Hinojosa et al v. Larpenter, et al

Filing 16

ORDER AND REASONS granting in part and denying in part 10 Motion to Dismiss for Failure to State a Claim as stated herein. Signed by Judge Martin L.C. Feldman on 2/8/2018. (clc)

EASTERN DISTRICT OF LOUISIANA

GEORGINA R. HINOJOSA

CIVIL ACTION

v.

NO. 17-9861

JERRY LARPENTER, SHERRIFF
OF TERREBONNE PARISH, ET AL.

SECTION "F"

ORDER AND REASONS

Before

the

Court

is

Terrebonne

Parish

Consolidated

Government, Richard Neal, and Kelly Gaudet’s motion to dismiss for
failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). 1 For the following reasons, the motion is GRANTED in part
(as to the federal claims against Terrebonne Parish Consolidated
Government and Neal and Gaudet in their official capacity) and
DENIED in part (as to the federal claims against Neal and Gaudet
in their individual capacity and all state law claims).
Background
After
Justice

sustaining

Complex,

receiving

medical

an

Jesus

injury

Hinojosa

treatment.

at

Terrebone

waited

Once

he

for
was

Parish

four

Criminal

days

evaluated,

before
he

was

transported to Leonard J. Chabert Medical Center, admitted to their
internal medicine unit, and shortly thereafter transferred to the

1

Jerry Larpenter did not join this motion to dismiss. Instead, he
submitted an answer to the complaint on October 24, 2017.
1

intensive care unit. After twenty days, he died in the ICU of
hypoxia. 2 This Section 1983 suit followed.
Jesus Hinojosa was a Texas resident, but had temporarily
relocated to Denham Springs, Louisiana in the fall of 2016. He was
hired by Adrian Robles to repair houses damaged by the devastating
flooding in August 2016. Robles asked Jesus, along with Jesus’s
nephew Jose Hinojosa, to join him on a trip. 3 During that trip,
Robles, Jesus, and Jose, and two others, were arrested on November
29, 2016 after law enforcement found large quantities of cocaine
in Robles’ truck. 4 Jesus maintained that he had no knowledge of
the drug presence, and was not aware that the trip involved drug
trafficking.
Jesus was housed at the Terrebonne Parish Criminal Justice
Complex, which is managed by the Terrebonne Parish Sherriff’s
Office. The jail and medical staff was aware that Jesus required
treatment, proper diet, and medications to treat his serious
medical conditions; he had undergone two open heart surgeries
within the previous two years. Jesus’s wife, Georgina Hinojosa,

2

Hypoxia is a condition where the body or a region of the body is
deprived of adequate oxygen supply.
3 Because there are multiple Hinojosas involved in this suit, the
Court will refer to Jesus Hinojosa by either Jesus or Mr. Hinojosa.
4 Robles, Jesus, Jose, Franscisco Ruiz, and Jose Cervantes-Marron
were subsequently indicted on federal charges for conspiring to
distribute, and for possession with the intent to distribute, five
kilograms of cocaine. The criminal matter, CR 17-41, is also before
this section of Court.
2

repeatedly called the jail staff to remind them of her husband’s
condition. On February 3, 2017, Jesus was injured. 5 For four days,
Jesus requested treatment several times and complained of chest
pains and shortness of breath, but he was not evaluated by the
jail’s medical staff until February 7, 2017. He was admitted to
the internal medicine unit of Leonard J. Chabert Medical Center
the next day, but was promptly moved to the intensive care unit
for treatment of hypoxia and other ailments. After twenty days in
the ICU, Jesus died on March 1, 2017. The Terrebonne Parish
Sherriff’s

Office

would

not

provide

information

of

Jesus’s

condition or location to his wife. 6 Accordingly, Jesus had no
contact with any family member after he was injured, and died
alone.
Georgina Hinojosa brought this lawsuit individually and on
behalf of her deceased husband, Jesus Hinojosa, on September 29,
2017. She sued Terrebonne Parish Consolidated Government, and
Terrebone Sheriff Jerry Larpenter, Richard Neal, and Kelly Gaudet,
in their official and individual capacities. Richard Neal was an

