”) and Defendant Dr. Casey
McVea’s (“McVea”) objections to the Report and Recommendation of the United States
Magistrate Judge assigned to this case.1 Plaintiff, formerly incarcerated at Rayburn Correctional
Center (“RCC”), filed a complaint under 42 U.S.C. § 1983, arguing that Defendants James M.
LeBlanc (“LeBlanc”), Sandy McCain (“McCain”), Keith Bickham (“Bickham”), Beverly Kelly
(“Kelly”), Jonathan Tynes (“Tynes”), Richard Pope (“Pope”), Theresa Knight (“Knight”),
McVea, Dr. Raman Singh (“Singh”), and Tamyra Young (“Young”) (collectively, “Defendants”)
violated his constitutional rights during and after a fight between Plaintiff and fellow inmate Brian
Irvin (“Irwin).2
On August 30, 2017, Defendants filed a joint motion to dismiss for lack of subject matter
jurisdiction and for failure to state a claim.3 Plaintiff filed an opposition on September 19, 2017.4
On October 17, 2017, Plaintiff filed an Amended Complaint.5 On October 31, 2017, Defendants
1
Rec. Docs. 40, 41.
2
Rec. Doc. 1.
3
Rec. Doc. 27.
4
Rec. Doc. 29.
5
Rec. Doc. 31.
1
filed another motion to dismiss for lack of subject matter jurisdiction and failure to state a claim.6
On November 13, 2017, Plaintiff filed an opposition.7 On March 2, 2018, the Magistrate Judge
issued a partial Report and Recommendation, recommending that Defendants’ motion to dismiss
be granted in part as to Plaintiff’s Section 1983 individual claims against Defendants LeBlanc,
McCain, Bickham, Kelly, Tynes, Knight, Singh, and Young with prejudice, denied in part as to
Plaintiff’s Section 1983 individual claims against Defendants McVea and Pope, and granted in
part as to Plaintiff’s Section 1983 official capacity claims against Defendants.8
After reviewing the complaint, the motions to dismiss, the Magistrate Judge’s Report and
Recommendation, the objections, the record, and the applicable law, for the following reasons, the
Court will adopt the Report and Recommendation in part by granting Defendants’ motion to
dismiss as to Plaintiff’s Section 1983 individual capacity claims against Defendants LeBlanc,
McCain, Bickham, Kelly, Tynes, Knight, Singh, and Young with prejudice and denying
Defendants’ motion to dismiss as to Plaintiff’s Section 1983 individual capacity claim against
Pope. Furthermore, the Court will reject the Magistrate Judge’s recommendation that Defendants’
motion to dismiss be denied as to Plaintiff’s Section 1983 individual capacity claims against
McVea and grant the motion to dismiss as to those claims. Last, the Court will adopt the Report’s
recommendation that the Court grant Defendants’ motion to dismiss Plaintiff’s Section 1983
official capacity claims as to all Defendants, however, it will reject the Magistrate Judge’s
6
Rec. Doc. 33.
7
Rec. Doc. 35.
8
Rec. Doc. 39.
2
recommendation that these claims be dismissed with prejudice and dismiss Plaintiff’s 1983 official
capacity claims without prejudice.9
I. Background
A.
Factual and Procedural Background
On February 23, 2017, Plaintiff filed the Complaint, pursuant to 42 U.S.C. § 1983, against
Defendants.10 Plaintiff, a former inmate at the RCC, alleges that on November 10, 2015, a physical
altercation occurred between Plaintiff and another inmate, Irvin, and that at least four correctional
officers intervened to break up the fight, including Defendant Pope.11 Plaintiff alleges that when
attempting to restrain Plaintiff, Defendant Pope threw Plaintiff to the floor, dragged him, and then
after Plaintiff was handcuffed, allegedly “dropped his right knee on [Plaintiff’s] head, which
smashed [Plaintiff’s] face against the concrete floor and broke [Plaintiff’s] jaw.”12 In the
Complaint, Plaintiff contends that the RCC staff and leadership were deliberately indifferent in
their alleged failure to provide Plaintiff with constitutionally required medical care.13
On August 30, 2017, Defendants filed a joint motion to dismiss for lack of subject matter
jurisdiction and for failure to state a claim.14 Plaintiff filed an opposition on September 19, 2017.15
9
The Court also notes that the Magistrate Judge cited 28 U.S.C. § 636(b)(1). This statute only apply to in forma
papueris complaints. Here, the record indicates that Plaintiff was not proceeding IFP. Therefore, to the extent that the
Magistrate Judge relies on this standard, the Court rejects those recommendations and will only consider the motions
to dismiss under a Rule 12(b)(1) and Rule 12(b)(6) standard.
10
Rec. Doc. 1.
11
Id. at 7.
12
Id.
13
Id.
14
Rec. Doc. 27. The Court will not address the merits of this motion to dismiss as the Plaintiff subsequently filed an
amended complaint and this motion will be denied as moot.
15
Rec. Doc. 29.
3
On October 17, 2017, Plaintiff filed an Amended Complaint.16 On October 31, 2017, Defendants
filed another motion to dismiss for lack of subject matter jurisdiction and failure to state a claim.17
On November 13, 2017, Plaintiff filed an opposition.18
The Magistrate Judge issued a partial Report and Recommendation on March 2, 2018.19
On March 7, 2018, Defendant McVea filed Objections to the Report and Recommendation.20 On
March 8, 2018, Plaintiff filed Objections to the Magistrate Judge’s Report and Recommendation.21
B.
Defendants’ Arguments in Support of Motion To Dismiss
In the motion to dismiss, Defendants first argue that to the extent that Plaintiff is asserting
a monetary claim against Defendants in their official capacity, such claims are barred by the
Eleventh Amendment and must be dismissed.22 Defendants then turn to the specific claims against
Defendants and argue that they should be dismissed pursuant to Rule 12(b)(6) as Plaintiff has
failed to state a claim to relief that is plausible on its face.23 Defendants first address Plaintiff’s
excessive force claim against Pope and argue that the claim should be dismissed because Pope
16
Rec. Doc. 31.
17
Rec. Doc. 33.
18
Rec. Doc. 35.
19
Rec. Doc. 39.
20
Rec. Doc. 40.
21
Rec. Doc. 41.
22
Rec. Doc. 33-1 at 3.
