Guillory v. Department of Health and Hospitals et al

Filing 37

RULING granting 20 Motion to Dismiss. Guillory will be given 30 days within which to amend and supplement his complaint. Signed by Judge John W. deGravelles on 3/20/2018. (SGO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

ARTHUR GUILLORY
CIVIL ACTION
VERSUS
NO. 16-787-JWD-RLB
LOUISIANA DEPARTMENT OF
HEALTH AND HOSPITALS, ET AL.
RULING
Before the Court is a Motion to Dismiss (“Motion”) filed by the Louisiana
Department of Health (“LDH”), Hampton “Steve” Lea, Michael DeCaire, Dr. John
Thompson, Dr. Monique Attuso, Dr. Sanket Vayas, Dr. Alan Perego, Dr. Patrick
McCrossen, Dr. Elizabeth Cain, Dr. Gabriel Onor, Carlos Green, Katina Chaney, Lacey
Betholet, Otis Drew, Sammie Dunn, Jimmie Holmes, Matthew McKey, Ronald Johnson,
and Paula Bryant (collectively “Defendants”).1 Plaintiff has filed an Opposition to the
Motion.2 The Defendants have filed a Reply.3 The Court’s jurisdiction is pursuant to 28
U.S.C. § 1331. Oral argument is unnecessary. For the following reasons, the Motion shall
be GRANTED, but Plaintiff Guillory is given 30 days to amend his complaint to cure any
deficiencies.
I.

FACTUAL AND PROCEDURAL BACKGROUND
Arthur Guillory (“Guillory”) is a patient housed at the Eastern Louisiana Mental

Health System’s Feliciana Forensic Facility (“ELMHS”) in Jackson, Louisiana. Although

1

Doc. 20. Guillory’s First Amended Complaint (Doc. 5) was filed before an answer or other responsive
pleadings were filed. A Second Amended Complaint (Doc. 15) was filed with leave of court. (Doc. 14) and
merely corrected the identity of a Defendant. The Court will treat the First Amended Complaint as the
operative complaint. Additionally, in his First Amended Complaint, Guillory also names “CGT John Doe 1”
and “CGT John Doe 2” as Defendants to this action. In their Motion to Dismiss, Defendants state that
counsel is not making an appearance for any defendant not properly identified or served.
2
Doc. 24.
3
Doc. 25.

1

Guillory’s status at ELMHS is not clear from the First Amended Complaint, Guillory’s
opposition to this motion states he is “involuntarily committed to [ELMHS] as a result of
the Not Guilty by Reason of Insanity (NGRI) acquittal in a criminal case.”4 On November
24, 2015, while housed in the D-wing of the Admissions Special Security Area (“ASSA”)
unit at ELMHS, Guillory was granted a transfer to the less restrictive Intermediate
Treatment Unit (“ITU”).5 Guillory alleges that because of a bed space shortage at ITU,
he was ordered by Defendant Dr. Sanket Vayas (“Dr. Vayas”) to return to ASSA the
following day.6
On November 25, 2015, Guillory claims that he was transferred back to ASSA and,
under the direction of Defendant Captain Matthew McKey (“Captain McKey”), was placed
in the A-wing instead of being returned to the D-wing.7 Guillory asserts that he had
expressed a safety concern to Captain McKey regarding his placement in the A-wing,
contending that it housed several of his known enemies and other patients who regarded
him as a “rat” based on a belief that he previously informed on them.8 Guillory also alleges
that the A-wing was commonly regarded as a violent tier where injury was likely to occur.9
Guillory asserts that he was attacked by other patients housed in the A-wing—
some of whom he claims had a known history of violence towards other patients—while
getting ready to shower on November 26, 2015.10 Guillory alleges that Defendants
Jimmie Holmes (“CGT Holmes”) and Sammie Dunn (“CGT Dunn”), who were both
employed by ELMHS as Correction Guard Therapeutics (“CGT”), were assigned to the

4

Doc. 24 at 6.
Doc. 5, at ¶24.
6
Id.
7
Id. at ¶25.
8
Id. at ¶26.
9
Id. at ¶27.
10
Id. at ¶28.
5

2

tier and tasked with monitoring the physical safety of patients under their control.11
Guillory further alleges that CGT Dunn was specifically tasked with providing “close visual
observation” on Guillory at the time of the incident.12 Guillory contends that CGT Holmes
left the unit upon witnessing the commencement of the attack, and only acted to stop the
attack once he returned with backup.13
According to his First Amended Complaint, Guillory was initially examined by
Defendant Carlos Green (“Nurse Green”), who was employed as a nurse by ELMHS,
shortly after the incident in question.14 Guillory alleges that he requested that Nurse
Green transfer him to the hospital because he felt extreme pain on the left side of his
body and had difficulty breathing. Guillory states that Nurse Green told him that there
was no reason to transfer him to the hospital or to provide any additional follow up care.15
Guillory further alleges that Nurse Green failed to include his complaints of pain or
difficulty breathing on the injury report form that was completed after Nurse Green’s
examination.16 Guillory contends that Defendant Michael DeCaire (“AOD DeCaire”),
ELMHS’ Assistant Chief Executive Officer and the Administrator on Duty at the time of
the incident, was notified of the attack but did not provide any follow up care beyond Nurse
Green’s initial assessment.17
Guillory states that he was transferred out of the A-wing into an ITU dorm on
November 27, 2015.18 Guillory alleges that upon his transfer he informed Nurse Henrietta

11

Id. at ¶¶ 4, 29.
Id.
13
Id. at ¶¶29-30.
14
Id. at ¶31.
15
Id. at ¶32.
16
Id.
17
Id. at ¶33.
18
Id. at ¶34.
12

3

Johnson (“Nurse Johnson”), who is not named as a Defendant in the First Amended
Complaint, that the left side of his body was in pain.19 Guillory further alleges that after
being notified of his complaints of pain by Nurse Johnson, Defendant Dr. Alan Perego
(“Dr. Perego”) commenced a painful examination that included an auscultation and the
application of pressure to his stomach and ribs.20 Guillory maintains that, although Dr.
Perego verbally informed him that one of his lungs may not be functioning properly, he
failed to document this observation and ordered only that Guillory be given prune juice to
address issues related to constipation.21 Guillory also contends that Dr. Perego failed to
take his recent attack into account when making his assessment.22
Guillory alleges that he continued to report feeling pain on the left side of his body
and even started to observe bruising during his monthly assessment with Defendant
Nurse Latshum Lacey (“Nurse Lacey”) on November 28, 2015.23 Guillory further alleges
that Nurse Lacey failed to document his reported pain, bruising, or the recent attack on
the report form, instead merely indicating “no new impairments.”24
On December 8, 2015, ten days following his monthly assessment by Nurse Lacey,
Guillory alleges that Dr. Vayas, his treating psychiatrist, and Dr. John Thompson (“Dr.
Thompson”), ELMHS’ Chief of Staff, received laboratory reports that he contends
reflected changes in his blood chemistry.25 Guillory asserts that neither Dr. Vayas nor Dr.
Thompson took the steps necessary to identify the specific cause of the change in his

19

Id.
Id.
21
Id.
22
Id.
23
Id. at ¶35.
24
Id.
25
Id. at ¶36.
20

4

blood chemistry.26

Guillory further alleges that Dr. Vayas merely followed up by

prescribing him sodium chloride tablets, but did not further investigate the underlying
cause of the change.27
Ten days following his evaluation by Dr. Vayas, Guillory alleges that he informed
Defendant Nurse Otis Drew (“Nurse Drew”) of pain in his back and ribs and of his trouble
breathing.28 Guillory asserts that Nurse Drew merely followed up by offering him Vicks
VapoRub to address his shortness of breath and referred him to Defendant Dr. Elizabeth
Cain (“Dr. Cain”).29 Guillory contends that Dr. Cain failed to offer any substantive follow
up on his complaints of shortness of breath.30
Guillory asserts that his reports of pain and shortness of breath were dismissed for
two months following his evaluations by Nurse Drew and Dr. Cain.31 Guillory states that
he was forced to endure significant pain in order to comply with his proscribed exercise
regimen or risk dropping a therapeutic level, impacting his ability to seek release and
maintain privileges.32

Guillory contends that he was informed that various medical

personnel including Nurse Green and Nurse Drew told the CGTs that his complaints were
all imagined and a function of his delusion.33
Guillory alleges that on January 14, 2016, his complaints of pain and shortness of
breath were followed up with a prescription of Albuterol and a chest x-ray by Nurse
Rosemary Stagg (“Nurse Stagg”), who is not a named Defendant in his First Amended

26

Id.
Id.
28
Id. at ¶37.
29
Id.
30
Id.
31
Id. at ¶38.
32
Id.
33
Id.
27

5

Complaint.34 Guillory contends that the results of his chest x-ray revealed a massive
effusion around his left lung, which was so significant that his sternum and heart had been
shifted to the right.35
Guillory asserts that he was immediately routed to the emergency room at
University Medical Center (“UMC”), where a radiologist concluded that his ribs on his left
side were fractured and his left lung had collapsed.36 Guillory claims that the physicians
at UMC noted that they were particularly concerned about a potential blood clot due to
the old age of the effusion and the amount of blood that was pooled around his lung.37
Ultimately, Guillory contends that his medical issues required extensive surgery in order
to drain the effusion and re-inflate his lung.38 This required Guillory to remain at UMC for
over a month, chained to his hospital bed at all times, until he was transferred to Villa
Feliciana Nursing Home to recuperate for an additional month.39 Guillory alleges that he
was eventually returned to ELMHS on March 26, 2016, nearly four months after his initial
injury.40
Guillory claims that the attack he endured in November 2015 was not referred to
the LDH’s Adult Protective Services (“APS”) for investigation until February 10, 2016.41
Guillory states that on March 9, 2016, an Investigative Review Committee (“IRC”)
unanimously found that allegations of caregiver neglect against CGT Dunn, CGT Holmes,
and Nurse Green were substantiated after the IRC noted that CGT Dunn and CGT

34

Id. at ¶39.
Id.
36
Id. at ¶¶39-40.
37
Id.
38
Id. at ¶41.
39
Id. at ¶¶41-42.
40
Id. at ¶42.
41
Id. at ¶43.
35

