Hollyfield v. Tullos
Filing
45
ORDER AND REASONS: ORDERED that the 23 Motion for Summary Judgment is GRANTED insofar as she seeks to dismiss the plaintiff's Section 1983 claims. The Court declines to exercise supplemental jurisdiction over the plaintiff's remaining state law claims, which are dismissed without prejudice. Signed by Judge Martin L.C. Feldman on 9/20/2018. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RICHARD HOLLYFIELD
CIVIL ACTION
DOC #279394
v.
NO. 18-1738
AMANDA TULLOS, M.D.
SECTION "F"
ORDER AND REASONS
Before the Court is Dr. Amanda Tullos’s motion for summary
judgment.
For the reasons that follow, the motion is GRANTED
insofar as the plaintiff’s Section 1983 claims are prescribed; the
Court declines to exercise supplemental jurisdiction over the
remaining state law claims.
Background
This civil rights lawsuit arises from a state prisoner’s
allegations that a doctor sexually assaulted him.
Richard Hollyfield is an inmate incarcerated in the Elayn
Hunt
Correctional
Center
in
Louisiana.
On
April
Hollyfield underwent inguinal hernia repair surgery.
5,
2016,
To address
post-hernia repair complications, on May 13, 2016, Hollyfield was
1
treated at the Emergency Room at University Medical Center in New
Orleans.
Hollyfield underwent an ultrasound and was complaining
about pain and swelling in his groin and left testicle.
Dr. Amanda Tullos was employed by the State of Louisiana at
the University Medical Center where Hollyfield was being treated.
Dr. Tullos was not assigned to his case, but went to Hollyfield’s
room to address Hollyfield’s complaints.
According to Hollyfield,
he was shackled to his bed and accompanied by Sgt. Laudarius
Washington from Elayn Hunt Correctional Center.
When Dr. Tullos
asked where Hollyfield was hurting, he pointed to his testicle
area.
Hollyfield
alleges
that
“Dr.
Amanda
Tullos
sexually
assaulted him [and that he] tried to defend himself and yelled for
her to stop.”
In particular, he alleges:
Hollyfield was restrained to the bed, when Dr. Amanda
Tullos, without valid medical purpose, placed her hands
on his genitalia, and maliciously grabbed and squeezed
them exerting pressure and causing injury. Dr. Amanda
Tullos had no medical reason or authorization to enter
into...Hollyfield’s room at that time.
...
Dr. Amanda Tullos knew or should have known that
smashing...Hollyfield’s testicles could or would lead to
permanent damage.
...
On
May
14,
2016,
Hollyfield
wrote
Warden
claiming that he was assaulted by Dr. Tullos.
2
Robert
Tanner
Hollyfield also
submitted an administrative grievance pursuant to Administrative
Remedy Procedure (or ARP) to Elayn Hunt Correctional Center, which
was received on May 17, 2016.
EHCC accepted the ARP for processing
on May 25, 2016, and issued Hollyfield a First Step Response on
May 31, 2016.
Hollyfield submitted his second step request in the
ARP process on June 9, 2016, which was received and accepted for
processing
by
Louisiana
Department
of
Public
Safety
and
Corrections officials on July 11, 2016.
DPSC officials issued
Hollyfield
September
a
second
step
response
on
13,
2016;
in
forma
Hollyfield’s request for relief was denied.
On
February
20,
2018,
Hollyfield,
proceeding
pauperis but represented by retained counsel, sued Dr. Amanda
Tallos, alleging that her conduct violated his civil rights under
42 U.S.C. § 1983 by violating his rights to be free from corporal
punishment and excessive force under the Fourth, Eighth, and
Fourteenth Amendments.
Hollyfield also seeks to recover under
Louisiana Civil Code articles 2315 and 2316 on the ground that his
injuries were caused by Dr. Tallos’ intentional or negligent
conduct.
Although this matter was automatically referred to the
magistrate judge, at least one of the parties did not consent to
proceed before the magistrate judge; accordingly, the referral was
vacated.
Dr.
Tullos
now
seeks
summary
judgment
Hollyfield’s civil rights and negligence claims.
3
dismissing
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law.
No genuine dispute of fact exists if
the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
A genuine
dispute of fact exists only "if the evidence is such that a
reasonable jury could return a verdict for the non-moving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.
See
id.
