Marsalis v. Lavespere et al

Filing 44

RULING that the defendants' Motions for Summary Judgment 9 and 42 be GRANTED, dismissing the plaintiff's federal constitutional claims asserted against the defendants pursuant to 42 U.S.C. § 1983, with prejudice, and that this action be dismissed. Judgment shall be entered accordingly. Signed by Judge John W. deGravelles on 03/23/2016. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

FREDDIE MARSALIS (#451967)

CIVIL ACTION

VERSUS
DR. RANDY LAVESPERE, ET AL.

NO. 15-0271-JWD-EWD

RULING
Before the Court are the defendants= Motions for Summary Judgment (R. Docs. 9 and 42).
These motions are not opposed.
The pro se plaintiff, an inmate incarcerated at the Louisiana State Penitentiary (ALSP@),
Angola, Louisiana, filed this action pursuant to 42 U.S.C. ' 1983 against Dr. Randy Lavespere,
Dr. Hal MacMurdo, Dr. Paul Toce, Dr. Dwayne Helms, E.M.T. Samuel Gaspard, and several AJohn
Doe@ and AJane Doe@ medical technicians employed at LSP, identified only by their ABadge
Numbers@ (Nos. 19, 543, 93 and 552).1

The plaintiff alleges that the defendants have violated his

1. The “John Doe” and “Jane Doe” defendants who are identified in the Complaint only by
their badge numbers have not been served. Pursuant to Order dated December 2, 2015 (R. Doc.
27), the Court directed the defendants to provide the identities of these persons and advised the
plaintiff that, upon compliance by the defendants, the plaintiff could move for leave to amend his
Complaint to substitute properly-named parties. Although the defendants thereafter provided the
identities of the “John Doe” and “Jane Doe” prison employees, see R. Doc. 34, the plaintiff has
not sought leave to amend his Complaint and has not undertaken any action to have these persons
served. Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, the failure of a plaintiff,
without good cause, to serve a defendant within 120 days of commencement of an action is
justification for dismissal of that defendant from the proceeding. Although a pro se inmate
plaintiff is entitled to rely upon service by the United States Marshal, “a plaintiff may not remain
silent and do nothing to effectuate such service. At a minimum, a plaintiff should attempt to
remedy any apparent service defects of which a plaintiff has knowledge.” Rochon v. Dawson,
828 F.2d 1107 (5th Cir. 1987). Upon being notified of the identities of the “John Doe” and “Jane
Doe” prison employees, the plaintiff has taken no action to have them served. It is appropriate,
therefore, that the plaintiff’s claims asserted against the “John Doe” and “Jane Doe” defendants be
dismissed, without prejudice, for failure of the plaintiff to timely effect service upon them.

constitutional rights through deliberate indifference to his serious medical needs.
The defendants move for summary judgment relying upon the pleadings, Statements of
Undisputed Facts, certified copies of the plaintiff=s pertinent administrative remedy proceedings,
certified copies of the plaintiff’s medical records, and the affidavits of defendants Hal MacMurdo,
Paul Toce and Randy Lavespere.
Pursuant to well-established legal principles, summary judgment is appropriate where there
is no genuine disputed issue as to any material fact, and the moving party is entitled to judgment
as a matter of law. Rule 56, Federal Rules of Civil Procedure. Celotex Corp. v. Catrett, 477
U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

A party moving for

summary judgment must inform the Court of the basis for the motion and identify those portions
of the pleadings, depositions, answers to interrogatories and admissions on file, together with
affidavits, if any, that show that there is no such genuine issue of material fact. Celotex Corp. v.
Catrett, supra, 477 U.S. at 323.

If the moving party carries its burden of proof under Rule 56,

the opposing party must direct the Court=s attention to specific evidence in the record which
demonstrates that the non-moving party can satisfy a reasonable jury that it is entitled to a verdict
in its favor. Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 248.

This burden is not satisfied

by some metaphysical doubt as to alleged material facts, by unsworn and unsubstantiated
assertions, by conclusory allegations, or by a mere scintilla of evidence.
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

Little v. Liquid Air

Rather, Rule 56 mandates that summary judgment be

entered against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party=s case and on which that party will bear the burden of proof at trial.
Celotex Corp. v. Catrett, supra, 477 U.S. at 323.

