Mealy v. Gautreaux et al

Filing 252

RULING On HMA Report and Notice: The 206 Motion in Limine seeking to exclude Plaintiff's Exhibit 79, the HMA report, is DENIED. Signed by Judge John W. deGravelles on 12/1/2020. (LLH)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
SHERMAN MEALEY
CIVIL ACTION
VERSUS
SHERIFF SID J. GAUTREAUX, III,
ET AL.

NO. 16-716-JWD-RLB

RULING ON HMA REPORT AND NOTICE
Before the Court is the issue of the admissibility of a proposed trial exhibit of plaintiff
Sherman Mealey (“Plaintiff” or “Mealey”), listed in the Pretrial Order as Plaintiff’s Exhibit 79.
(Doc. 213 at 16.) The Defendant, City of Baton Rouge/Parish of East Baton Rouge (“Defendant”
or “City/Parish”) claims it is irrelevant hearsay. Plaintiff argues it is relevant non-hearsay
because it is being introduced for a purpose other than to show the truth of its contents, namely
to show that Defendant was on notice of certain alleged deficiencies in the health care being
given to prisoners in the East Baton Rouge Parish Prison (“EBRPP”), including Plaintiff. The
Court has carefully reviewed the motions and memoranda on this issue, and for the following
reasons, Defendant’s challenge to Plaintiff’s Exhibit 79 is, for the limited purpose of showing
notice, denied and it will be admitted for that limited purpose assuming a proper foundation for
its introduction is laid.
I.

Background
The issue of the admissibility of Health Management Associates’ (“HMA”) data has been

presented to the Court in several ways. Among other proposed Plaintiff’s exhibits, Defendant
challenged the following in its Motion in Limine to Exclude Plaintiff’s Exhibits and Subject
Matters (Doc. 206):

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Plaintiff’s Exhibit 79 (HMA Final Power Point presentation)
Plaintiff’s Exhibit 88 (HMA Notes)
Plaintiff’s Exhibit 89 (HMA Chart)
Plaintiff’s Exhibit 90 (HMA draft Power Point presentation)
(Doc. 206 at 1.)
Plaintiff withdrew Exhibits 88 and 90 (Doc. 214 at 7), and the Court therefore did not
rule on this part of Defendant’s motion. As to Exhibit 89, Defendant’s motion was granted but
the Court qualified its ruling by saying that should Defendant make aspersions regarding the
motive or intent of HMA’s author, the Court would consider admitting this evidence for the
limited purpose of rebutting those assertions.
As to Plaintiff Exhibit 79, HMA’s Final Power Point presentation (“the HMA report”)
(Doc. 166-5 at 2-31), the Court, in its oral ruling of June 25, 2020, rejected Defendant’s
argument that the HMA report was irrelevant, pointing to an earlier ruling in this case, Mealey v.
Gautreaux, No. 16-716-JWD-RLB, 2020 WL 515853, at *22 (M.D. La. Jan. 31, 2020).
However, the Court granted Defendant’s motion to exclude the only line in the report about
which Defendant complained (“Need sufficient compliant space for population.”). For purposes
of that discrete issue, the Court found it unnecessary to consider Plaintiff’s argument that the
HMA report was not hearsay because it was being introduced not for its truth, but to show that
the report put Defendant on notice as to certain alleged deficiencies in health care at EBRPP.
The admissibility of the HMA report was also raised by Plaintiff’s Motion in Limine
Against City/Parish of East Baton Rouge. (Doc. 166-1 at 10-13.) In that motion, Plaintiff asked
the Court for “guidance” as to whether the HMA report, introduced without the testimony of its
authors, would be admissible. (Id. at 10.) Plaintiff argued it was not hearsay under Federal Rule
of Evidence 801(d)(2)(D) because the authors of the report, Jack Raba and HMA, were agents of
Defendant City/Parish. (Id. at 10-13.)
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The Court ruled it was “unable to decide based on the information provided [at that time]
whether an agency relationship existed...” and therefore gave the parties seven days from June
25, 2020 to brief the issue. (Doc. 229 at 3.) Both parties did. (Docs. 223 and 226.) On July 15,
2020, the Court issued oral reasons finding that “the HMA report does not qualify as non-hearsay
under the provisions of FRE 801(d)(2)(D).” (Doc. 247 at 3.) However, the Court gave Plaintiff
30 days to brief the issue of whether the HMA report is not hearsay because Plaintiff is not
introducing it for the truth of its content but to show that notice was given to Defendant.
Defendant was given 15 days to respond. (Id. at 3-4.) The parties filed briefs on this issue (Docs.
248 and 249), and the Court is prepared to rule.
II.