23
Id. at 4.
4
only used the required force to gain control of an inmate involved in a violent physical altercation
with another inmate.24
Defendants then address Plaintiff’s medical deliberate indifference claims. First,
Defendants argue that Plaintiff’s claim against Tynes should be dismissed as Plaintiff’s only
factual allegations against Tynes is that Plaintiff requested ice from Tynes and that Tynes did not
provide it.25 Defendants argue that this omission fails to rise to the level of deliberate indifference,
particularly because Tynes is not a medical professional, there were no orders or prescriptions
informing Tynes of any need for Plaintiff to have ice, and last because Plaintiff received ice from
another prison employee later that afternoon.26 Next, Defendants argue that Plaintiff’s claims
against McVea should be dismissed because, while Plaintiff may have disagreed with McVea’s
treatment plan, McVea used his medical training and judgment to provide treatment for Plaintiff
and was clearly not deliberately indifferent to Plaintiff as McVea responded to Plaintiff’s medical
complaints with multiple examinations, prescriptions, and referrals.27 As to Singh and Young,
Defendants argue that Plaintiff’s allegations that Singh and Young delayed scheduling an
appointment with a specialist are conclusory at best.28 Defendants contend that Plaintiff has failed
to even allege that Singh or Young were deliberately indifferent to Plaintiff’s needs nor that
Plaintiff suffered any actual damage because of Singh and Young’s alleged actions or omissions.29
24
Id. at 5–6.
25
Id. at 8.
26
Id. at 8–9.
27
Id. at 10–11.
28
Id. at 11.
29
Id. at 12.
5
Next, Defendants argue that Plaintiff’s claims against the remaining defendants, LeBlanc,
McCain, Bickham, Kelly, and Knight should be dismissed as Plaintiff’s claims against them are
based entirely upon their position as supervisors within the DOC and RCC.30 Defendants argue
that to assert a claim against a supervisory official, Plaintiff must plausibly allege that a supervisor
was personally involved in the acts that caused the alleged deprivation of constitutional rights or
that there was a causal connection between the supervisor’s act and the alleged constitutional
violation.31 Because Defendants argue that Plaintiff has alleged neither, Defendants assert that
Plaintiff’s claims against these Defendants should be dismissed for failure to state a claim upon
which relief can be granted.32
Last, Defendants argue that if the Court decides that Plaintiff has stated a plausible claim
for relief against any of the Defendants, the Defendants are entitled to qualified immunity, “as they
were public officials performing their official duties and their conduct in performance of said
duties did not violate any clearly established statutory or constitutional rights of the Plaintiff.”33
C.
Plaintiff’s Arguments in Opposition
In opposition, Plaintiff first asks the Court to delay a finding as to Defendants’ qualified
immunity argument until the parties complete discovery.34 Next, Plaintiff contends that the
Amended Complaint validly asserts an excessive force claim against Pope because at the time
30
Id.
31
Id.
32
Id. at 13.
33
Id. at 14–18.
34
Rec. Doc. 35.
6
Pope “kneed” Plaintiff, Plaintiff posed no threat as he was handcuffed and lying face down on the
floor.35
Plaintiff then turns to his medical deliberate indifference claims against the remaining
Defendants. Plaintiff argues that McVea acted with deliberate indifference when he failed to
immediately send Plaintiff to the hospital after McVea examined him following the November
2015 physical altercation and when McVea “withheld” Plaintiff’s Tramadol prescription.36 As to
Defendants LeBlanc, McCain, Bickham, Kelly, and Knight, Plaintiff argues that these supervisors
were deliberately indifferent because they maintained “a deficient and unconstitutional health care
system,” which resulted in Plaintiff not being provided essential medical are in a timely fashion.37
Last, Plaintiff asks the Court for leave to amend the Amended Complaint.38
D.
Report and Recommendation Findings
The Magistrate Judge recommends that Defendant’s motion to dismiss be granted as to
Plaintiff’s Section 1983 individual claims against Defendants LeBlanc, McCain, Bickham, Kelly,
Tynes, Knight, Singh, and Young with prejudice for failure to state a claim upon which relief can
be granted and recommends denying Defendants’ motion to dismiss as to Plaintiff’s Section 1983
individual claims against McVea and Pope.39
First, the Report addresses Plaintiff’s official capacity claims.40 The Report notes that
Defendants contend that the claims against them for monetary damages in their official capacities
35
Id. at 6.
Id. at 8.
37
Id. at 10.
36
38
Id.
39
Rec. Doc. 39.
40
Id. at 5.
7
are barred under the Eleventh Amendment.41 The Magistrate Judge agreed, determining that
because the State has not waived its immunity under the Eleventh Amendment, Plaintiff’s § 1983
claims against Defendants in their official capacity must be dismissed with prejudice under Rule
12(b)(1).42
The Magistrate Judge then addressed Plaintiff’s excessive force claim against Defendant
Pope.43 Defendant Pope argues that Plaintiff never alleged that Pope intended to cause harm when
he broke up the fight between Plaintiff and the other inmate, and that the Amended Complaint
admits that Pope was attempting to gain control of a combative inmate, making the use of force
necessary.44 Plaintiff contends that the Amended Complaint articulated that Pope broke Plaintiff’s
jaw intentionally and that Pope kneed the back of Plaintiff’s head into a concrete walkway without
reason, as Plaintiff was already in handcuffs and lying on the ground.45 After reviewing the United
States Supreme Courts cases, Hudson v. McMillian and Whitley v. Albers, the Magistrate Judge
found that Plaintiff sufficiently pleaded a claim for excessive force against Pope in the Complaint
and that whether the force applied by Pope was necessary, the result of a perceived threat, or could
have been tempered, is not clear from the record.46 The Magistrate Judge also found that Pope was
not entitled to qualified immunity and that therefore Plaintiff’s claim against Pope should
proceed.47
41
Id. at 5–6.
42
Id.
43
Id. at 6.
44
Id.
45
Id.
46
Id. at 6–8.
47
Id. at 8–10.
8
The Report then addressed Plaintiff’s claims of medical indifference against Defendants
Tynes, McVea, Singh, and Young, who contend that these claims should be dismissed.48 The
Magistrate Judge acknowledged Plaintiff’s reliance on the Eleventh Circuit decision Surber v.
