Donahue v. Wilder et al

Filing 40

ORDER: This Court DENIES both the Combined FRCP Rule 12(b)(6) Motion for Partial Dismissal for Failure to State a Claim Upon Which Relief Can be Granted,and FRCP Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction, (Doc. 11), and the Combined FRCP Rule 12(b)(6) Motion for Partial Dismissal for Failure to State a Claim Upon Which Relief Can be Granted, and FRCP Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction, (Doc. 19). Signed by Judge John W. deGravelles on 2/10/2016. (BCL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
KENNETH DONAHUE,
Plaintiff,
CIVIL ACTION
NO. 15-499-JWD-RLB
VERSUS

ALONZO WILDER and COURTNEY
CHANEY,
Defendants.

ORDER ON FIRST AND SECOND MOTIONS TO DISMISS
I.

INTRODUCTION
Before the Court is the Combined FRCP Rule 12(b)(6) Motion for Partial Dismissal for

Failure to State a Claim Upon Which Relief Can be Granted, and FRCP Rule 12(b)(1) Motion to
Dismiss for Lack of Subject Matter Jurisdiction (“First MTD”), (Doc. 11), filed by Ms. Courtney
Chaney (“Chaney”), and the Combined FRCP Rule 12(b)(6) Motion for Partial Dismissal for
Failure to State a Claim Upon Which Relief Can be Granted, and FRCP Rule 12(b)(1) Motion to
Dismiss for Lack of Subject Matter Jurisdiction (“Second MTD”), (Doc. 19), docketed by a
second defendant, Doctor Alonzo Wilder (“Wilder”). To the First MTD, Mr. Kenneth Donahue
(“Donahue” or “Plaintiff”) responded with the Opposition to Combined FRCP Rule 12(b)(6)
Motion for Partial Dismissal for Failure to State a Claim Upon Which Relief Can be Granted,
and FRCP Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction (“First
Opposition”), (Doc. 17).1

1

A first such response was filed on September 18, 2015, (Doc. 15), but it was struck due to its
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In their papers, Wilder and Donahue (collectively, “Defendants”) advance two arguments
to justify dismissal of the Plaintiff’s complaint (“Complaint”), (Doc. 1), pursuant to Federal Rule
of Civil Procedure 12.2 First, Plaintiff’s allegations do not state a plausible claim for relief on the
basis of medical indifference in contravention of the United States Constitution’s Eighth
Amendment’s prohibition on cruel and unusual punishment. Second, as Plaintiff, a prison
inmate, has not yet received a formal rejection of the formal complaint submitted by him to the
relevant entity, the Livingston Parish Detention Center (“LPDC”), a corrections institution
within Louisiana’s Department of Public Safety and Corrections, he has not yet exhausted his
administrative remedies, a threshold prerequisite for suit in either federal or state court. Plaintiff
disagrees, maintaining that the story told in the Complaint evidences the prohibited indifference
and that exhaustion has been achieved by virtue of LPDC’s inaction.
In light of the plausibility standard of review effected by Rule 12, this Court finds no
merit in Defendants’ contentions. Once Plaintiff’s allegations are construed in his favor, the
law’s iron requirement, they sum up to a plausible claim for relief under the Eighth Amendment.
To wit, Defendants’ conduct, as described by Plaintiff in his pleading and the Opposition, could
be said to reasonably evidence intentional refusal to provide essential medical care, their
treatment so defective as to equate to forbidden indifference as defined in case after case.
Moreover, based on the facts presented to this Court, Title 22 of Louisiana’s Administrative
Code3 leaves no question about the fact that exhaustion has been effectively realized for, among

noncompliance with the local rules of the Middle District of Louisiana, (Doc. 16).
2

In this opinion, any and all references to “Rule []” or “Rules” are to the Federal Rules of Civil
Procedure unless otherwise noted.
3

In this order, any and all references to “Section []” or “§ []” are to a section of the Louisiana
Administrative Code.
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other reasons, the crucial passing of ninety-one days.4 As such, for these reasons, as more fully
explained below, this Court DENIES the First and the Second MTDs.5

II.