Therefore,
"[i]f
the
evidence
is
merely
colorable, or is not significantly probative," summary judgment is
appropriate.
Id. at 249-50 (citations omitted).
Summary judgment
is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).
See Celotex Corp. v. Catrett,
In this regard, the non-moving party
must do more than simply deny the allegations raised by the moving
4
party.
See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d
646, 649 (5th Cir. 1992).
Rather, he must come forward with
competent evidence, such as affidavits or depositions, to buttress
his claims.
Id.
Hearsay evidence and unsworn documents that
cannot be presented in a form that would be admissible in evidence
at trial do not qualify as competent opposing evidence.
Martin v.
John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed. R. Civ. P. 56(c)(2).
defeat
summary
judgment
"[T]he nonmoving party cannot
with
conclusory
allegations,
unsubstantiated assertions, or only a scintilla of evidence."
Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)(internal
quotation marks and citation omitted).
In deciding whether a fact
issue exists, courts must view the facts and draw reasonable
inferences in the light most favorable to the nonmoving party.
Scott v. Harris, 550 U.S. 372, 378 (2007).
Although the Court
must "resolve factual controversies in favor of the nonmoving
party," it must do so "only where there is an actual controversy,
that is, when both parties have submitted evidence of contradictory
facts."
Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th
Cir. 2013)(internal quotation marks and citation omitted).
II.
A.
5
Title 42, U.S.C. § 1983 creates a damages remedy for the
violation of federal constitutional or statutory rights under
color of state law; it provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State ... subjects,
or causes to be subjected, any ... person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured.
Because Section 1983 merely provides a remedy for designated
rights,
rather
than
creating
any
substantive
rights,
“an
underlying constitutional or statutory violation is a predicate to
liability.”
Harrington v. Harris, 118 F.3d 359, 365 (5th Cir.
1997)(citation omitted).
To establish § 1983 liability, the
plaintiff must satisfy three elements:
(1)
deprivation of a right secured
Constitution or federal law,
by
the
(2)
that occurred under color of state law, and
(3)
U.S.
was caused by a state actor.
Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004)
(citation omitted).
Hollyfield’s
Section
1983
claims
are
based
on
alleged
deprivations of his constitutional rights to be free from excessive
6
force and corporal punishment.
Dr. Tullos moves for judgment as
a matter of law dismissing these claims as prescribed.
Section 1983 does not contain an independent statute of
limitations.
Instead,
the
statute
borrows
the
statute
of
limitations period for personal injury actions in the forum state.
Owens v. Okure, 488 U.S. 235, 250 (1989); King-White v. Humble
Indep.
Sch.
Dist.,
803
F.3d
754,
759
(5th
Cir.
2015).
In
Louisiana, there is a one-year prescriptive period applicable to
personal injury actions.
La. Civ. Code art. 3492.
Accordingly,
Section 1983 claims pending in federal courts in Louisiana are
subject to a one year statute of limitations period.
Roberson, 868 F.2d 793, 794 (5th Cir. 1989).
Elzy v.
Although federal law
determines when a civil rights action accrues, state law supplies
the applicable limitations period and tolling provisions.
Harris
v. Hegmann, 198 F.3d 153, 156-57 (5th Cir. 1999)(citation omitted).
Under federal law, a Section 1983 claim generally accrues when a
plaintiff “knows or has reason to know of the injury which is the
basis of the action.”
Id. (citation omitted).
Pursuant to 42 U.S.C. § 1997e(a) of the Prison Litigation
Reform Act, an inmate is required to exhaust his available state
administrative remedies prior to filing a lawsuit in federal court.
The one year prescription period applicable to Section 1983 claims
7
is tolled while an inmate pursues administrative remedies.
Id. at
158.
Here, the defendant submits that Hollyfield’s Section 1983
claims have prescribed.
This is so, Dr. Tullos contends, even
though the prescriptive period was tolled while Hollyfield pursued
his administrative remedy through the prison system.
The incident
giving rise to Hollyfield’s Section 1983 claims occurred on May
13, 2016.
The one year prescriptive period was tolled while
Hollyfield pursued his mandatory administrative remedy procedure
with EHCC and DPSC. The defendant submits that this process began,
at the earliest on May 14, 2016 (when the plaintiff wrote to Warden
Tanner) and ended, at the latest on September 13, 2016 (when DPSc
issued a second step response, denying his grievance). The statute
of limitations thus began to run again on September 13, 2016 and
expired at the latest a year later on September 13, 2017.