Dixie County Jail, but explained that the applicable standard for providing constitutional medical
care was established by the United States Supreme Court in Estelle v Gamble.49 The Magistrate
Judge stated that the standard for deliberate indifference is that the alleged deprivation is
sufficiently serious and that the defendant possessed a culpable state of mind.50
The Magistrate Judge first addressed Plaintiff’s allegation that Tynes did not provide
Plaintiff ice when requested by Plaintiff but that Plaintiff was then provided with ice later in the
day.51 The Magistrate Judge found that Tynes’ failure to provide ice does not mean that Tynes
knew and disregarded an excessive risk to Plaintiff’s health.52 Therefore, the Magistrate Judge
recommended that Plaintiff’s claims against Tynes be dismissed for failure to state a claim upon
which relief may be granted.53
The Report next addressed Plaintiff’s claim against McVea, a doctor at RCC, and
Plaintiff’s claim that McVea’s decision to delay the use of Tramadol and to place Plaintiff on a
modified, but not liquid, diet constituted deliberate indifference.54 McVea argues that Plaintiff’s
48
Id. at 10.
49
Id.
50
Id. at 10–11.
51
Id. at 12.
52
Id.
53
Id.
54
Id.
9
claims against McVea must fail because McVea used his medical training and judgment.55
According to the Report, Plaintiff alleged that another RCC doctor, Dr. Starnes, prescribed
Plaintiff ibuprofen and ordered that Plaintiff receive a soft diet and that Dr. Christianson, a hospital
surgeon, prescribed Plaintiff Tramadol and a full liquid diet.56 Plaintiff also claims that Dr. Esenou,
another hospital doctor, prescribed Plaintiff Tramadol and a soft diet.57 Plaintiff claims he did not
receive the Tramadol until February 27, 2016, and that Dr. McVea refused to reorder Ensure for
him, “result[ing] in six months of pain and continued discomfort in his mouth, misalignment of
the jaw, and difficulty chewing.”58 The Magistrate Judge determined that a question remained
regarding whether McVea, knowing the substantial risk to Plaintiff’s health, responded in
reasonable way, by only administering ibuprofen when the two non-prison doctors prescribed
Plaintiff Tramadol, and by failing to provide Plaintiff with a liquid diet.59 Therefore, the Magistrate
Judge found that Plaintiff had stated a claim against McVea.60 The Magistrate Judge also
determined that McVea was not entitled to qualified immunity, as Defendants do not dispute that
Plaintiff’s broken jaw posed a substantial health risk and because Plaintiff alleges McVea failed
to administer Tramadol or provide a liquid diet, despite it being prescribed by hospital
physicians.61
55
Id.
56
Id. at 13.
57
Id.
58
Id. at 13–14.
59
Id.
60
Id. at 15.
61
Id. at 16.
10
Next, the Magistrate Judge addressed Plaintiff’s claims against Singh and Young.62 The
Report states that while Plaintiff filed an opposition to Defendants’ motion to dismiss, he did not
address his claims against Singh and Young.63 According to the Report, Plaintiff alleges that
Young and Singh scheduled Plaintiff’s surgery appointment 21 days after the prisoner altercation
and neither Young nor Singh scheduled his follow up appointment after his first surgical procedure
was cancelled.64 The Report found that Plaintiff made no allegation that Young or Singh knew of
the hospital’s instruction to reschedule Plaintiff’s surgical appointment as soon as possible.65
Accordingly, the Magistrate Judge recommended that Plaintiff’s claims against Young and Singh
be dismissed for failure to state a claim.66
Last, the Magistrate Judge turned to Plaintiff’s claims against Defendants LeBlanc,
McCain, Bickham, Kelly, and Knight.67 The Report determined that these five Defendants are
supervisors and that Plaintiff’s claims against them implicate vicarious liability.68 The Magistrate
Judge explained that the only way supervisors could be vicariously liable for Plaintiff’s diet or the
need to reschedule his surgical appointment is if the supervisors were directly involved or if they
failed to train their subordinates, which the Magistrate Judge found Plaintiff never alleged.69
Therefore, to hold these supervisors liable, the Magistrate Judge explained that Plaintiff would
62
Id.
63
Id. at 17.
64
Id.
65
Id.
66
Id. at 18.
67
Id.
68
Id. at 19.
69
Id. at 19–20.
11
need to prove Defendants were ‘personally involved in the acts causing the deprivation of his
constitutional rights or that a causal connection exists between an act of [the defendant] and the
alleged constitutional violation.”70 The Magistrate Judge determined that Plaintiff failed to allege
that these Defendants were personally involved in any acts that caused the deprivation of his
constitutional rights or that a causal connection existed between any of these Defendants’ acts and
the alleged constitutional violation.71 As such, the Report recommends that the claims against
Defendants LeBlanc, McCain, Bickham, Kelly, and Knight be dismissed for failure to state a
claim.72
C.
Plaintiff’s Objections
Plaintiff objects to the “limited factual findings” in the Report and Recommendation and
the Magistrate Judge’s conclusion that claims against Defendants LeBlanc, McCain, Bickham,
Kelly, Tynes, Knight, Singh, and Young should be dismissed.73
As to the Magistrate Judge’s factual findings, Plaintiff contends that the Report and
Recommendation does not address the Plaintiff’s “detailed” claims against Defendants, which
Plaintiff argues renders the Report’s legal analysis inaccurate.74 As to the Magistrate Judge’s legal
conclusions, Plaintiff argues that the Complaint alleges sufficient facts to show that Defendants
violated Plaintiff’s Eighth Amendment rights.75 Plaintiff relies on an Eleventh Circuit case, Suber
70
Id. at 20 (quoting in part Douthit v. Jones, 641 F.2d 345, 346 (5th Cir. 1981)).
71
Id.
72
Id.
73
Rec. Doc. 41.
74
Id. at 6.
75
Id.
