Spikes v. McVea et al

Filing 40

ORDER AND REASONS re 24 Motion to Dismiss for Failure to State a Claim - IT IS ORDERED that Defendants Dr. Casey McVea, Lesley Wheat, Wendy Seal, R. Bowman, and Paula Stringer's motion to dismiss is GRANTED in part and DENIED in part. With respect to Plaintiff's 42 U.S.C. § 1983 claims based on violations of the Eighth Amendment and claims based on Louisiana Civil Code article 2315, the motion is DENIED. With respect to Plaintiff's 42 U.S.C. § 1983 claims based on violations of the Fifth Amendment, the motion is GRANTED. IT IS ORDERED Plaintiff's claims against Defendants based on the Fifth Amendment are hereby DISMISSED WITH PREJUDICE. Signed by Judge Susie Morgan. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LARCE SPIKES,
Plaintiff

CIVIL ACTION

VERSUS

NO. 17-8164

DR. CASEY MCVEA, ET AL.,
Defendants

SECTION: “E”(2)

ORDER AND REASONS
Before the Court is a motion to dismiss filed by Defendants Dr. Casey McVea,
Lesley Wheat, Wendy Seal, R. Bowman, and Paula Stringer pursuant to Federal Rule of
Civil Procedure 12(b)(6).1 The motion is opposed.2 For the reasons that follow, the Court
DENIES the motion in part and GRANTS the motion in part.
I.

BACKGROUND3

Plaintiff Larce Spikes is a former inmate at Rayburn Correctional Center
(“Rayburn”). He alleges his broken hip went misdiagnosed as a pulled muscle for fortythree days, and that after undergoing an operation to mend his hip, the medical staff at
Rayburn failed to provide him proper medical treatment, thereby exacerbating and
prolonging his pain. In total, Spikes alleges he was “subjected to nearly nine months of
continuous deliberately indifferent medical care.”4
On June 30, 2016, Spikes, who was forty-four years old at the time, “experienced
a sharp pain in his right groin and hip area while he was engaging in exercise.”5 He then
filed an emergency sick call and was seen by Defendant Paula Stringer, a nurse at

R. Doc. 24.
R. Doc. 31.
3 The background is derived from Plaintiff’s first amended complaint. R. Doc. 21.
4 Id. at ¶ 8.
5 Id.
1

2

1

Rayburn.6 Nurse Stringer concluded Spikes had pulled a muscle, and she advised him to
apply an analgesic balm.7 Five days later, on July 5, 2016, Spikes filed a second emergency
sick call “complaining of pain in his right groin, moving to his thigh,” and was brought to
the infirmary in a wheelchair.8 Nurse Stringer again assessed Spikes’ injury as a muscle
strain.9 She advised Spikes to continue taking ibuprofen and using muscle rub as needed.
According to Spikes, Nurse Stringer told him to “just walk off the pain.”10
On July 6, 2016, Spikes filed another emergency sick call. He informed the nurse
on duty that he “could not walk on his leg and described pain in his right hip radiating
down to his right knee.”11 The nurse told Spikes to continue using ibuprofen and muscle
rub.12 Dr. McVea placed Spikes “on regular duty with restrictions, specifically a bottom
bunk assignment and access to crutches.”13 Nurse Stringer, Nurse Bowman, and Nurse
Wheat all warned Spikes that “he would be written up for filing more emergency sick
calls.”14
On July 14, 2016, Spikes again was brought to the infirmary in a wheelchair
“complaining that he could not stand on his right leg.”15 Nurse Bowman told Spikes that
his pain was caused by a strained muscle, again prescribing muscle rub, and telling Spikes
to “walk it off.”16 The following day, July 15, 2016, Dr. McVea ordered Spikes on to a
temporary “no duty” status for four days.17 On July 19, 2016, the day before his temporary

Id.
Id.
8 Id.
9 Id.
10 Id. at ¶ 9.
11 Id. at ¶ 10.
12 Id.
13 Id.
14 Id. at ¶ 11.
15 Id.
16 Id.
17 Id.
6
7

2

no duty status ended, Spikes returned to the infirmary in a wheelchair. He requested his
no duty status be extended, as “he remained in significant pain and could not walk without
crutches.”18 Dr. McVea did not extend Spikes’ no duty status, and instead placed him on
regular duty with a note that he could continue to use crutches.19 “No other relief was
offered to Mr. Spikes,”20 and Nurse Bowman warned him not to file additional sick calls.
He was again instructed to simply walk off the pain.21
The next day, on July 20, 2016, Spikes made another emergency sick call and was
brought to the infirmary in a wheelchair.22 Nurse Wheat noted Spikes’ repeated
complaints regarding his hip, and issued a disciplinary report, citing Spikes for
“malingering.”23 According to Spikes, this write up caused him to “simply tolerate[] the
excruciating pain of his fractured hip while waiting for his scheduled doctor’s
appointment,” out of fear that he would “lose his privileges or good time” if he
complained.24
On August 9, 2016, Spikes’ sister, Andrea Spikes, spoke to an assistant warden
regarding Spikes’ injury.25 The assistant warden advised Ms. Spikes that her brother had
an appointment scheduled for August 11, 2016 and that his issues would be addressed at
that time.26 Dr. McVea examined Spikes’ hip for the first time during this August 11
appointment. Dr. McVea “noted Mr. Spikes reported he could not stand or bend his right
leg” and “ordered an x-ray.”27 Thereafter, Dr. McVea placed Spikes on “limited duty”
Id. at ¶ 12.
Id.
20 Id.
21 Id.
22 Id. at ¶ 13.
23 Id. at ¶ 14.
24 Id.
25 Id. at ¶ 15.
26 Id.
27 Id. at ¶ 16.
18
19

3

status with “limited lifting,” and ordered that Spikes be moved to the bottom bunk and
given two crutches.28
The x-ray revealed Spikes had “a fracture to his right proximal femur.”29 As a result
of this x-ray, Spikes was transferred to University Medical Center New Orleans (“UMC”)
on August 11, 2016.30
On August 15, 2016, Spikes underwent a four and half hour open reduction and
internal fixation (“ORIF”) surgery to implant a plate and dynamic hip screw (“DHS”).31
According to Spikes, “because of the extended delay between the facture and the surgery,
the bones in [his] hip had already started to heal together incorrectly,” and “the surgeon
was forced to re-fracture Spikes’ hip in order to properly reduce the hip and place the DHS
and plate.”32
Spikes received assessments from a physical therapist and an occupational
therapist on the morning of his discharge from UMC. The physical therapist made
recommendations for “mobility training, gait training, balance training, endurance
training and a program of therapeutic exercises,” and required Spikes to follow the
program for a minimum of three times per week.33 The occupational therapist noted that
for bed mobility and transfers, Spikes would require assistance in rolling, supine to
sitting, and scooting activities.34