Summary judgment is appropriate in any case

where the evidence is so weak or tenuous on essential facts that the evidence could not support a

judgment in favor of the non-moving party. Little v. Liquid Air Corp., supra, 37 F.3d at 1075.
In resolving a motion for summary judgment, the Court must review the facts and inferences in
the light most favorable to the non-moving party, and the Court may not evaluate the credibility
of witnesses, weigh the evidence, or resolve factual disputes. International Shortstop, Inc. v.
Rally=s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).
In his Complaint, as amended, the plaintiff alleges that he has had stomach complaints
since 2009 and has been prescribed various medications that he asserts have been ineffective.

He

further alleges that, beginning in January, 2013, he complained that he was vomiting after every
meal.

He complains that medical technicians at LSP diagnosed him with simple acid reflux, and

doctors at LSP have agreed without any physical examination or a review of the plaintiff’s medical
file.

The plaintiff alleges that he has continued to vomit after every meal for 2 years and has lost

a substantial amount of weight. The plaintiff alleges that a gastric scope was scheduled by Dr.
Lavespere but was later cancelled by defendant Lavespere without justification.
The plaintiff further alleges that, on one visit to Dr. Helms for stomach complaints, he
complained about developing numbness in both hands.

The plaintiff alleges that Dr. Helms

responded that the plaintiff could only receive treatment for one complaint at a time.

The plaintiff

alleges that doctors at LSP are not qualified to treat or diagnose his condition and are Anotorious
for allowing a medical situation to become severe before decideing [sic] to treat the condition.@
Finally, the plaintiff alleges that he suffered an injury to his right eye in 2011, and
defendants Lavespere, MacMurdo and Toce are aware of the injury. The plaintiff alleges that he
was referred for evaluation by an eye specialist and was seen 3 or 4 times at the LSU/Tulane eye
clinic, where Ait was determined surgery was required to correct the problem in 2013 and 2014.@
The plaintiff complains, however, that defendants Lavespere, MacMurdo and Toce Afailed to have

me recommended for surgery at LSU/Tulane and/or have me produced for the required surgery.@
The plaintiff alleges that an eye specialist at LSU/Tulane has since told him that Aa scar has
developed over the required place for surgery,@ and there is nothing further that can be done.

The

plaintiff alleges that defendants MacMurdo and Toce have told him that, because of budgetary
limitations, surgeries for conditions that are not life-threatening will not be authorized at LSP.
In addition to the foregoing, the plaintiff alleges in a supplemental Complaint (R. Doc. 20),
that newly named defendants, former Warden Burl Cain and Ass’t Warden Stephanie
Lamartiniere, are responsible for the implementation of wrongful policies at LSP, for the improper
delegation of medical responsibility to unqualified personnel, and for failure to properly address
administrative grievances filed by the plaintiff.
Addressing first the plaintiff’s claims asserted against defendants Cain and Lamartiniere,
the Court notes that whereas most of the defendants have been named in their individual capacities
only, see R. Doc. 1 at pp. 5-6, defendants Cain and Lamartiniere have been named in both their
individual and their official capacities, see R. Doc. 20 at p. 2.

As such, these two defendants seek

dismissal of the plaintiff’s claim asserted against them in their official capacities.

In this regard,

the defendants are correct that § 1983 does not provide a federal forum for a litigant who seeks
monetary damages against either a state or its officials acting in their official capacities,
specifically because these officials are not seen to be “persons” within the meaning of § 1983.
Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989).
276 F.3d 736, 742 (5th Cir. 2002).

See also Oliver v. Scott,

In addition, in Hafer v. Melo, 502 U.S. 21 (1991), the United

States Supreme Court addressed the distinction between official capacity and individual capacity
lawsuits and made clear that a suit against a state official in an official capacity for monetary
damages is treated as a suit against the state and is therefore barred by the Eleventh Amendment.

Id. at 25.

Accordingly, the plaintiff's claim asserted against defendants Burl Cain and Stephanie

Lamartiniere in their official capacities for monetary damages is subject to dismissal. In contrast,
the plaintiff's claim for monetary damages asserted against these defendants in their individual
capacities remains viable because a claim asserted against a state official in an individual capacity,
seeking to impose personal liability for actions taken under color of state law, is not treated as a
suit against the state. Id. at 29.

In addition, the plaintiff's claim for prospective injunctive relief

asserted against the defendants in their official capacities also remains viable because such a claim
is not treated as a claim against the state. Will v. Michigan Department of State Police, supra,
491 U.S. at 71 n.10.