6

Holmes failed to follow shower procedures and that Nurse Green had failed to complete
a post fall assessment or include any follow up care notes in his report.42
Guillory alleges that ELMHS Chief Executive Officer, Hampton Steve Lea (“CEO
Lea”), was provided with the IRC’s findings against all three ELMHS personnel (CGT
Dunn, CGT Holmes, and Nurse Green) but only agreed with the finding of caregiver
neglect against CGT Dunn.43 Guillory further contends that CEO Lea failed to supply any
basis for his findings, which resulted in unsubstantiated findings of caregiver neglect
against CGT Holmes and Nurse Green.44
Guillory filed the instant lawsuit on November 23, 2016 asserting claims against
the Defendants arising under the United States Constitution; 42 U.S.C. § 1983; Title II of
the Americans with Disabilities Act of 1990, 42 U.S.C. § 12131, 42 U.S.C. § 1988, and 42
U.S.C. § 12205, et. seq. (“ADA”); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
§ 794 (“RA”); the Louisiana Medical Malpractice Act, La. R.S. §40:1231.1, et. seq.
(“LMMA”); and Louisiana state law.45
Guillory claims that the Defendants discriminated against him in violation of the
Fifth and Fourteenth Amendments of the United States Constitution and 42 U.S.C. § 1983
by establishing and maintaining a system that they knew would result in Guillory being
denied access to appropriate medical care by failing to supervise subordinates to ensure
patients received appropriate medical care and by acting with deliberate indifference to
Guillory’s right to receive appropriate medical care. Additionally, Guillory alleges that LDH

42

Id. at ¶44.
Id. at ¶45.
44
Id.
45
Doc. 5 and Doc. 20. In his Opposition to the Motion to Dismiss, the Plaintiff agreed to the dismissal of
the medical malpractice claims against all Defendants as well as all claims against Paula Bryant, Ronald
Johnson, and Monique Attuso. (Doc. 24 at 1, 4.)
43

7

violated the ADA by discriminating against and continuing to discriminate against him on
the basis of disability, and by denying him access to appropriate medication, care, and
treatment that could have timely treated his medical condition and reduced the risk of
serious harm from his untreated condition.

Similarly, Guillory claims that LDH

discriminated against him in violation of the RA on the basis of his disability by failing to
make reasonable accommodations in their facilities, services, and programs. Guillory
further contends that the Defendants violated the LMMA and other state law statutes by
engaging in conduct that caused him injury and harm.46
As a result of the Defendants’ alleged discriminatory treatment, Guillory asserts
that he suffered physical injuries, mental and emotional pain and suffering, anguish and
distress, embarrassment, humiliation, and possible medical expenses.47 Guillory seeks
to recover compensatory and punitive damages, attorney’s fees, costs, and
disbursements as authorized by the respective statutes for Defendants’ alleged
discriminatory conduct and deliberate indifference.
Before the Court is a Motion to Dismiss filed by Defendants.48 In the Motion, the
Defendants argue that the Court lacks subject matter jurisdiction over Guillory’s Section
1983 claims against LDH and all of his claims under Louisiana state law as they are
barred by the Eleventh Amendment of the United States Constitution.49 They also seek
dismissal of Guillory’s Section 1983 claims against all other remaining Defendants
because Plaintiff has failed to state a claim upon which relief can be granted. Defendants
further assert that they are entitled to qualified immunity against Guillory’s Section 1983

46

See footnote 45.
Doc. 5, at ¶62.
48
Doc. 20.
49
Doc. 20, at 2.
47

8

claims. Additionally, Defendants request that the Court dismiss Guillory’s claims against
all Defendants under the ADA and the RA for failure to state a claim upon which relief can
be granted.

Finally, Defendants seek the dismissal of Guillory’s claims against all

Defendants under the LMMA as premature because Guillory has not presented his claims
before a medical review panel.
Guillory concedes that his medical malpractice claims against all Defendants, as
well as the claims against Defendants Paula Bryant, Ronald Johnson, and Monique
Attuso, should be dismissed.50 Guillory disagrees with the remainder of the Defendants’
arguments made in their Motion to Dismiss.
II.

LEGAL STANDARDS
A.

Rule 12(b)(1)

“Federal courts are courts of limited jurisdiction; without jurisdiction conferred by
statute, they lack the power to adjudicate claims.”51 Pursuant to Rule 12(b)(1) a claim is
“properly dismissed for lack of subject-matter jurisdiction when the court lacks the
statutory or constitutional power to adjudicate the claim.”52 A court should consider a
Rule 12(b)(1) attack before addressing any challenge on the merits.53 Considering a Rule
12(b)(1) motion to dismiss first “prevents a court without jurisdiction from prematurely
dismissing a case with prejudice.”54 Furthermore, a Rule 12(b)(1) motion to dismiss is
analyzed under the same standard as a Rule 12(b)(6) motion to dismiss. In order “to
survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual

50

See footnote 45.
In re FEMA Trailer Formaldehyde Products Liab. Litig. (Miss. Plaintiffs), 668 F.3d 281, 286 (5th Cir. 2012).
52
Id. (quoting Home Builders Ass’n, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)).
53
Id.
54
Id. at 286-87.
51

9

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”55 “Facial
plausibility” exists “when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”56
B.

Rule 12(b)(6)

At the motion to dismiss stage, the Court must accept the well-plead factual
allegations in the complaint as true.57 The Court views the complaint in the light most
favorable to the plaintiff, resolving all doubts in his favor.58 However, “the tenet that a
court must accept as true all of the allegations contained in a complaint is inapplicable to
legal conclusions.”59

The Court will not “strain to find inferences favorable to the

plaintiff.”60 If the facts as plead allow the Court to conclude that plaintiff’s claims for relief
are “plausible,” the motion must be denied.61 To satisfy the plausibility standard, the
plaintiff must show “more than a sheer possibility that a defendant has acted unlawfully.”62
“A claim has 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.”63

55

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Id. at 678 (citing Twombly, 550 U.S. at 556).
57
In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007).
58
Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1572 (5th Cir. 1988).
59
Iqbal, 556 U.S. at 678 (2009) (quoting Twombly, 550 U.S. at 555).
60
Taha v. William Marsh Rice Univ., No. 11-2060, 2012 WL 1576099, *2 (S.D. Tex. May 3, 2012) (quoting
Southland Sec. Corp. v. Inspire Ins. Solutions, Inc., 365 F.3d 353 (5th Cir. 2004)).
61
Twombly, 550 U.S. at 570.
62
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
63
Id.
56

10

III.

ANALYSIS
A.

Section 1983 Claims

Under Section 1983, a claimant may bring a private cause of action against an
individual who, under color of law, deprives a citizen of the United States of “any rights,
privileges, or immunities secured by the Constitution and laws.”64 In his First Amended
Complaint, Guillory asserts four separate claims under 42 U.S.C. § 1983 against the
Defendants in their individual capacities: (1) systemic denial of access to medical care;
(2) failure to supervise; (3) deliberate indifference to patients’ right to medical care; and
(4) failure to protect.65 In their Motion, the Defendants contend that Guillory’s Section
1983 claims against LDH should be dismissed because they are barred under the
Eleventh Amendment of the United States Constitution. Additionally, the Defendants
assert that all Section 1983 claims against the remaining Defendants should be dismissed
as they are entitled to qualified immunity from suit.
1. LDH’s Sovereign Immunity Defense
In their Motion, the Defendants assert that the Eleventh Amendment of the United
States Constitution grants a state, or an arm of the state, sovereign immunity from a suit
arising under Section 1983.66 The Defendants further contend that LDH is a statutorily
created arm of the state of Louisiana and therefore is entitled to immunity from Guillory’s
Section 1983 claims.67 Accordingly, the Defendants argue that the Court lacks subject
matter jurisdiction over the claims pursuant to Rule 12(b)(1) and urge the Court to dismiss

64

42 U.S.C. § 1983.
Although the Court does not read the Plaintiff’s First Amended Complaint to properly allege a failure to
protect claim under 42 U.S.C. § 1983, Defendants appear to concede that such a claim has been asserted
by specifically addressing this claim in their Motion to Dismiss (see Doc. 20, at 2; Doc. 20-1, at 13-16).
66
Doc. 20-1, at 7.
67
Id. at 8.
65

11

Guillory’s Section 1983 claims against LDH without prejudice.68

In his Opposition,

Guillory does not dispute that LDH is not amenable to suit for his Section 1983 claims
under the Eleventh Amendment.69
When evaluating a motion to dismiss based on lack of subject matter jurisdiction,
“the district court has the power to dismiss for lack of subject matter jurisdiction on any
one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by
undisputed facts evidenced in the record; or (3) the complaint supplemented by
undisputed facts plus the court’s resolution of disputed facts.”70

Here, the record

demonstrates that Guillory does not offer any disputed facts to show that his Section 1983
claims against LDH are precluded by the Eleventh Amendment of the United States
Constitution. Therefore, the Court finds that the Defendants’ Motion shall be granted with
respect to all claims arising under 42 U.S.C. § 1983 asserted against LDH.
2. Defendants’ Qualified Immunity Defense
A plaintiff may bring a claim under Section 1983 against persons in their individual
or official capacities, or against a governmental entity.71 When a person is sued in his or
her individual capacity, “it is enough to show that the official, acting under color of state
law, caused the deprivation of a federal right.”72 A defendant sued in his individual
capacity may assert personal immunity defenses like qualified immunity, which protect
government officials “acting within their discretionary authority from liability when their

68

Id.
Doc. 24, at 16.
70
Willoughby v. United States, 730 F.3d 746, 749 (5th Cir. 2013) (quoting Spotts v. United States, 613 F.3d
559, 566-67 (5th Cir. 2012)).
71
Board of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997).
72
Kentucky v. Graham, 473 U.S. 159, 166 (1985).
69