Arguments of the Parties
As a general matter of evidence, Plaintiff argues that statements are not hearsay if offered

“to show the effect on the listener” (Doc. 248 at 1 (quoting White v. Fox, 470 Fed. App’x. 214,
222 (5th Cir. 2012))), or “if introduced to show a speaker and/or listener’s knowledge, notice or
state of mind.” (Id. (quoting I.F. v. Lewisville Indep. Sch. Dist., No. 14-359, 2016 WL 7734555,
at *7 (E.D. Tex. Dec. 1, 2016) (citing United States v. Obregon-Reyes, 507 Fed. App’x. 413, 424
(5th Cir. 2013))).) In this case, where Plaintiff seeks to establish liability under both the ADA
and 42 U.S.C. § 1983, “notice of serious potential risks to inmate health or safety is a central
inquiry….” (Doc. 248 at 4.)
To prove his § 1983 claim, Plaintiff must prove Defendant’s deliberate indifference to
Plaintiff’s health or safety, i.e. that Defendant was “aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists [to Plaintiff] and…must draw that
inference.” (Id. (quoting Mealey, 2020 WL 515853, at *13).) As to his ADA claim, “a plaintiff
must show that the defendant committed ‘intentional discrimination,’ which requires that the

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defendant receive ‘actual notice of a violation.’” (Id. (quoting Miraglia v. Bd. of Supervisors of
Louisiana State Museum, 901 F.3d 565, 575 (5th Cir. 2018)).)
In his brief, Plaintiff points to 8 examples of deficiencies noted in the HMA report which
provided notice to Defendant of deficiencies in EBRPP’s health care for purposes of both ADA
and § 1983. (Doc. 248 at 2-3.) Among those items which Plaintiff points to are a “[n]otable
vacancy rate for RN and LPN positions” (Doc. 248 at 2 (citing Doc. 223-1 at 12)), and that
“[m]edical provider staffing is insufficient to meet the needs of the EBR patient population” (id.
(citing Doc. 223-1 at 12)). Plaintiff cites this Court’s decision in Francois v. Gen. Health Sys.,
No. 3:17-CV-522-JWD-RLB, 2020 WL 838434, at *2 (M.D. La. Feb. 20, 2020) to support his
contention that the HMA report is not hearsay because it is not being introduced for its truth but
rather, to show that it gave Defendant notice of these deficiencies and others.
Defendant does not dispute the general principles of evidence argued by Plaintiff and
concedes that notice is a requirement of Plaintiff’s case under the ADA and § 1983. Rather,
Defendant disputes the applicability of these principles to this case and to the issue before the
Court. Defendant argues that any “notice” provided by the HMA report to the Metropolitan
Council is irrelevant since the Council “does not create policies for EMS and then-existing PMS”
who provided the actual health care at EBRPP. (Doc. 249 at 1.) “[T]he Metropolitan Council was
not (and is not) the prison official or administrator charged with setting or regulating health care
policies or procedures at the jail.” (Doc. 249 at 4.) This function was served by the Health Care
Manager and Medical Director for PMS. “The Metropolitan Council only approved budgetary
funding for the cost of operations.” (Id. at 5 (record citations omitted).)
Second, unlike the document in question in Francois v. Gen. Health Sys., supra, relied
upon by Plaintiff, the HMA report was a) “generalized and not specifically applicable to the

