Faye v. Terrebonne Parish Consolidated Government et al
ORDER ADOPTING 27 REPORT AND RECOMMENDATIONS: IT IS ORDERED that Plaintiff's claims are DISMISSED WITH PREJUDICE; IT IS FURTHER ORDERED that the 21 motion to dismiss is DISMISSED AS MOOT. IT IS FURTHER ORDERED that Plaintiff's 28 motion for a Spears hearing is DISMISSED AS MOOT. Signed by Judge Ivan L.R. Lemelle on 9/26/2017.(jls)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOSHUA WILLIAM FAYE
TERREBONNE PARISH CONSOLIDATED
GOVERNMENT, ET AL
ORDER AND REASONS
Before the Court is a Report and Recommendation (“the Report”)
issued by Magistrate Judge Karen Wells Roby recommending dismissal
of Joshua William Faye’s (“Plaintiff” or “Faye”) claim, thereby
rendering Nurse Kelly Gaudet’s motion to dismiss as moot. (Rec.
Docs. 21 and 27). In response, Plaintiff timely filed objections.
(Rec. Doc. 31).
For the reasons outlined below,
objections to same, and made part of our opinion;
IT IS ORDERED that Plaintiff’s claims are DISMISSED WITH
IT IS FURTHER ORDERED that the motion to dismiss (Rec. Doc.
21) is DISMISSED AS MOOT.
IT IS FURTHER ORDERED that Plaintiff’s motion for a Spears
hearing (Rec. Doc. 28) is DISMISSED AS MOOT.
Plaintiff is an inmate housed in the Bossier Medium Security
Facility in Plain Dealing, Louisiana. (Rec. Doc. 27 at 1). He filed
this pro se and in forma pauperis complaint pursuant to 42 U.S.C.
(“TPCG”), Warden Claude Triche, Deputy Brody Fanguy, and Nurse
Kelly Gaudet. Id.1
Plaintiff alleges that while incarcerated in the Terrebonne
Parish Criminal Justice Complex (“TPCJC”) he was doing cleaning
work with Deputy Fanguy as Deputy Fanguy was spraying a cleaning
chemical. (Rec. Doc. 1 at 6). Some of the chemical got into Faye’s
eye. Id. When Faye complained of pain, Fanguy responded that the
chemical would not kill him and he would be all right. Id.
Plaintiff and Deputy Fanguy then continued with their work. Id.
Faye alleges he told Nurse Gaudet that the spraying event was
a medical emergency. Id. He states Nurse Gaudet refused to give
him medical attention and instead told him to see the nurse at
8:00 P.M. Id.
In his initial complaint, Plaintiff sought compensation for
his pain and suffering and for “future damages” in the amount of
seventy-five thousand dollars. Id. Additionally, Plaintiff sought
the termination of all defendants or their suspension and the
elimination of their pay. Id.
In his objection to the report, Plaintiff acknowledges that he has no claim
against Warden Claude Triche. (Rec. Doc. 31 at 3).
Magistrate Judge’s Report and Recommendation
Magistrate Judge Roby examined Plaintiff’s claims and whether
Plaintiff was able to state a claim against the parties involved.
(Rec. Doc. 27 at 2-9). She determined that the claim against the
TPCG was invalid due to Plaintiff’s inability to point directly to
a parish policy or custom related to the incident involving the
chemical splash. Id. at 3. Next, she found the claim brought
against Warden Triche frivolous because Warden Triche was not
personally involved in the acts causing the alleged deprivation of
recommended that Plaintiff’s claim for medical indifference be
denied. Id. at 8.
Plaintiff states that he sought medical treatment from
the time he was sprayed at 9:00 A.M. until 4:00 P.M., which is
when Nurse Gaudet made her rounds (Rec. Doc. 31 at 1). At that
point, Nurse Gaudet allegedly told him to wait until 8:00 P.M. Id.
He claims that the spraying event and failure to follow proper
Id. He acknowledges that he has no claim
against Warden Triche. Id. at 3. Plaintiff further objects to
dismissal of the
Nurse Gaudet and Deputy Fanguy and is therefore responsible for
their actions. Id. Finally,
(1) Deputy Fanguy and Nurse Gaudet take responsibility for
apology letter; and (2) the three
Defendants pay his medical bills, court costs, and $1,500 for his
pain and suffering. Id. at 4-5.
LAW & ANALYSIS
To establish liability against a parish government under
(1978); Bennett v. City of Slidell, 728 F.2d
762, 767-68 (5th Cir. 1984); City of Canton, Ohio v. Harris, 489
U.S. 378, 391 (1989) (municipals may be held liable under §
Columbia, 591 F.3d 747 (5th Cir. 2009), a group of street preachers
were conducting an event in Columbia, Louisiana. Id. at 750. An
off-duty State Trooper requested that an on-duty officer move the
preachers to another area. Id. at 750-51. After receiving word
from the State Trooper, the ministers moved to property owned by
First United Methodist Church. Id. at 751. At this time, a State
Trooper informed the preachers that they needed to move. Id. When
they refused to do so, the State Trooper placed the ministers under
arrest. Id. The Ministry organization filed suit against Columbia
complaining that they were liable for infringing the ministers’
rights to free speech. Id. The court held that the ministers could
not point to an ordinance or custom placed by Columbia that lead
ministers attempted to argue that there was a pattern of Columbia
officers infringing upon their rights, the court reasoned that
intervene in the demonstrations, the ministers could not point to
a persistent, widespread practice of infringement upon the rights
of the ministers. Id. at 754-55.