12
v. Dixie County Jail, for what Plaintiff argues is the “appropriate and constitutional care that should
be given to inmates with injuries similar” to Plaintiff’s.76 Plaintiff argues that because he did not
receive the same level of medical care as in Suber, Plaintiff’s constitutional rights were violated
and that this demonstrates that the named Defendants acted with deliberate indifference toward
Plaintiff’s medical needs.77
Plaintiff then transitions to the Report’s conclusions about particular Defendants,
beginning with Defendant Tynes.78 Plaintiff contends that the Magistrate Judge mischaracterizes
the Amended Complaint’s allegations regarding Tynes.79 The Magistrate Judge found that Plaintiff
did not allege that Tynes was aware of a doctor’s order to provide Plaintiff with ice and determined
that Tynes’ failure to provide ice did not mean Tynes “knew and disregarded an excessive risk to
[Plaintiff’s] health.”80 Plaintiff contends that this is mischaracterization of his argument because
Plaintiff eventually received ice from a nonmedical correctional officer in a separate unit because
the “medical need for it was so apparent that every laymen would recognize that care was
required.”81 Plaintiff contends his claim against Tynes should not be dismissed because Tynes
“chose not to provide [Plaintiff] with the treatment he needed despite its availability . . . and his
clear duty to do so.”82
76
Id. at 7.
77
Id.
78
Id. at 8.
79
Id.
80
Id.
81
Id.
82
Id.
13
Next, Plaintiff addresses his claims against Defendants LeBlanc, McCain, Bickham, Kelly
and Knight, arguing that the Magistrate Judge is incorrect in the Report’s conclusion that Plaintiff
is seeking vicarious liability against these Defendants, but rather that the Amended Complaint
articulates that each of these Defendants directly violated Plaintiff’s constitutional rights by
“knowingly maintaining a deficient and unconstitutional health care system for inmates.”83
Plaintiff contends that these Defendants knew or should have known of the constitutional problems
related to medical care at the DOC and the RCC and that they “intentionally disregarded the risks”
caused by a medical care system which allegedly fails to provide prescribed medical diets and
access to essential care.84 Furthermore, Plaintiff asserts that Defendants had direct knowledge of
Plaintiff’s “situation” because he made emergency sick calls and wrote to Defendant LeBlanc,
who allegedly responded to Plaintiff’s complaints but did not resolve the alleged unconstitutional
care Plaintiff was receiving.85 Plaintiff claims this “omission” constitutes deliberate indifference
under the Eighth Amendment.86
Last, Plaintiff turns to Defendants Singh and Young, whom Plaintiff contends were
responsible for scheduling medical appointments at facilities outside of the DOC.87 Plaintiff argues
that Singh and Young received notice that Plaintiff had broken his jaw on November 17, 2015,
and scheduled an appointment for him 21 days after such notice, “fully aware of the consequences
83
Id. at 8–9.
84
Id.
85
Id. at 9.
86
Id. at 10.
87
Id.
14
of not immediately treating a broken jaw.”88 Plaintiff characterizes this as a “deliberate decision”
that violated Plaintiff’s right to medical care and caused unnecessary pain and suffering.89
D.
Dr. McVea’s Objections
Defendant McVea objects to the Magistrate Judge’s recommendation that Plaintiff’s claims
against McVea should be allowed to proceed.90 McVea objects to “a minor but important
misreading of Plaintiff’s factual allegations as to Dr. McVea” and argues that the legal conclusions
reached by the Magistrate Judge are inconsistent with Fifth Circuit precedent.91
As to the factual allegations regarding McVea, McVea notes that the Report and
Recommendation states that Plaintiff alleges in the Amended Complaint that McVea failed to
follow the treatment plan prescribed to Plaintiff, which included a “soft” diet, and that Plaintiff
never received a liquid diet.92 McVea notes that in the Amended Complaint, Plaintiff alleges that
after being examined by Defendant McVea and Dr. Starnes, Dr. Starnes ordered that Plaintiff
should receive a “soft” diet and that Plaintiff’s food service was modified, as he began receiving
fruit and a bottle of Ensure.93 McVea notes that Plaintiff admits that he was provided Ensure in the
Amended Complaint, which McVea characterizes as a liquid nutritional supplement, because
Plaintiff alleges that in March 2016, McVea refused to reorder it.94
88
Id.
89
Id.
90
Rec. Doc. 40.
91
Id. at 2.
92
Id.
93
Id.
94
Id.
15
As to the legal conclusions reached in the Report and Recommendation, McVea alleges
that they are inconsistent with prevailing Fifth Circuit precedent on (1) prescribing pain
medications, (2) differing medical treatment decisions, and (3) alleged delays in medical care.95
McVea discusses the first two issues, the prescription of pain medications and differing
medical treatment decisions, together.96 McVea argues that Plaintiff admits: (1) he was prescribed
ibuprofen by Dr. Starnes the same day he was initially examined by Drs. Starnes and McVea; (2)
Plaintiff continued to receive ibuprofen; and (3) McVea began prescribing Plaintiff Tramadol on
February 27, 2016.97 McVea argues that merely because Plaintiff alleges that other doctors
previously prescribed Plaintiff Tramadol in December 2015 and early February 2016 did not entitle
Plaintiff to receive it from that point forward until when Dr. McVea began prescribing it in late
February 2016.98
McVea challenges the Report’s conclusion, which cites a case from the Tenth Circuit,
holding that a doctor refusing to provide a prescription issued by a different doctor is sufficient to
state an Eighth Amendment claim.99 McVea asserts that the Fifth Circuit in Stewart v. Murphy
wrote that merely because a doctor did not follow the recommendations of another doctor does not
constitute deliberate indifference.100 Furthermore, McVea asserts that the Fifth Circuit has
repeatedly addressed prisoners’ claims of inadequate or incorrect prescriptions of pain medication
95
Id. at 2–3.
96
Id. at 3.
97
Id.
98
Id.
99
Id.
100
Id. at 3–4.