BACKGROUND

A.

Factual Allegations6
In June of 2014, Donahue was an inmate at LPDC. (Doc. 1 at 3; see also Doc. 17 at 1.)

That summer, Donahue “made [a] routine ‘sick call’ complaining of pain in his right food and
[that his] . . . foot kept turning extremely cold and then back to warm,” this condition worsening
“to the point that he could not put weight on the right foot without serious pain.” (Doc. 1 at 3; see
also Doc. 17 at 1–2.) With “climbing” seemingly “impossible,” Donahue was assigned to a
lower bunk. (Doc. 1 at 3; see also Doc. 17 at 2.) In the ensuing months, as Plaintiff continued to
repeat these same complaints, he was examined and treated by Chaney, Wilder, and a third
nurse, Ms. Shelly (“Shelly”).7 (Doc. 1 at 3–4; see also Doc. 17 at 2.) When he first showed
Shelly his “blistering” toes and his inability to place weight upon his right foot, she authorized
his bottom bunk restriction. (Doc. 1 at 3; see also Doc. 17 at 1–2.) Later, while Chaney was
beside him, her role unclear, Wilder initially “glanced at . . . [Plaintiff’s] foot and found . . . no
problem”; hence, Wilder prescribed ibuprofen. (Doc. 1 at 4; see also Doc. 17 at 2.) After a
second sick call, in which “blood blisters had formed on the bottom of . . . [Donahue’s] toes” and
sleep proved impossible, Wilder “explained that there was nothing he could do and sent . . .

4

See infra Part III.B.

5

Notably, Wilder sought permission to file a third motion to dismiss. (Doc. 37.) This request was
denied. See infra Part II.B.

6

For purposes of Rule 12, this Court treats the Complaint’s allegations as true. Of course, they
may later prove to be more fictional than factual.
7

Shelly is not a named defendant. (See Doc. 1.)
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[Donahue] back to his room.” (Doc. 1 at 4; see also Doc. 17 at 2.)
This pattern continued unchanged. Plaintiff would complain, and Wilder and Chaney
would insist “that there was nothing wrong with his foot,” purportedly telling Donahue that “he
had athlete[’]s foot and that his foot was like that because he was working out” and urging him to
take his ibuprofen. (Doc. 1 at 4; see also Doc. 17 at 2–3.) Meanwhile, Donahue’s condition
seemingly worsened, as his toes “turned purple and were cold to the touch,” leading Plaintiff to
“cr[y] due to the severe pain.” ((Doc. 1 at 4; see also Doc. 17 at 2–3.) Accordingly, another
request to see a doctor was made, but it too was denied “on the basis that in . . . [the nurses’]
opinions ‘there is nothing wrong with your foot.’” (Doc. 1 at 4.) A subsequent complaint did lead
Chaney to act, however, but “rather than call[ing] the [p]arish [d]octor, . . . [she] pulled out a
small pair of scissors and cut the blisters and bandaged them, which worsened the serious
medical condition.” (Id. at 5.) Later, when Defendant complained “that he had no circulation in
his toes and that something was seriously wrong with his foot,” Wilder ordered an x-ray and
bloodwork, no break indicated. (Id.) In November 2015, Donahue again asked to see a doctor.
(Id.) Once more, Wilder advised him “that he could not do anything.” (Id.) Still, he arranged for
Plaintiff’s removal to another facility without otherwise modifying Donahue’s treatment. (Id.)
Transferred that day, Donahue was seen by a new doctor, who, having made a diagnosis,
had Donahue shipped to Elayn Hunt Correctional Center (“Hunt”) for medical treatment. (Id. at
5–6.) Within a week, Donahue’s toes had fully blackened, leading him to pronounce “a selfdeclared medical emergency.” (Id. at 6.) Sent to the emergency room at River’s Hospital, the
doctor there informed Donahue “that his toes were dead.” (Id.) Plaintiff was subsequently
transported to University Health Shreveport, where the “toes on his right foot were surgically
removed and stints were placed in both sides of his lower area.” (Id.) Eventually, Donahue