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plaintiff’s experiences” (Doc. 249 at 3); b) did not “opine that the City/Parish’s medical services
in the jail violated applicable law or legal requirements” including the ADA (id. at 2); and c) did
not request an accommodation for Plaintiff or anyone else and, in fact, “did not involve an ADA
or RA analysis whatsoever” (id. at 1).
Finally, Defendant makes merits-based arguments that the City/Parish was “quickmoving” and “reasonable” in “transitioning from internal health care to a private [ ] healthcare
provider [in] just under six months after HMA gave its presentation to the Metropolitan
Council.” (Id. at 1-2.) Defendant complains that the HMA report did not include items such as
the audit certifications by the Louisiana Department of Corrections (id. at 2) and that the HMA
report ignores Plaintiff’s medical records which “conflict[] with the substantive findings
contained within the HMA slides.” (Id. at 3-4.)
III.

Discussion
In its ruling on motions for summary judgment in this case, the Court provided this

background and summary of Plaintiff’s ADA allegations.
Plaintiff, Mr. Mealey is a paraplegic, who is unable to walk, stand, or use his legs
without assistance and requires a wheelchair for his primary means of mobility. As
a paraplegic, Mr. Mealey has a qualified disability under the Americans with
Disabilities Act (“ADA”). Mr. Mealey was first incarcerated in 2012 (“2012
Incarceration”) at the East Baton Rouge Parish Prison (“Prison”). Mr. Mealey was
also incarcerated at the Prison from August 10, 2015 to October 24, 2016 (“2015
Incarceration”). Plaintiff sued the Sheriff1 and the City/Parish (together,
“Defendants”) alleging that during his 2015 Incarceration Defendants violated the
ADA and the Rehabilitation Act (“RA”) as well as his constitutional rights pursuant
to § 1983. Plaintiff alleges that due to his paraplegic condition, he requires specific
accommodations, and that the City and the Sheriff impermissibly denied his
requests for those accommodations. These accommodations include but are not
limited to: (1) access to a shower chair; (2) materials to elevate his feet to reduce
swelling; (3) catheters to help him urinate; and (4) suppositories to help him
defecate. Plaintiff alleges that as a result of the lack of accommodation he has
suffered: (a) swollen legs; (b) bedsores and infections; (c) urinary tract infections;
The Court granted in part and denied in part the Sherriff’s Motion for Summary Judgment. (Doc. 174 at 47-48.)
Thereafter Plaintiff settled all claims with the Sherriff (Docs. 191 and 194), who is no longer a party to the case.
1