16
and has regularly determined that such decisions were in the doctor’s discretion and did not
constitute deliberate indifference under the Eighth Amendment.101
Last, McVea objects to the Magistrate Judge’s conclusion that there are sufficient questions
regarding the alleged delay in Plaintiff receiving outside medical care for a surgical assessment.102
McVea asserts that this case is distinguishable from the cases cited by the Magistrate Judge, where
a prisoner’s medical issues were ignored and prison officials intentionally delayed medical care or
referrals.103 McVea argues that such a conclusion is not supported by Plaintiff’s pleadings as
Plaintiff was examined immediately after the initial “incident,” which only showed a laceration to
the Plaintiff’s lip, and that Plaintiff makes no allegations in the Amended Complaint that he alerted
the RCC medical staff to any issues with his jaw or that RCC staff noted any such issues.104 McVea
alleges that Plaintiff’s own allegations demonstrate that McVea did not ignore Plaintiff’s
complaints, refuse to treat him, or treat him incorrectly.105 Furthermore, McVea asserts that the
Amended Complaint does not allege that McVea demonstrated any behavior that would show a
101
Id. at 4 (citing Blank v. Bell, 634 F. App'x 445, 449 (5th Cir. 2016) (unpublished); Burton v. Owens, 511 F. App'x
385, 389-90 (5th Cir. 2013) (unpublished); Iruegas v. Poe, 374 F. App'x 513, 517 (5th Cir. 2010) (unpublished);
Bunton v. Corr. Corp. of Am., 286 F. App'x 242, 243-44 (5th Cir. 2008) (unpublished); Clifford v. Doe, 303 F. App'x
174, 175-76 (5th Cir. 2008) (unpublished); Baez v. INS, No. 06-30112, 2007 U.S. App. LEXIS 20048, at *2-5 (5th
Cir. Aug. 22, 2007) (unpublished); Porter v. Hemphil, 244 F. App'x 568, 569 (5th Cir. 2007) (unpublished); Chambers
v. Jeter, 247 F. App'x 490, 491 (5th Cir. 2007) (unpublished); Williams v. Bearry, 273 F.3d 1096 (5th Cir. 2001)
(unpublished); Williams v. Chief of Med. Operations, Tarrant Cty. Jail, No. 94-10115, 1994 U.S. App. LEXIS 40963,
at *6 (5th Cir. Dec. 27, 1994) (unpublished); Chaney v. Richards, No. 94-50203, 1994 U.S. App. LEXIS 42383, at *2
(5th Cir. Nov. 17, 1994)).
102
Id.
103
Id. at 5.
104
Id.
105
Id.
17
wanton disregard for Plaintiff’s serious medical needs.106 McVea points to the following
allegations in the Amended Complaint:
1) that on November 17, 2015, the first time Dr. McVea and Dr. Starnes saw
Plaintiff, Dr. McVea “instructed Dr. Starnes to fill out an urgent referral form to
DOC headquarters for Mr. Idel to have oral surgery”, 2) that Defendants Singh and
Young scheduled an appointment for Plaintiff for December 3, 2015; and 3) that
Plaintiff was transported to and seen by a specialist at University Hospital on
December 3, 2015 (wherein Dr. Christianson initially scheduled Plaintiff for
surgery on December 11, 2015 and subsequently cancelled said surgery). Following
this time period, Plaintiff alleges that he made one sick call on January 12, 2016,
that he was examined by Dr. Starnes on January 19, 2016, and that Plaintiff was
seen by a specialist at University Hospital for follow-up appointments on February
17, 2016 and “in early May of 2016.”107
McVea argues that Plaintiff’s own allegations demonstrate that McVea appropriately and
immediately reacted by requesting Plaintiff see a specialist and by prescribing Plaintiff pain
medication and a soft diet “during the relevant periods.”108 McVea relies on three Fifth Circuit
cases, which McVea analogizes to show that Plaintiff has not stated a claim against McVea for
deliberate indifference.109
II. Legal Standards
A.
Standard on a Rule 12(b)(1) Motion to Dismiss
“Federal courts are courts of limited jurisdiction,” and “possess only that power authorized
by the Constitution and statute.”110 Thus, under Rule 12(b)(1), “[a] case is properly dismissed for
lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to
106
Id.
107
Id. at 5–6.
108
Id. at 6.
109
Id. at 6–7 (citing Harris v. Hegmann, 198 F.3d 153, 160 (5th Cir. 1999) , Oakley v. Hudson, 670 F. App'x 291, 292
(5th Cir. 2016)(unpublished); Thomas v. Carter, 593 F. App'x 338 (5th Cir. 2014)(unpublished).
110
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted).
18
adjudicate the case.”111 In ruling on a Rule 12(b)(1) motion to dismiss, the Court may rely on: (1)
the complaint alone, presuming the allegations to be true; (2) the complaint supplemented by
undisputed facts; or (3) the complaint supplemented by undisputed facts and the court’s resolution
of disputed facts.112 The plaintiff, as the party asserting jurisdiction, has the burden of proving
subject matter jurisdiction by a preponderance of the evidence.113
B.
Standard on a Rule 12(b)(6) 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.”114 A motion to dismiss for failure to state
a claim is “viewed with disfavor and is rarely granted.”115 “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.’”116 “Factual allegations must be enough to raise a right to relief above the
speculative level.”117 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.”118
111
Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1000 (5th Cir. 1998) (internal citation
omitted).
112
Den Norske Stats Ojeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001). See also Williamson v.
Tucker, 645 F.2d 404, 413 (5th Cir. 1981).
113
See Vantage Trailers, Inc. v. Beall Corp., 567 F.3d 745, 748 (5th Cir. 2009) (internal citations omitted).
114
Fed. R. Civ. P. 12(b)(6).
115
Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).
116
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2008)).
117
Twombly, 550 U.S. at 556.
118
Id. at 570.
19
On a motion to dismiss, asserted claims are liberally construed in favor of the claimant,
and all facts pleaded are taken as true.119 However, although required to accept all “well-pleaded
facts” as true, a court is not required to accept legal conclusions as true.120 “While legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations.”121
Similarly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements” will not suffice.122 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.123 That is, the complaint must offer more than an “unadorned, the defendantunlawfully-harmed-me accusation.”124 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.125 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.126
C.
Legal Standard on Qualified Immunity
To plead a Section 1983 claim, Plaintiff is required to allege facts demonstrating that (1)
119
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).
120
Iqbal, 556 U.S. at 677–78.
121
Id. at 679.
122
Id. at 678.
123
Id.
124
Id.
125
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009).
126
Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007); Moore v. Metro. Human Serv. Dep’t, No. 09-6470, 2010
WL 1462224, at * 2 (E.D. La. Apr. 8, 2010) (Vance, J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)).