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landed again at Hunt, still enduring “considerable pain” and undergoing unspecified
“treat[ment].” (Id.)
In November 2014, while he was still housed in LPDC, Defendant formally protested of
his treatment by Chaney and Wilder via a written complaint (“ARP”). (Id. at 1.) LPDC, however,
never responded. (Id.) When he arrived at Hunt, Donahue filed a second ARP based on this same
alleged misconduct. (Id.) Hunt rejected this second attempt, explaining that “an ARP must
[seemingly] be filed with the facility where the injury occurred.” (Id. at 1–2.) Adhering to these
instructions, in April 2015, Donahue and his counsel mailed this second ARP to LPDC “with a
request that it be processed.” (Id. at 2.) Once more, LPDC “failed to respond.”8 (Id.)

B.

Procedural Background
The Complaint was filed on July 31, 2015, (Id.), more than ninety (90) days after April

30, 2015.9 The First MTD was docketed on September 3, 2015. (Doc. 11.) The Opposition came
on September 21, 2015. (Doc. 17.) Wilder tendered the Second MTD on October 9, 2015. (Doc.
19.) A hearing on these motions was twice rescheduled. (Dos. 33, 36.) This hearing was set for
February 11, 2016, at 1:30 p.m., Central Standard Time. (Doc. 36.) Thereafter, on February 2,
2016, Wilder submitted the Defendant’s Motion for Leave to File Amended Motion to Dismiss
and Memorandum of Law in Support. (Doc. 37.) Mirroring the First and Second MTDs, this
Court denied this motion on February 3, 2016. (Doc. 38.) The hearing originally set to take place
on February 11, 2016, was vacated on February 5, 2016. (Doc. 39.)

8

Whether LPDC has done so in the months since the Complaint’s filing is not known to this
Court.
9

With the end date, the gap was ninety-four (94) days.
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C.

Pertinent Arguments
Read together, linked in logic and in interest, the First and Second MTDs raise identical

arguments for dismissal of the Complaint, (Doc. 1). According to both Defendants, this
document fails to state a cognizable federal cause of action for two reasons. First, the
Complaint’s allegations, once subjected to the plausibility standard lodged in Rule 8 as presently
construed, establish the existence of nothing but simple negligence in diagnosis and treatment.
(See, e.g., Doc 11 at 1; Doc. 11-1 at 4; Doc. 19-1 at 1, 3–4.) As a matter of well-settled law, such
claims cannot constitute the kind of medical indifference necessary to sustain Plaintiff’s claim of
cruel and unusual punishment in violation of the Eighth Amendment. (See, e.g., Doc 11 at 1;
Doc. 11-1 at 4; Doc. 19-1 at 1, 3–4.) Second, because Louisiana law requires claims like
Plaintiff’s to first exhaust the state’s established administrative review procedure and because
Plaintiff has not yet received a response from LPDC regarding his ARP, his claim is not yet ripe,
his remedies not yet exhausted. (See, e.g., Doc 11 at 1–2; Doc. 11-1 at 5–6; Doc. 19-1 at 1, 4–6.)
Under certain law, however, such exhaustion must occur before a suit in any federal tribunal,
including this one, can be maintained. (See, e.g., Doc 11 at 1–2; Doc. 11-1 at 5–6; Doc. 19-1 at
4–6.) The first failing compels dismissal under Rule 12(b)(1), Defendants contend. (See, e.g.,
Doc. 11-1 at 5–6; Doc. 19-1 at 5–6.) The second failing compels dismissal pursuant to Rule
12(b)(6), they add. (See, e.g., Doc. 11-1 at 5–6; Doc. 19-1 at 5–6.) Regardless of the applicable
paragraph, the Complaint must fall.