Of course, the plaintiff would still be required to establish a deprivation of

his constitutional civil rights in order to obtain any entitlement to relief.
Turning to a consideration of the plaintiff’s allegations that are not barred by the Eleventh
Amendment, the defendants assert that they are entitled to qualified immunity in connection with
the plaintiff’s claims. Specifically, the defendants contend that the plaintiff has failed to present
evidence or sufficiently allege conduct on their part that rises to the level of a violation of the
plaintiff’s federal constitutional rights.
The qualified immunity defense is a familiar one and, employing a two-step process,
operates to protect public officials who are performing discretionary tasks. Huff v. Crites, 473
Fed. Appx. 398 (5th Cir. 2012).

Taking the facts as alleged in the light most favorable to the

plaintiff, the Court considers whether the defendants= conduct violated the plaintiff=s constitutional
rights and whether the rights allegedly violated were clearly established at the time that the
violation occurred.

Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that the rigid

protocol mandated in Saucier v. Katz, 533 U.S. 194 (2001) B that called for consideration of the
two-pronged analysis in a particular order B should not be Aregarded as an inflexible requirement@).

Under Pearson, courts now have discretion to decide which of the two prongs of the analysis to
address first.

This inquiry, the Court stated, is undertaken in light of the specific context of the

case, not as a broad, general proposition. Saucier v. Katz, supra, 194 U.S. at 201. The relevant,
dispositive inquiry in determining whether a constitutional right was clearly established is whether
it would have been clear to a reasonable state official that his conduct was unlawful in the situation
that he confronted.

Id. at 202.

The assertion of the qualified immunity defense alters the

summary judgment burden of proof.

Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005).

Once a defendant pleads qualified immunity, the burden shifts to the plaintiff, who _must rebut
the defense by establishing that the official_s allegedly wrongful conduct violated clearly
established law and that genuine issues of material fact exist regarding the reasonableness of the
official_s conduct._ Gates v. Texas Department of Protective and Regulatory Services, 537 F.3d
404, 419 (5th Cir. 2008), citing Michalik v. Hermann, supra, 422 F.3d at 262.
Undertaking the qualified immunity analysis, the Court finds that the defendants’ motions
should be granted.

Specifically, the Court concludes that the plaintiff has failed to present

evidence sufficient to overcome the defendants’ assertion of qualified immunity in connection with
his claims of deliberate medical indifference.
It is now well-settled that to prevail on an Eighth Amendment claim for the deprivation of
medical care, a prisoner must be able to show that appropriate care has been denied and that the
denial has constituted Adeliberate indifference to serious medical needs.@ Thomas v. Carter, 593
Fed. Appx. 338, 342 (5th Cir. 2014), citing Estelle v. Gamble, 429 U.S. 97 (1976). Whether the
plaintiff has received the treatment or accommodation that he believes he should have is not the
issue because a prisoner=s mere disagreement with his medical treatment, absent exceptional
circumstances, does not support a claim of deliberate medical indifference.

Gobert v. Caldwell,

463 F.3d 339, 346 (5th Cir. 2006).

Nor do negligence, neglect, medical malpractice or

unsuccessful medical treatment give rise to a ' 1983 cause of action.
Fed. Appx.

See Zaunbrecher v. Gaudin,

, 2016 WL 536874 (5th Cir. Feb. 10, 2016).

Rather, Asubjective

recklessness as used in the criminal law@ is the appropriate definition of Adeliberate indifference@
under the Eighth Amendment.

Farmer v. Brennan, 511 U.S. 825, 839-30 (1994).

A prison

official acts with deliberate indifference only if the official (1) Aknows that inmates face a
substantial risk of serious bodily harm,@ and (2) Adisregards that risk by failing to take reasonable
measures to abate it.@ Gobert v. Caldwell, supra, 463 F.3d at 346, quoting Farmer v. Brennan,
supra, 511 U.S. at 847.
The deliberate indifference standard sets a very high bar. The plaintiff must be able to
establish that the defendants Arefused 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.@ Domino v. Texas Dept. of Criminal Justice, 239 F.3d 752, 756
(5th Cir. 2001), quoting Estelle v. Gamble, supra.