12

conduct does not violate clearly established statutory or constitutional law of which a
reasonable person would have known.”73
The Fifth Circuit has held that courts should utilize a two-prong analysis when
evaluating a qualified immunity defense.74 First, the court must determine whether the
plaintiff has alleged a violation of a clearly established constitutional right.75 Additionally,
the court must determine whether the official’s conduct was objectively reasonable under
clearly established law existing at the time of the incident.76 The determination of whether
an official’s conduct was objectively reasonable is a question of law for the court, not a
matter of fact for the jury to decide.77
3. Proper Standard for Section 1983 Claims
The parties are in disagreement about the standard that should be applied to
Guillory’s Section 1983 claims. On one hand, Guillory argues that that because he was
admitted to ELMHS pursuant to a finding of Not Guilty by Reason of Insanity (NGBRI),
the standard of care against which the Defendants must be measured in this action is the
professional judgment standard as articulated by the United States Supreme Court in
Youngberg v. Romeo.78 In Youngberg, the mother of an individual who was civilly
committed to a Pennsylvania state mental institution, sued institution officials alleging
various violations of her son’s constitutional rights under the Eighth and Fourteenth
Amendments to the United States Constitution.79 In Youngberg, the Court held, “liability
may be imposed only when the decision by the professional is such a substantial

73

Wallace v. Cty. of Comal, 400 F.3d 284, 289 (5th Cir. 2005).
Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009).
75
Id.
76
Id.
77
Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999).
78
Youngberg, 457 U.S. 307 (1982).
79
Id. at 310.
74

13

departure from accepted professional judgment, practice, or standards as to demonstrate
that the person responsible actually did not base the decision on such judgment.”80
Conversely, the Defendants contend that a deliberate indifference standard is
warranted. In support of their contention, the Defendants assert that the Supreme Court
decision in DeShaney v. Winnebago County Department of Social Services, casts doubt
over the viability of the professional judgment standard in Youngberg.81 In DeShaney,
the Court held that “[t]he affirmative duty to protect arises not from the State’s knowledge
of the individual’s predicament or from its expressions of intent to help him out, but from
the limitation which it has imposed on his freedom to act on his own behalf.”82 The
Defendants argue that, “DeShaney enumerates the proper standard to apply to all
individuals within the custody of the state.”83
The confinement of an NGRI acquittee serves a purpose fundamentally different
from that served by incarcerating a convicted criminal.
The purpose of commitment following an insanity acquittal, like that of civil
commitment, is to treat the individual’s mental illness and protect him and society
from his potential dangerousness.84
Therefore, “[c]ivil commitment is not criminal commitment; unlike a criminal
sentence, civil commitment is not a sentence of punishment.” 85 This difference is
reflected in the source of an acquittee’s constitutional rights. “The Supreme Court
‘repeatedly has recognized that civil commitment for any purpose constitutes a

80

Id. at 323.
DeShaney, 489 U.S. 189 (1989).
82
Id. at 200.
83
Doc. 25, at 3.
84
Jones v. United States, 463 U.S. 354, 368 (1983), quoted with approval in Poree v. Collins, 866 F.3d
235, 246-47 (5th Cir. 2017).
85
Poree v. Collins, 866 F.3d at 245. See also, Jones v. United States, 463 U.S.at 369 (“Different
considerations underlie commitment of an insanity acquittee. As he was not convicted, he may not be
punished.” (footnote omitted)).
81

14

significant deprivation of liberty that requires due process protection.’”86 By contrast,
“[t]he constitutional rights of a convicted state prisoner spring from the Eighth
Amendment’s prohibition on cruel and unusual punishment87 and, with a relatively
limited reach, from substantive due process.”88
Like an insanity acquittee, a pretrial detainee has not been convicted of a crime
and hence cannot be punished. 89 Thus, like the insanity acquittee, “[t]he Constitutional
rights of a pretrial detainee…flow from the procedural and substantive due process
guarantees of the Fourteenth Amendment.”90 But is the standard for measuring a
violation of a mental incompetent involuntarily committed the same as that to be applied
to the pretrial detainee?
In Hare v. City of Corinth, Miss.,91 the husband of a pretrial detainee sued various
jail officials and the municipality that oversaw the administration of the jail under 42
U.S.C. Section 1983 after his wife committed suicide while detained in the jail. Like
here, the plaintiff in Hare argued that Youngberg’s “substantial departure from accepted
professional judgment, practice or standards” test should determine whether the
plaintiff’s substantive due process rights had been violated.92 In analyzing the issue, the

86

Id. at 246-47 (quoting Addington v. Texas, 441 U.S. 418, 425 (1979) (citations omitted)).
See Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251 (1976).
88
Hare v. City of Corinth, Miss., 74 F.3d 633, 640 (5th Cir. 1996) (en banc).
89
Bell v. Wolfish, 441 U.S. 520, 535 (1979). The Court notes an important distinction between an NGRI
acquittee on the one hand and a preretrial detainee and civil committee on the other. While none of them
have been convicted of a crime, the NGRI acquittee was found to have committed a criminal act which
“certainly indicates dangerousness.” Jones, 463 U.S. 364; see also, Lynch v. Overholser, 369 U.S. 705,
714; Powell v. Florida, 579 F.2d 324, 333 (5th Cir. 1978) (insanity acquittees can be treated differently
from civil committees since the “prior antisocial conduct of an insanity acquittee justifies treating such a
person differently…”); Warren v. Harvey, 632 F.2d 925, 931 (2d Cir. 1980) (that insanity acquittees have
been found beyond a reasonable doubt to have committed a criminal act indicates they have “proved
themselves a danger to society at one time.”).
90
Hare, 74 F.3d at 639 (citing Bell v. Wolfish, supra).
91
Hare, 74 F.3d 633 (5th Cir. 1996) (en banc).
92
Id. at 646.
87

15

Court noted that Youngberg’s call for a “distinct standard to be applied in measuring the
State’s constitutional duties to mental incompetents, one that differed from the Bell test
and the deliberate indifference standard”,93 was undermined in DeShaney’s
“suggestion” that both group’s enjoyed the same rights and the State should “incur the
same duties to provide for the basic human needs of both groups.”94
In determining which standard to apply, the Court in Hare drew a distinction
between “constitutional challenges to conditions, practices, rules, or restrictions on the
one hand, and episodic acts or omissions on the other.”95. If the challenge is to a
“condition of confinement”, the level of scrutiny is “rationality” and the test is whether “a
particular condition or restriction of pretrial detention is reasonably related to a
legitimate governmental objective.”96. If it is related, then “it does not, without more,
amount to ‘punishment.’ Conversely, if a restriction or condition is not reasonably
related to a legitimate goal – if it is arbitrary or purposeless – a court may permissibly
infer that the purpose of the government action is punishment that may not
constitutionally be inflicted upon detainees qua detainees.”.97
On the other hand, when measuring whether an episodic act or omission violates
due process, Hare “adopt[ed] a standard of deliberate indifference”98 which, in turn is

93

Id. at 646.
Id. at 647.
95
Id. at 644.
96
Id. at 640 (quoting Bell v Wolfish, 441 US at 539).
97
Id. Youngberg itself used the same test, balancing the individual’s liberty interests against the legitimate
interests of the state. Id., 457 U.S. at 324. Cf. George v. La. Dep’t of Pub. Safety and Corr., 272 F. Supp.
3d 855 (M.D. La. 2017) (applying Youngberg to a constitutional challenge to the State’s alleged policy,
practice and procedure of arresting and incarcerating NGRI acquittees for violating their conditions of
release when no crime had been committed).
98
Id.
94

16

“measured by a standard of subjective deliberate indifference.”99.Specifically, the Hare
court held:
“[T]he episodic acts or omission of a state jail officer does not violate a
pretrial detainee’s constitutional right to be secure in his basic human
needs, such as medical care and safety, unless the detainee demonstrates
that the official acted or failed to act with deliberate indifference to the
detainee’s needs.100
While Hare stated that DeShaney “cast doubt on the vitality of Youngberg,”101 it
acknowledged that “[t]he Court in DeShaney did not address whether involuntarily
confined mental incompetents and convicted inmates shared the same constitutional
rights to medical care and safety.”102 It noted that Youngberg did not deal with pretrial
detainees, “so their respective standards are not dispositive of this suit by Mr. Hare.”103
The Court specifically “decline[d] to resolve the tension” between Youngberg and
DeShaney.104
Since DeShaney, Courts have struggled with the question of when and under
what circumstances to apply the Youngberg professional judgment test.105 This Court
has been unable to find a case within this Circuit applying the deliberate indifference
standard to the episodic act or omission claim of an NGRI acquittee (and Defendants
have not pointed the Court to one). Nevertheless, without more specific direction from
the Supreme Court, the Court is required to follow Hare’s guidance and thus applies the

99

Id. (emphasis added).
Id. at 647-48.
101
Id.
102
Id.
103
Id.
104
Id.
105
Rosalie Berger Levinson, Wherefore Art Thou Romeo: Revitalizing Youngberg’s Protection of Liberty
for the Civilly Committed, 54 B.L.C. Rev. 535 (2013).
100

17

deliberate indifference standard to measure the alleged episodic acts and omissions in
this case.
The Court also notes that, while not raised by Guillory, the deliberate indifference
standard remains a subjective one as set out in Hare despite the intervening case of
Kingsley v. Hendrickson.106 Kingsley held that, in excessive force claims brought under
the Fourteenth Amendment, “a pretrial detainee must show only that the force purposely
or knowingly used against him was objectively unreasonable.”107 In Alderson v.
Concordia Parish Correctional Facility,108 the Fifth Circuit relied upon Hare and applied
the subjective standard. Despite a concurring judge’s call for the Court to “revisit the
deliberate indifference standard” in light of Kingsley,109 the Court rejected that
argument.110
Here, Guillory’s second through fourth claims (failure to supervise, inadequate
medical care, and failure to protect) allege episodic acts or omissions. Each claim alleges
specific acts by individual Defendants, each of which resulted in harm. Guillory fails to
allege any facts that indicate that his harm resulted from an explicit policy or restriction
imposed upon him as a condition of confinement.