III.

DISCUSSION

A.

Governing Law

1.

Rule 12(b)

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Rule 12(b) allows for dismissal of a complaint for, among other matters, “failure to state
a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). For purposes of this rule,
“[t]he content of the complaint is the only material to be considered . . . . in alleged fact and
applicable law.” Duke & King Acquisition Corp. Liquidating Trust v. Nath Cos. (In re Duke &
King Acquisition Corp.), 508 B.R. 107, 115 (Bankr. D. Minn. 2014). When confronted with a
motion to dismiss presented pursuant to Rule 12(b)(6), a court must construe the complaint in
favor of the plaintiff and take all well-pleaded facts as true. Randall D. Wolcott, MD, PA v.
Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (citing Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.
2009)); accord Blankenship v. USA Truck, Inc., 601 F.3d 852, 853 (8th Cir. 2010). Nonetheless,
“a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 126 S. Ct. 1955, 1964–65, 167 L.
Ed. 2d 929 (2007); see also Richardson v. Axion Logistics, L.L.C., 780 F.3d 304, 306 (5th Cir.
2015). At present, “[f]actual allegations must be enough to raise a right to relief above the
speculative level,” Twombly, 550 U.S. at 555; “the plaintiff must plead enough facts to state a
claim to relief that is plausible on its face,” Vanderbrook v. Unitrin Preferred Ins. Co. (In re
Katrina Canal Breaches Litig.), 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks
omitted). A claim has this requisite “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d
868 (2009); see also Montoya v. FedEx Ground Package Sys., Inc., 614 F.3d 145, 148 (5th Cir.
2010) (citing id.). The Supreme Court has further cautioned: “The plausibility standard is not
akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant

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has acted unlawfully.” Ashcroft, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556); see also
United States v. Bollinger Shipyards, Inc., 775 F.3d 255, 260 (5th Cir. 2014) (quoting id.). Thus,
“[w]here 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.’” Ashcroft,
556 U.S. at 678.
Rule 12(b) also allows for dismissal when a court lacks “subject matter jurisdiction.”
FED. R. CIV. P. 12(b)(1). In contrast with the constraints imposed on a court’s consideration
under Rule 12(b)(6), factual challenges to the existence of subject-matter jurisdiction under Rule
12(b)(1) allow a court to consider “matters outside the pleadings, such as testimony and
affidavits.” Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980). Generally, a
court may consider any of the following in order to rule on a Rule 12(b)(1) motion: (1) the
complaint alone; (2) the complaint plus undisputed facts evidenced in the record; or (3) the
complaint, undisputed facts, and the court's resolution of disputed facts. Lane v. Halliburton, 529
F.3d 548, 557 (5th Cir. 2008). However, “[w]hen a complaint is challenged for lack of subject
matter jurisdiction on its face, all material allegations in the complaint will be taken as true and
construed in the light most favorable to the plaintiff.” Legacy Wireless Servs. v. Human Capital,
L.L.C., 314 F. Supp. 2d 1045, 1048 (D. Or. 2004). With jurisdiction so critical, a plaintiff, never
the movant, always bears the burden of demonstrating jurisdiction. See, e.g., Madison-Hughes v.
Shalala, 80 F.3d 1121, 1130 (6th Cir. 1996); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.
1982).

2.