Id.
Id. at ¶ 17.
30 Id.
31 Id. at ¶ 19.
32 Id.
33 Id.
34 Id.
28
29

4

Spikes alleges that once he returned to Rayburn following his operation, he again
experienced “extensive delays in receiving essential medical care.”35 “Despite UMC’s
discharge orders providing for physical and orthopedic therapy and his need for
assistance as documented in UMC records, no such therapy or assistance was provided
for him upon his return.”36 Spikes did not receive physical therapy exercises or physical
assistance in getting in and out of bed, and did not receive any coaching or instruction
about how to get in and out of bed without disrupting his stitches. 37 Spikes went without
crutches for nearly twenty-four hours upon his return to Rayburn.38
Spikes remained largely immobile in the week following his surgery. He alleges this
period of inactivity “caused detrimental metabolic changes.”39 On August 23, 2017,
Spikes’ creatine kinase and myoglobin levels began to rise.40 According to the complaint,
“Creatine kinase is an enzyme and myoglobin is a protein; both are present when skeletal
muscle is damaged and can increase when post-operative patients are not provided with
information and physical support to promote tolerable physical exercise in the days after
surgery.”41 As a result of this rise in his creatine kinase and myoglobin levels, Spikes
required an intra venous (IV) saline drip on August 23, 2017.42
On the evening of August 24, 2017, Spikes tried to use the bathroom. He was forced
to travel to the bathroom unsupervised, as Nurse Seal had “abandoned” Spikes in the
course of her shift, “creating a substantial risk” that Spikes might fall.43 “[A]s he was

Id. at ¶ 20.
Id.
37 Id.
38 Id.
39 Id. at ¶ 21.
40 Id. at ¶ 23.
41 Id.
42 Id.
43 Id. at ¶ 24.
35

36

5

attempting to navigate to the bathroom using crutches and the IV pole, Mr. Spikes lost
his balance and fell, tearing the IV out of his skin.”44 Because there was no nurse on the
unit to assist him after he fell, Spikes “had to find a way to raise himself off the floor with
his crutches,” and “had to request an inmate worker who came onto the unit to collect
meal trays to find a nurse to fix the torn IV line.”45 Nurse Seal eventually assisted Spikes
and “simply replaced the old IV dressing.” Although she noted in Spikes’ chart that the IV
dressing was resecured, “the IV leaked for the remainder of the evening.”46
Spikes did not receive any physical therapy or guidance regarding basic range of
motion and strengthening exercises until September 22, 2016, more than five weeks after
his surgery.47 The physical therapist noted “significant deficits in Mr. Spikes’ range of
motion and his reports of continuing pain many weeks after the surgery.”48 The physical
therapist ordered a follow up appointment for Mr. Spikes on October 6, 2017,49 which Dr.
McVea “accepted with the change that Mr. Spikes could use a cane.”50 However, Dr.
McVea did not arrange for a follow up appointment with the physical therapist until
October 20, 2017.51 Records from the October 20, 2016 appointment reflect that Spikes
“adhered to the program plan outlined for him during the September 22, 2016 visit and
experienced improvements to his hip mobility, though he did continue to experience pain
while walking even with a mobility aid.”52 The physical therapist also noted Spikes “had
clear deficits to his hip extension and posture.”53 The physical therapist recommended
Id.
Id.
46 Id.
47 Id. at ¶ 26.
48 Id.
49 Id. at ¶ 27.
50 Id.
51 Id.
52 Id. at ¶ 28.
53 Id.
44
45

6

Spikes discontinue the use of the straight cane and noted that he would reevaluate Spikes’
progress with that change in a follow up appointment for November 3, 2016.54 “Dr. McVea
accepted these orders without changes.”55
On October 27, 2016, Spikes was seen in the UMC orthopedics clinic for a follow
up appointment, and returned to Rayburn with the orders to allow continued use of the
straight cane as needed and to continue physical therapy to promote full return of range
of motion and strength to his hip.56 UMC doctors also ordered Spikes to return in six
weeks for an x-ray to monitor how his hip was healing.57 “Dr. McVea accepted these orders
without any changes.”58 However, Spikes received no further physical therapy and was
not brought in for follow up with UMC.59
On August 23, 2017, Spikes filed a complaint in federal district court. In his
complaint, Spikes brings three § 1983 claims and a state law claim for intentional
infliction of emotional distress against Defendants, each in their individual capacities.60
With respect to Dr. McVea, Spikes brings claims based on 42 U.S.C. § 1983, alleging Dr.
McVea violated his Eighth Amendment right to be free from cruel and unusual
punishment by: (1) establishing unconstitutional procedures and policies related to

Id.
Id.
56 Id. at ¶ 29.
57 Id.
58 Id.
59 Id.
60 The Court notes that in his first amended complaint, Spikes alleges Defendants’ conduct violated both
his Fifth and Eighth Amendment rights. In his opposition to Defendants’ motion to dismiss, however,
Spikes concedes that his claims based on the Fifth Amendment must be dismissed. R. Doc. 31 at 1 (“Plaintiff
notes that because he was a sentenced prisoner during the relevant time period, he will agree to a stipulation
that his claims are only brought pursuant to the Eighth Amendment of the United States Constitution, not
the Fifth Amendment.”).
54
55

7

inmate access to appropriate medical care, (2) failing to train and supervise his
subordinates, and (3) being deliberately indifferent to Spikes’ serious medical needs.61
With respect to Nurse Wheat, Spikes brings claims against her pursuant to § 1983,
alleging Nurse Wheat violated his Eighth Amendment right to be free from cruel and
unusual punishment by: (1) failing to train and supervise her subordinates, and (2) being
deliberately indifferent to Spikes’ serious medical needs.62 Spikes also brings a state law
based claim for intentional infliction of emotional distress against Nurse Wheat pursuant
to Louisiana Civil Code article 2315.63
With respect to the remaining Defendants—Nurse Stringer, Nurse Bowman, and
Nurse Seal—Spikes brings claims arising under: (1) 42 U.S.C. § 1983, alleging these nurses
acted with deliberate indifference to his severe medical needs in violation of the Eighth
Amendment of the U.S. Constitution; and (2) Louisiana Civil Code article 2315, alleging
the nurses intentionally caused Spikes emotional distress.64
On January 22, 2018, Defendants filed a motion to dismiss Spikes’ claims, arguing
that they are entitled to qualified immunity.65
II.

LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss
a complaint, or any part of it, for failure to state a claim upon which relief may be granted
if the plaintiff has not set forth factual allegations in support of his claim that would entitle
him to relief.66 “To survive a motion to dismiss, a complaint must contain sufficient

R. Doc. 21 at 15, 16, 18; R. Doc. 26 at 1–2.
R. Doc. 21 at 15, 16, 18; R. Doc. 26 at 1–2.
63 R. Doc. 21 at 19; R. Doc. 26 at 2.
64 R. Doc. 21 at 19; R. Doc. 26 at 2.
65 R. Doc. 24 at 3.
66 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007).
61

62

8

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”67
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”68 However, the court does not accept as true legal conclusions or mere
conclusory statements,69 and “conclusory allegations or legal conclusions masquerading
as factual conclusions will not suffice to prevent a motion to dismiss.”70 “[T]hreadbare
recitals of elements of a cause of action, supported by mere conclusory statements” or
“naked assertion[s] devoid of further factual enhancement” are not sufficient.71
“Factual allegations must be enough to raise a right to relief above the speculative
level.”72 “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—that
the pleader is entitled to relief.”73
When considering a qualified immunity defense raised in the context of a Rule
12(b)(6) motion to dismiss, the Court must determine whether “the plaintiff’s pleadings
assert facts which, if true, would overcome the defense of qualified immunity.”74 “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.”75

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
Id.
69 Id.
70 S. Christian Leadership Conference v. Supreme Court of the State of La., 252 F.3d 781, 786 (5th Cir.
2001) (citing Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).
71 Iqbal, 556 U.S. at 663, 678 (citations omitted).
72 Twombly, 550 U.S. at 555.
73 Id. (quoting FED. R. CIV. P. 8(a)(2)).
74 Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012); Jordan v. City of New Orleans, No. 15-1922, 2016
WL 633666, at *2 (E.D. La. Feb. 17, 2016).
75 Backe, 691 F.3d at 648; see also Babb v. Dorman, 33 F.3d 472, 475 n.5 (5th Cir. 1994) (“To survive a
motion to dismiss in cases where the qualified immunity defense is raised, a plaintiff must state facts, which
67

68

9

The qualified immunity defense serves to shield government officials, sued in their
individual capacities and performing discretionary functions, “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.”76 “A court
required to rule upon the qualified immunity issue must [first] consider” whether, taken
in the light most favorable to the plaintiff, “the facts alleged show the officer’s conduct
violated a constitutional right.”77 “If no constitutional right would have been violated were
the allegations established, there is no necessity for further inquiries concerning qualified
immunity.”78 If the complaint makes out a constitutional violation, the Court then must
determine whether that constitutional right was clearly established at the time the
violation occurred.79 To be “clearly established” for the purpose of qualified immunity,
“[t]he contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.”80
Qualified immunity attaches when an official’s conduct “‘does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.’”81 For a right to be clearly established, “‘existing precedent must have placed the
statutory or constitutional question beyond debate.’”82 “[T]he contours of the right must
be sufficiently clear that a reasonable official would understand that what he is doing

if proven, would defeat the defense.”); Jackson v. City of Beaumont Police Dep’t, 958 F.2d 616, 620 (5th
Cir. 1992).
76 Kinney v. Weaver, 367 F.3d 337, 349 (5th Cir. 2004).
77 Saucier v. Katz, 533 U.S. 194, 201 (2001).
78 Id.
79 Id.
80 Anderson v. Creighton, 483 U.S. 635, 640 (1987).
81 White v. Pauly, 137 S. Ct. 548, 549 (2017) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per
curiam)).
82 Id.

10

violates that right.”83 “Officials should receive the protection of qualified immunity
‘unless the law is clear in the more particularized sense that reasonable officials should be
put on notice that their conduct is unlawful.’”84 “In other words, immunity protects ‘all
but the plainly incompetent or those who knowingly violate the law.’”85 “The court’s focus,
for purposes of the ‘clearly established’ analysis should be on ‘fair warning’: qualified
immunity is unavailable ‘despite notable factual distinctions between the precedents
relied on and the cases then before the Court, so long as the prior decisions gave
reasonable warning that the conduct then at issue violated constitutional rights.’”86
III.

ANALYSIS

Spikes brings three § 1983 claims based on Defendants’ alleged violations of his
Eighth Amendment rights and a state law claim for intentional infliction of emotional
distress. Because the viability of Spikes’ Eighth Amendment claims depend on whether
he has sufficiently alleged Defendants acted with deliberate indifference, the Court begins
its analysis with Spikes’ third § 1983 claim—that all five Defendants violated the Eighth
Amendment’s prohibition on cruel and unusual punishment when they acted with
deliberate indifference to Spikes’ serious medical needs—before considering Plaintiff’s
claims against Dr. McVea for failure to train and supervise and establishing
unconstitutional policies and practices at Rayburn, and Plaintiff’s claims against Nurse
Wheat for failure to train and supervise. Finally, the Court considers whether Spikes has
stated an actionable claim for intentional infliction of emotional distress against Nurse

Wernecke v. Garcia, 591 F.3d 386, 392 (5th Cir. 2009) (quoting Anderson, 483 U.S. at 640).
Id. at 393 (quoting Kinney, 367 F.3d at 350).
85 White, 137 S. Ct. at 549.
86 Wernecke, 591 F.3d at 392 (5th Cir. 2009) (quoting Hope v. Pelzer, 536 U.S. 730, 740 (2002)).
83

84

11

Wheat, Nurse Stringer, Nurse Bowman, and Nurse Seal pursuant to Louisiana Civil Code
article 2315.
A. Spikes has stated an actionable Eighth Amendment claim against
Defendants for their alleged deliberate indifference to his serious
medical needs
Spikes alleges Defendants acted with deliberate indifference to his severe medical
needs in violation the Eighth Amendment by: (1) failing to provide “timely access to a
qualified medical provider,” (2) failing to provide timely access to “appropriate diagnostic
tests,” (3) threatening to write Spikes up in an attempt “to impede his access to adequate
medical care,” and (4) delaying and failing to provide “adequate post-operative care
consistent with the post-operative treatment plan.”87 According to Spikes, “Defendants
Stringer, Bowman, Wheat, and Seal all subjectively knew of and effectively disregarded a
substantial risk to Mr. Spikes’ health when they opted to make their own diagnosis,
successfully impeded Mr. Spikes’ access to a physician qualified to diagnose his hip for
close to a month and a half, and failed to provide adequate postoperative care to Mr.
Spikes.”88 With respect to Dr. McVea, Spikes submits that “[d]espite his direct knowledge
of Mr. Spikes’ serious and escalating symptoms of pain, Dr. McVea failed to evaluate or
refer Mr. Spikes for basic diagnostic testing for over a month and half” and then “failed to
ensure even the most basic post-operative care in the form of nursing support or physical
therapy to facilitate Mr. Spikes’ healing.”89
In their motion to dismiss, Defendants argue Spikes’ allegations fall “well short of
the high standard of deliberate indifference.”90 According to Defendants, “Plaintiff seems