At best, Guillory attempts to

demonstrate an unstated or de facto policy or restriction; however, he fails to allege any
facts that establish an extended or pervasive pattern of misconduct required to prove an
intended condition or practice.111

Accordingly, the Court finds that the deliberate

106

Kingsley, 135 S. Ct. 2466, 192 L. Ed. 2d 416 (2015).
Id., 135 S. Ct. at 2473.
108
Alderson, 848 F.3d 415 (5th Cir. 2017) (per curium).
109
Id. at 425 (Graves, J., concurring).
110
Id. at 419 n. 4 (“Because the Fifth Circuit has continued to rely on Hare and to apply a subjective
standard post-Kingsley, this panel is bound by our rule of orderliness. (citation omitted)”).
111
See Shepherd v. Dall. Cty., 591 F.3d 445, 452 (5th Cir. 2009). The Shepherd court explained that a
condition may reflect an “unstated or de facto policy,” as evidenced by a pattern of acts or omissions “’
107

18

indifference standard of care is the appropriate measure of the constitutional duty owed
by state officials with regard to Guillory’s second through fourth claims.
a. Systemic Denial of Access to Medical Care Claim
Guillory’s first Section 1983 claim alleges that the Defendants acted individually
and together to establish and maintain a system they knew would result in the effective
denial of care to patients with serious medical conditions.112 This claim amounts to a
challenge on his conditions of confinement because his allegations are not based on the
specific acts or omissions of individuals, but rather on a systemic failure affecting all
patients.113
In Hare, the Fifth Circuit held that a different standard applied to conditions of
confinement challenges because “a State’s imposition of a rule or restriction during
pretrial confinement manifests an avowed intent to subject a pretrial detainee to that rule
or restriction.”114 The Hare court held that, when considering a condition of confinement,
the reasonable-relationship test outlined in the Supreme Court case of Bell v. Wolfish,115
was preferable to the deliberate indifference standard used when analyzing a claim based
on an official’s episodic acts or omissions.116 The Fifth Circuit explained, “[f]or the Bell
test to apply, a jailer’s acts or omissions must implement a rule or restriction or otherwise
demonstrate the existence of an identifiable intended condition or practice.”117

sufficiently extended or pervasive, or otherwise typical of extended or pervasive misconduct by [jail] officials,
to prove an intended condition or practice.’ ” Id. (quoting Hare, 74 F.3d at 645).
112
Doc. 5, at ¶53.
113
Id.
114
Hare, 74 F.3d at 644.
115
Bell, 441 U.S. 520, 99 S. Ct. 1861, 60 L.Ed.2d 447 (1979).
116
Hare, 74 F.3d at 644.
117
Id. at 645.

19

After reviewing his complaints, the Court finds that Guillory has failed to allege or
identify any specific policy, practice, or custom that was the “moving force” behind the
events of which he complains of. Guillory has not identified any written or informal policies
that reflect the existence of unconstitutional patterns or practices. Guillory alleges no
facts to suggest that any other inmate suffered as a result of a systemic failure to provide
medical care. Guillory’s conclusory allegations are based solely on the events in the
aftermath of his attack.118
The Court finds that Guillory’s allegations of systemic denial of access to medical
care are not sufficient to reflect the sort of systemic deficiencies which the courts have
found to warrant relief in other cases. Accordingly, the Court finds that the Defendants’
Motion shall be granted with respect to the Section 1983 Systemic Denial of Access to
Medical Care claim asserted against the Defendants. However, Guillory will be given
leave to amend to allege, if he can, facts sufficient to support this allegation.
b. Failure to Protect Claims
Guillory asserts 42 U.S.C. § 1983 claims against Captain McKey, CGT Dunn, and
CGT Holmes in their individual capacities, alleging that they knew of his security concern
and failed to keep him safe from harm. The Defendants contend that Guillory’s allegations
amount to nothing more than mere negligence, which is insufficient to satisfy a claim for
liability under Section 1983.

118

See Moses v. Gautreaux, No. 15-464, 2015 WL 8104069, *5-6 (M.D. La. Nov. 6, 2015) (granting a
motion to dismiss in favor of the City/Parish of East Baton Rouge and finding conclusory the plaintiff’s
allegations regarding a deficient policy, practice, or custom that resulted in inadequate medical care at
ERBPP); Jackson v. E. Baton Rouge Par. Prison, No. 14-45, 2015 WL 411211, *3-4 (M.D. La. Jan. 29,
2015) (same, involving alleged delays in the provision of dental care at EBRPP).

20

Claims under Section 1983 for failure to protect require the plaintiff to demonstrate
that he was placed “under conditions posing a substantial risk of serious harm, and that
prison officials were deliberately indifferent to his need for protection.”119 Additionally, a
plaintiff must also prove “that the official actually knew of a substantial risk of serious harm
and failed to act.”120 The Fifth Circuit has stated that mere negligence on the part of the
official is not sufficient to support a finding of liability under Section 1983.121 “A prison
official acts with deliberate indifference ‘only if (A) he knows that inmates face a
substantial risk of serious bodily harm and (B) he disregards that risk by failing to take
reasonable measures to abate it.’”122
The Court will now analyze the failure to protect claims made against Defendants
McKey, Dunn, and Holmes.
i. Captain McKey
Guillory alleges that Captain McKey was responsible for security and short term
housing assignments of patients at ELMHS.123 Guillory further claims that he was placed
in the A-wing at the direction of Captain McKey, despite explaining to Captain McKey that
patients in that wing regarded him as a “rat” and that he feared for his safety if placed
there.124 Guillory contends that Captain McKey failed to appropriately respond to his
safety concerns by ignoring them and placing him in that wing over his objections.125
Though a close call, the Court finds that Guillory has failed establish that Captain
McKey acted with deliberate indifference, as required under 42 U.S.C. § 1983. Although

119

Newton v. Black, 133 F.3d 301, 308 (5th Cir. 2001).
Adeleke v. Heaton, 352 F. App’x 904, 907 (5th Cir. 2009) (per curiam) (unpublished).
121
Hare, 74 F.3d at 645-46.
122
Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (quoting Farmer, 511 U.S. at 847, 114 S.Ct. 1970).
123
Doc. 5, at ¶18; Doc. 24, at 2
124
Doc. 5, at ¶26, Doc. 24, at 2.
125
Id.
120

21

Guillory claims that he informed Captain McKey that he was concerned for his safety, he
never alleges that Captain McKey was aware of any specific safety concerns or anything
beyond Guillory’s general perception of the A-wing. In fact, Guillory specifically refers to
two individuals by name in his First Amended Complaint, both of whom he contends had
a history of being violent towards other patients; yet he fails to allege any facts that would
indicate that he informed Captain McKey of any specific threats against his safety.126
Furthermore, Guillory alleges that CGT Dunn was “specifically assigned to maintain close
visual observation on Mr. Guillory” at the time of the attack.127 Although it is not clear that
Captain McKey was responsible for tasking CGT Dunn with monitoring Guillory’s safety,
the mere fact that such an assignment was made demonstrates that some measures
were taken to abate Guillory’s safety concerns.
Since the Court finds that Guillory has failed to allege that Captain McKey acted
with deliberate indifference, Guillory has not alleged the requisite level of liability under
Section 1983. Accordingly, the Court finds that the Defendants’ Motion shall be granted
with respect to the Section 1983 claim of failure to protect asserted against Captain
McKey. The dismissal shall be without prejudice, and Guillory will be given an opportunity
to amend.
ii. CGT Dunn
Guillory alleges that CGT Dunn was employed by ELMHS and was responsible for
security and escorting of patients throughout the facility.128 Guillory further alleges that
at the time of the attack, CGT Dunn was assigned to the A-wing and tasked with

126

Doc. 5, at ¶28.
Doc. 5, at ¶29.
128
Doc. 5, at ¶23.
127

22

monitoring patients to ensure that any tensions did not rise to the level of physical
violence.129

Guillory also alleges that CGT Dunn was specifically assigned with

maintaining close visual observation of him to ensure his safety.130 Guillory claims that
the attack occurred because CGT Dunn (along with CGT Holmes) left their posts on the
A-wing, rendering it virtually unsupervised.131
The Court finds that Guillory has failed to adequately allege that CGT Dunn acted
with deliberate indifference, as required under 42 U.S.C. § 1983. Guillory only alleges
that CGT Dunn left his post after being assigned to ensure his safety. Guillory does not
allege any facts that would indicate that CGT Dunn perceived that Guillory’s safety was
at risk at the time of the attack, other than his conclusory assertion that
the attack occurred because CGTs Dunn and Holmes lefts their posts on the Wing.”132
As the Fifth Circuit clarified, “[a] state actor’s failure to alleviate ‘a significant risk that he
should have perceived but did not, ‘while ‘no cause for commendation,’ does not rise to
the level of deliberate indifference.”133 Although Guillory’s allegations against CGT Dunn
may amount to negligence, they do not meet the standard of deliberate indifference.134
Since the Court finds that Guillory has failed to allege that CGT Dunn acted with
deliberate indifference, Guillory has failed to demonstrate the requisite level of liability for
this type of claim under Section 1983. Accordingly, the Court finds that the Defendants’
Motion shall be granted with respect to the Section 1983 failure to protect claim asserted
against CGT Dunn. Leave to amend will be granted.