Medical Indifference under the Eighth Amendment
To state a claim under Section 1983 of Title 42 of the United States Code, a plaintiff must

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allege (1) that the challenged conduct was “committed by a person acting under color of state
law,” and (2) that such conduct “deprived [the plaintiff] of rights, privileges, or immunities
secured by the Constitution or laws of the United States.” Cornejo v. Bell, 592 F.3d 121, 127 (2d
Cir. 2010). In Estelle v. Gamble, the Court held that “deliberate indifference to serious medical
needs of prisoners” constituted the “unnecessary and wanton infliction of pain” proscribed by the
Eighth Amendment, wholly actionable under Section 1983. 429 U.S. 97, 104, 97 S. Ct. 285, 291,
50 L. Ed. 2d 251 (1976). Critically, as Defendants correctly point out, “an inadvertent failure to
provide adequate medical care” does not amount to a constitutional violation; “[m]edical
malpractice,” if predicated on pure negligence, “does not become a constitutional violation
merely because the victim is a prisoner.” Estelle, 429 U.S. at 106; see also, e.g., Wilson v.
Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 2323, 115 L.Ed.2d 271 (1991) (quoting id.); Rodrigue
v. Grayson, 557 F. App’x 341, 344 (5th Cir. 2014) (same). Instead, the operative test
requires deliberate indifference on the part of the prison officials and that the prisoner's medical
needs be serious. Monmouth Cnty. Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326,
346 (3d Cir. 1987).
Per this standard, if “a prisoner allege[s] acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical needs” by, for example, showing that “prison
guards . . . intentionally den[ied] or delay[ed] access to medical care,” he or she has indeed stated
a cognizable claim under Section 1983. Estelle, 429 U.S. at 105, 106; see also Easter v. Powell,
467 F.3d 459, 463 (5th Cir. 2006). True, “evidence which shows only that an inmate disagrees
with a diagnosis or the course of treatment selected for him is [inherently] not sufficient.” Little
v. Lycoming Cnty., 912 F. Supp. 809, 816 (M.D. Pa. 1996) (quoting Estelle, 429 U.S. at 105–06).
Conversely (and logically), evidence that prison officials provided no treatment despite their own

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medical staff’s diagnosis or professional judgment may be, depending on the evidence’s severity.
As the Fifth Circuit has explained, refusing to “treat” a prisoner, “ignoring his complaints,”
“intentionally treat[ing] him incorrectly, or engag[ing] in any similar conduct that would clearly
evince a wanton disregard for any serious medical needs” trigger such liability. Gobert v.
Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). Hence an intent to harm or animus towards a
particular inmate is not itself required so long as such reckless disregard for his or her medical
needs, whether it takes the form of deliberate mistreatment or disregard for his or her verifiable
complaints (and sickly state), can be shown. See, e.g., Bouchereau v. Gautreaux, No. 14-805JWD-SCR, 2015 U.S. Dist. LEXIS 121225, at *19–20, 2015 WL 5321285, at *7 (M.D. La. Sept.
11, 2015) (summarizing prevailing case law regarding the Constitution’s medical indifference
standard); Lanzaro, 834 F.2d at 346 (“Where prison authorities deny reasonable requests for
medical treatment . . . and such denial exposes the inmate to ‘undue suffering or the threat of
tangible residual injury’ . . . deliberate indifference is manifest.” (internal citations omitted));
Ancata v. Prison Health Servs., 769 F.2d 700, 704 (11th Cir. 1985) (“The knowledge of the need
for medical care and intentional refusal to provide that care has consistently been held to surpass
negligence and constitute deliberate indifference.”); Ramos v. Lam, 639 F.2d 559, 575 (10th Cir.
1980) (“Deliberate indifference to serious medical needs is shown when prison officials have
prevented an inmate from receiving recommended treatment.”).
In undertaking such complex analyses, courts have focused on five questions: how
serious was the prisoner’s need for medical attention? Has the alleged medical need been
confirmed by a health care professional? Did the prisoner request any medical treatment and, if
so, did he or she receive treatment that addressed his need? Was the treatment rendered
adequate? If the prisoner did not receive any treatment or only inadequate treatment, what was

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the subjective motivation of the responsible prison official for denying or delaying medical
treatment? Damon Martin, Comment, State Prisoners’ Rights to Medical Treatment: Merely
Elusive or Wholly Illusory?, 8 BLACK L.J. 427, 433 (1983). As these questions suggest, “[a]
claim against prison officials and/or prison medical professionals for failure to provide medical
care is ‘fact-intensive and . . . require[s] . . . development of the record’ and a ‘conclusory
assessment essentially disregards [a] [plaintiff’s] allegations.’” Randolph v. Wetzel, 987 F. Supp.
2d 605, 624 (E.D. Pa. 2013) (alterations in original) (quoting Leamer v. Fauver, 288 F.3d 532,
547 (3d Cir. 2002)).

3.

Exhaustion under State Law
As commonly construed, Louisiana law requires even prisoners to submit their medical

malpractice claims to the correctional administrative review procedures established for such
hearings in a correctional environment. Walker v. Appurao, 2009 0821 (La. App. 1 Cir.
10/23/09); 29 So. 3d 575, 576–77 (interpreting LA. R.S. § 40:1299.39(E)(1)); accord, e.g.,
Jackson v. State, 2011 1716 (La. App. 1 Cir. 03/23/12); 92 So. 3d 391, 395; see also Ellis v.
Sylvester, 2010 1260 (La. App. 1 Cir. 02/11/11); 2011 La. App. Unpub. LEXIS 60, at *8–9, 2011
WL 766942, at *3. The administrative remedy procedure applicable to offenders, in turn, is set in
§ 325 of the Louisiana Administrative Code. Pursuant to § 325(F)(3)(a)(viii), “[p]rior to filing a
grievance in federal or state court, unless specifically excepted by law, the offender must exhaust
all administrative remedies.” LA. ADMIN. CODE § 22:I.325(F)(3)(a)(viii). Such exhaustion occurs
when one of three events has come to pass: (a) “when the relief requested has been granted”; (b)
“when the second step response has been issued”; or (c) “when the grievance has been screened
and rejected for one of the reasons specified in Subsection I, Grievance Screening.” Id. §

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22:I.325(F)(3)(a)(viii)(a)–(c); Anderson v. Wilkinson, No. 1:10-CV-00063, 2014 U.S. Dist.
LEXIS 33571, at *8 (W.D. La. Feb. 12, 2014). Phrased in the disjunctive, any of the foregoing
equates to exhaustion. See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 116 (2012).
This process begins when an offender “complet[es] a request for administrative remedy
or writing a letter to the warden, in which he briefly sets out the basis for his claim, and the relief
sought.” LA. ADMIN. CODE § 22:I.325(G)(1)(a)(i); Robinson v. Martin, No. 11-cv-1640, 2015
U.S. Dist. LEXIS 131070, at *5, 2015 WL 5697254, at *2 (W.D. La. Mar. 23, 2015). The
warden must “respond to the offender within 40 days/5 days for PREA from the date the request
is received at the first step utilizing the first step response.” LA. ADMIN. CODE §
22:I.325(J)(1)(a)(ii). Thereupon, “[a]n offender who is dissatisfied with the first step response
may appeal to the secretary of the Department of Public Safety and Corrections by so indicating
that he is not satisfied in the appropriate space on the response form and forwarding it to the
ARP screening officer within five days of receipt of the decision.” Id. § 22:I.325(J)(1)(b)(i). At
this second step, a response must be made within a “time limit” of 45 days. Id. §
22:I.325(J)(1)(b). As allowed under subparagraph (viii), an offender “not satisfied with the
second step response . . . may file suit in district court.” Id. § 22:I.325(J)(1)(b)(iv).
Critically, this system specifies a timespan for responses—“No more than 90 days from
the initiation to completion of the process shall elapse, unless an extension has been granted”—
and punishes any greater delay: “Absent such an extension, expiration of response time limits
shall entitle the offender to move on to the next step in the process.” Id. § 22:I.325(J)(1)(c).

B.