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(d) lack of personal hygiene; (e) personal humiliation, disgrace and embarrassment;
(f) invasion of privacy through the unwanted touching by other inmates; (g) sleep
deprivation; and (h) invasion of his civil rights.
Mealey, 2020 WL 515853, at *1.
As to Plaintiff’s § 1983 claim, the Court found:
Plaintiff has produced sufficient evidence to create a question of fact as to whether
the Prison conditions resulted in an extreme deprivation of the minimal measure of
life's necessities. Mr. Mealey is a paraplegic and as a result of his condition must
use catheters and suppositories. Mr. Mealey recounted that due to inadequate access
to medical care, Mr. Mealey went without catheters, lubrication for his catheters,
suppositories, and adult diapers. Mr. Mealey describes that even when he had
catheters, the lack of lubrication for those catheters meant that he had to use his
own spit to insert them into his urethra. Further, the lack of suppositories meant that
he had to physically remove fecal matter from his anal cavity. The lack of access
to adult diapers meant that he also was forced to sit in his own fecal matter.
Coupled with this lack of access to basic hygienic items is the fact that Mr. Mealey
was not able to meaningfully clean his body because of the lack of useable shower
chairs and the fact that he was turned away from showering in the Infirmary.
Although both Defendants make much of the testimony that Mr. Mealey was
always able to propel his wheelchair into the showers while he was in the general
prison population, Plaintiff meaningfully points out that this does not mean Mr.
Mealey was able to clean himself in the shower. Mr. Mealey's testimony shows that
to attempt to clean himself he had to: (1) shower in his wheelchair which left it and
him sitting in a damp wheelchair that smelled of fecal matter; (2) ask other prisoners
to hold him, which put him in their debt, or (3) try to find a trash bag to cover his
wheelchair. Mr. Mealey also points to evidence that as a result of the lack of
hygienic supplies, the inability to shower, he developed ulcers, and bed sores as
well as suffered a fall from his wheelchair that had broken due to mold and rust.
Id. at *15 (omitting record citations).
Regarding the deliberate indifference component of Plaintiff’s § 1983 claim, the Court
wrote:
As to the second element, Plaintiff has produced sufficient evidence to show that
prison officials and medical staff at the Prison acted with deliberate indifference.
Specifically, Mr. Mealey points to evidence that shows that when Mr. Mealey
requested that prison officials and medical staff provide access to hygienic supplies
or allow him to shower in the Infirmary, he was repeatedly turned away. ***

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Mr. Mealey's repeated requests through inmate grievances that were rejected by
both the Sheriff's employees and Prison Medical Service employees provided those
prison officials and nurses with actual knowledge that a substantial risk of serious
harm existed. Furthermore, if proven true that Mr. Mealey (1) smelled of fecal
matter due to his lack of access to suppositories and adult diapers; (2) suffered
repeated falls from his broken wheelchair due to using it in the shower with injuries
treated in the Infirmary; (3) suffered urinary tract infections from a lack of sufficient
catheters and lubrication that were treated in the Infirmary, then it is a reasonable
inference that the risk of harm was obvious. As such, the Court concludes that Mr.
Mealey has produced sufficient evidence to show that the prison officials and
nurses were deliberately indifferent to the inhumane conditions of confinement Mr.
Mealey suffered from an inadequate access to medical care.
Id. at *16.
In its oral ruling of June 25, 2020, the Court previously rejected Defendant’s claim that
the HMA report was not relevant to Plaintiff’s claims against the City Parish, citing Mealey,
2020 WL 515853, at *22.2 Both Plaintiff and Defendant agree that Plaintiff must prove that
Defendant had notice of the alleged violations in order to succeed in his ADA claim. (Doc. 248
at 4; Doc. 249 at 6 (both citing Miraglia, 901 F.3d at 575).) Notice is also important to Plaintiff’s
§ 1983 claim since Plaintiff must prove Defendant was “aware of facts from which an inference
can be drawn that a substantial risk of harm exist[ed]…and…[drew] that inference.” Mealey,
2020 WL 515853, at *13 (quoting Pattern Civ. Jury Inst. 5th Cir. 10.9 (2014)).
Given the allegations Plaintiff makes regarding the inadequate health care he received at
EBRPP and Defendant’s notice of same for both his ADA and § 1983 claims, many of the items
set out in the HMA report, including those quoted in footnote 2 and those enumerated by

“At the request of the Metropolitan Board, Health Management Associates conducted an onsite visit from February
23-26, 2016, interviewed staff, and looked at the Prison Medical Services Records. Once its independent study was
completed, Health Management Associates Report and Recommendations for Clinical Operations (‘Report’)
reported its findings to the City/Parish administrators and the Metropolitan Board. The Report outlined that the
medical care was ‘insufficient to meet the needs of the EBR prison population’ the ‘physical plant is notably
deficient’ and ‘need sufficient ADA compliant space for population.’ The report likewise details a ‘notable vacancy
rate for RN and LPN positions’ and that ‘medical provider staffing[was] insufficient.’ Further it highlighted that the
health care provided was ‘episodic and inconsistent’ and that the Prison would not pass standards outlined by the
National Commission on Correctional Health Care's standards for healthcare in a correctional facility.” Id. (record
citations omitted).
2

