Simon v. Gee et al
MEMORANDUM ORDER denying 18 First Motion to Amend/Correct Complaint; denying 32 Second Motion to Amend/Correct Complaint; denying 35 Third Motion to Amend/Correct Complaint; denying 37 MOTION to Dismiss Subpoena Request for Medical Records; denying 39 Fourth Motion to Amend/Correct Complaint; denying 40 MOTION for Sanctions and MOTION to Strike; denying 43 MOTION for Sanctions and MOTION to Strike. Signed by Magistrate Judge Joseph H L Perez-Montes on 11/7/2017. (crt,ThomasSld, T)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
CIVIL ACTION 1:17-CV-00237
REBEKAH GEE, et al.
MAGISTRATE JUDGE PEREZ-MONTES
Before the Court is a civil rights complaint filed pursuant to 42 U.S.C. § 1983
by pro se Plaintiff Elizabeth Simon (“Simon”). The named defendants are Karen
Medlock (“Medlock”) (District V Forensic Coordinator), Michelle Duncan (“Duncan”)
(Director of Community Forensic Service and Medlock’s supervisor), and Rebekah
Gee (“Gee”), Secretary of the Louisiana Department of Health and Hospitals. Simon
contends she was maliciously prosecuted and falsely arrested by Defendants. Simon
seeks punitive and compensatory damages in excess of $75,000.
Simon is not
Simon contends she is an insanity acquittee, found not guilty by reason of
insanity on September 29, 2003.
Simon was given a “Conditional Release and
Probation Supervision” form to sign.
Simon alleges she signed it without the
assistance of counsel and when she was not on medication (Doc. 1). Simon was
supervised by Kenneth Cooley initially, then Mike Cole, then by Karen Medlock
beginning in 2011.
Simon contends she and Medlock never got along and admits she told Medlock
she should be fired. As a result, Medlock recommended to the Court that, since Simon
was in psychosis, she needed to be placed in jail (Doc. 1). Simon contends that
Medlock can only authorize her hospitalization and that the recommendation of jail
constitutes malicious prosecution.
Simon contends Medlock then demanded an
immediate meeting with her while Medlock was at work, and had Simon arrested to
failing to go to the meeting (Doc. 1).
Plaintiff’s first Motion to Amend is denied.
Simon filed a motion to amend her complaint to add the State of Louisiana as
a Defendant (Doc. 18).
Simon seeks to add the State because she was never placed in any inpatient
psychiatric facility after her trial due to a lack of bed space for females (Doc. 18). In
response, the State of Louisiana filed a Motion to Dismiss [the Amended Complaint]
for Lack of Jurisdiction (Doc. 23).
Rule 15 of the Federal Rules of Civil Procedure mandates that leave to amend
“be freely given when justice so requires.” Fed. R. Civ. P. 15(a). Determining when
justice requires permission to amend rests within the discretion of the trial court. 1
Bisby v. Garza, 2008 WL 465320, at *1 (S.D. Tex. 2008) (citing Zenith Radio Corp. v.
Hazeltine Research, Inc., 401 U.S. 321, 330 (1971); Nilsen v. City of Moss Point, Miss.,
A party may amend the party's pleading once as a matter of course at any time before a responsive
pleading is served. See Aguilar v. Texas Dep't of Criminal Justice, 160 F.3d 1052, 1053 (5th Cir. 1998)
(citing Fed. R. Civ. P. 15(a).
621 F.2d 117, 122 (5th Cir.1980)). However, joinder of additional defendants in an
action requires permission from the court, and the defendants must be involved in
the same transaction or occurrence, with common questions of law or fact, as the
originally named defendants. Fed. R. Civ. P. Rule 20. In exercising its discretion in
considering a motion to amend a complaint, the district court may consider, among
other factors, undue delay, dilatory motive on the part of the movant, and undue
prejudice to the opposing party by allowing the amendment. Bisby, 2008 WL 465320,
at *1 (citing Daves v. Payless Cashways, Inc., 661 F.2d 1022, 1024 (5th Cir. 1981)).
It is within the district court’s discretion to deny a motion to amend if it is
futile. See Stripling v. Jordan Production Co., L.L.C., 234 F.3d 863, 872-73 (5th Cir.
2000). A proposed amended complaint is “futile” if it fails to state a claim upon which
relief can be granted. See id. at 873. Therefore, the issue is whether in the light most
favorable to the plaintiff and with every doubt resolved in his behalf, the proposed
amended complaint states any valid claim for relief. See id. at 873.
The Eleventh Amendment to the United States Constitution bars suits in
federal court by citizens of a state against their own state or a state agency or
department. See Richardson v. Southern University, 118 F.3d 450, 452 (5th Cir.
1997), cert. den., 522 U.S. 1078 (1998) (citing Delahoussaye v. City of New Iberia, 937
F.2d 144, 146 (5th Cir. 1991)). As evidenced by its Motion to Dismiss (Doc. 23), the
State of Louisiana has not consented to this suit. In addition, the Fifth Circuit has
held the Louisiana Department of Health and Human Services is an arm of the State
entitled to Eleventh Amendment immunity. See Darlak v. Bobear, 814 F.2d 1055
(5th Cir. 1987).