Because
the plaintiff did not file this lawsuit until February 20, 2018,
the defendant submits his Section 1983 claims have prescribed.
The Court agrees.
Hollyfield does not dispute that his lawsuit was filed more
than one year after he exhausted his administrative remedies in
the prison system. However, Hollyfield argues that he was required
to proceed through the medical malpractice procedural requirements
8
of a medical review panel prior to filing his Section 1983 claims.
And that he benefits from additional tolling for doing so, which
saves his claims.
The defendant counters that the plaintiff’s
allegations giving rise to his Section 1983 claims for deliberate
medical indifference are not and cannot be based upon medical
malpractice such that he may not benefit from additional tolling
for exhausting unnecessary state remedies.
To be sure, claims or allegations of medical malpractice are
insufficient
to
indifference.
rise
to
the
level
of
deliberate
medical
See Estelle v. Gamble, 429 U.S. 97, 106-06 (1976);
see also Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006)
(“unsuccessful medical treatment, acts of negligence, or medical
malpractice
[d]eliberate
meet.”).
do
not
constitute
indifference
is
an
deliberate
extremely
indifference
high
standard
...
to
Dr. Tullos submits that, because Section 1983 claims
must be based upon deliberate indifference, such claims do not
meet the definition of medical malpractice under Louisiana law and
the administrative review requirements for convening a medical
review panel are inapplicable to Hollyfield’s Section 1983 claims
for
deliberate
indifference;
thus,
the
administrative
review
requirements of La.R.S. 40:1237.1 are not applicable to his Section
1983 claims and he may not avail himself of additional tolling of
the statute of limitations for that period of time within which he
9
pursued administrative remedies through a state medical review
panel.
The Court agrees.
support
his
exhausted
contention
through
a
that
medical
Hollyfield offers no authority to
his
Section
review
1983
panel.
claims
Indeed,
must
the
be
case
literature generally declines to require prisoners to present
federal civil rights claims to a Louisiana medical review panel
because Section 1983 claims are not governed by Louisiana’s Medical
Malpractice Act, which governs only unintentional acts. 1
Because Hollyfield filed his Section 1983 claims more than
one year after he completed the requisite inmate administrative
proceedings, his Section 1983 claims are prescribed and must be
dismissed.
Belvin v. Champagne, No. 17-1776, 2017 WL 4277160, at *7 (E.D.
La. Aug. 31, 2017)(distinguishing between Section 1983 claims and
medical malpractice claims, the latter of which must first be
exhausted before a medical review panel); Cockerham v. Parish of
Ascension, No. 10-227, 2010 WL 5576195, at *2 (M.D. La. Nov. 2,
2010)(“inasmuch as the Louisiana Medical Malpractice Act defnies
malpractice
as
an
“unintentional
tort
or
breach
of
contract,”...and inasmuch as a claim for the violation of
constitutional civil rights, in contrast, involves intentional
wrongdoing on the part of a state official, or an analogous state
of mind described as “deliberate indifference”, the Louisiana
Medical Malpractice Act has no application to the plaintiff’s claim
of intentional, willful, and malicious wrongdoing”); Adams v.
Foti, No. 02-1059, 2004 WL 241859, at *4 (E.D. La. Feb. 5,
2004)(determining that prisoner was not required to present his
federal civil rights claim to a Louisiana medical review panel
because an inmate’s Section 1983 claims are not governed by
Louisiana’s
Medical
Malpractice
Act,
which
governs
only
unintentional acts).
10
1
B.
Hollyfield
invokes
this
Court’s
jurisdiction
solely
on
federal question grounds pursuant to 28 U.S.C. § 1331. All federal
claims have been dismissed. Having dismissed all claims over which
it has original jurisdiction, the Court declines to exercise
supplemental jurisdiction over the plaintiff’s remaining state law
claims.
28 U.S.C. § 1367(c).
Hollyfield’s state law negligence
claims are dismissed without prejudice.
Accordingly, IT IS ORDERED that Dr. Tullos’s motion for
summary judgment is GRANTED insofar as she seeks to dismiss the
plaintiff’s Section 1983 claims.
The Court declines to exercise
supplemental jurisdiction over the plaintiff’s remaining state law
claims, which are dismissed without prejudice.
New Orleans, Louisiana, September 20, 2018
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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