Application

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Based on the foregoing law, this Court has no option but to deny both MTDs.
While Defendants characterize Plaintiffs’ medical indifference allegations as “in actuality
claims of negligence in the diagnosis and/or treatment of [P]laintiff,” (Doc. 19-1 at 1), and as
“nothing more than the kind of naked assertions devoid of further factual enhancement
prohibited by Ashcroft,” (Doc. 11-1 at 4), the facts alleged, if assumed true, readily satisfy the
Eighth Amendment’s stringent medical indifference standard. According to Plaintiff, he could
place no weight upon his toes, and his condition consistently worsened during the summer and
fall of 2014, resulting in an increasing collection of blisters and pain-filled nights. (Doc. 1 at 3–6;
see also Doc. 17 at 2–4.) For these supposed afflictions, which Wilder allegedly described as
athlete’s foot and Chaney as nothing at all, Wilder purportedly prescribed ibuprofen, insisting
“that there was nothing wrong with his foot,” and Chaney cut and bandaged his blisters,
seemingly “worsen[ing his] . . . serious medical condition.” (Doc. 1 at 4; see also Doc. 17 at 2–
3.) Thus, Defendants either diagnosed Plaintiff’s gangrene as athlete’s foot or evaded his
requests for more comprehensive treatment by insisting on their inability to help; stated
differently, they either deliberately treated him incorrectly or disregarded the validity of his ever
more desperate complaints. (Doc. 1 at 4; see also Doc. 17 at 3–4.) Eventually, a doctor
diagnosed him with gangrene, his toes “dead” partly due to months of non-treatment. (Doc. 1 at
4; see also Doc. 17 at 4.)
Assumed true for Rule 12(b)’s limited purposes, these allegations would establish that
Defendants ignored Plaintiff’s well-founded complaints or intentionally treated him incorrectly.
Having chosen to disregard his growing concern (and darkening toes) and to respond to a
worsening physical condition with the same medicinal regimen or unvarying inaction, they
“evince[d] a wanton disregard for . . . [his] serious medical needs.” Gobert, 463 F.3d at 346.

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Though gangrene can seemingly be treated if caught early and be detected by any number of
medical tools, including blood tests, cultures, imaging tests, and surgery, Chaney cut Donahue’s
blisters, and Wilder gave him ibuprofen and a single scan for a bone break. As a matter of clear
law, such conduct, lasting several months, could be found to have run afoul of the Eighth
Amendment, see Davis v. Thomas, 615 F. App’x 240, 241 (5th Cir. 2015) (citing id.), for “[the]
infliction of pain” upon Plaintiff could be reasonably seen as both “unnecessary and wanton,”
Gessa v. LeGrand, 612 F. App’x 784, 785 (5th Cir. 2015). They are not, simply put, naked
assertions or conclusory assertions, as Defendants repeatedly contend, (Doc. 11-1 at 4; Doc. 19-1
at 1, 4),10 but something far more substantial, adding up to a plausible medical indifference cause
of action. Of course, Defendants, most especially Wilder, did not categorically refuse to treat
Plaintiff, (See, e.g., Doc. 37-1 at 7–8), but deliberately defective treatment will also contravene
the Eighth Amendment, see, e.g., Gessa, 612 F. App’x at 785. With the Constitution offended
whenever a doctor “refuse[s]” to treat an inmate, “ignore[s] his complaints,” “intentionally
treat[s] him incorrectly,” or “engage[s] in any similar conduct that would clearly evince a
wanton disregard for any serious medical needs,” Anderson v. Stephens, 609 F. App’x 217, 218
(5th Cir.) (quoting Gobert, 463 F.3d at 346), and Plaintiff having assembled allegations’
cumulatively indicative of Defendants’ indifference to a spreading (and diagnosable) infection,11
the Complaint meets the bare minimum set in Rule 8 and must thus be held to withstand Rule