20
the defendant violated the Constitution or federal law, and (2) that the defendant was acting under
the color of state law while doing so.127
The doctrine of qualified immunity protects government officials sued in their individual
capacities “from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”128
Qualified immunity is an “immunity from suit rather than a mere defense to liability.”129 In this
manner, “[o]ne of the most salient benefits of qualified immunity is protection from pretrial
discovery, which is costly, time-consuming, and intrusive.”130 Once a defendant invokes the
defense of qualified immunity, the plaintiff carries the burden of demonstrating its
inapplicability.131
In Saucier v. Katz, the Supreme Court set forth a two-part framework for analyzing whether
a defendant was entitled to qualified immunity. 132 Part one asks the following question: “Taken in
the light most favorable to the party asserting the injury, do the facts alleged show the officer’s
conduct violated a constitutional right?”133 Part two inquires into whether the allegedly violated
right is “clearly established” in that “it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.”134 The Court does not have to address these two questions
127
See Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252–53 (5th Cir. 2005).
128
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
129
Pearson v. Callahan, 555 U.S. 223, 237 (2009).
130
Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012).
131
Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009).
132
533 U.S. 194 (2001).
133
Id. at 201.
134
Id. at 202.
21
sequentially; it can proceed with either inquiry first.135
“If the defendant’s actions violated a clearly established constitutional right, the court then
asks whether qualified immunity is still appropriate because the defendant’s actions were
‘objectively reasonable’ in light of ‘law which was clearly established at the time of the disputed
action.’”136 Officials “who reasonably but mistakenly commit a constitutional violation are entitled
to immunity.”137
In the context of a motion to dismiss, “a district court must first find ‘that the plaintiff’s
pleadings assert facts which, if true, would overcome the defense of qualified immunity.’”138
“Thus, a plaintiff seeking to overcome qualified immunity must plead specific facts that both allow
the court to draw the reasonable inference that the defendant is liable for the harm he has alleged
and that defeat a qualified immunity defense with equal specificity.”139 After the district court
determines that plaintiff’s pleadings meet this requirement, “if the court remains ‘unable to rule
on the immunity defense without further clarification of the fact,’ it may issue a discovery order
‘narrowly tailored to uncover only those facts needed to rule on the immunity claim.’”140
D.
Review of the Magistrate Judge’s Report and Recommendation
In accordance with Local Rule 73.2, this case was referred to the Magistrate Judge to
provide a Report and Recommendation. A district judge “may accept, reject, or modify the
135
See Pearson, 555 U.S. at 236 (“On reconsidering the procedure required in Saucier, we conclude that, while the
sequence set forth there is often appropriate, it should no longer be regarded as mandatory.”); see also Cutler v.
Stephen F. Austin State Univ., 767 F.3d 462, 469 (5th Cir. 2014).
136
Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010) (citing Williams v. Bramer, 180 F.3d 699, 703 (5th Cir.
1999)).
137
Williams, 180 F.3d at 703 (quoting Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 490 (5th Cir. 2001)).
138
Backe, 691 F.3d at 648 (quoting Wicks v. Miss. State Emp’t Servs., 41 F.2d 991, 994 (5th Cir. 1995)).
139
Id. at 645.
140
Id. (quoting Lion Boulos v. Wilson, 834 F.2d 504, 506 (5th Cir. 1987)).
22
recommended disposition” of a magistrate judge on a dispositive matter.141 A district judge must
“determine de novo any part of the [Report and Recommendation] that has been properly objected
to.”142 A district court’s review is limited to plain error for parts of the report which are not properly
objected to.143
III. Law and Analysis
A.
Plaintiff’s Claims Against Defendants in their Official Capacities
In the motion to dismiss, Defendants argue that to the extent that Plaintiff is asserting a
monetary claim against Defendants in their official capacity, such claims are barred by the
Eleventh Amendment and must be dismissed. Plaintiff does not address Defendants’ argument in
the opposition to Defendants’ motion to dismiss and did not object to the Report and
Recommendation’s finding that the Eleventh Amendment bars monetary claims against these
Defendants in their official capacity.
As the Fifth Circuit has explained, a claim for monetary damages against a state employee
in his official capacity is barred by the Eleventh Amendment.144 Moreover, claims that are barred
by the Eleventh Amendment must be dismissed without prejudice pursuant to Federal Rule of Civil
Procedure 12(b)(1).145 Therefore, reviewing for plain error and finding none, the Court adopts the
Magistrate Judge recommendation that the official-capacity claims against Defendants be
dismissed pursuant to Rule 12(b)(1); however, unlike the Magistrate’s recommendation, the Court
141
Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).
142
Fed. R. Civ. P. 72(b)(3).
143
See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded by statute
on other grounds, 28 U.S.C. § 636(b)(1) (extending time to file objections from ten to fourteen days).
144
Williams v. Thomas, 169 F. App’x 285, 286 (5th Cir. 2006).
145
Id.
23
finds that because these claims are barred by the Eleventh Amendment, they must be dismissed
without prejudice, as the Court lacks subject matter jurisdiction over them.146
B.
Plaintiff’s Individual Capacity Claims Against Tynes
Plaintiff claims that Tynes was deliberately indifferent to Plaintiff’s medical care when
Tynes failed to provide Plaintiff with ice for his injured jaw. The Report and Recommendation
determined that the “the failure to provide ice does not mean that Tynes knew and disregarded an
excessive risk to Idel’s health.” In Plaintiff’s Objections to the Report and Recommendation,
Plaintiff argues that Tynes was deliberately indifferent because, as evidenced by another prison
official allegedly giving him ice, even nonmedical prison officials could tell that Plaintiff required
ice.
Claims of deliberate indifference by prison personnel to a prisoner’s serious medical needs
are actionable under Section 1983. A prison official acts with deliberate indifference if he/she has
actual knowledge of substantial risk of harm and disregards that risk. “[D]isagreement between an
inmate and his physician concerning whether certain medical care was appropriate is actionable
under § 1983 only if there were exceptional circumstances.”147
As explained above, Plaintiff’s only claim against Tynes was that he did not receive ice
after requesting it from Tynes. Plaintiff provides no facts to support an allegation that Tynes was
substantially aware of the risk of substantial harm, beyond asserting in the Objections that another
prison official later gave Plaintiff ice. Accordingly, on de novo review, the Court adopts the
Magistrate Judge's recommendation that to grant Defendants’ motion to dismiss with prejudice as
146
See id.
Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995) (citing Varnado v. Lynaugh, 920 F.2d 320, 321 (5th
Cir.1991)). See also Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).
147
24
to Plaintiff's medical claim against Tynes in his individual capacity for failure to state a claim upon
which relief may be granted.
C.