5

The complaint states that the “[t]he injury was caused by poor
conditions at the jail and the failure of jail staff to properly
supervise the inmates.”
6 According to the complaint, Mrs. Hinojosa spoke with her husband
on the phone every day he was detained until his injury. When she
called on February 3rd and could not get in touch with him, she
became concerned and repeatedly attempted to obtain information
about his whereabouts and health from the jail staff over the
following weeks.
3

employee of TPCG and provided care to pre-trial inmates. Kelly
Gaudet is a registered nurse and was an employee of TPCG, and
oversaw the care for Jesus Hinojosa. 7 Mrs. Hinojosa brings this
lawsuit

pursuant

to

42

U.S.C.

§

1983;

she

asserts

that

the

defendants violated her husband’s Fourteenth Amendment Due Process
rights of the federal, and state, constitutions by failing to
provide adequate medical care and access to medications. 8 She also
asserts that the defendants were negligent under Louisiana law
tort principles and are liable to her for damages caused by Mr.
Hinojosa’s wrongful death. 9
Terrebone Sheriff Jerry Larpenter answered the complaint on
October

24,

2017.

Terrebonne

Parish

Consolidated

Government,

Richard Neal, and Kelly Gaudet filed this motion to dismiss on
November 17, 2017. In the plaintiff’s opposition to the motion to
dismiss, she requests that should the Court grant the defendants’

7

The complaint named “yet unidentified employees” of the
Terrebonne Parish Sherriff’s Office and the Terrebonne Parish
Consolidated Government as defendants, but has not further
identified any individuals besides Larpenter, Gaudet, and Neal.
8 The complaint further alleges that the defendants’ failure to
provide Mr. Hinojosa with medical care, despite their knowledge of
his pre-existing medical conditions and the injury he sustained in
jail, caused his death. Further, it alleges that the defendants
imposed a significant hardship on Mr. Hinojosa through a pattern
of omissions, failing to train or supervise subordinate employees,
and implementing ineffective policies or customs.
9 Specifically, Mrs. Hinojosa asserts a wrongful death action, a
survival action, and a loss of consortium action pursuant to the
Louisiana Civil Code.
4

motion to dismiss that she be afforded the opportunity to amend
her complaint to remedy the deficiencies.

I.
In considering a Rule 12(b)(6) motion, the Court “accept[s]
all well-pleaded facts as true and view[s] all facts in the light
most favorable to the plaintiff.” See Thompson v. City of Waco,
Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe ex rel. Magee
v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th
Cir.

2012)(en

banc)).

But

in

deciding

whether

dismissal

is

warranted, the Court will not accept conclusory allegations in the
complaint as true. Id. at 502-03 (citing Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)).
To survive dismissal, “‘a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.’” Gonzalez v. Kay, 577 F.3d 600, 603
(5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal quotation
marks omitted). “Factual allegations must be enough to raise a
right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007) (citations and footnote omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
5

liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (“The
plausibility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has
acted

unlawfully.”).

This

is

a

“context-specific

task

that

requires the reviewing court to draw on its judicial experience
and common sense.” Id. at 679. “Where a complaint pleads facts
that are merely consistent with a defendant’s liability, it stops
short

of

the

line

between

possibility

and

plausibility

of

entitlement to relief.” Id. at 678 (internal quotations omitted)
(citing Twombly, 550 U.S. at 557). “[A] plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitle[ment] to relief’”, thus,
“requires

more

than

labels

and

conclusions,

and

a

formulaic

recitation of the elements of a cause of action will not do.”
Twombly,

550

U.S.

at

555

(alteration

in

original)

(citation

omitted).

II.
Title 42, U.S.C. § 1983 creates a private right of action
for violations of federally-secured rights under color of state
law.