129

Doc. 5, at ¶29.
Id.
131
Doc. 24, at 2.
132
Id.
133
McClendon v. City of Columbia, 305 F.3d 314, 326 (5th Cir. 2002) (en banc) (quoting Farmer v. Brennan,
511 U.S. 825, 837 (1994)).
134
The Court makes no finding that CGT Dunn was negligent.
130

23

iii. CGT Holmes
Guillory alleges that CGT Holmes was employed by ELMHS and, like CGT Dunn,
was tasked with security and escorting patients around the facility.135 Guillory further
alleges that at the time of the attack, CGT Holmes was assigned to the A-wing to monitor
patients to ensure that any tensions did not rise to the level of physical violence.136
Guillory maintains that he requested soap and shampoo from CGT Holmes as he was
preparing to shower shortly before the attack.137 Guillory further alleges that CGT Holmes
witnessed the beginning of the attack and chose to leave the unit, rather than intervene
to stop it.138 Guillory does acknowledge that CGT Holmes returned to the unit with back
up to stop the attack, although it is unclear precisely how long it took for CGT Holmes to
intervene.139
The Court finds that Guillory has failed to adequately allege that CGT Holmes
acted with deliberate indifference, as required under 42 U.S.C. § 1983. Although Guillory
alleges that CGT Holmes left the unit after witnessing the commencement of the attack,
he does not allege any facts that would indicate that CGT Holmes’s action was done with
deliberate indifference to his safety. In fact, Guillory has alleged facts acknowledging that
CGT Holmes returned to the unit with backup, suggesting that CGT Holmes was
attempting to abate the threat to Guillory’s safety. Guillory alleges no facts that would
indicate that CGT Holmes was absent for an unreasonably lengthy period of time, or that
his decision to leave the unit was made with any consideration other than getting backup

135

Doc. 5, at ¶22.
Doc. 5, at ¶29.
137
Id.
138
Id.
139
Doc. 5, at ¶30.
136

24

to assist with safely intervening in the attack. Although the exact number of attackers is
unclear from Guillory’s allegations, he does allege that his attack involved “several other
patients,” which might explain why CGT Holmes failed to intervene without backup.
Since the Court finds that Guillory has failed to sufficiently allege that CGT Holmes
acted with deliberate indifference, Guillory has failed to demonstrate the requisite level of
liability for this type of claim under Section 1983. Accordingly, the Court finds that the
Defendants’ Motion shall be granted with respect to the Section 1983 claim of failure to
protect asserted against CGT Holmes.
c. Medical Deliberate Indifference Claims
Guillory asserts 42 U.S.C. § 1983 claims for deliberate indifference to his right to
medical care against the following Defendants in their individual capacities: Nurse Green,
Katina Chaney (“Nurse Chaney”), Nurse Drew, Nurse Betholet, Dr. Perego, Dr. Patrick
McCrossen (“Dr. McCrossen), Dr. Onor, Dr. Cain, Dr. Vayas, and Dr. Thompson.140 The
Defendants assert that Guillory fails to establish that the Defendants acted with deliberate
indifference, and therefore fails to state a claim upon which relief can be granted under
42 U.S.C. § 1983.141

The Defendants also assert that each is entitled to qualified

immunity.
Claims under Section 1983 for deliberate indifference to medical care require the
plaintiff to allege acts or omissions sufficiently harmful to demonstrate deliberate
indifference to a serious medical need. In order to successfully pursue a claim of
deliberate indifference, a plaintiff must establish the defendant “(1) ‘knows that inmates
face a substantial risk of serious bodily harm;’ and (2) ‘disregards that risk by failing to

140
141

Doc. 5, ¶53; Doc. 24, at 10.
Doc. 20-1, at 16.

25

take reasonable measures to abate it.’ ”142 “ ‘[T]he official must both be aware of facts
from which the inference could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.’ ”143 The Fifth Circuit has concisely summarized
Plaintiff’s burden on these claims as follows:
We have described the deliberate indifference standard as an extremely
high standard to meet and as requiring evidence of egregious intentional
conduct. We have also delineated a laundry list of acts and omissions that
are insufficient to establish deliberate indifference: unsuccessful medical
treatment; acts of negligence or malpractice; a misdiagnosis; a prisoner's
disagreement with his medical treatment, absent exceptional
circumstances; and the decision whether to provide additional treatment,
which we have described as a classic example of a matter for medical
judgment. Rather, deliberate indifference requires that a plaintiff submit
evidence that prison officials refused 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.144
The Court will now analyze Guillory’s deliberate indifference claims against the
above listed Defendants.
i. Nurse Green
Guillory alleges that he was seen by Nurse Green shortly after the attack.145
Guillory further claims that Nurse Green denied his request to be transported to the
hospital, indicating that there was no reason for such a transfer or for any additional follow
up care.146 Guillory claims that Nurse Green failed to include his complaints of significant
pain and difficulty breathing on the injury report that he completed shortly after his initial

142

 Zaunbrecher v. Gaudin, 641 F. App’x. 340, 344 (5th Cir 2016) (per curiam) (unpublished), cert denied,
137 S. Ct. 58, 196 L. Ed. 2d 31 (2016) (quoting Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006)
(quoting Farmer, 511 U.S. at 847, 114 S. Ct. 1970)).
143
Id. (quoting Farmer, 511 U.S. at 837, 114 S. Ct. 1970).
144
Id. at 344–45 (citations and quotations omitted).
145
Doc. 5, ¶31.
146
Id.

26

assessment, and that Nurse Green failed to have the report reviewed or signed by a
physician.147
The Court finds that the allegations against Nurse Green fail to state a claim for
deliberate indifference. Guillory alleges no facts to indicate that Nurse Green actually
drew an inference of substantial serious risk of harm and then denied Guillory’s request
for a transfer to the hospital in the face of that risk. Furthermore, Guillory’s claim that
Nurse Green failed to provide any additional follow up care is unsubstantiated and
seemingly controverted by his allegation that AOD DeCaire, the Administrator on Duty,
was notified of the attack and that Guillory was examined by Nurse Henrietta Johnson
one day after Nurse Green’s initial assessment. As alleged, Guillory’s claim of medical
indifference against Nurse Green fails to adequately allege that Nurse Green acted in a
way that demonstrates the requisite deliberate indifference. Guillory’s claims, while
possibly indicative of negligence, do not give rise to a deliberate indifference claim under
Section 1983.148
Since the Court finds that Guillory has failed to sufficiently plead that Nurse Green
acted with deliberate indifference, Guillory’s claim against him under Section 1983 fails
to state a claim upon which relief could be granted. Accordingly, the Court finds that the
Defendants’ Motion shall be granted with respect to the Section 1983 claim of deliberate
indifference asserted against Nurse Green. However, Guillory will be allowed to amend
to allege sufficient facts, if he can, to adequately allege deliberate indifference.

147
148

Id. at ¶32.
The Court makes no finding that Nurse Green was negligent.

27

ii. Nurse Chaney
Guillory alleges Nurse Chaney was among a team of medical personnel that was
responsible for his care and treatment during the two month time period following his
attack.149 Without providing any specific detail, Guillory alleges only that Nurse Chaney
failed to take “any appropriate follow up action to identify the causes of his lingering left
side pain and shortness of breath.”150 In his Opposition, Guillory contends that Nurse
Chaney was one of four nurses that “failed to adequately document his injuries and seek
treatment for his complaints.”151
The Court finds that the allegations against Nurse Chaney fail to state a claim for
deliberate indifference. Guillory has not alleged any facts that Nurse Chaney acted or
failed to act so as to create an inference of her subjective awareness of a substantial
serious risk of harm when she denied Guillory’s request for more substantive medical
treatment. Additionally, Guillory’s claim that Nurse Chaney failed to adequately document
his injuries and seek proper treatment may implicate negligence but does not give rise to
a deliberate indifference claim under Section 1983.152
Since the Court finds that Guillory has failed to allege that Nurse Chaney acted
with deliberate indifference, Guillory’s claim against him under Section 1983 fails to state
a claim upon which relief could be granted.

Accordingly, the Court finds that the

Defendants’ Motion shall be granted with respect to the Section 1983 claim of deliberate
indifference asserted against Nurse Chaney. Leave to amend will be granted.

149

Doc. 5, ¶37.
Id.
151
Doc. 24, at 11-12.
152
The Court makes no finding that Nurse Chaney was negligent.
150

28

iii. Nurse Drew
Guillory’s only allegation against Nurse Drew is that he offered to provide him with
Vicks VapoRub after Guillory reported pain in his back and ribs and difficulty breathing
over two months after the attack.153 Guillory concedes that Nurse Drew referred Guillory
to Dr. Cain, but claims that Dr. Cain failed to follow up on his complaint of shortness of
breath. Guillory also contends that he was told that Nurse Drew, along with Nurse Green
and other unidentified medical personnel, had cautioned the CGTs that his complaints
were all imagined, and a function of his delusions.154
The Court finds that the allegations against Nurse Drew fail to state a claim for
deliberate indifference. Guillory alleges no facts to indicate that Nurse Drew actually drew
an inference that Guillory faced a substantial risk of serious harm when he denied him
more substantive medical treatment. While Guillory’s claim may amount to negligence, it
does not give rise to a deliberate indifference claim under Section 1983.155
Since the Court finds that Guillory has failed to establish that Nurse Drew acted
with deliberate indifference, Guillory’s claim against him under Section 1983 fails to state
a claim upon which relief could be granted.

Accordingly, the Court finds that the

Defendants’ Motion shall be granted with respect to the Section 1983 claim of deliberate
indifference asserted against Nurse Drew. However, Guillory will be allowed an
opportunity to allege sufficient facts, if he can.

153

Doc. 5, ¶38.
Id.
155
The Court makes no finding that Nurse Drew was negligent.
154

29

iv. Nurse Betholet156
Guillory contends that on November 28, 2015, while conducting Guillory’s monthly
physical assessment, Nurse Betholet failed to identify evidence of recent injuries and
bruising on the assessment report, instead indicating that “no new impairments” were
identified.157 Guillory further alleges that Nurse Betholet failed to note that he was the
victim of a recent physical attack.158
The Court finds that the allegations against Nurse Betholet fail to state a claim for
deliberate indifference. Guillory alleges no facts to indicate that Nurse Betholet drew an
inference of a substantial risk of serious harm when he denied Guillory more substantive
medical treatment. While his claim may suggest negligence, Guillory fails to demonstrate
that Nurse Betholet acted in a way gives rise a claim of deliberate indifference.159
Since the Court finds that Guillory has failed to establish that Nurse Betholet acted
with deliberate indifference, Guillory’s claim under Section 1983 fails to state a claim upon
which relief could be granted. Accordingly, the Court finds that the Defendants’ Motion
shall be granted with respect to the Section 1983 claim of deliberate indifference asserted
against Nurse Betholet. Leave to amend will be granted.
v. Dr. Perego
Guillory alleges that he was examined by Dr. Perego at the request of Nurse
Henrietta Johnson, after she noted bruising on his body two days after the attack.160

156

In the Amended Complaint (Doc. 5, at ¶35), Guillory refers to “Nurse Latshum Lacey,” while in the Motion
to Dismiss (Doc. 20-1, at 18), the Defendants refer to “Nurse Lacey Betholet.” The Court treats both of
these references as being directed to the same party, “Nurse Betholet”, since the same factual allegations
are attributed to both of these references, and neither party has alleged that this individual has been
incorrectly named in the pleadings.
157
Doc. 5, at ¶35.
158
Id.
159
The Court makes no finding that Nurse Betholet was negligent.
160
Id. ¶34.