Plaintiff’s Individual Capacity Claims Against Singh and Young
Plaintiff also claims that Defendants Singh and Young, whom Plaintiff contends were
responsible for scheduling medical appointments at facilities outside of the DOC, were deliberately
indifferent to Plaintiff’s medical care. In the Amended Complaint, Plaintiff alleges that Dr.
Christianson scheduled Plaintiff for surgery and later canceled the surgical appointment. Plaintiff
alleged that he believes that neither Young nor Singh scheduled the follow-up appointment after
cancellation of the surgical procedure, as directed by the doctor, but provides no factual allegations
that the doctor directed them to do so. In the Objections to the Report and Recommendation,
Plaintiff does not raise the issue of the rescheduling of the surgical appointment, but argues instead
that Singh and Young received notice that Plaintiff had broken his jaw on November 17, 2015 and
scheduled an appointment for him 21 days after such notice, “fully aware of the consequences of
not immediately treating a broken jaw.”148 Plaintiff characterizes this as a “deliberate decision”
that violated Plaintiff’s right to medical care and caused unnecessary pain and suffering.
As explained above, claims of deliberate indifference by prison personnel to a prisoner’s
serious medical needs are actionable under Section 1983. A prison official acts with deliberate
indifference if he/she has actual knowledge of substantial risk of harm and disregards that risk.
“[D]isagreement between an inmate and his physician concerning whether certain medical care
was appropriate is actionable under § 1983 only if there were exceptional circumstances.”149
148
Rec. Doc. 41 at 10.
149
Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995) (citing Varnado v. Lynaugh, 920 F.2d 320, 321 (5th
Cir. 1991)); see also Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).
25
Further, a delay in medical care may constitute an Eighth Amendment violation only if there has
been deliberate indifference, which resulted in substantial harm.150
In the Amended Complaint, Plaintiff failed to allege that either Young or Singh were
deliberately indifferent to Plaintiff’s medical needs, only that they scheduled his surgery 21 days
after his original injury. Plaintiff fails to provide any factual allegations that would make it
plausible that Young or Singh were of a culpable mind or that the alleged delay in scheduling the
surgery caused substantial harm. Accordingly, on de novo review, the Court adopts the Magistrate
Judge's recommendation to grant Defendants’ motion to dismiss with prejudice as to Plaintiff's
medical claim against Young and Singh in their individual capacities for failure to state a claim
upon which relief may be granted.
D.
Plaintiff’s Individual Capacity Claims Against McVea
Next, the Court will address Plaintiff’s individual claims against McVea. In the Amended
Complaint, Plaintiff alleges that McVea’s actions toward Plaintiff’s medical care constituted
medical indifference. Specifically, Plaintiff alleges that Defendant McVea failed to provide
Plaintiff with a liquid diet, despite being prescribed one by other doctors, and that McVea failed
to provide Plaintiff with Tramadol until late February 2016, despite two hospital doctors
prescribing it for Plaintiff, one in December 2015 and one in early February 2016. The Magistrate
Judge found that there existed a question of whether, knowing there was a substantial risk to
Plaintiff’s health, McVea acted reasonably when he only provided Plaintiff with ibuprofen. In his
Objections, McVea argues that under Fifth Circuit precedent, a difference in medical opinion does
150
Easter v. Powell, 467 F.3d 459, 461 (5th Cir. 2006).
26
not constitute deliberate indifference and that the Fifth Circuit has repeatedly determined that
decisions on what pain medications to prescribe are in a doctor’s discretion.
The Report and Recommendation states that a doctor’s failure to provide a prescription
issued by another doctor is sufficient to state a claim under the Eighth Amendment, citing the
Tenth Circuit decision in Hunt v. Uphoff.151 While that may be the case under Tenth Circuit
precedent, the Fifth Circuit has repeatedly and consistently determined that a doctor’s failure to
follow the advice of another doctor or provide medication prescribed by another doctor is not
sufficient to state a claim for medical indifference, but rather only indicates a difference in medical
opinion.152 In the analysis in this section of the Report, the Magistrate Judge relies on cases from
the Second, Seventh, and Tenth Circuit cases, while failing to mention relevant Fifth Circuit
precedent on the legal standard for differences in medical opinion and alleged delays in treatment.
The Fifth Circuit has held that to demonstrate deliberate indifference in the medical
context, “the plaintiff must show that the 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.’”153 Further, “a doctor's failure to follow the
advice of another doctor suggests nothing more than a difference in medical opinion.”154 Neither
unsuccessful medical treatment nor mere negligence rises to the level of deliberate indifference.155
151
Rec. Doc. 39 at 14 (citing 199 F.3d 1220, 1223-24 (10th Cir. 1999)).
152
See, e.g., Stewart v. Murphy, 174 F.3d 530, 535 (5th Cir. 1999). Maybe add some newer cases
153
Domino v. Texas Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001) (quoting Johnson v. Treen, 759
F.2d 1236, 1238 (5th Cir. 1985)).
154
Clifford v. Doe, 303 F. App'x 174, 176 (5th Cir. 2008) (citing Stewart v. Murphy, 174 F.3d 530, 535 (5th Cir.
1999)).
155
Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (citing Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.
1985) and Fielder v. Bosshard, 590 F.2d 105, 107 (5th Cir.1979)).
27
A delay in medical care may constitute an Eighth Amendment violation if there has been deliberate
indifference, which resulted in substantial harm.156
Here, Plaintiff has failed to sufficiently plead deliberate indifference by McVea. In the
Complaint and Amended Complaint, Plaintiff failed to allege any facts that show that McVea’s
failure to provide Plaintiff with a liquid diet or his delay in providing Plaintiff with Tramadol is
anything more than reflective of a difference in medical opinion from the hospital doctors who had
earlier prescribed Plaintiff Tramadol and a special diet. Further, Plaintiff has not alleged any facts
that show that McVea was aware of a substantial risk to Plaintiff’s health by failing to prescribe
him either Tramadol or a liquid diet. Rather, Plaintiff has alleged facts that weigh against his claim
that McVea acted with deliberate indifference, including that McVea provided Plaintiff with
Ensure, though not consistently;157 modified Plaintiff’s diet, though not converting it into a fully
liquid one;158 and kept Plaintiff on ibuprofen and several months later began providing Plaintiff
with Tramadol.159
Last, Plaintiff complains that McVea’s failure to send him to the hospital immediately after
McVea examined him on November 17, 2017, constitutes medical indifference. However, Dr.