R. Doc. 31 at 13.
Id. at 14.
89 Id. at 19.
90 R. Doc. 24-1 at 10.
87

88

12

to be mixing the law of qualified immunity and medical malpractice,” and that “a
disagreement among medical personnel is not a sufficient basis for deliberate
indifference.”91 Thus, Defendants argue, even if Spikes has stated a claim for medical
malpractice, he has not sufficiently alleged each of the elements necessary to state a claim
of deliberate indifference.92 Defendants submit that, because Spikes’ allegations fall short
of a claim for deliberate indifference, they are entitled to qualified immunity.93
The Eighth Amendment, made applicable to the states by the Due Process Clause
of the Fourteenth Amendment, proscribes the government’s implementation of cruel and
unusual punishment.94 It is well-established that prison officials inflict cruel and unusual
punishment when they are deliberately indifferent to an inmate’s serious medical needs.95
Thus, if the Court concludes Defendants acted with deliberate indifference to Spikes’
serious medical needs, Defendants’ invocation of qualified immunity must be denied.96
“For an official to act with deliberate indifference, ‘the official must both be aware
of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.’”97 To state a cognizable claim for relief under
this standard, a prisoner must satisfy two requirements: “First, the deprivation alleged
must be, objectively, ‘sufficiently serious’; a prison official’s act or omission must result
in the denial of ‘the minimal civilized measure of life’s necessities.’”98 Second, a plaintiff

Id. at 12.
Id. at 14.
93 Id. at 3–5.
94 Victoria W. v. Larpenter, 369 F.3d 475, 483 (5th Cir. 2004).
95 Id. (citing Estelle v. Gamble, 429 U.S. 97, 103–04 (1976)).
96 See White, 137 S. Ct. at 549.
97 Smith v. Brenoettsy, 158 F.3d 908, 912 (5th Cir. 1998) (quoting Farmer v. Brennan, 511 U.S. 825, 837
(1994)).
98 Farmer, 511 U.S. at 834 (quotation omitted); see also Cooper v. Johnson, 353 F. App’x 965, 967 (5th Cir.
2009) (citing Wilson v. Seiter, 501 U.S. 294, 297 (1991)); Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir.
1999); Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993).
91

92

13

must establish that the defendant possessed a culpable state of mind.99 A prison official
cannot be held liable “unless the official knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.”100 “Such a showing requires the inmate to allege that prison 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.’”101
In this case, Spikes alleges Defendants’ repeated failure to properly diagnose his
broken hip for over a month despite his repeated and escalating complaints, and failure
to provide him with any post-operation physical rehabilitation for six weeks after his hip
surgery amounts to deliberate indifference.
1. Nurse Defendants
Spikes submits the Defendant nurses ignored his deteriorating condition and
independently diagnosed him without authorization, thereby preventing Spikes from
being evaluated by a medical professional capable of properly diagnosing his condition.
In support of his argument, he points to the Eleventh Circuit’s holding in Mandel v. Doe102
and the Fifth Circuit’s holding in Rodrigue v. Moorehouse Detention Center.103 In both
cases, the circuit court concluded that conduct similar to the conduct alleged in this case
satisfied the Eighth Amendment’s two requirements—that the deprivation be “sufficiently

Farmer, 511 U.S. at 834.
Id. at 837.
101 Brewster v. Dretke, 587 F.3d 764, 770 (5th Cir. 2009); see also Bohannan v. Doe, No. 12-10231, 2013
WL 2631197, at *6 (5th Cir. June 12, 2013) (citing Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006)).
102 888 F.2d 783 (11th Cir. 1989).
103 No. 09-cv-985, 2012 WL 4483438, at *6 (W.D. La. Sept. 28, 2012), aff’d sub. nom. Rodrigue v. Grayson,
557 F. App’x 341 (5th Cir. 2014).
99

100

14

serious” and that the defendants contributed to the deprivation with a culpable state of
mind.104
In Mandel, the Eleventh Circuit upheld the district court’s denial of the county’s
motion for a directed verdict on the issue of whether the defendant physician and
physician’s assistants acted with deliberate indifference to an inmate’s serious medical
needs when the inmate’s broken hip went misdiagnosed as a muscle strain for three
months.105 The plaintiff in Mandel felt a sharp pain in his left leg and hip while working
on a prison crew.106 Despite the inmates repeated complaints of extreme discomfort, the
physician’s assistants continued to prescribe the inmate muscle relaxants and bed rest.
Following a jury trial, the jury returned a verdict in favor of the inmate. The defendants
entered a motion for judgment notwithstanding the verdict on the issue of deliberate
indifference, which the district court denied. On appeal, the Eleventh Circuit upheld the
district court’s finding that the physician’s assistants’ actions and inactions constituted
deliberate indifference to the inmate’s serious medical need, explaining that “[w]hen the
need for treatment is obvious, medical care which is so cursory as to amount to no
treatment at all may amount to deliberate indifference.”107
The Fifth Circuit came to a similar conclusion in Rodrigue v. Moorehouse
Detention Center.108 In Rodrigue, the Fifth Circuit upheld the district court’s finding that
a licensed practical nurse’s failure to refer an inmate to the prison’s medical doctor despite
his severe medical need constituted deliberate indifference. The Fifth Circuit explained:

See Farmer, 511 U.S. at 834.
888 F.2d at 783. The court explained that the inmate’s injury took place on July 1, 1982, and that his
broken hip went undiagnosed until after his release from prison in September 1982. Id. at 785–86.
106 Id. at 785.
107 Id. at 789 (citing Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985); West v. Keve,
571 F.2d 158, 162 (3rd Cir. 1978)).
108 557 F. App’x at 341.
104
105

15

[I]t is important to specify that the question is not whether Nurse Grayson
is liable for failing to recognize that Rodrigue had acute appendicitis. As
previously discussed, a LPN is not authorized to make a diagnosis. However,
a LPN, and especially a LPN who is the sole gatekeeper for access to a
physician, must be able to know when there is a risk of a serious condition
that requires additional care. LPN Grayson knew that Rodrigue’s
complaints showed that he was at risk of serious harm. She simply decided
not to respond to that risk. This is not a case where an inmate saw a
physician and that physician made an unfortunately incorrect medical
decision. . . . In this case, despite persistent complaints of extreme
abdominal pain and bilious vomiting for over a week, a prisoner was simply
denied access to a medical professional competent to diagnose and treat his
condition. The Court is convinced that this conduct rose to the level of a
wanton disregard for Rodrigue’s serious medical needs. . . . When a
gatekeeper to emergency care, like LPN Grayson, knowingly disregards a
prisoner’s complaints, she acts with deliberate indifference to that prison’s
medical needs.109
In this case, Spikes alleges the nurse Defendants acted as gate-keepers to his access
to a medical professional competent to diagnose and treat his serious medical condition.
Like the nurses in Rodrigue, the Defendant nurses in this case are not authorized to
diagnose an inmate’s medical condition.110 Because these nurses are not authorized to
diagnose Spikes’ injury, the Defendant nurses “must be able to know when there is a risk
of a serious condition that requires additional care.”111 Construing Spikes’ allegations as
true, despite Spikes’ frequent emergency medical calls, which consistently increased in
severity, and his repeatedly having to be transported to the infirmary in a wheelchair, the
nurses repeatedly and erroneously concluded Spikes’ broken hip was a muscle strain,
provided him with muscle rub, and told him to simply “walk it off.” Moreover, instead of
Id.
See La. R.S. 37:913(13) (“‘Practice of nursing’ means the performance, with or without compensation, by
an individual licensed by the board as a registered nurse, of functions requiring specialized knowledge and
skills derived from the biological, physical, and behavioral sciences. The practice of nursing or registered
nursing shall not be deemed to include acts of medical diagnosis or medical prescriptions of therapeutic or
corrective nature.”); Shields v. Dogencorp, LLC, No. 16-1826, 2016 WL 6892889, at *4 (E.D. La. Nov. 23,
2016) (“Under La. R. S. 37:913(13), a license to practice nursing does not qualify a nurse to render medical
diagnosis or opine on medical causation.”) (citing Dade v. Clayton, No. 12-0680, 2012 U.S. Dist. LEXIS
152285, at *16, 2012 WL 5288005 (W.D. La. Oct. 23, 2012)).
111 Rodrigue, 557 F. App’x at 341.
109
110