30

Guillory contends that he informed Dr. Perego that the examination was painful,
especially when Dr. Perego applied pressure to his stomach and ribs.161

Guillory

maintains that after listening to his breathing, Dr. Perego commented that it sounded as
if one lung may not be filling completely.162 Despite this comment, Guillory alleges that
Dr. Perego only diagnosed him with constipation and ordered that he be given prune juice
as treatment.163

Guillory further alleges that Dr. Perego failed to document the

examination, including his observation about Guillory’s breathing, and also failed to take
his recent attack into account.164 Finally, Guillory includes Dr. Perego as part of a team
of medical personnel charged with monitoring his health over a two-month period that
failed to take appropriate steps to identify the root cause of his pain and shortness of
breath.165
While a close call, the Court finds that Guillory’s allegations against Dr. Perego fail
to state a claim for deliberate indifference. Although Guillory alleges facts that indicate
that Dr. Perego may have drawn an inference of risk of harm through his comment about
Guillory’s lung, Guillory has alleged no facts to indicate that the risk of harm was
substantial. Guillory’s allegation that Dr. Perego failed to document the evaluation and his
observation—and even failing to take his recent attack into account—fails to show that
Dr. Perego acted in a way that shows the requisite indifference to save the claim. While
Guillory’s claim may amount to negligence, it does not give rise to a deliberate indifference
claim under Section 1983.

161

Id.
Id.
163
Id.
164
Id.
165
Id. ¶37.
162

31

Since the Court finds that Guillory has failed to establish that Dr. Perego acted with
deliberate indifference, Guillory’s claim under Section 1983 fails to state a claim upon
which relief could be granted. Accordingly, the Court finds that the Defendants’ Motion
shall be granted with respect to the Section 1983 claim of deliberate indifference asserted
against Dr. Perego. However, Guillory will be given leave to amend.
vi. Medical Personnel Team
Guillory’s sole allegation against Dr. McCrossen and Dr. Onor is that they were
both part of a team of medical personnel that was charged with monitoring Guillory’s
health over a two-month period, and that they both failed to take appropriate steps to
identify the root cause of Guillory’s pain and shortness of breath.166 Guillory does not
identify any facts that would indicate specific actions or omissions by either Dr.
McCrossen or Dr. Onor as part of Guillory’s medical treatment.
The Court finds that Guillory’s allegations against Dr. McCrossen and Dr. Onor fail
to state a claim for deliberate indifference. Guillory alleges no facts to indicate that either
doctor drew an inference of a substantial risk of serious harm. In fact, it is unclear whether
either doctor even personally treated Guillory, as there are no alleged facts indicating
such action. Guillory fails to successfully assert a claim of deliberate indifference against
these doctors and accordingly, the Court grants Defendants’ Motion with respect to the
Section 1983 claim of deliberate indifference asserted against both Dr. McCrossen and
Dr. Onor. Plaintiff will be allowed to amend as to this claim.

166

Id.

32

vii. Dr. Cain
Guillory alleges that, as Medical Director of ASSA at ELMHS, Dr. Cain was
responsible for the hiring, training, supervision, discipline, and control of the doctors,
nurses, and CGTs under her command.167 Guillory also alleges that, as his treating
physician, Dr. Cain failed to offer any substantive follow up on his complaints of shortness
of breath after he was specifically referred to her by Nurse Drew.168 Guillory does not
identify any additional facts against Dr. Cain in support of his deliberate indifference claim.
The Court finds that Guillory’s allegations against Dr. Cain fail to state a claim for
deliberate indifference. Guillory alleges no facts to indicate that Dr. Cain should have
drawn an inference of substantial serious risk of harm at the time she allegedly failed to
follow up on Guillory’s complaints of shortness of breath. While Guillory’s claim may
demonstrate negligence, it does not give rise to a deliberate indifference claim under
Section 1983, and Defendants’ motion is granted as it pertains to Dr. Cain. However,
Guillory will be allowed to amend.
viii. Dr. Vayas
Guillory asserts a claim against Dr. Vayas, who he describes as his treating
psychiatrist responsible for providing mental health care and for making housing
assignments.169 Guillory alleges that Dr. Vayas gave the order for his return to ASSA
without assigning a specific unit due to a bed shortage at ITU.170 Guillory further alleges
that Dr. Vayas was aware of Guillory’s laboratory results indicating changes in his blood

167

Id. at ¶8.
Id. at ¶37.
169
Id. at ¶9.
170
Id. at ¶24.
168

33

chemistry, yet he took no steps to identify the specific reasons for this change.171 Instead,
Guillory maintains, Dr. Vayas only ordered a treatment of the symptoms by prescribing
sodium chloride tablets.172 Guillory does not identify any additional facts against Dr.
Vayas in support of his of deliberate indifference claim.
Though a close call, the Court finds that Guillory’s allegations against Dr. Vayas
fail to state a claim for deliberate indifference. Guillory alleges no facts to indicate that
Dr. Vayas had sufficient information from which an inference of substantial serious risk of
harm could be drawn. In fact, Guillory admits that the transfer to ASSA was due to the
bed shortage at ITU, which weighs against any claim that Dr. Vayas transferred Guillory
to ASSA in deliberate indifference. Although Guillory’s allegation that Dr. Vayas erred in
opting to treat the symptom of his change in blood chemistry may demonstrate suggest,
it does not give rise to a deliberate indifference claim under Section 1983. Accordingly,
the Court finds that the Defendants’ Motion shall be granted with respect to the Section
1983 claim of deliberate indifference asserted against Dr. Vayas. Guillory will be given
leave to amend.
ix. Dr. Thompson
Guillory alleges that, as Chief of Staff of ELMHS, Dr. Thompson was responsible
for the hiring, training, supervision, discipline, and control of the doctors, nurses, and
CGTs under his command.173 Like his allegation against Dr. Vayas, Guillory maintains
that Dr. Thompson was aware of Guillory’s laboratory results indicating changes in his
blood chemistry, yet he took no steps to identify the specific reasons for this change.174

171

Id. at ¶36
Id.
173
Id. at ¶6.
174
Id. at ¶36.
172

34

Guillory does not identify any additional facts against Dr. Thompson in support of his
deliberate indifference claim.
For reasons identical to those expressed above, the Court finds that Guillory’s
allegations against Dr. Thompson fail to state a claim for deliberate indifference. In fact,
it is unclear whether Dr. Thompson even personally treated Guillory, as Guillory has only
alleged that Dr. Thompson may have been aware of his laboratory results. Guillory fails
to demonstrate that Dr. Thompson was aware of facts from which the inference could be
drawn that a substantial risk of serious harm existed and that Dr. Thompson actually drew
the inference. Furthermore, while Guillory’s claim may be indicative negligence, it does
not give rise to a deliberate indifference claim under Section 1983. Accordingly, the Court
finds that the Defendants’ Motion shall be granted with respect to the Section 1983 claim
of deliberate indifference asserted against Dr. Thompson but with leave to amend
granted.
d. Failure to Supervise Claim
Guillory asserts a claim under 42 U.S.C. § 1983 against AOD DeCaire and CEO
Lea in their individual capacities, alleging that they failed to supervise their subordinates
to ensure that patients’ medical treatment needs were being met. The Defendants
contend that supervisory officials cannot be held liable for the acts or omissions of their
subordinates under Section 1983. Additionally, the Defendants maintain that they are
entitled to qualified immunity for their actions and that the allegations made by Guillory
show mere negligence, which is insufficient to overcome a defense of qualified immunity.
Claims under Section 1983 for failure to supervise require a claimant to
demonstrate the following: “(1) the supervisor either failed to supervise or train the

35

subordinate official; (2) a causal link exists between the failure to train or supervise and
the violation of the plaintiff’s rights; and (3) the failure to train or supervise amounts to
deliberate indifference.”175 Courts have held that deliberate indifference can only be
established if the official is both “aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists,” and the official actually draws the
inference.176

In order to establish deliberate indifference, a plaintiff must ordinarily

“demonstrate a pattern of violations and that the inadequacy of the [supervision] is
obviously likely to result in a constitutional violation.”177 If a plaintiff is unable to establish
deliberate indifference, the court is not required to address the other two prongs of
supervisor liability.
The Court will now analyze Guillory’s failure to supervise claims against both
Defendants AOD DeCaire and CEO Lea.
i. AOD DeCaire
Guillory has alleged that as Assistant CEO of ELMHS, AOD DeCaire was
responsible for the hiring, training, supervision, discipline, and control of the doctors,
nurses, and CGTs under his command.178 Guillory further alleges AOD DeCaire was
notified of the attack on the same day that it occurred, but failed to order appropriate
follow up care beyond the allegedly flawed initial nursing assessment by Nurse Green.179
Guillory claims that AOD DeCaire violated his constitutional right to have appropriately
supervised and trained caretakers by failing to ensure a review of Nurse Green’s initial

175

Smith v. Brenoettsy, 158 F.3d 908, 911-12 (5th Cir. 1998).
Id. at 912.
177
Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003).
178
Doc. 5, at ¶5.
179
Id. at ¶33; Doc 24, at 14.
176

36

assessment of Guillory’s injuries by a physician; failing to ensure correct documentation
and proper follow up treatment of the injury; and failing to order an investigation into the
cause of the attack.180 Guillory contends that these violations were especially egregious
because AOD DeCaire knew or should have known that the A-wing had a reputation for
violence.181
The Court finds that Guillory has failed to establish the deliberate indifference
component of supervisor liability under 42 U.S.C. § 1983. Guillory’s assertion that AOD
DeCaire knew or should have known about the A-wing’s reputation for violence is
conclusory; he does not allege any specific facts to support this conclusory allegation.
Since the Court finds that Guillory failed to establish that AOD DeCaire acted with
deliberate indifference, it need not address the other two prongs of supervisor liability.
Accordingly, the Court finds that the Defendants’ Motion shall be granted with respect to
the Section 1983 claim of failure to supervise asserted against AOD DeCaire. Guillory will
be given leave to amend.
ii. CEO Lea
Guillory has alleged that as CEO of ELMHS, CEO Lea was responsible for the
hiring, training, supervision, discipline, and control of the doctors, nurses, and CGTs.182
Guillory further alleges that CEO Lea was the final policy maker at all times in the
operation of ELMHS.183 Although Guillory does not allege that CEO Lea knew of the
attack at the time it occurred, he contends that CEO Lea should have known about it and

180

Doc. 24, at 14.
Id.
182
Doc. 5, at 3.
183
Id.
181

37

should have ordered an investigation to determine how it occurred.184 Guillory asserts
that CEO Lea’s failure to investigate the attack and his injuries resulting from the attack,
in addition to the delay in diagnosing and treating Guillory’s injuries, demonstrates a
pattern of tacit approval that violated his right to appropriately supervised and trained
caretakers.185 Guillory cites to CEO Lea’s objection to the findings of caregiver neglect
by the IRC with respect to CGT Holmes and Nurse Green as further support for his liability
under this claim.
The Court finds that Guillory’s allegations against CEO Lea do not state a claim
upon which relief can be granted under Section 1983. Guillory’s allegation that CEO Lea
should have known about the attack sooner sounds in negligence, which is not a proper
basis for a claim under Section 1983. Furthermore, Guillory has failed to allege that CEO
Lea acted with deliberate indifference as required to establish a claim of failure to
supervise.
Since the Court finds that Guillory’s allegations sound only in negligence and he
failed to establish that CEO Lea acted with deliberate indifference, it need to address the
remaining prongs of supervisor liability. Accordingly, the Court finds that the Defendants’
Motion shall be granted with respect to the Section 1983 claim of failure to supervise
asserted against CEO Lea. Guillory will be given leave to amend.
B.