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Plaintiff at Doc. 248 at 2-3, “have a tendency to make [Plaintiff’s allegations against Defendant]
more … probable than it would be without the evidence” Fed. R. Evid. 401(a), i.e. they are
relevant. The fact that the HMA report does not “opine that the City/Parish’s medical services in
the jail violated applicable law or legal requirements” including the ADA (Doc. 249 at 2), did not
request an accommodation for Plaintiff or anyone else, and “did not involve an ADA or RA
analysis whatsoever” (id. at 1), does not render the report irrelevant. In addition, the fact that
Defendant has evidence which it claims counters Plaintiff’s allegations on the merits does not
render the challenged evidence irrelevant.
Similarly, the fact that the HMA report does not “opine that the City/Parish’s medical
services in the jail violated applicable law or legal requirements” including the ADA (Doc. 249
at 2), did not request an accommodation for Plaintiff or anyone else, and, “did not involve an
ADA or RA analysis whatsoever” (id. at 1), does not mean that the report did not give notice to
Defendant of alleged deficiencies relevant to Plaintiff’s claims. The fact that the HMA report
does not criticize (or even mention) the care received by Plaintiff does not gainsay the report’s
notice of items relevant to Plaintiff’s claim. The fact that Defendant disagrees with the HMA
report’s findings and has evidence which it claims counters Plaintiff’s allegations on the merits
does not gainsay the notice the HMA report provided to Defendant.
The HMA report was commissioned by Defendant and presented to Defendant. It clearly
provided notice to Defendant of its contents and these included alleged deficiencies in EBRPP’s
healthcare which bear on Plaintiff’s claims. If being offered solely for the purpose of establishing
notice and not for the truth of its contents, then the HMA report is not hearsay under Fed. R.
Evid. 801(c)(2). “Perhaps the most straightforward illustration of the effect-on-the-listener, nonhearsay purpose for offering an out-of-court statement is to show notice. A statement can be

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offered to demonstrate that a person who heard it was placed on notice of a pertinent matter.”
30B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 6719 (2020
ed.). See also Kunz v. Utah Power & Light Co., 913 F.2d 599, 605 (9th Cir. 1990) (press releases
were not hearsay because "not offered to prove their truth, see Fed. R. Evid. 801(c), but rather to
show that the Landowners had notice of the potential flooding circumstances").
Defendant attempts to distinguish this Court’s decision in Francois, by arguing that there,
the email in question contained notice of an alleged violation of the ADA and a request for
accommodation whereas here, the HMA slideshow is more general in its statements of alleged
deficiencies in the health care being received by inmates at EBRPP. (Doc. 249 at 3-4 (citing
Francois, 2020 WL 838434, at *2).) For purposes of Rule 801(c)(2), this is a distinction without
a meaningful difference. In both cases, the document in question gave notice to Defendant of
information relevant to the ADA and §1983 claims.
Therefore, for the limited purpose of showing notice to Defendant, Defendant’s Motion
in Limine to exclude Plaintiff’s Exhibit 79 is denied.3 In order to minimize confusion or
prejudice, the Court is willing to instruct the jury as to the limited purpose for which the
evidence is being received. Plaintiff does not object to such a limiting instruction. (Doc. 248 at 5
n.13.) The Court will give said instruction if requested by the parties at the time the HMA report
is mentioned or offered into evidence.

For reasons given in its oral reasons of June 25, 2020, the Court granted Defendant’s motion to exclude the phrase
“Need sufficient compliant space for population” from the HMA report.
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IV.

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Conclusion
For the foregoing reasons, that part of Defendant’s Motion in Limine (Doc. 206) seeking

to exclude Plaintiff’s Exhibit 79, the HMA report, is denied.
Signed in Baton Rouge, Louisiana, on December 1, 2020.

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

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