Therefore, Simon’s proposed amendment to add the State of
Louisiana as a defendant would be futile.
Accordingly, Simon’s Motion to Amend to add the State of Louisiana as a
Defendant (Doc. 18) is DENIED.
Plaintiff’s second Motion to Amend is denied.
Simon filed a second Motion to Amend the Complaint to ask that she be
discharged from monitoring by the State of Louisiana (Doc. 32).
Simon asks the Court to discharge the State and its agencies from “monitoring,
coercing, mistreating, and involvement with the Plaintiff” and asks for an “injunction
from them issuing any scathing and bias reports to the Courts concerning her until
this civil action is resolved” (Doc. 32). Essentially, Simon is asking for relief from the
result of her acquittal by reason of insanity in her criminal trial. Such relief is
appropriately sought in a petition for habeas relief. Simon may not challenge the
verdict and resulting monitoring, from her criminal trial, through a civil rights
complaint. Moreover, the State of Louisiana is not a defendant in this action.
Therefore, Simon’s second Motion to Amend (Doc. 32) is also DENIED.
Plaintiff’s third Motion to Amend is denied.
Simon filed a Third Motion to Amend to allege the basis of this Court’s
jurisdiction (Doc. 35). Simon purports to allege constitutional violations for: (1)
constitutional limitations on crime creation (presumably the complaint of malicious
prosecution); (2) arrest not based on probable cause; and (3) the Void for Vagueness
Doctrine. These allegations appear to only restate the allegations in her original
complaint and are cumulative.
Simon also wants to amend to allege the State of Louisiana and its agents
violated her right to privacy by subpoenaing irrelevant medical records. The State of
Louisiana is not a Defendants in this action. Moreover, Simon has not shown that
irrelevant medical records have been introduced into the record. Even if they are
introduced, the Court is able to distinguish relevant medical records from irrelevant
Simon alleges Medlock knowingly falsely told the state court that she has
prescriptions for narcotics, although she has not had any since 2015. This allegation
is essentially part of Simon’s original claims.
Simon also asks the Court to notify other potential mental health plaintiffs and
their defense attorneys of reporting discrepancies by the Community Forensics
Division and this action. If Simon wants to pursue a class action, she can initiate it
with an appropriate motion.
Therefore, Simon’s third Motion to Amend (Doc. 35) is DENIED.
Plaintiff’s Fourth Motion to Amend is denied.
Simon filed a fourth Motion to Amend/Correct the Complaint (Doc. 39).
Simon’s “motion” (Doc. 39) appears to be only a brief in support of the third Motion to
Amend and not a new, separate motion to amend. However, it is titled “Motion to
Amend” (Doc. 39). Therefore, to the extent that Simon’s fourth Motion to Amend
(Doc. 39) is a separate motion, it is DENIED.
Plaintiff’s Motion to Dismiss the Subpoena Request for Medical Records is
Simon filed a “Motion to Dismiss Subpoena Request for Medical Records” (Doc.
37). Simon contends she has never been treated at Easter Louisiana Mental Health
in Jackson, Louisiana. Since there are apparently no medical records there for
Simon, there is no reason for her to object to Defendants’ subpoena.
Simon contends she already authorized the release of her medical records
(since 2004) to the Forensic Coordinator. Therefore, Defendants should already have
them. If Defendants’ request is for records they already possess, then the subpoena
for those records cannot prejudice Simon.
Simon’s objection to and Motion to Dismiss Defendants’ subpoena for her
medical records (Doc 37) is DENIED.
Plaintiffs’ Motions for Sanctions and Motions to Strike are denied.
Simon filed two Motions for Sanctions and Motions to Strike (Docs. 40, 43).
First, Simon filed a Motion for Sanctions against Defendants’ attorney (Doc.
40), contending he misled the Court in arguing Simon was over the 21 day limit for
amending her complaint. Simon argues Defendants’ answer was filed late and their
service of the Answer on her was also late (Doc. 40-2).
Simon moves to strike
Defendants’ misrepresentations from the record.
Since Simon’s Motion to Amend is not denied for untimeliness, this argument
is moot. Therefore, Simon’s Motion for Sanctions and to Strike (Doc. 40) is DENIED.
Second, Simon asks the Court to strike Defendants’ Answer (Doc. 42) to the
Second Amended Complaint (Doc. 35) and to sanction Defendants’ attorney for filing
frivolous pleadings (Doc. 43).
Since Simon’s Motion to Amend her complaint (Doc. 35) is denied, it is not
necessary for Defendants to answer it.
Therefore, Simon’s Motion to Strike
Defendants’ answer and for sanctions (Doc. 43) is DENIED as moot.
THUS DONE AND SIGNED in chambers in Alexandria, Louisiana, this _____
day of November, 2017.
Joseph H.L. Perez-Montes
United States Magistrate Judge
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