ADA and RA Claims
In addition to his claims under 42 U.S.C. § 1983, Guillory asserts claims against

LHD under Title II of the Americans with Disabilities Act of 1990 (“ADA”) and Section 504
of the Rehabilitation Act of 1973 (“RA”). The Court’s analysis of Guillory’s ADA claim will

184
185

Doc. 24, at 15.
Id.

38

also apply to his RA claim since the parties are in agreement that claims under the ADA
and RA are analyzed in the same way.186
Title II of the ADA provides “no qualified individual with a disability shall, by reason
of such disability, be excluded from participation in or be denied the benefits of the
services, programs or activities of a public entity, or be subjected to discrimination by any
such entity.”187 A plaintiff must first establish a prima facie case of discrimination before
relief under the ADA can be considered. To establish a prima facie case of discrimination
under the ADA, a plaintiff must demonstrate: (1) that he is a qualified individual within the
meaning of the ADA; (2) that he is being excluded from participation in, or being denied
benefits of, services, programs, or activities for which the public entity is responsible, or
is otherwise being discriminated against by the public entity; and, (3) that such exclusion,
denial of benefits, or discrimination is because of his disability.188 A plaintiff asserting a
private cause of action for violations under the ADA may only recover compensatory
damages upon a showing of intentional discrimination.189

Punitive damages are

unavailable.190
Although Guillory asserts that he seeks damages pursuant to the ADA, he fails to
allege any facts to support an ADA claim. Even assuming, without deciding, that Guillory
is disabled for purposes of the ADA, he has not alleged any facts suggesting that LDH

186

“Accordingly, ‘the rights and remedies afforded plaintiffs under Title II of the ADA are almost entirely
duplicative of those provided under § 504 of the Rehabilitation Act.’” Doc. 20-1, at 26 (citing Bennett-Nelson
v. Louisiana Bd. of Regents, 431 F.3d 448, 454 (5th Cir. 2005) (citing Pace v. Bogalusa City School Bd.,
403 F.3d 272, 287-88 (5th Cir. 2005)); “The Cooper Court goes on to find that, ‘the rights and remedies
invoked in this case under Title II of the ADA and Section 504 of the RA are virtually identical.’” Doc 24, at
16 (citing Cooper v. Kliebert, No. 14-507, 2014 WL 7334911, at 4 (M.D. La. Dec. 19, 2014) (citing Pace v.
Bogalusa City School Bd., 403 F.2d 272 (5th Cir. 2005) (en banc)).
187
42 U.S.C. § 12132.
188
Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011).
189
Delano-Pyle v. Victoria County, TX, 302 F.3d 567, 575 (5th Cir. 2002).
190
Barnes v. Gorman, 536 U.S. 181, 189-90, 122 S.Ct. 2097, 2102-03 (2002).

39

had the subjective intent to discriminate against him because of his disability.
Accordingly, the Court finds no basis for concluding that LDH had the subjective intent to
discriminate against the plaintiff because of his disability. For this reason, the Defendant’s
Motion shall be granted, and Guillory’s claims asserted under the ADA and the RA shall
be dismissed. However, Guillory will be given permission to amend and allege facts, if he
can do so, giving rise to liability under the ADA/RA.
C.

State Law Negligence Claims
In his First Amended Complaint, Guillory alleges medical malpractice and

negligence claims against the Defendants.191 The Court will examine only the negligence
claims asserted against the individual Defendants, as Guillory has agreed to the dismissal
of his medical malpractice claims against all Defendants, as well as all claims arising
under Louisiana state law against LDH.192
Guillory asserts state law negligence claims against all defendants except for
LDH.193 The Defendants assert that these are claims against agents of the state who
were performing acts within the course and scope of their employment.194 Accordingly,
the Defendants maintain that the Court lacks subject matter jurisdiction over these claims
as they are barred by the Eleventh Amendment of the United States Constitution.195
Guillory asserts that jurisdiction is proper as the state law claims against individual
defendants in their individual capacity do not trigger Eleventh Amendment immunity.196

191

Doc 5 at ¶60.
Doc. 24 at 1, 16.
193
Id.
194
Doc. 201-1 at 9.
195
Id.
196
Doc. 24 at 19.
192

40

a. Sovereign Immunity under the Eleventh Amendment
It is well settled that the Eleventh Amendment prohibits a citizen of a state from
suing his own state or a state agency or department.197 The Supreme Court has extended
the amendment’s protections to state officials when the state is the “real, substantial party
in interest.”198 In determining whether the state is the real or substantial party in interest,
courts have analyzed whether the decision rendered would (1) operate against the
sovereign, (2) expend itself on the public treasury, (3) interfere with public administration,
or (4) compel the state to act or refrain from acting.199
b. Fifth Circuit Jurisprudence Regarding Eleventh Amendment Immunity
The Fifth Circuit has extended sovereign immunity protection to claims against
state officials that are rooted in state law. In Hughes v. Savell, an inmate in a Louisiana
jail, sued a state corrections officer in federal court, alleging negligence arising under
state law.200

In Hughes, the plaintiff claimed that the defendant corrections officer

negligently failed to protect him from an attack by another inmate while the officer was
working as the only dormitory guard on duty at the time of the incident.201 The plaintiff,
alleging that the corrections officer should have reasonably anticipated the attack and
failed to take measures to protect him from harm, filed suit against the officer in his
personal capacity.202

The Hughes court determined that because, under state law,

197

Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 908, 79 L. Ed.
2d 67 (1984); Neuwirth v. La. State Bd. of Dentistry, 845 F.2d 553, 555 (5th Cir. 1988); Voisin’s Oyster
House v. Guidry, 799 F.2d 183, 185 (5th Cir. 1986).
198
Ford Motor Co. v. Dep’t of Treasury of Ind., 323 U.S. 459, 464 (1945); Kentucky v. Graham, 473 U.S.
159, 169 (1985); Hughes v. Savell,, 902 F.2d 376, 377 (5th Cir. 1990).
199
Pennhurst, 465 U.S. at 101; Dugan v. Rank, 372 U.S. 609, 620 (1963); Voisin’s Oyster House, 799
F.2d at 188.
200
Hughes, 902 F.2d 376 (5th Cir. 1990).
201
Id. at 376.
202
Id. at 378.

41

Louisiana is liable for the negligence of its employees, any suit against the correctional
officer is a suit against the state and therefore barred by the Eleventh Amendment.203
In Reyes v. Sazan,204 the Fifth Circuit clarified its holding in Hughes by specifying
that the Eleventh Amendment does not provide an automatic bar to state claims asserted
against state officials in their personal capacity. Instead, the court focused its inquiry on
whether a state employee is indemnified by the state for claims arising under state law.
In Reyes, the defendant, a Louisiana state trooper, claimed that the Eleventh Amendment
provided a bar to the plaintiff’s state law claims. The court rejected the defendant’s
assertion after reviewing the relevant Louisiana indemnification statute and concluding
that it extended indemnification only to state employees who were “within the scope of
their office, employment, contract, or assignment.”205

The court found that state

employees were not indemnified if damages resulted from “the intentional wrongful act or
gross negligence of the official, officer, or employee.”206 The court reasoned, “because
there is at least a fact issue concerning whether the officers here acted intentionally or
with gross negligence, the officials might not receive indemnification,” and therefore the
Eleventh Amendment provided no bar to the state law claims.207
In countering the argument that the Eleventh Amendment bars his negligence
claims against the Defendants, Guillory references New Orleans Towing Ass’n v.
Foster,208 an unpublished opinion in which the Fifth Circuit reiterates that state law claims
against individual defendants are not automatically converted into claims against the

203

Id.
Reyes, 168 F.3d 158 (5th Cir. 1999).
205
La. Rev. Stat § 13:5108.2(B).
206
Id.
207
Reyes, 168 F.3d 158 at 163.
208
New Orleans Towing Ass’n, 248 F.3d 1143 (5th Cir. 2001) (unpublished).
204

42

state. In New Orleans Towing Ass’n, the court echoed its position that the relevant
question in assessing an Eleventh Amendment immunity defense is whether the relief
sought operates against the state.209 The court concluded that the relief did not operate
against the state because the suit was against the defendants in their individual
capacities, and the relief sought was monetary relief to be paid from the defendants’ own
pockets.210
Despite its conclusion, the New Orleans Towing Ass’n court noted that the key
question was “whether under Louisiana law, the liability of the Defendants will be imputed
to the state of Louisiana.”211 The court concluded that Hughes did not control the court’s
analysis since the defendants conceded that there was no Louisiana statute that imputed
liability on the state, and the court’s own research failed to uncover such statute.212
c. Defendants are Covered Under Louisiana’s Indemnification Statute
The Defendants in this case have identified a relevant Louisiana statute that
indemnifies them. Specifically, La. Rev. Stat § 13:5108.1 provides:
The state shall defend and indemnify a covered individual213 against any
claim, demand, suit, complaint, or petition seeking damages filed in any
court over alleged negligence or other act by the individual, including any
demand under any federal statute when the act that forms the basis of the
cause of action took place while the individual was engaged in the
performance of duties of the individual’s office, employment with the state,
or engaged in the provision of services on behalf of the state or any of its
departments pursuant to Paragraph (E)(2) of this Section.