Further, a mere delay in providing medical

treatment does not amount to a constitutional violation without both deliberate indifference and a
resulting substantial harm. Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006), citing Mendoza
v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).
In the instant case, the competent summary judgment evidence does not support the
plaintiff’s claim that the defendants have been deliberately indifferent to his serious medical needs.
To the contrary, the evidence reflects that the plaintiff’s medical complaints have been routinely
addressed and have not been ignored by the defendants.

As outlined in the affidavits provided

by the defendant physicians, and as confirmed from a review of the plaintiff’s medical
documentation filed in the record, see R. Doc. 12, the plaintiff has been seen on numerous

occasions by physicians and medical personnel at LSP in connection with his complaints
concerning his right eye and stomach.

In addition to regular and recurring treatment by

physicians and medical personnel employed at the LSP infirmary, he has been referred and seen
by specialists in both eye care and gastroenterology at the prison.

He has also been referred for

appointments with specialists at outside facilities, including the LSP Eye Clinic, the Earl K. Long
Medical Center, the Louisiana State University Ophthalmology Clinic, the Interim LSU Hospital
Eye Clinic, the Tulane Medical Center, and the LSU Retina Clinic.

He has participated in at least

one Telemed conference with a specialist in gastroenterology. He has been issued limited duty
statuses and double-portion meal trays, and he has been repeatedly prescribed medications deemed
appropriate for his condition and complaints.

He has undergone diagnostic testing, including but

not limited to multiple blood analyses, eye examinations, an ultrasound evaluation and gastric
biopsies.

Contrary to his assertion that a gastric scope was scheduled but then cancelled by

defendant Lavespere, it appears that a gastric scope was in fact undertaken at an outside facility in
September 2014, and showed mild erosive gastritis. Contrary to the plaintiff’s assertion that the
defendants are responsible for delaying and refusing to allow him to undergo recommended
surgery for his right eye, it appears that a decision not to undertake eye surgery to repair a macular
hole in the plaintiff’s right eye was made, not by the defendants or personnel employed at LSP,
but instead by LSU health care providers in June, 2013.

It further appears that subsequent

evaluations of the plaintiff’s right eye suggest that the macular hole has resolved.
Based on the foregoing, it appears that the crux of the plaintiff’s complaint is not that he
has been denied medical attention entirely, but rather that such attention has been inadequate,
improper or delayed.

Specifically, he is apparently unhappy with the care that has been provided,

and he believes that additional care is warranted.

He expresses disagreement with the

determinations made by prison medical personnel, and he believes that his condition has been misdiagnosed and/or mistreated.

Notwithstanding, a failure to refer an inmate plaintiff for additional

treatment, diagnostic testing or evaluation is a matter of professional medical judgment that the
courts will not normally second-guess in the context of a claim of deliberate medical indifference.
See Cuellar v. Livingston, 321 Fed. Appx. 373, 374 (5th Cir. 2009) (upholding the dismissal of an
inmate’s claim as frivolous, noting that “the question whether ‘additional diagnostic techniques or
forms of treatment is indicated is a classic example of a matter for medical judgment,’” quoting
Estelle v. Gamble, supra, 429 U.S. at 107).

Further, as noted above, although the plaintiff is

apparently dissatisfied with the medical care that has been provided to him at LSP, such
dissatisfaction does not alone support a claim of deliberate medical indifference.

Therefore,

liberally construing the plaintiff’s Complaint, the Court finds that his allegations, at best, set forth
a claim of negligence, misdiagnosis and/or delay in the provision of medical care, and the plaintiff
has not sufficiently shown that any deficiencies in his care are due to deliberate indifference on
the part of the defendants.

Accordingly, the defendants are entitled to summary judgment in

connection with the plaintiff’s claim of deliberate indifference to his serious medical needs.
In addition to the foregoing, whereas the plaintiff also complains that the defendants have
been deliberately indifferent to his complaints regarding numbness in his hands and that defendant
Warden Cain has implemented unspecified wrongful policies at LSP regarding health care, the
Court agrees with the defendants’ contention that the plaintiff has failed to exhaust administrative
remedies relative to these claim as mandated by 42 U.S.C. § 1997e.

In this regard, pursuant to

42 U.S.C. § 1997e, the plaintiff was required to exhaust administrative remedies available at the
prison prior to commencing a civil action in this Court with respect to prison conditions.
provision is mandatory and applies broadly to “all inmate suits about prison life.”

This

Porter v.