To establish Section 1983 liability, the plaintiff must

satisfy three elements:
(1)
(2)
(3)

deprivation of a right secured by the U.S.
Constitution or federal law,
that occurred under color of state law, and
was caused by a state actor.

6

Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004)(citation
omitted). In pursuing his inadequate medical care claims, Hinojosa
has sued Terrebonne Parish Consolidated Government, Terrebonne
Sheriff Jerry Larpenter in his individual and official capacity,
Richard Neal in his individual and official capacity, and Kelly
Gaudet in her individual and official capacity.

A. Municipality Claims
Local governmental entities may be liable for Section 1983
for monetary, declaratory, or injunctive relief, but only in the
limited circumstance of when a constitutional tort is caused
through the execution of a policy or custom of the municipality.
Monell v. Dep’t of Soc. Servs. of New York, et al., 436 U.S. 658,
691 (1978); see Bowen v. Watkins, 669 F.2d 979, 989 (5th Cir.
1982)(citation omitted). Accordingly, a governmental entity is not
liable “for an injury inflicted solely by its employees or agents.”
Monell, 436 U.S. at 694.
In
Court

determining

looks

to

whether

whether

municipal

liability

unconstitutional

conduct

attaches,
is

the

directly

attributable to the municipality through some official custom or
policy. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.
2001). “To establish municipal liability under § 1983, a plaintiff
must show that (1) an official policy (2) promulgated by the
municipal policymaker (3) was the moving force behind the violation
7

of a constitutional right.” Peterson v. City of Fort Worth, 588
F.3d 838, 847 (5th Cir. 2009). A plaintiff can satisfy the pleading
requirements under Rule 12(b)(6) even if he cannot identify the
policymaker, Groden v. City of Dallas, 826 F.3d 280, 284 (5th Cir.
2016),

but

the

relationship

to

complaint
the

must

underlying

describe

the

constitutional

policy

and

violation

its
with

specific facts to survive a motion to dismiss. Balle v. Nueces
County,

690

Fed.Appx.

847,

852

(5th

Cir.

2017)

(unpublished)(quoting Spiller v. Texas City, Police Dept., 130
F.3d 162, 167 (5th Cir. 1997). “Thus, pleadings are sufficient
when they make specific factual allegations that allow a court to
reasonably infer that a policy or practice exists and that the
alleged policy or practice was the moving force behind municipal
employees' deliberate indifference to an inmate's serious medical
needs.” Id. 10

10

The Fifth Circuit does not necessarily require a complaint to
state an unconstitutional policy. The court has found a complaint
sufficient if it identifies a rule requiring the jails to provide
efficient medical treatment and describes a pattern of behavior
where the reasonable inference is that the municipality is
violating that rule.
For example, the Fifth Circuit held in Balle that the
plaintiff’s complaint brought under Section 1983 sufficiently pled
facts that supported a municipality liability claim. Id. at 853.
The plaintiff was injured by an officer during arrest, and during
his six-day detention received little medical attention despite
his multiple requests for medical treatment, his apparent
inability to control his bodily functions, and frequent muscle
spasms. Id. at 848-49. After he was finally transported to the
hospital, he was diagnosed with various back injuries, underwent
surgery, but was still unable to walk. Id. at 849. The complaint
8

Terrebonne Parish Consolidated Government is a governmental
entity. See Fitch v. Terrebonne Parish Consol. Government, No. 063940, 2008 WL 275901, at *2 (Jan. 26, 2007). But the plaintiff
fails to point to any policy or facts that could give rise to an
inference that a policy exists, let alone to allege a policymaker
or that the policy was a moving force behind the constitutional
violation. The plaintiff only discusses the other defendants’
liability, but as stated above, a governmental entity is not
vicariously liable for its employees’ actions. Victoria W. v.
Larpenter, 369 F.3d 475, 482 (5th Cir. 2004). Accordingly, the
plaintiff’s complaint fails to allege sufficient facts to state a
claim against TPCG.