Additionally, in Jones v. Spencer, No. 16-CV-1745, 2016 WL
6574162 (E.D.La. Jan 5, 2017), the court held that an inmate could
not sue the City of New Orleans as a municipality because the
inmate could not point to a policy or custom promulgated by the
city that led to his condition. Id. at *6-7. The inmate was shot
prior to entering prison. Id. at *1. Due to a delay in medical
attention, the inmate felt extreme discomfort and now walks with
a limp. Id. at *2. The court reasoned that since the inmate could
not point to any custom or policy put into place by the City that
led to the delay, the inmate could not state a claim against the
city. Id. at *6-7.
Much like the ministers in World Wide Street Preachers and
the inmate in Spencer, Plaintiff’s claim does not point to any
parish policy or custom related to the incident involving the
chemical spill. Therefore, this claim lacks merit.
Plaintiff’s medical indifference claims against Nurse Gaudet
and Deputy Fanguy arise under the Due Process Clause of the
Fourteenth Amendment, which places a duty on the State and its
actors to protect against harm to persons in confinement. See Hare
v. City of Corinth, 74 F.3d 633, 639 (5th Cir. 1996). To succeed,
the plaintiff must show that an official acted with deliberate
indifference to his constitutional rights. Id. at 636 (citing
Farmer v. Brennan, 511 U.S. 825 (1994)). Deliberate indifference
“unnecessary wanton infliction of pain,” proscribed by the Eighth
Amendment and gives rise to a claim under § 1983. Estelle v.
Gamble, 429 U.S. 97, 104-05 (1976). ”A serious medical need is one
for which treatment has been recommended or for which the need is
so apparent that even a layman would recognize that care is
required.” Gobert v. Caldwell, 463 F.3d 339, 345 n.12 (5th Cir.
2006); Lewis v. Evans, 40 F. App’x 263, 264 (5th Cir. 2011).
Additionally, a prison official is deliberately indifferent if he
or she has actual knowledge of a substantial risk of harm to an
inmate and disregards that substantial risk. Farmer, 511 U.S. at
847; see also Parrish v. Cleveland, 372 F.3d 294, 302 (5th Cir.
While inadequate medical treatment of inmates may rise to the
level of a constitutional violation at a certain point, malpractice
or negligent care does not. Stewart v. Murphy, 174 F.3d 530, 534
(5th Cir. 1999); Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir.
1993) (“It is clear that negligent medical treatment is not a
cognizable basis upon which to predicate a section 1983 action.”);
Williams v. Treen, 671 F.2d 892, 901 (5th Cir. 1982) (“mere
negligence in giving or failing to supply medical treatment would
not support an action under 1983.”); “(same)” Jackson v. Cain, 864
F.2d 1235, 1246 (5th Cir. 1989).
The record shows that while at the TPCJC, Plaintiff complained
about the cleaner in his eyes at 9:00 A.M. on October 28, 2016.
(Rec. Doc. 27 at 8). Although Plaintiff’s treatment occurred hours
later, he was treated the same day. Id. at 6. In fact, Dr.
Gallagher, an internal medicine doctor, found that there was no
corneal scarring in Plaintiff’s eye. Id. at 6-7.
In Mendoza v. Lynaugh, the court held that a prisoner failed
to show that a delay in medical treatment led to substantial harm
and therefore the medical staff was not deliberately indifferent.
989 F.2d at 193. There, Mr. Mendoza suffered an injury in March
1980 to his spine while at work. Id. He received medical care
recommended physical therapy and a seven month delay getting a
recommended back brace. Id. at 193-194. The court reasoned that
Mendoza could not point to either a deliberate indifference to
medical attention or substantial harm resulting from the delay.
Id. at 195. Therefore, the court affirmed the district court’s
Additionally, in Lazard v. Gusman, No. 14-CV-2860, 2015 WL
9652965 (E.D.La. Nov. 30, 2015), the court held that when the
prison delayed providing an inmate with their medication they were
not deliberately indifferent.
Id. at *6. The inmate did not
mental illness. Id. at *1. After requesting medical attention, the
inmate went two weeks without seeing the nurse and then another
two weeks before he was examined by a doctor. Id. at *2. The court
reasoned that ultimately the inmate received the necessary care
and there was no medical indifference. Id at *6.
In the present case, Plaintiff received same-day medical
treatment approximately eleven hours after his alleged injury.
(Rec. Doc. 27 at 7). He was given eye wash and natural tears to
clean his eye. Id. The next day, Plaintiff was seen by a nurse.
Id. Once again, he was treated and told to purchase over-thecounter medicine. Id. Plaintiff’s eye continued to show irritation
which culminated in an examination by an ophthalmologist. Id. He
did not suffer any corneal scarring. Id. at 6-7. Plaintiff received
a prescription for artificial tears and a pair of protective
Plaintiff is unable to show that he endured
substantial harm from a delay in medical attention. Therefore,
medical indifference claims here are without merit.
Plaintiff was unable to point to a policy of the TPCG that
led to his injury or to show that delaying his medical treatment
by a few hours rises to the level of medical indifference. In his
response to the Report, Plaintiff acknowledges that his initial
of evidence. Therefore, his claims are dismissed as frivolous.
New Orleans, Louisiana, this 26th day of September, 2017.
SENIOR UNITED STATES DISTRICT JUDGE
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