McVea did not ignore Plaintiff’s injuries, but rather, according to Plaintiff’s own allegations in the
Amended Complaint, directed his staff to immediately fill out an urgent referral form for Plaintiff
to have oral surgery.160 Plaintiff alleges that McVea continued to treat Plaintiff and recommended
156
Easter v. Powell, 467 F.3d 459, 461 (5th Cir. 2006).
157
Rec. Doc. 32 at 10, 12.
158
Id. at 10.
159
Id. at 9, 10.
160
Id. at 9.
28
urgent medical care. None of these factual allegations evince a “wanton disregard for any serious
medical needs” and therefore Plaintiff has failed to assert a deliberate indifference claim against
McVea.
Accordingly, on de novo review, the Court rejects the Magistrate Judge's recommendation
that Defendants’ motion to dismiss as to Plaintiff's medical claim against McVea be denied and
determines that Defendants’ motion to dismiss as to Plaintiff’s Section 1983 individual claims
against McVea should be dismissed with prejudice for failure to state a claim upon which relief
may be granted.
E.
Plaintiff’s Claims Against Defendants LeBlanc, McCain, Bickham, Kelly and Knight
Plaintiff brings claims against Defendants LeBlanc, McCain, Bickham, Kelly and Knight,
asserting that these Defendants were responsible for the operations and medical care of inmates
and the medical treatment they received at RCC. The Magistrate Judge found that Plaintiff’s claims
against these Defendants implicate vicarious liability, so that the only way they could be held liable
were if the Defendants were directly involved in the alleged constitutional violation or if they
failed to train their subordinates, as there is no respondeat superior liability under section 1983.
The Magistrate Judge found that Plaintiff failed to allege either in his Complaint and that therefore,
Plaintiff’s claims against these Defendants must be dismissed for failure to state a claim upon
which relief can be granted.
In his Objections, Plaintiff asserts that he was not asserting vicarious liability against these
Defendants, but rather that these Defendants were “knowingly maintaining a deficient and
unconstitutional health care system for inmates at RCC” and that these Defendants had direct
knowledge of Plaintiff’s situation. To find these Defendants liable, Plaintiff must establish either
that the defendants were “personally involved in the acts causing the deprivation of his
29
constitutional rights or that a causal connection exists between an act of [the defendant] and the
alleged constitutional violation.”161 Here, Plaintiff has not sufficiently pleaded either in his
Complaint or his Amended Complaint. Furthermore, the Fifth Circuit has stated that this test
cannot be met if there is no underlying constitutional violation.162 As the Court has found that
Plaintiff has failed to sufficiently plead a constitutional violation related to the medical treatment
he received, his claims against these supervisory Defendants cannot proceed. Accordingly, on de
novo review, the Court adopts the Magistrate Judge's recommendation to grant Defendants’ motion
to dismiss with prejudice as to Plaintiff's claims against Defendants LeBlanc, McCain, Bickham,
Kelly and Knight for failure to state a claim upon which relief may be granted.
F.
Plaintiff’s Claims Against Pope
In the Report and Recommendation, the Magistrate Judge recommended that Defendants’
motion to dismiss as to Plaintiff’s claims against Pope should proceed because Plaintiff had
sufficiently pleaded a claim for excessive force and because whether the force applied by Pope
was necessary, the result of a perceived threat or could have been tempered, is not clear from the
record. Further, the Magistrate Judge found that Pope was not entitled to qualified immunity. As
Pope did not object to the Report and Recommendation, finding no plain error,163 the Court will
adopt the Magistrate Judge’s recommendation that Defendants’ motion to dismiss as to Plaintiff’s
claim for excessive force against Pope be denied.
161
Douthit v. Jones, 641 F.2d 345, 346 (5th Cir. 1981).
162
Rios v. City of Del Rio, 444 F.3d 417, 425-26 (5th Cir. 2006) (citing Breaux v. City of Garland, 205 F.3d 150, 161
(5th Cir. 2000)).
163
See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded by
statute on other grounds, 28 U.S.C. § 636(b)(1) (extending time to file objections from ten to fourteen days).
30
IV. Conclusion
For the reasons stated above, the Court adopts the Magistrate Judge’s Report and
Recommendation in part, granting Defendants’ motion to dismiss with prejudice as to Plaintiff’s
Section 1983 claims against Defendants LeBlanc, McCain, Bickham, Kelly, Knight, Young,
Singh, and Tynes in their individual capacities for failure to state a claim for which relief can be
granted and denying Defendants’ motion to dismiss as to Plaintiff’s Section 1983 claim against
Pope in his individual capacity. Furthermore, the Court adopts the Magistrate Judge’s
recommendation in part, granting Defendants’ motion to dismiss as to Plaintiff’s official capacity
claims against Defendants; however, the Court will reject the Magistrate Judge’s recommendation
that the official capacity claims be dismissed with prejudice and the Court dismisses these claims
without prejudice, pursuant to Fifth Circuit case law. Last, the Court will reject the Report and
Recommendation in part, granting Defendants’ motion to dismiss with prejudice as to Plaintiff’s
Section 1983 individual claims against McVea for failure to state a claim upon which relief can be
granted. Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss164 is GRANTED IN
PART to the extent that Plaintiff’s official capacity claims against all Defendants are dismissed
without prejudice, pursuant to Rule 12(b)(1).
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss165 is GRANTED IN
PART to the extent that Plaintiff’s claims against Defendants LeBlanc, McCain, Bickham, Kelly,
164
Rec. Doc. 33.
165
Rec. Doc. 33.
31
Tynes, Knight, Singh, Young, and McVea are dismissed with prejudice for failure to state a claim
upon which relief may be granted, pursuant to Rule 12(b)(6).
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss166 is DENIED IN
PART as to Plaintiff’s Section 1983 individual claims against Defendant Pope.
IT IS FURTHER ORDERED that Defendants’ prior Motion to Dismiss, Rec. Doc. 27, is
DENIED AS MOOT, as Plaintiff subsequently filed an Amended Complaint and Defendants filed
a new motion to dismiss.
NEW ORLEANS, LOUISIANA, this 16th day of August, 2018.
____
_________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
166
Rec. Doc. 33.
32
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