alleged that the county had failed to enforce jailing policies
mandated by a Texas Commission that requires jails to implement
procedures for prompt and efficient care in acute situations. Id.
at 853. The complaint alleges that when the plaintiff soiled
himself from not being able to control his bodily functions the
staff cleaned him and gave him a change of clothes without
providing him medical attention. Id. Similarly, when he complained
that he was paralyzed and could not walk, he was not given medical
attention until the following day and even then, he was cleared
with little follow-up. Id. The Fifth Circuit held that these
incidences evidence a “pattern of failure [that] defined state law
requiring that [the] county implement procedures to efficiently
and promptly treat inmates.” From the complaint’s allegations of
consistent wrongdoing, the court determined that “[r]easonable
inferences can be drawn that [the] county had an unwritten policy
. . . that fairly represents municipal policy of consistent
noncompliance with required state medical standards and that this
policy or practice of noncompliance was the moving forced behind
the constitutional injuries.” Id.
9

B. Official Capacity Claims
Hinojosa has sued Richard Neal and Kelly Gaudet in their
official capacities. 11 Official capacity suits “generally represent
only another way of pleading an action against an entity of which
an officer is an agent.”

Monell v. Dep’t of Social Services, 436

U.S. 658, 690 n.55 (1978); Kentucky v. Graham, 473 U.S. 159, 166
(1985)(“An official-capacity suit is, in all respects other than
name, to be treated as a suit against the entity.”). Because a
suit against officials in their official capacity is treated as a
suit against a municipality, the Court again looks to whether
unconstitutional

conduct

is

directly

attributable

municipality through some official custom or policy.

to

the

Piotrowski

v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001). To repeat
and underscore, the Fifth Circuit has held that “[t]o establish
municipal liability under § 1983, a plaintiff must show that (1)
an official policy (2) promulgated by the municipal policymaker
(3) was the moving force behind the violation of a constitutional
right.” Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th
Cir. 2009). To survive a motion to dismiss, “[t]he description of
a

policy

or

custom

and

its

relationship

11

to

the

underlying

As mentioned above, the plaintiff also sued Terrebonne Parish
Sheriff Jerry Larpenter. Sheriff Larpenter filed an answer to the
complaint, and did not join this motion to dismiss.
10

constitutional violation, moreover, cannot be conclusory; it must
contain specific facts.” Spiller, 130 F.3d at 167.
Again, the plaintiff fails to allege facts that support her
official capacity claims. She merely contends that common sense
mandates that a policy exists, and that the defendants would need
to use such policy in their roles, but fails to point to any facts
that

describe

such

a

policy

or

give

rise

to

the

reasonable

inference that it exists. 12 A baseless speculation that a policy
exists solely because one could imagine that it would falls wellshort of the pleading standard for official capacity claims. Her
allegations that the defendants’ were aware of Jesus Hinojosa’s
serious medical conditions and despite that knowledge, denied Mr.
Hinojosa of the necessary treatment is likewise insufficient to
state a claim in the context in which she asserts it.

C. Individual Capacity Claims
Hinojosa

also

sued

Neal

and

Gaudet

in

their

individual

capacity. Prison officials are charged with the duty to provide

12

In her opposition to the motion to dismiss, she states that
“[l]ogically, as the person in charge of medical treatment for the
inmates of TPCJC, Neal would have certainly implemented plans for
treatment and would have overseen training to insure his plans
were properly executed,” but fails to identify what those plans
were (or even allege facts that allow the Court to reasonably infer
what they are). She makes a similar claim in regards to Gaudet,
and admits that she “is not in possession of the specific policies
and procedures by which medical treatment is afforded at
TPCJC . . . .”
11

reasonable medical care to prisoners and detainees.

See Sibley v.

Lemaire, 184 F.3d 481, 488-89 (5th Cir. 1999). The Supreme Court
has held that “deliberate indifference to serious medical needs of
prisoners” violates the Eighth Amendment. Estelle v. Gamble, 429
U.S. 97, 104 (1976). To survive a motion to dismiss, the plaintiff
“must allege acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs.” Id.
As a pretrial detainee, Hinojosa’s constitutional right to
receive adequate medical care is derived from the Fourteenth
Amendment Due Process clause rather than the Eighth Amendment
prohibition against cruel and unusual punishment. Because prison
detainees have not yet been convicted of the crime with which they
are charged, they have a due process right not to be punished for
that crime. Bell v. Wolfish, 441 U.S. 520, 535 (1979). The Fifth
Circuit has determined that the criteria to assess whether a
pretrial detainee’s due process rights have been violated differs
based on the type of challenge. If a pretrial detainee attacks the
rules and restrictions of confinement, then the Court will apply
the

Bell

“conditions

test

and

find

accompanying

a

constitutional

pretrial

detention

violation
are

if

imposed

the
upon

detainees for the purpose of punishment.” Id. Conversely, the Fifth
Circuit, informed by the Supreme Court's ruling in Farmer v.
Brennan, 511 U.S. 825 (1994), reconciled its case literature
applicable

to

pretrial

detainees
12

such

that

the

standard

for

liability is the same for detainees and convicted inmates when
episodic acts or omissions of jail officials deprive the inmate of
receiving medical care. 13 Accordingly, if the defendant attacks the
episodic acts or omissions of the state official, the official’s
constitutional liability “should be measured by a standard of
subjective deliberate indifference . . . .” Hare v. City of
Corinth, Miss., 74 F.3d 633, 643 (5th Cir. 1996)(en banc). Thus,
the appropriate standard to apply in analyzing constitutional
challenges brought by pretrial detainees turns on whether the
detainee challenges a “condition of confinement” or an “episodic
act or omission.” Shepherd v. Dallas County, 591 F.3d 445, 452 (5th
Cir. 2009)(citing Hare v. City of Corinth, Miss., 74 F.3d 633,
644-45 (5th Cir. 1996)(en banc)).
A condition of confinement typically refers to a policy, like
the number of bunks per cell, where an episodic act or omission
“faults specific jail officials for their acts or omissions because
the plaintiff cannot establish the existence of an officially
sanctioned unlawful condition.” Shepherd v. Dallas County, 591

13

In Hare v. City of Corinth, 74 F.3d 633, 650 (5th Cir. 1996),
the Fifth Circuit held that "the State owes the same duty under
the Due Process Clause and the Eighth Amendment to provide both
pretrial detainees and convicted inmates with basic human needs,
including medical care and protection from harm, during their
confinement." Thus, the standard applicable to episodic act or
omission claims brought by pretrial detainees is substantially
equivalent to Eighth Amendment protections available to a
convicted inmate.
13

F.3d 445, 452 (5th Cir. 2009). The latter is a far more common
claim

than

defendants

the

former.

failed

to

Id.

provide

The

plaintiff’s

adequate

claims

medical

care

that
to

the

Jesus

Hinojosa is an “episodic act or omission” because the defendants
failed to fulfill their duties; his injury did not stem from
conditions of his confinement but instead from an omission to act.
See Olabisiomotosho v. City of Houston, 185 F.3d 521, 526 (5th
Cir. 1999)(“[The inmate’s] complaint turns on [the officers’]
alleged failure to take better care of her and secure her to
treatment. Such a complaint perfectly fits the definition of the
episodic act or omission.”).
Because the claim arises from an “episodic act or omission,”
a

pretrial

detainee’s

claim

must

meet

the

“deliberate

indifference” standard. Hare, 74 F.3d at 643; see Shepherd, 591
F.3d at 452 (“Because the focus of the claim is one individual's
misconduct, the detainee is required to prove intent—specifically,
that one or more jail officials ‘acted or failed to act with
deliberate indifference to the detainee's needs.’”). The plaintiff
must establish (1) “deliberate indifference on the part of any of
the defendants” and (2) “any resulting substantial harm occasioned
by the delay.” Mendoza v. Lynaugh. 989 F.2d 191, 193 (5th Cir.
1993). “Deliberate indifference is an extremely high standard to
meet.” Domino v. Texas Dept. of Criminal Justice, 239 F.3d 752,
756 (5th Cir. 2001). A prison official is liable “only if he knows
14