16

interpreting Spikes’ inability to walk and persistent complaints as indicative of a serious
medical need, the Defendant nurses threatened Spikes with disciplinary action for
“malingering.”112
Spikes’ repeated emergency medical calls and his physical deterioration made his
need for treatment obvious. The nurse Defendants “knew [Spikes’] complaints showed
that he was at risk of serious harm,” but “simply decided not to respond to that risk.”113
Although the nurse Defendants provided Spikes with muscle rub and ibuprofen, “[w]hen
the need for treatment is obvious, medical care which is so cursory as to amount to no
treatment at all may amount to deliberate indifference.”114 Like the Eleventh Circuit in
Mandel and the Fifth Circuit in Rodrigue, this Court is “convinced that this conduct rose
to the level of a wanton disregard for [Spikes’] serious medical needs,” and therefore finds
Spikes has made out an actionable Eighth Amendment claim against the nurse
Defendants.
Defendants argue the Court must evaluate each Defendants’ subjective deliberate
indifference separately, citing Lawson v. Dallas County.115 The Fifth Circuit in Lawson
was evaluating the sufficiency of the evidence against each Defendant following a jury trial
and the benefit of a thorough discovery process. At the motion to dismiss stage, however,
Identification of a responsible party or parties within a complex,
overlapping chain of command is often a difficult task. Numerous variables
must be factored into the analysis: the amount of information known to
various defendants; the scope of their duties and authority; their training
and expertise; the allocation of decision making power within the
organization; reporting and review relationships; established and formal
decision making procedures; and informal custom and practice. All of this
can be sorted-out. . . . But, given the complexity of this analysis, [plaintiffs]
R. Doc. 12 at ¶ 14.
557 F. App’x at 341.
114 Id. at 789 (citing Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985)); see also West,
571 F.2d at 162.
115 286 F.3d 257, 262 (5th Cir. 2002).
112
113

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should not be penalized at [this] stage for failing to identify precisely which
defendant or defendants dropped the ball.116
In this case, Spikes alleges facts showing each of Defendants’ actions and inactions
contributed to Spikes’ alleged injury. He alleges the nurse Defendants: (1) failed to
identify his serious medical need; (2) misdiagnosed his condition as a muscle strain,
effectively preventing him from being seen by Dr. McVea; (3) threatened him with
disciplinary action should he make any further emergency sick calls; and (4) failed to
monitor and assist him after he underwent surgery. To dismiss an individual Defendant
at this stage would be premature.
In sum, the Court concludes that Spikes has pleaded facts that, if taken as true, reveal
the nurse Defendants’ “wanton disregard for [his] serious medical needs.”117 As a result, the
Court finds Spikes has stated a violation of a clearly established Eighth Amendment right
against the nurse Defendants for their deliberate indifference to Spikes’ serious medical
needs and concludes the nurse Defendants are not entitled to qualified immunity as to this
claim.
2. Dr. McVea
Next, Spikes argues Dr. McVea was aware of his serious and escalating medical
condition but nevertheless failed to evaluate Spikes for over a month and half after Spikes
broke his hip. According to Spikes, the allegation that Dr. McVea had knowledge of Spikes’
severe medical need, but nevertheless failed to evaluate Spikes for six weeks sufficiently
states a claim for deliberate indifference.

Hernandez v. Horn, No. 09-163, 2010 WL 1525513, at *10 (S.D. Tex. Apr. 15, 2010) (citing Shaw ex rel.
Strain v. Strackhouse, 920 F.2d 1135, 1149–50 (3d Cir. 1990)).
117 Brewster, 587 F.3d at 770.
116

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In support of this claim, Spikes points to Thompson v. Ackal.118 In Thompson, the
plaintiff alleged the defendant doctor was “aware that [the plaintiff] was a 16 year-old with
a diagnosed mental disorder (ADHD) which required prescription medication, who was
being held in an adult facility,” and that despite this knowledge, the doctor provided the
plaintiff with prescription medication, without first personally examining him, obtaining
his medical records related to the medication, or speaking with the plaintiff about his
condition.119 The district court denied the defendant’s motion for summary judgment,
explaining that “[b]ased on the foregoing allegations, Plaintiff has alleged a plausible
claim that [the defendant’s] treatment of [the plaintiff] without ever examining him or his
medical records constituted deliberate indifference.120
In his complaint, Spikes alleges Dr. McVea was aware that Spikes had a serious
medical need, but nevertheless failed to timely evaluate or treat him and instead allowed
the nurse Defendants to treat Spikes’ broken hip with muscle rub. In substantiating the
allegation that Dr. McVea had knowledge of Spikes’ medical need, Spikes points to the
nurse Defendants’ referral of Spikes’ chart to Dr. McVea and the changes Dr. McVea
authorized to Spikes’ duty status. According to Spikes, despite his direct knowledge of Mr.
Spikes’ serious and escalating symptoms of pain, Dr. McVea failed to evaluate or refer
Spikes for basic diagnostic testing for over a month and half.
After Spikes underwent surgery, he alleges Dr. McVea failed to ensure even the
most basic post-operative care in the form of nursing support or physical therapy to
ensure Spikes’ hip healed properly. According to Spikes, Dr. McVea “accepted without

118 Thompson

v. Ackal, No. 15-2288, 2016 WL 1394352, at *12 (W.D. La. Mar. 9, 2016), adopted as modified
by No. 15-2288, 2016 WL 1391047 (W.D. La. Apr. 6, 2016).
119 Id.
120 Id. (citing Woodward v. Correctional Medical Services of Illinois, Inc., 368 F.3d 917, 924 (7th Cir.
2008); Davis v. Puryear, 673 So.2d 1298 (La. App. 4 Cir. 1996)).