10

Indeed, Defendants’ claims strike this Court as more ineffably conclusory. (See Doc. 11-1 at
4.) Having explicated the proper standard, they simply “respectfully submit” that Plaintiff’s
claim are purely “conclusory” in character. (See, e.g., id. at 4; Doc. 19-1 at 3–4.) The third
motion to dismiss opts for the same formulation. (Doc. 37-1 at 7–8.)
11

Indeed, one doctor would recommend surgery upon seeing Plaintiff’s foot. (See Doc. 1 at 6.)
Whether such a recommendation should have been made by Wilder several months beforehand
is not a question that this Court must answer.
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12(b)(6), regardless of the veracity of Plaintiff’s claims.12
Meanwhile, Defendants’ contention that Plaintiff’s present action is barred by operation
of Louisiana’s Administrative Code, thereby compelling dismissal of the Complaint pursuant to
Rule 12(b)(1), is predicated on an incorrect legal conclusion: that Plaintiff, who has not received
a response for the ARP sent to LPDC in either August 2014 or April 2015, has improperly
sought to invoke this Court’s jurisdiction. In Wilder’s words, “[s]imply pleading that the
Livingston Parish Detention Center failed to respond is not enough to then file a lawsuit in
Federal Court,” (Doc. 19-1 at 4 (internal quotation marks omitted); accord Doc. 37-1 at 5–6); in
Chaney’s, “[h]is proper recourse would be to petition the appropriate Louisiana state court to
order the correctional facility to institute the requested administrative review procedures,” (Doc.
11-1 at 5).
This contention, however, cannot be squared with the explicit language of the very
corpus of law upon which Defendants rely. Pursuant to § 22:I.325, the Plaintiff was entitled to
file a “grievance in federal or state court” upon his remedies’ exhaustion, and this pivotal
moment occurred once LDCP failed to act upon his ARP at the second step within 45 days of its
submission. LA. ADMIN. CODE § 22:I.325(F)(3)(a)(viii), (J)(1)(c). Having proceeded past the
First Step, (Doc. 17 at 9), LDCP bore this duty per explicit regulation, LA. ADMIN. CODE §
22:I.325(J)(1)(b). When it did not do so, Plaintiff reaped the right to file suit in any state or
federal tribunal, including this one. Id. § 22:I.325(F)(3)(a)(viii). In fact, on the ninety-first day
after his ARP’s initial filing, the so-called “First Step,” Louisiana law granted him that
prerogative. Id. § 22:I.325(J)(1)(c). Whether the relevant start date is the last day of November
2014 or the last minute of April 2015, (Doc. 17 at 8–9; see also, e.g., Doc. 1 at 1–2), Plaintiff’s

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Rule 56 would necessarily impel a different arithmetic. FED. R. CIV. P. 56.
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right to sue would have arisen before the Complaint was docketed, (Doc. 1).13 In sum, by
operation of the law to which Defendants direct this Court’s attention, the claims made in the
Complaint have been administratively exhausted, affording this Court jurisdiction and defeating
Defendants’ Rule 12(b)(1) argument.

IV.

CONCLUSION
As written, the Complaint states a plausible claim for relief for medical indifference in

contravention of the Eighth Amendment. Concurrently, the Complaint establishes this claim’s
exhaustion in accordance with Louisiana’s Administrative Code, which automatically compels
such a finding. Accordingly, this Court DENIES both the Combined FRCP Rule 12(b)(6)
Motion for Partial Dismissal for Failure to State a Claim Upon Which Relief Can be Granted,
and FRCP Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction, (Doc. 11),
and the Combined FRCP Rule 12(b)(6) Motion for Partial Dismissal for Failure to State a Claim
Upon Which Relief Can be Granted, and FRCP Rule 12(b)(1) Motion to Dismiss for Lack of
Subject Matter Jurisdiction, (Doc. 19).
Signed in Baton Rouge, Louisiana, on February 10, 2016.

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

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If this Court uses the latest possible date, i.e. April 30, 2015, that right came into being on July
29, 2015. The Complaint was filed two days later. (Doc. 1.)
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