Nussle, 534 U.S. 516, 532 (2002). Further, a prisoner must exhaust administrative remedies by
complying with applicable prison grievance procedures. Johnson v. Johnson, 385 F.3d 503, 517
(5th Cir. 2004).

Specifically, not only must the prisoner exhaust all available remedies, but such

exhaustion must be proper, including compliance with an agency’s deadlines and other critical
procedural rules. Woodford v. Ngo, 548 U.S. 81, 90 (2006). One of the principal purposes of
the administrative exhaustion requirement is to provide fair notice to prison officials of an inmate’s
specific complaints so as to provide “‘time and opportunity to address complaints internally.’”
Johnson v. Johnson, supra, 385 F.3d at 516, quoting Porter v. Nussle, supra, 534 U.S. at 525.
Thus, the degree of specificity necessary in a prisoner’s grievance should be evaluated in light of
this intended purpose. Id.
Upon a review of the plaintiff’s pertinent administrative remedy proceedings, see R. Docs.
46 through 46-4, the Court concludes that the defendants’ motion is well-taken and should be
granted relative to the plaintiff’s claims of numbness in his hands and the implementation of
alleged wrongful health care policies.

Specifically, it appears clear that the plaintiff failed to

specifically assert these claims in the administrative grievances that he submitted to prison officials
prior to the commencement of the instant lawsuit. To the contrary, the claims asserted by the
plaintiff in the referenced grievances relate principally to his assertions regarding the alleged
failure of prison medical officers to diagnose and provide appropriate care and treatment for the
plaintiff’s eye and stomach complaints.

See R. Docs. 16, 16-1, 16-2, 16-3 and 16-4.

The

plaintiff does not specifically make reference in his grievances to any alleged failure by prison
officials to attend to complaints regarding numbness in his hands, and he does not identify any
alleged wrongful policies implemented by defendant Cain that have had the effect of denying him

appropriate medical care.2

As such, the plaintiff has failed to exhaust administrative remedies

regarding these claims, and the defendants are entitled to summary judgment in connection
therewith.
Finally, the plaintiff asserts a claim that defendant Cain is responsible for having
improperly delegated health care authority to unqualified personnel at LSP, that defendant
Lamartiniere, specifically, is not qualified to make health care decision regarding inmates, and that
defendant Lamartiniere has also mishandled and improperly denied the plaintiff’s administrative
claims. These claims are conclusory, are not supported by any evidence in the record, and are
clearly without merit.
medicine at LSP.

Defendant Lamartiniere is not a physician and does not purport to practice
To the contrary, defendant Lamartiniere is apparently a supervisory

administrative employee at LSP who oversees the healthcare program at the facility. See R. Doc.
42-2 at p. 5.

The plaintiff provides no evidence that suggests that defendant Lamartiniere is

unqualified or untrained to undertake her administrative duties, and the plaintiff otherwise fails to

2. In addition, the plaintiff has also failed to sufficiently allege or show the personal
involvement of defendant Cain in any aspect of the plaintiff’s medical care. In this regard, in
order for a prison official to be found liable under § 1983, the official must be shown to have been
personally and directly involved in conduct causing an alleged deprivation of an inmate’s
constitutional rights, or there must be shown to be a causal connection between the actions of the
official and the constitutional violation sought to be redressed. Lozano v. Smith, 718 F.2d 756,
768 (5th Cir. 1983). Any suggestion that a named defendant may be responsible for the actions
of subordinate officers or co-employees under a theory of vicarious responsibility or respondeat
superior is alone insufficient to state a claim under § 1983. See Ashcroft v. Iqbal, supra, 556 U.S.
at 676 (2009), citing Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). See also
Bell v. Livingston, 356 Fed. Appx. 715, 716-17 (5th Cir. 2009) (recognizing that “[a] supervisor
may not be held liable for a civil rights violation under any theory of respondeat superior or
vicarious liability”). Further, in the absence of direct personal participation by a supervisory
official in an alleged constitutional violation, an inmate plaintiff must be able to show that the
deprivation of his constitutional rights has occurred as a result of a subordinate’s implementation
of the supervisor’s affirmative wrongful policies or as a result of a breach by the supervisor of an
affirmative duty specially imposed by state law, Lozano v. Smith, supra, 718 F.2d at 768, neither
of which have been shown by the plaintiff.

identify any particular LSP employee, physician, nurse, or medical technician who is unqualified
or untrained or to whom is delegated authority that they are not qualified to exercise.