19

change” Spikes’ physical therapist’s orders that Spikes undergo physical therapy and
return to the hospital for a follow-up appointment, but failed to implement the these
orders, causing Spikes prolonged pain and deficient healing process.121 Accepting these
allegations as true and making all inferences in Spikes’ favor, the Court concludes Spikes
has stated a plausible claim for relief against Dr. McVea. Moreover, because the Court
concludes Spikes has sufficiently alleged Dr. McVea acted with deliberate indifference to
his serious medical needs, Dr. McVea is not entitled to qualified immunity as to this
claim.122
B. Spikes has stated an actionable Eighth Amendment claim against Dr.
McVea for allegedly establishing unconstitutional policies and
procedures to access to appropriate medical care
Spikes alleges McVea violated his Eighth Amendment right to be free from cruel
and unusual punish by (1) “fail[ing] to ensure patients with serious medical complaints
were referred to a physician for appropriate treatment”; (2) “substantially limit[ing]
access to outside hospital care”; (3) “fail[ing] to ensure orders for post-operative care were
implemented and followed by nurses under his direction”; and (4) “fail[ing] to ensure
adequate staffing to provide necessary medical supervision and physical assistance to
vulnerable post-operative patients.”123 According to Spikes, Dr. McVea’s conduct in

R. Doc. 21 at ¶¶ 21–23. See Dauzat v. Carter, 670 F. App’x 297, 298 (5th Cir. 2016) (“The district court
did not err in denying Dr. McVea’s motion to dismiss based on the court’s determination that Dauzat stated
an Eighth Amendment claim and that a reasonable physician in Dr. McVea’s position would understand
that the failure to provide physical therapy as ordered violated Dauzat’s clearly established constitutional
right.”); Baker v. Wilkinson, 635 F. Supp. 2d 514, 521 (W.D. La. 2009) (finding deliberate indifference when
prison doctor’s “inexpert course of treatment supplanted course of treatment recommended by expert
medical opinion”).
122 Farmer, 511 U.S. at 834; see also Austin v. Johnson, 328 F.3d 204, 210 (5th Cir. 2003) (“Since Estelle v.
Gamble, state officials have been on notice that deliberate indifference to a prisoner’s serious medical needs
violates the Eighth Amendment.”).
123 R. Doc. 21 at ¶ 43.
121

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establishing these allegedly unconstitutional procedures allowed Spikes’ condition to
worsen, thereby “causing months of unnecessary and preventable pain and suffering.”124
In his motion to dismiss, Dr. McVea first argues “it is well established that, in
general, no defendant in . . . a [§ 1983] suit can be held liable under any theory of vicarious
liability.”125 Dr. McVea further argues Spikes has not pleaded that Dr. McVea “has
adopted or perpetuated any policy of untimely or inadequate medical care”; rather, Dr.
McVea contends Spikes’ alleges “only that this was the practical effect of [the Defendant
nurses’] negligence in his case.”126 Finally, Dr. McVea submits that for Spikes to make out
an actionable claim, he must “[a]t a minimum . . . plead facts showing that multiple
incidents have occurred under similar circumstances because of a policy or practice.”127
Although generally a supervisory official may not be held liable for the actions of
his subordinates under any theory of respondeat superior simply because his subordinate
allegedly violated an inmates constitutional rights,128 a policymaker may be subject to §
1983 liability for the failure to promulgate constitutionally adequate policies and
procedures.129 The Fifth Circuit detailed the circumstances under which a policymaker
may be subject to § 1983 liability in Rhyne v. Henderson County.130 The court explained:
A municipal “policy” must be a deliberate and conscious choice by a
municipality’s policy-maker. While the municipal policy-maker’s failure to
adopt a precaution can be the basis for § 1983 liability, such omission must
amount to an intentional choice, not merely an unintentionally negligent
oversight. The Supreme Court has held that municipal failure to adopt a

Id.
R. Doc. 24-1 at 17 (citing Iqbal, 556 U.S. at 677).
126 Id. at 18.
127 Id.
128 See Alton v. Tex. A & M Univ., 168 F.3d 196, 200 (5th Cir. 1999).
129 Rhyne v. Henderson Cty., 973 F.2d 386, 392 (5th Cir. 1992); see Doe v. Rains Cty. Indep. Sch. Dist., 66
F.3d 1402, 1412 (5th Cir. 1995).
130 973 F.2d at 392.
124
125

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policy does not constitute such an intentional choice unless it can be said to
have been “deliberately indifferent.”131
Moreover, “[a] failure to adopt a policy can be deliberately indifferent when it is obvious
that the likely consequences of not adopting a policy will be a deprivation of constitutional
rights.”132
In this case, Spikes alleges that as Rayburn’s Medical Director, Dr. McVea is
responsible for establishing appropriate medical procedures at the Rayburn facility.133
Spikes alleges Dr. McVea has either failed to establish or has established inadequate
procedures for the timely diagnoses of inmates’ serious medical conditions and that Dr.
McVea should have known that his practice of failing to timely assess and diagnose
patients with ongoing complaints presented a significant risk of violating the
constitutional rights of his patients.134
Accepting Spikes’ allegations as true, Rayburn has no policy or has an inadequate
policy in place for inmates with ongoing and escalating complaints to be referred to a
medical doctor competent to assess and diagnose their serious medical needs. The “likely
consequences” in the absence of such a policy is for inmates with severe medical needs to
go undiagnosed for an unreasonable amount of time. In this case, Spikes suffered from a
broken hip for forty-three days before being seen by Dr. McVea, despite repeated visits to
the infirmary to which he was brought in a wheelchair and his complaints of increasingly
severe pain. Thus, the Court concludes Dr. McVea’s failure to promulgate a policy under
which inmates with lingering, serious medical needs are seen by a medical professional

Id. (internal citations omitted) (citing City of Canton v. Harris, 489 U.S. 378, 389–90 (1989); Manarite
v. City of Springfield, 957 F.2d 953, 959 (1st Cir. 1992)).
132 Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011) (internal quotations omitted).
133 R. Doc. 21 at ¶¶ 3, 22.
134 R. Doc. 31 at 24.
131