that the inmates face a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures to
abate it.” Farmer, 511 U.S. at 847. “A serious medical need is one
for which . . . the need is so apparent that even a laymen would
recognize that care is required.” Gobert v. Caldwell, 463 F.3d
339, 346 (5th Cir. 2006). To show deliberate indifference, the
plaintiff must allege that the defendant possessed a culpable state
of mind: “[m]ere negligence or failure to act reasonably is not
enough. The officer must have the subjective intent to cause harm.”
Mace

v.

City

of

Palestine,

333

F.3d

621,

626

(5th

Cir.

2003)(citation omitted). A plaintiff could meet its burden by
alleging that the jail officials “refused to treat him, ignored
his

complaints,

[or]

intentionally

treated

him

incorrectly . . . .” See Johnson v. Treen, 759 F.2d 1236, 1238
(5th Cir. 1985).
Mrs. Hinojosa has plead facts that allow this Court to draw
a reasonable inference that Neal and Gaudet acted with deliberate
indifference in failing to provide Jesus Hinojosa with timely
medical care. A pre-trial detainee died from a lack of oxygen after
four days of requesting medical care when the officials were wellaware of the detainees existing heart conditions. Once he did
receive treatment, Mr. Hinojosa was immediately admitted to a
hospital and quickly transferred to the ICU, raising the inference
that his injuries were severe while he was requesting treatment.
15

The officials tasked with providing him with medical care knew
that Mr. Hinojosa faced a substantial risk of harm.
The

Court

recognizes

that

the

plaintiff’s

complaint

in

regards to this claim is far from exemplary, and at times provides
conclusory statements that simply cite the elements of the cause
of action. However, the determination of whether the defendants
acted

with

deliberate

indifference

is

a

factual

matter

best

assessed when the parties have had the opportunity to develop their
claims

and

submit

evidence.

The

Court

is

satisfied

that

the

plaintiff has sufficiently alleged facts that state a plausible
claim to survive this motion to dismiss.

D. State Law Claims
In Counts 3-8, the plaintiff alleges that the defendants
violated Jesus Hinojosa’s right to due process and cruel and
unusual punishment under the Louisiana Constitution, and is liable
for claims of negligence, wrongful death, a survival action, and
loss of consortium under Louisiana Civil Code. The Court has
original

jurisdiction

over

the

Section

1983

claim,

and

supplemental jurisdiction over these state law claims. 28 U.S.C.
§ 1367(a). If the Court dismisses the federal law claims, it may
decline to exercise supplemental jurisdiction over the remaining
state law claims. 28 U.S.C. § 1367(a); see United Mine Workers of
America v. Gibbs, 383 U.S. 715, 725-26 (1966). The defendants
16

assert that should the Court find that the plaintiff did not
adequately plead her Section 1983 claims, it should dismiss the
state law claims. However, the Court finds that the plaintiff has
actionable claims under Section 1983, and therefore will continue
to exercise supplemental jurisdiction over the plaintiff’s state
law claims. As the defendants raised no other objections to the
state law claims, further analysis of their merit is unwarranted.
Accordingly, IT IS ORDERED: that the motion to dismiss for
failure

to

state

a

claim

by

Terrebonne

Parish

Consolidated

Government, Richard Neal, and Kelly Gaudet is GRANTED as to all
federal claims against Terrebonne Parish Consolidated Government
and claims against Neal and Gaudet in their official capacity and
DENIED as to claims against Neal and Gaudet in their individual
capacity and all state law claims. 14

New Orleans, Louisiana, February 8, 2018

_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

14

The status of Sheriff Jerry Larpenter (who did not join this
motion to dismiss) in this litigation is undisturbed by this Order
and Reasons.
17