209

Id. at 5.
Id.
211
Id.
212
Id. at fn. 2.
213
La. Rev. Stat § 13:5108.1(E)(1)(a)-(b) provides that the term “covered individuals” includes “an official,
officer, or employee holding office or employment in the executive branch of state government or in any
department, office, division, or agency thereof.” La. Rev. Stat. § 13:5108(E)(2) provides that the term
“covered individuals” includes “a physician…who either contracts with or provides services on behalf of the
state or any of its departments, whether compensated or not…”
210

43

The statute only precludes indemnification if the actor is engaged in criminal
conduct. As the Defendants correctly assert in their Reply,214 and unlike the plaintiff in
New Orleans Towing Ass’n,215 Guillory has not alleged any facts that would indicate that
the Defendants were acting outside the course and scope of their employment, or that
they were engaged in criminal conduct.216 In fact, although Guillory asserts his claims
against the Defendants in their individual capacities, he specifically references his claims
in relation to their titles and actions as employees of LDH, in his First Amended
Complaint.217
For these reasons, the Court finds that the relief that Guillory seeks vis-á-vis his
negligence claims against the Defendants, operates against the state and is therefore
barred under the Eleventh Amendment. Accordingly, the Court grants the Defendant’s
Motion and dismisses Guillory’s state law negligence claims against the Defendants as
barred under the Eleventh Amendment.
d. Notes in Closing about Individual Defendants’ Eleventh Amendment
Immunity
Notwithstanding the preceding analysis, the Court finds it important to emphasize
two issues with respect to the individual Defendants’ Eleventh Amendment immunity.
First, with respect to Plaintiff’s 1983 claims, it is clear that Louisiana’s agreement to
indemnify state officers sued in their individual capacity does not convert the claim into
an “official capacity” claim and does not immunize the individual officers from liability.218

214

Doc. 25.
New Orleans Towing Ass’n, 248 F.3d 1143 (5th Cir. 2001) (unpublished).
216
Doc. 25 at 10.
217
Doc. 5, at 2-9.
218
Downing v. Williams, 624 F.2d 612, 625-26 (5th Cir. 1980), vacated on other grounds, 645 F.2d 1226
(5th Cir. 1981) (per curiam) (“Such an indemnity statute is only an agreement between the state and
these individuals and cannot be converted into an extension of Eleventh Amendment immunity by the
state. (Citation omitted). If we were to hold otherwise, by passing comprehensive indemnity statutes,
215

44

Other circuits have held the same.219 The issue here, however, is Plaintiff’s state law
claims.
Second, while not argued by Plaintiff, the Court notes that other circuits have
refused to give individual state officers Eleventh Amendment immunity even when the
state has agreed to indemnify them. For instance, in Jackson v. Georgia Department of
Transportation,220 individual George employees of the Georgia Department of
Transportation argued entitlement to Eleventh Amendment immunity from a state law
tort claim based on Georgia’s creation of a trust fund from which such claims would be
paid. The Eleventh Circuit held that “the existence of a voluntarily established liability
trust fund does not make the state the real party in interest in this action and that the
trust fund does not extend the state’s Eleventh Amendment immunity to its employees
sued in their individual capacity.”221
Similarly, in Wilson v. Beebe,222 the court considered a pendent state law
negligence claim against a Michigan police office whose firearm discharged as he was
attempting to handcuff the plaintiff. The Sixth Circuit concluded: “[The officer] is not
entitled to the protection of the Eleventh Amendment which embodies a grant of

states could set up sovereign immunity as a defense for almost all individuals sued for damages in their
individual capacities under section 1983.”). See also, Hudson v. City of New Orleans, 174 F.3d 677, 687
(5th Cir. 1999); Flowers v. Phelps, 956 F.2d 488, n. 2 (5th Cir. 1992); Landesburg-Boyle v. State of La.,
No. 03-3582, 2004 WL 1516823, *5 n.14 (E.D. La. July 2, 2004); Pegues v. Miss. State Veterans Home,
No. 15-121, 2017 WL 3298684, *3 n. 2 (N.D. Miss. Aug. 2, 2017).
219
See, e.g. Spruytte v. Walters, 753 F.2d 498, 511-14 (6th Cir. 1985); Duckworth v. Franzen, 780 F.2d,
645, 650 (7th Cir. 1985) (Posner, J.) (“[T]he purpose of the Eleventh Amendment is only to protect the
state against involuntary liability. If the state chooses to pick up the tab for its errant officers, its liability for
their torts is voluntary.”) Blaylock v. Schwinden, 862 F.2d 1352, 1354 (9th Cir. 1988) (“A state
indemnification statute does not automatically extend immunity to state officials.”); Geiss v. State of
Colorado, 841 F.2d 1042, 1045-46 (10th Cir. 1988) (per curium) (Rejecting the state’s “attempt
unilaterally to extend its sovereign immunity to all of its employees…”).
220
Jackson, 16 F.3d 1573, (11th Cir. 1994).
221
Id. at 1578.
222
Wilson, 770 F.2d 578 (6th Cir. 1985).

45

immunity to the states in recognition of the requirements of federalism, and the State
cannot clothe him this immunity by voluntarily agreeing to pay any judgment rendered
against him.”223
Nevertheless, this Court is required to apply Fifth Circuit law, as outlined above.
Under that case law, Plaintiff’s state law claims against the individual Defendants must
be dismissed as barred by the Eleventh Amendment.
IV.

LEAVE TO AMEND
“[A] court ordinarily should not dismiss the complaint except after affording every

opportunity to the plaintiff to state a claim upon which relief might be granted.”224 The
Fifth Circuit has further stated:
In view of the consequences of dismissal on the complaint alone, and the
pull to decide cases on the merits rather than on the sufficiency of
pleadings, district courts often afford plaintiffs at least one opportunity to
cure pleading deficiencies before dismissing a case, unless it is clear that
the defects are incurable or the plaintiffs advise the court that they are
unwilling or unable to amend in a manner that will avoid dismissal.225
Relying on this case and other cases from this circuit, one district court in Texas
articulated the standard as follows:
When a complaint fails to state a claim, the court should generally give the
plaintiff at least one chance to amend before dismissing the action with
prejudice unless it is clear that the defects in the complaint are incurable.
See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d
305, 329 (5th Cir. 2002); see also United States ex rel. Adrian v. Regents
of the Univ. of Cal., 363 F.3d 398, 403 (5th Cir. 2004) (“Leave to amend
should be freely given, and outright refusal to grant leave to amend without
a justification . . . is considered an abuse of discretion.”) (internal citation
omitted). However, a court may deny leave to amend a complaint if the court
determines that “the proposed change clearly is frivolous or advances a
claim or defense that is legally insufficient on its face.” 6 Charles A. Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1487

223

Id. at 588.
Byrd v. Bates, 220 F.2d 480, 482 (5th Cir. 1955).
225
Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002).
224

46

(2d ed.1990) (footnote omitted); see also Martin's Herend Imports, Inc. v.
Diamond & Gem Trading United States of Am. Co., 195 F.3d 765, 771 (5th
Cir. 1999) (“A district court acts within its discretion when dismissing a
motion to amend that is frivolous or futile.”) (footnote omitted).226
Finally, one leading treatise explained:
As the numerous case[s] . . . make clear, dismissal under Rule 12(b)(6)
generally is not immediately final or on the merits because the district court
normally will give the plaintiff leave to file an amended complaint to see if
the shortcomings of the original document can be corrected. The federal
rule policy of deciding cases on the basis of the substantive rights involved
rather than on technicalities requires that the plaintiff be given every
opportunity to cure a formal defect in the pleading. This is true even when
the district judge doubts that the plaintiff will be able to overcome the
shortcomings in the initial pleading. Thus, the cases make it clear that leave
to amend the complaint should be refused only if it appears to a certainty
that the plaintiff cannot state a claim. A district court's refusal to allow leave
to amend is reviewed for abuse of discretion by the court of appeals. A wise
judicial practice (and one that is commonly followed) would be to allow at
least one amendment regardless of how unpromising the initial pleading
appears because except in unusual circumstances it is unlikely that the
district court will be able to determine conclusively on the face of a defective
pleading whether the plaintiff actually can state a claim for relief.227
Here, Plaintiff has asked in the alternative for leave to amend to cure any
deficiencies.228 As mentioned throughout the opinion, the Court will act in accordance
with the “wise judicial practice” and general rule and grant the Plaintiff’s request.
The Court does so despite the fact that Plaintiff has previously amended his
Complaint twice because none of the Plaintiff’s prior amendments came in response to
this Court ruling that Plaintiff failed to state a claim. Specifically, the first amendment
was done early before the answer was filed, and the second merely corrected the
identity of one defendant.229

226

Tow v. Amegy Bank N.A., 498 B.R. 757, 765 (S.D. Tex. 2013).
5B Charles A. Wright, Arthur R. Miller, et al., Federal Practice and Procedure § 1357 (3d ed. 2016).
228
Doc. 24 at 20.
229
See footnote 1.
227

47

Nevertheless, the Court must warn the Plaintiff of his obligations under Rule 11 of
the Federal Rules of Civil Procedure. By submitting an amended complaint to the Court,
counsel for the Plaintiff is certifying that, to the best of his “knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances[] . . . the claims . . .
and other legal contentions are warranted by existing law or by a nonfrivilous argument
for extending, modifying, or reversing existing law or for establishing new law.”230 While
Plaintiff has done nothing to date to give the Court any indication that he will violate this
rule, the Court is merely providing him with a reminder of his obligations.
IV.

CONCLUSION
For the foregoing reasons, the Defendants’ Motion to Dismiss231 is hereby

GRANTED. Guillory will be given 30 days within which to amend and supplement his
complaint.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana, on March 20, 2018. 

S

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

230
231

Fed. R. Civ. P. 11(b)(2).
Doc. 20.

48