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competent to diagnose and treat the inmates’ serious medical needs in a timely manner
amounts to deliberate indifference, as it is obvious that the likely consequences of not
adopting such a policy will be a deprivation of an inmate’s Eighth Amendment right to be
free from cruel and usual punishment.135
Moreover, the allegations in Spikes’ amended complaint make clear that Spikes’
experience at the Rayburn facility under Dr. McVea’s care is not an isolated incident.
According to Spikes, Dr. McVea “has been the subject of twenty-nine separate complaints
by his patients in the previous five years” and that complaints against him “include
specific allegations regarding the failure to provide constitutionally adequate medical
care.”136 In support of this assertion, among other specific instances of alleged deliberate
indifference, Spikes points to Dr. McVea’s treatment of Joseph Duzant.137 Spikes alleges
Duzant, like Spikes, fell and severely injured himself while exercising at Rayburn. “After
repeated sick calls and requests to be seen by a specialist to assess his continued difficulty
walking and numbness in his hands and feet, [Duzant] was finally seen by Dr. MCVEA [a
month after the accident] and transferred to University Hospital.”138 According Spikes,
Duzant underwent back surgery and his surgeon recommended he received daily physical
therapy. Despite this recommendation, Spikes alleges, Dr. McVea “only provided range of
motion exercises but declined to provide the recommended physical therapy until a court
ordered him to do so.”139 Dr. McVea’s alleged handling of Duzant’s case is strikingly
similar to the case at bar. As a result, the Court concludes Spikes has made allegations
sufficient to make out an Eighth Amendment claim against Dr. McVea for establishing a

973 F.2d at 392.
R. Doc. 21 at ¶¶ 33–35.
137 Id. at ¶ 34(a).
138 Id.
139 Id.
135

136

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policy or practice in which inmates’ serious medical needs at Rayburn go unaddressed by
a competent medical professional, and that this policy or lack thereof results in the
infliction of cruel and unusual punishment to which Dr. McVea was deliberately
indifferent.
As the Court explained supra, because Spikes has made sufficient allegations of
Dr. McVea’s deliberate indifference to inmates’ serious medical needs, and in light of the
Fifth Circuit’s holding in Rhyne v. Henderson County,140 the Court rejects Dr. McVea’s
assertion of the qualified immunity defense as to this claim.
C. Spikes has stated an actionable Eighth Amendment claim against Dr.
McVea and Nurse Wheat for failure to train and supervise
Spikes alleges Dr. McVea and Nurse Wheat failed to train and supervise their
subordinates “to ensure that these subordinates did not ignore patients’ requests and
needs for medical treatment, including the need for proper medications, diagnostic
testing, and/or of providing unreasonable and patently insufficient treatment for
patients’ conditions, and/or failing to properly provide monitoring and follow up with
patients who were treated, all of which caused serious pain, suffering, and injury.”141 He
submits that Dr. McVea and Nurse Wheat’s failure to train and supervise the nursing stuff
working under them violated Spikes’ Eighth Amendment right to be free from cruel and
unusual punishment.
In their motion to dismiss, Defendants again argue that Dr. McVea and Nurse
Wheat cannot be held liable under any theory supervisory liability absent some personal
involvement.142 Further, Defendants submit “Plaintiff has not pled that Dr. McVea or

973 F.2d at 392.
R. Doc. 21 at ¶ 45.
142 R. Doc. 24-1 at 17–18.
140
141

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Nurse Wheat have adopted or perpetuated any policy of untimely or inadequate medical
care, only that this was the practical effect of their negligence in his case and that of his
example of Mr. Dauzat.”143
A supervisory official may not be held liable for the actions of his subordinates
under any theory of respondeat superior simply because subordinate allegedly violated
an inmates constitutional rights.144 However, although a claim arising under § 1983
“requires a degree of causation as an element of individual liability,” “it does not
specifically require ‘personal participation.’”145 For example, if “a supervisory official
breache[s] a state-law duty with deliberate indifference toward a resulting constitutional
injury, he [has] misused the state authority conferred on him to supervise and control his
subordinates.”146 Essentially, “[a] supervisor’s failure to act, coupled with his deliberate
indifference, [i]s tantamount to a conscious decision to allow[] the alleged constitutional
injury to occur or persist.”147
When a “state official [i]s responsible for preventing the constitutional injury[,] his
failure to do so render[s] him directly liable for the deprivation that his subordinate
perpetrated.”148 Thus, when a state law imposes a duty to supervise a subordinate, and
the defendant breaches that duty with deliberate indifference to the potential
constitutional violations his failure to supervise might cause, the defendant may be held
liable for any damages that result from this failure, even if the supervisory official was not

Id.
See Alton, 168 F.3d at 200.
145 Rains, 66 F.3d at 1412.
146 Id. at 1413.
147 Id.
148 Id.
143

144

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directly involved in the subordinate’s unconstitutional actions. As the Fifth Circuit
explained in Doe v. Rains County Independent School District:
This conclusion obtains because the state official was responsible for
preventing the constitutional injury; his failure to do so rendered him
directly liable for the deprivation that his subordinate perpetrated. Such a
supervisory official is liable under § 1983 not because he committed a
distinct constitutional violation by breaching his duty to supervise, but
because his failure to control his subordinate rendered him responsible for
the resulting subordinate misconduct—essentially, he was a legal
participant.149
To state an actionable claim for failure to supervise under § 1983 in this context, a
plaintiff must allege: (1) “the [supervisor] failed to supervise or train the [subordinate],”
(2) “a causal connection existed between the failure to supervise or train and the violation
of the plaintiff’s rights,” and (3) “such failure to supervise or train amounted to gross
negligence or deliberate indifference.”150
1. Dr. McVea
In this case, Spikes has made out an actionable § 1983 claim against Dr. McVea for
his failure to train and supervise the nurses working under him. Pursuant to Louisiana
Revised Statutes § 37:913 and 37:961(4), physicians such as Dr. McVea have a legal duty
to supervise the registered nurses and licensed practical nurses who work under them.151
Thus, Dr. McVea was ultimately responsible for Spikes’ treatment at the Rayburn facility
and Dr. McVea had the legal authority and duty to supervise the nursing staff at Rayburn.
Spikes alleges that (1) despite this duty, Dr. McVea entirely failed to supervise the nurse

Id.
Id. at 1412–13 (quoting Hinshaw v. Doffer, 785 F.2d 1260, 1263 (5th Cir. 1986)); see Billops v. Sandoval,
401 F. Supp. 2d 766, 772–74 (N.D. Tex. 2005) (applying Rains in the context of a prison doctor’s failure to
train and supervise subordinate nurses); see also Bowen v. Watkins, 669 F.2d 979, 988 (5th Cir. 1982);
Douthit v. Jones, 641 F.2d 345, 346–47 (5th Cir. 1981); Barksdale v. King, 699 F.2d 744, 746–48 (5th Cir.
1983).
151 LA. REV. STATS. §§ 37:913, 37:961(4).
149

150

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Defendants’ treatment of Spikes, and thus he was deliberately indifferent to Spikes’ care;
and (2) Dr. McVea’s deliberate indifference to Spikes’ serious medical condition caused
Spikes to suffer with a broken hip for over a month.
Despite Spikes’ reports of “worsening symptoms and pain for over a month and a
half,” Dr. McVea failed to personally evaluate Spikes, and “this failure resulted in the
constitutional violation that led to the failure to timely treat Plaintiff’s fractured hip.”152
Specifically,
the repeated diagnostic activity of LPNs Bowman and Stringer, in
diagnosing Mr. Spikes’ hip pain as muscle strain without an independent
examination by a physician competent to make a diagnostic decision
reflects Dr. McVea’s near complete abdication of his responsibility to
supervise LPNs working for him. Further, Dr. McVea’s failure to ensure
nurses Seal, Bowman, Wheat, and Stringer were providing adequate
supervision and assistance to Mr. Spikes in his vulnerable post-operative
state consistent with the recommendations from UMC demonstrated Dr.
McVea’s failure to supervise nurses.153
The Court finds these allegations meet the pleading requirements the Fifth Circuit
articulated in Rains.154 As a result, the Court finds Spikes has articulated a violation of a
clearly established constitutional right and therefore concludes Dr. McVea is not entitled
to qualified immunity as to this claim.155
2. Nurse Wheat
Spikes alleges that Nurse Wheat, in her capacity as Program Director at Rayburn
Correctional Center, “was responsible for promulgating policies and practices to ensure
nurses under her supervision received orders for and maintained appointments with

R. Doc. 31 at 22.
Id.
154 Rains, 66 F.3d at 1412; see Billops, 401 F. Supp. 2d at 772–74.
155 See Rains, 66 F.3d at 1408–15; see also Farmer, 511 U.S. at 834; Austin, 328 F.3d at 210; Doe v. Taylor
Indep. Sch. Dist., 15 F.3d 443, 456 n.12 (5th Cir. 1994) (en banc) (“Deliberate indifference will often be a
fact-laden question.”).
152
153

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outside specialists.”156 Spikes also alleges that as Program Director, Nurse Wheat was “in
a position to receive follow up orders from outside specialists and would have been
responsible for promulgating practices and policies to ensure nurses under her
supervision provided medically necessary care in accordance with those orders.” Finally,
Spikes argues Nurse Wheat “was in a position to . . . ensure nurses under her supervision
did not retaliate against patients whose serious medical needs were not addressed by
triage nurses.”157 Thus, taking Spikes’ allegations as true, Nurse Wheat had the duty and
legal authority to supervise the nursing staffs’ treatment of Spikes at Rayburn.
Spikes argues that, despite her duty to supervise the nurse Defendants, Nurse
Wheat failed to do so, and that this failure lead to the constitutionally inadequate medical
care Spikes received at Rayburn. The Court concludes these allegations meet the pleading
requirements articulated in Rains. Spikes alleges: (1) Nurse Wheat had a duty to supervise
Nurse Stringer, Nurse Bowman, and Nurse Seal; (2) Nurse Wheat’s failure to supervise
the subordinate nurses resulted in Spikes’ receiving constitutionally inadequate medical
care; and (3) Nurse Wheat’s failure to supervise amounts to deliberate indifference, as the
logical result of her failure to supervise was for patients to receive constitutionally
inadequate care.158 Moreover, the Court finds Spikes has articulated a violation of a clearly
established constitutional right and therefore concludes Nurse Wheat is not entitled to
qualified immunity as to this claim.159

R. Doc. 31 at 23.
Id.
158 See Rains, 66 F.3d at 1412–13.
159 Id. at 1408–15; see also Farmer, 511 U.S. at 834; Austin, 328 F.3d at 210; Taylor Indep. Sch. Dist., 15
F.3d at 456 n.12 (“Deliberate indifference will often be a fact-laden question.”).
156
157

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D. Spikes has stated an actionable claim against Nurse Wheat, Nurse
Stringer, Nurse Bowman, and Nurse Seal pursuant to Louisiana Civil
Code article 2315
As an initial matter, the Court notes that, although Defendants ostensibly seek
dismissal of all claims against them, at no point in their motion to dismiss do Defendants
argue Spikes has failed to state a claim pursuant to Louisiana Civil Code article 2315. In
fact, in their motion to dismiss, Defendants fail to acknowledge the allegation. To the
extent Defendants seek dismissal of this claim, the Court denies the motion.
The Louisiana Supreme Court has held that the tort of intentional infliction of
emotional distress occurs when a person “by extreme and outrageous conduct
intentionally causes severe emotional distress to another.”160 To recover for intentional
infliction of emotional distress under Louisiana law, a plaintiff must demonstrate (1) that
the conduct of the defendant was extreme and outrageous; (2) that the emotional distress
suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe
emotional distress or knew that severe emotional distress would be certain or
substantially certain to result from his conduct.161 “Conduct which is merely tortuous or
illegal does not rise to the level of being extreme and outrageous.”162
In this case, Spikes alleges Defendants were deliberately indifferent to his serious
medical needs. Given the high threshold for deliberate indifference, and because the
Court has already concluded the nurse defendants acted with deliberate indifference to
Spikes’ severe and worsening condition, the Court finds the first element, that the alleged
conduct be extreme and outrageous, is met in this case. The nurses, despite Spikes
repeated complaints and obvious need for medical attention, failed to treat Spikes or refer
See White v. Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991).
Id.
162 Nicholas v. Allstate Ins. Co., 765 So. 2d 1017, 1025 (La. 2000).
160
161

29

him to Dr. McVea for evaluation, and instead threatened him with disciplinary action
should he make additional emergency medical calls. This placed Spikes in the position of
either “tolerat[ing] the excruciating pain of his fractured hip,” or as he describes in his
complaint, risking the loss of “his privileges or good time.”163 The Court finds such
conduct “extreme and outrageous.”
Next, Spikes alleges he “suffered physical injuries, mental and emotional pain and
suffering, anguish and distress, embarrassment, humiliation,” as a result of the Defendant
nurses’ conduct.164 Finally, the severity of plaintiff’s emotional distress and defendants
desire to inflict emotional distress is, “a fact-driven subjective inquiry into the states of
mind of [Plaintiff] and [Defendant], and cannot be resolved on summary judgment,” let
alone on a motion to dismiss.165 As a result the Court denies Defendants’ motion to
dismiss as to this claim.
CONCLUSION
Accordingly;
IT IS ORDERED that Defendants Dr. Casey McVea, Lesley Wheat, Wendy Seal,
R. Bowman, and Paula Stringer’s motion to dismiss is GRANTED in part and DENIED
in part.166 With respect to Plaintiff’s 42 U.S.C. § 1983 claims based on violations of the
Eighth Amendment and claims based on Louisiana Civil Code article 2315, the motion is
DENIED. With respect to Plaintiff’s 42 U.S.C. § 1983 claims based on violations of the
Fifth Amendment, the motion is GRANTED.

R. Doc. 21 at ¶ 15.
Id. at ¶ 57.
165 Greenwell v. Raytheon Aerospace, Inc., No. 95-2138, 1996 WL 63093, at *2–3 (E.D. La. Feb. 13, 1996).
166 R. Doc. 24.
163

164

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IT IS ORDERED Plaintiff’s claims against Defendants based on the Fifth
Amendment are hereby DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 7th day of May, 2018.
______________________ _________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

31