Further,

with regard to the alleged failure of defendant Lamartiniere to properly handle the plaintiff’s
administrative grievances, the law is clear that a mere failure to investigate or favorably respond
to an inmate’s complaints or administrative grievances is not a basis for liability under § 1983.
See Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir. 2005). To the contrary, the plaintiff has no
constitutional right to an investigation or to a favorable response to his written complaints or
grievances, and there is no due process right inherent in such a claim.

Id.

Accordingly, the

plaintiff’s claims in this regard are subject to dismissal as a matter of law.
Finally, in addition to the foregoing, the Court notes that the plaintiff has not filed any
opposition in response to the defendants= motions for summary judgment. In the context of a
motion for summary judgment, it is well-settled that a plaintiff may not rest upon mere allegations
or assertions contained in his Complaint in opposing a properly supported motion. Celotex Corp.
v. Catrett, supra, 477 U.S. at 324.

Specifically, Rule 56 requires that, in response to such a

motion, the nonmoving party must Ago beyond the pleadings and by [his] own affidavits, or by the
>depositions, answers to interrogatories, and admissions on file,= designate >specific facts showing
that there is a genuine issue for trial.=@ Id.

Stated another way, in order to meet his burden of

proof, the party opposing a motion for summary judgment Amay not sit on its hands, complacently
relying@ on the pleadings. Weyant v. Acceptance Insurance Co., 917 F.2d 209, 212 (5th Cir.
1990).

When a party does not file an opposition to a motion for summary judgment, the Court is

permitted to consider the facts presented in support of the motion as undisputed and to grant
summary judgment if the facts show that the movant is entitled to judgment in his favor. See
Jegart v. Roman Catholic Church Diocese of Houma - Thibodaux, 384 Fed. Appx. 398, *2 (5th

Cir. 2010). Further, pursuant to Local Rule 56(b) of this Court, the plaintiff=s failure to oppose
the defendants= motions for summary judgment allows the Court to conclude that all of the facts
contained in the defendants= Statements of Uncontested Material Facts are deemed to be admitted.
In the instant case, despite notice and an opportunity to appear, the plaintiff has not come forward
with any opposition to the defendants= motions for summary judgment or to the affidavits and
documentary evidence produced in support thereof.

Accordingly, there is nothing before the

Court which tends to dispute the defendants= assertions regarding the plaintiff=s medical care and
treatment.

Therefore, based upon the plaintiff=s failure in this case to oppose the defendants=

motions, failure to designate specific evidence in the record of sufficient caliber and quantity to
create a genuine issue for trial, and failure to produce supporting evidence on his own behalf, the
Court concludes that the defendants= motions are well-taken and that the defendants are entitled to
summary judgment as a matter of law.3

Accordingly,

IT IS ORDERED that the “John Doe” and “Jane Doe” defendants named in the plaintiff’s
Complaint and Amended Complaint be DISMISSED, without prejudice, for failure of the plaintiff
to serve these defendants within the delays allowed by Rule 4(m), Fed. R. Civ. P.
IT IS FURTHER ORDERED that the defendants= Motions for Summary Judgment (R.
Docs. 9 and 42) be GRANTED, dismissing the plaintiff=s federal constitutional claims asserted

3. In light of the Court’s findings, the Court need not address the defendants’ contention
that certain of the plaintiff’s claims are barred by passage of the applicable limitations period.
Notwithstanding, the Court agrees with the defendants that the plaintiff’s claims concerning events
occurring more than a year prior to the filing of the Complaint (not counting the time during which
the plaintiff’s administrative grievances were pending) are time barred. Specifically, for claims
brought pursuant to 42 U.S.C. § 1983, federal courts borrow the forum state’s personal injury
limitation period. See Harris v. Hegmann, 198 F.3d 153, 156-57 (5th Cir. 1999). In Louisiana,
that period is one year, taking into account the pendency of administrative remedy proceedings
which toll the running of the limitations period while such claims are pending. See id. at 158; La.
Civ. Code art. 3492.

against the defendants pursuant to 42 U.S.C. § 1983, with prejudice, and that this action be
dismissed.

Judgment shall be entered accordingly.

Signed in Baton Rouge, Louisiana, on March 23, 2016.

S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA