Poe v. Fuller et al

Filing 57

MEMORANDUM RULING granting in part and denying in part 37 Motion for Summary Judgment. Summary Judgment is DENIED as to Plaintiff's 42 U.S.C. § 1983 claims against Hearn for the care she provided while he was incarcerated at Lincoln Parish Detention Center (LPDC) and as to Plaintiff's negligence claims against both Defendants. Summary judgment is GRANTED as to all other claims. Signed by Judge Elizabeth E Foote on 3/28/2019. (crt,Keifer, K)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
ARCHIE POE

CIVIL ACTION NO.: 17-913

VERSUS

JUDGE ELIZABETH ERNY FOOTE

BRUCE FULLER, ET AL.

MAGISTRATE JUDGE HORNSBY
MEMORANDUM RULING

Before the Court is a motion for summary judgment filed by Drs. Bruce Fuller
(“Fuller”) and Pamela Hearn (“Hearn”) (collectively, “Defendants”). [Record Document 37].
For the reasons given below, the motion is GRANTED IN PART and DENIED IN
PART. It is DENIED as to Plaintiff’s 42 U.S.C. § 1983 claims against Hearn for the care she
provided while he was incarcerated at Lincoln Parish Detention Center (“LPDC”) and as to
Plaintiff’s negligence claims against both Defendants. The motion is GRANTED as to all
other claims.
I.

Background
Plaintiff Archie Poe (“Poe”) is an inmate in the custody of the Louisiana Department

of Public Safety and Corrections. [Record Documents 37-2 at 1 and 45-9 at 1]. He had a total
hip replacement in 1998. [Record Document 37-3 at 5]. In 2014, after a fall in his home, Poe
was seen by Dr. Michael Wayne Britt (“Britt”) at University Health, Shreveport (“UH-S”);
Britt scheduled Poe for a total hip replacement revision. [Record Documents 37-2 at 1 and
45-9 at 1]. On the scheduled day, Britt was unable to begin the surgery on time because he was
having complications with the same surgery on another patient. [Record Document 45-2 at
1

10–11]. Scared of the complications, Poe elected to find another surgeon to perform the
surgery. [Id. at 11].
In his treatment notes, Britt explained that Poe initially stated that he still wanted to
have the surgery and that he only demanded to leave after Britt “emphasized [Poe’s] need to
be compliant and respectful of others.” [Record Document 37-3 at 11]. According to Britt,
Poe then became “abusive” and was presented with the options of cooperating or terminating
the doctor-patient relationship. [Id.]. At that point, Poe stated that he did not want Britt to
operate on him. [Id.]. In a follow-up letter, Britt wrote: “Your statement ‘I do not want you to
operate on me,’ has indicated a lack of confidence in the care rendered by me. Therefore, the
patient/physician relationship has been terminated and no longer exists.” [Record Document
45-8 at 2]. Poe then located a surgeon in Lake Charles and was preparing to have surgery when
he was incarcerated. [Record Document 45-2 at 11].
Poe was incarcerated in 2016, initially at LPDC. [Record Documents 37-2 at 2 and 459 at 2]. He arrived on crutches, but these were taken by prison officials. [Record Document
45-2 at 11]. When Poe met with Hearn, who was working at LPDC, she refused to give him
his crutches back or to order the surgery. [Id. at 23]. According to Poe, Hearn told him that he
should have had the surgery before coming to prison. [Id.]. Poe complained to her of hip pain
and asked her to obtain his medical records from Lake Charles. [Id. at 24]. She refused, and
Poe eventually obtained them himself and presented them to her. [Id. at 25]. Hearn testified
that she recalled neither the crutches incident nor the Lake Charles records and denied telling
him that he should have had the surgery before coming to prison. [Record Document 37-4 at
27–28].
2

Poe was then transferred to Elayn Hunt Correctional Center (“EHCC”), where he
remained for three weeks. [Record Documents 37-2 at 2 and 45-9 at 2]. Upon his arrival at
EHCC, Poe was given a cane, pain medication, and a no-duty status. [Record Documents 452 at 27 and 45-4 at 22]. He was quickly seen at the prison’s orthopedic clinic, which scheduled
him for a surgical evaluation at University Medical Center, New Orleans. [Record Document
45-3 at 2]. Three days before this appointment, Poe was transferred to David Wade
Correctional Center (“DWCC”). [Record Documents 37-2 at 2, 45-3 at 2, and 45-9 at 2].
Poe arrived at DWCC on June 20, 2016. [Record Documents 37-2 at 2 and 45-9 at 2].
Nine days later, he was seen by Hearn, a DWCC physician. [Record Documents 37-2 at 2 and
45-9 at 2]. Although she denies his allegations, Poe claims that Hearn told him that he would
not have surgery on his hip while incarcerated and that she did not know who at EHCC would
have approved one. [Record Documents 37-4 at 28–29 and 45-2 at 28–29]. At this
appointment, Hearn noted that Poe had been evaluated by the orthopedic clinic at EHCC,
which recommended “further orthopedic intervention.” [Record Document 37-3 at 1]. She
directed that he be referred for an orthopedic evaluation at University Health-Monroe (“UHM”), ordered a duty status that limited walking to 1/10 of a mile, and allowed him to use a
cane. [Id. at 1, 17]. 1
On July 11, 2016, Poe requested to be able to sit to bathe as he was having trouble
standing in the shower. [Id. at 2]. DWCC approved use of a walker while showering. [Id.]. This
1 It

is unclear from the record whether this outside evaluation took place at University
Health-Shreveport or University-Health Monroe. Some records indicate that the referral was
to UH-S, [Record Document 37-3 at 1], while Fuller’s deposition suggests that it was at UHM, [Record Document 37-5 at 39]. For purposes of this opinion, the Court will assume without
deciding that the evaluation took place at UH-M.
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form was initialed “BF” on “7/12,” [id.], and so the Court infers that Fuller became aware by
July 12, 2016 that Poe was having problems related to his prior hip replacement and that he
had a referral to an orthopedic specialist. On August 16, 2016, Poe met with Fuller regarding
complaints related to Poe’s blood pressure medication. [Record Documents 37-2 at 3, 37-3 at
3, and 45-9 at 3].
Ten days later, Poe was evaluated by the orthopedics department at UH-M. [Record
Document 37-3 at 4–9]. The examining physician assistant, working under Dr. Randolph
Taylor, [id. at 4], noted in the medical record:
Pt will have to live with his condition at this time. Dr. Britt, which patient stated
he did not want to operate on him[,] is the Orthopedic total joint physician that
Dr. Taylor refers total joint revisions or more complex joint replacements to. Pt
is also at increased risk for complications due to his co morbidities (hx, HTN,
smoking, Atrial tachycardia, and morbid obesity).
Pt may choose the orthopedic physician of his choice to follow up with once
he is released from prison for his right hip condition and his knee condition.
[Id. at 8]. UH-M ordered some adjustments to Poe’s medication, and DWCC followed these
orders in part. [Id. at 12]. The UH-M records also state that there had been no change in the
condition of Poe’s hip since he was last seen at UH-S in 2014 and that “there is no hardware
failure or loosening.” [Id. at 10].
Fuller saw Poe at least twice more. [Record Documents 37-2 at 4 and 45-9 at 4]. Each
time Poe complained of hip pain, and Fuller reviewed the UH-M report. [Record Documents
37-2 at 4 and 45-9 at 4]. Poe claims that Fuller told him that he could wait until he was released
to have surgery. [Record Document 45-2 at 29].
During his remaining time at DWCC, Poe continued to be on a restricted duty status
where he would work within the prison compound; his particular job involved wiping poles.
4

[Record Documents 37-3 at 17–23 and 45-2 at 30, 39–40]. Hearn and Fuller issued or
approved various adjustments to this duty status such as allowing Poe to elevate his feet as
needed and ordering that he not be made to kneel or to stand for prolonged periods. [Record
Document 37-3 at 17–23]. However, Poe was always required to work, and he contends that
even this light work was very painful. [Record Documents 37-3 at 17–23 and 45-2 at 30, 39–
40]. Poe also claims that he was never given pain medication despite repeated complaints that
he was in pain. [Record Documents 45-2 at 29–30 and 45-3 at 7–8, 19, 21]. However, he was
prescribed Mobic and Dolobid. [Record Documents 37-3 at 12, 37-4 at 30, 37-5 at 69].
On March 27, 2017, Poe was transferred to the Louisiana State Penitentiary (“LSP”);
the reason for transfer was noted as “ADMN - MEDICAL.” [Record Document 37-7 at 1].
It is unclear from the record if either Hearn or Fuller was involved in the order to transfer
Poe. Once at LSP, he was placed in a wheelchair and given a no-duty status. [Record
Document 45-2 at 33–34]. After a delay related to his diabetes, he received the hip surgery in
November 2017. [Record Documents 45-2 at 33, 35 and 45-3 at 26, 35].
Poe claims that Defendants’ treatment of him violated his Eighth Amendment right to
be free from cruel and unusual punishment. [Record Document 1 at 7–8]. He raises an
additional state-law claim for negligence. [Id. at 8]. Both Defendants are sued in their individual
capacities. [Id. at 2].
II.

Law and Analysis
A.

Standard of Review

Federal Rule of Civil Procedure 56(a) directs a court to “grant summary judgment if
the movant shows that there is no genuine dispute as to any material fact and the movant is
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entitled to judgment as a matter of law.” 2 Summary judgment is appropriate when the
pleadings, answers to interrogatories, admissions, depositions, and affidavits on file indicate
that there is no genuine issue of material fact and that the moving party is entitled to judgment
as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When the burden at trial
will rest on the non-moving party, the moving party need not produce evidence to negate the
elements of the non-moving party’s case; rather, it need only point out the absence of
supporting evidence. See id. at 322–23.
If the movant satisfies its initial burden of showing that there is no genuine dispute of
material fact, the nonmovant must demonstrate that there is, in fact, a genuine issue for trial
by going “beyond the pleadings” and “designat[ing] specific facts” for support. Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citing Celotex, 477 U.S. at 325). “This burden is
not satisfied with some metaphysical doubt as to the material facts,” by conclusory or
unsubstantiated allegations, or by a mere “scintilla of evidence.” Id. (internal quotation marks
and citations omitted). However, “[t]he evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1985) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158–59 (1970)). While not
weighing the evidence or evaluating the credibility of witnesses, courts should grant summary
judgment where the critical evidence in support of the nonmovant is so “weak or tenuous”

Rule 56 was amended effective December 1, 2010. Per the comments, the 2010
amendment was intended “to improve the procedures for presenting and deciding summary
judgment motions and to make the procedures more consistent with those already used in
many courts. The standard for granting summary judgment remains unchanged.” Therefore,
the case law applicable to Rule 56 prior to its amendment remains authoritative, and this Court
will rely on it accordingly.
2

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that it could not support a judgment in the nonmovant’s favor. Armstrong v. City of Dall., 997
F.2d 62, 67 (5th Cir. 1993).
Additionally, Local Rule 56.1 requires the movant to file a statement of material facts
as to which it “contends there is no genuine issue to be tried.” The opposing party must then
set forth a “short and concise statement of the material facts as to which there exists a genuine
issue to be tried.” W.D. La. R. 56.2. All material facts set forth in the movant’s statement “will
be deemed admitted, for purposes of the motion, unless controverted as required by this rule.”
Id.
B.

Qualified Immunity

“The doctrine of qualified immunity protects government officials ‘from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan,
555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To be entitled
to qualified immunity, an official who has violated a clearly established constitutional or
statutory right must have done so through “conduct that was objectively reasonable under the
law at the time of the incident.” Michalik v. Herman, 422 F.3d 252, 257–58 (5th Cir. 2005). A
clearly established right is one whose outline is “sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635,
640 (1987). Nevertheless, finding a right clearly established “do[es] not require a case directly
on point, but existing precedent must have placed the statutory or constitutional question
beyond debate.” Ashcroft v. Al-Kidd, 563 U.S. 731, 741 (2011). Thus, even in “novel factual
situations” a right may be clearly established if precedent gives defendants a “fair warning that
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their alleged treatment . . . was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). A
defendant’s conduct is objectively unreasonable only if “all reasonable officials in the
defendant’s circumstances would have then known that the defendant’s conduct violated” the
plaintiff’s rights. Thompson v. Upshur Cty., 245 F.3d 447, 457 (5th Cir. 2001). A court may
evaluate the reasonableness of an official’s conduct in light of clearly established law and the
existence of a statutory or constitutional violation in either order. Pearson, 555 U.S. at 236.
C.

Eighth Amendment Standards for Medical Treatment

The Eighth Amendment prohibits “cruel and unusual punishments.” U.S. Const.
amend. VIII; see Estelle v. Gamble, 429 U.S. 97, 102 (1976) (“[W]e have held repugnant to the
Eighth Amendment punishments which are incompatible with the evolving standards of
decency that mark the progress of a maturing society.” (internal quotation marks omitted)).
Although the amendment “does not, by its precise words, mandate a certain level of medical
care for prisoners[,] the Supreme Court has interpreted it as imposing a duty on prison officials
to ensure that inmates receive adequate . . . medical care.” Easter v. Powell, 467 F.3d 459, 463
(5th Cir. 2006) (internal citations and quotation marks omitted). To establish a violation of his
Eighth Amendment rights, a prisoner must show that officials or medical staff acted with
“deliberate indifference to serious medical needs.” Estelle, 429 U.S. at 104. “A serious medical
need is one for which treatment has been recommended or for which the need is so apparent
that even laymen would recognize that care is required.” Gobert v. Caldwell, 463 F.3d 339, 345
n.12 (5th Cir. 2006). Thus, a successful Eighth Amendment claim requires (1) that the plaintiff
have had a serious medical need that exposed him to a substantial risk of serious harm, Lawson
v. Dall. Cty., 286 F.3d 257, 262 (5th Cir. 2002); and (2) that a prison official was “both aware
8

of facts from which the inference could be drawn that a substantial risk of serious harm
exist[ed], and . . . also dr[e]w the inference,” Smith v. Brenoettsy, 158 F.3d 908, 912 (5th Cir.
1998) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Moreover, because deliberate
indifference requires conscious disregard, mere negligence or medical malpractice does not
violate the Eighth Amendment. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).
If prison officials or doctors act with deliberate indifference in delaying treatment,
additional injuries caused by the delay violate the Eighth Amendment if they rise to the level
of “substantial harm.” Easter, 467 F.3d at 463. Likewise, “pain suffered during a delay in
treatment” for a serious medical need is actionable under the Eighth Amendment. Alderson v.
Concordia Par. Corr. Facility, 848 F.3d 415, 422 (5th Cir. 2017). Nevertheless, a prisoner’s
disagreement with the selection of treatments offered does not establish an Eighth
Amendment violation as long as those treatments are medically appropriate. Easter, 467 F.3d
at 464; see Gobert, 463 F.3d at 349 n.32 (“Considering and failing to follow the
recommendations of another treating physician does not amount to deliberate indifference.”).
To establish that they did not act with deliberate indifference, prison officials or medical staff
may introduce evidence of “[m]edical records of sick calls, examinations, diagnoses, and
medications.” Gobert, 463 F.3d at 346 n.24.
D.

Application

“[N]on-life-threatening injuries are a serious medical need when the injuries induce[]
severe pain.” Thomas v. Carter, 593 F. App’x 338, 342 (5th Cir 2014) (per curiam) (citing Gobert,
463 F.3d at 349; Harris v. Hegmann, 198 F.3d 153, 159–60 (5th Cir. 1999)). Given that Poe
reported constant pain, required a cane to ambulate, and had been scheduled for surgery
9

before being incarcerated and received it at LSP, the Court concludes that his hip condition
constituted a serious medical need. See id. (citing Gobert, 463 F.3d at 345 n.12) (having “no
difficulty holding” that a condition constitutes a serious medical need when a patient required
pain medication, rated his pain as 9 or 10 on a scale of 10, and warranted surgery).
1.

Care at LPDC

Poe claims that Dr. Hearn was deliberately indifferent by failing to schedule him for a
surgery while he was at LPDC and for failing to order that his crutches (which he was using
on arrival) be returned. [Record Document 1 at 3]. He was at LPDC for less than a month.
[Record Documents 37-7 at 5 and 45-2 at 23]. After his first meeting with Hearn where she
refused to obtain the medical records from Lake Charles, Poe obtained them. [Record
Document 45-2 at 24–25]. Although she disputes Poe’s version of events, [Record Document
45-4 at 27–28], on summary judgment the Court must make all inferences in Poe’s favor, and
so must infer that he did, in fact, present her with records showing that he had been scheduled
for surgery before being incarcerated. One week later, he was transferred to EHCC, where he
was scheduled for an outside surgical evaluation. [Record Documents 37-2 at 2, 45-3 at 2, and
45-9 at 2].
The issue is whether Hearn was deliberately indifferent by failing to refer Poe to a
specialist while he was at LPDC. An intentional delay in treatment is actionable under the
Eighth Amendment. Easter, 467 F.3d at 463. Hearn has not explained why she did not schedule
Poe for an outside evaluation while he was at LPDC, but then did so weeks later when he
arrived at DWCC. She has denied refusing to order the medical records related to Poe’s
scheduled surgery in Lake Charles or that she told him that he should have had the surgery
10

before being incarcerated. [Record Document 37-4 at 9–11, 28]. Because she denies having
done these things, this Court must again make inferences in Poe’s favor and assume that she
acted as he has testified. If she did state that he was not going to have a surgery and did refuse
without justification to obtain records related to a medical need that she recognized mere
weeks later, a jury could find that she had acted with deliberate indifference.
The crutches were taken by prison staff, not by Hearn. [Record Document 45-2 at 11,
23]. Therefore, she can only be liable if failing to order that he be allowed to use them rises to
the level of deliberate indifference. The record of this case does not contain the medical
records from LPDC, but it is clear that Hearn did not order that the crutches be returned to
him. In the absence of any explanation for not allowing Poe to have crutches or evidence of
any substitute or alternative care Hearn provided, Hearn has failed to carry her initial burden
to establish that there is no dispute of genuine material fact regarding whether she responded
to Poe with deliberate indifference while he was at LPDC.
This Court also finds that Hearn is not entitled to qualified immunity for care she
provided at LPDC. It was clearly established by 2016 that while a prison official may offer
alternate or substitute treatments, a prison official cannot refuse to provide any treatment for
a serious medical need. Estelle, 429 U.S. at 104; Easter, 467 F.3d at 464. As Hearn has offered
no explanation for her apparently contradictory medical decisions at LPDC and DWCC, this
Court cannot find that she acted reasonably in light of clearly established law. Similarly,
without some positive evidence of care she did provide in lieu of crutches or why no such care
was medically indicated, the Court cannot find her conduct to be reasonable. Therefore, Poe’s

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claim that Hearn was deliberately indifferent to his medical needs while he was at LPDC
survives summary judgment.
2.

Care at DWCC
a.

Pain Medication

Poe claims that Hearn and Fuller both refused to provide him with pain medication at
DWCC. [Record Document 1 at 4]. Although the Court infers, as it must, that Poe was in pain
while was under Defendants’ care, the Court concludes that no Eighth Amendment violation
occurred because he was provided with some treatment for his pain. See Gobert, 463 F.3d at
346 n.24. An “alleged failure to . . . prescribe effective treatments and make perfect decisions
as to the management of [an inmate’s] conditions and pain do not establish . . . deliberate
indifference.” Walcott v. Terrebonne Par. Jail Med. Dep’t, 728 F. App’x 361, 362 (5th Cir. 2018)
(per curiam) (citing Gobert, 463 F.3d at 346; Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752,
756 (5th Cir. 2001); Mendoza, 920 F.2d at 195). Poe’s medical records show that he was
prescribed anti-inflammatory drugs Mobic and Dolobid, which also have some analgesic
properties. [Record Documents 37-3 at 12, 37-4 at 30, and 37-5 at 69]. In fact, Dr. Fuller
approved the switch away from Mobic when this was recommended by the UH-M clinic.
[Record Document 37-3 at 12]. 3 Moreover, Poe was allowed to use a cane and given a limited
duty status to which progressive modifications were made, indicating that neither Hearn nor
Fuller were deliberately indifferent to the pain that Poe reported. [Record Documents 37-3 at
17–23, 37-4 at 29–30, and 45-2 at 30–32].
Although Fuller did not prescribe the same drug recommended by UH-M, [Record
Documents 37-3 at 8, 12], “[c]onsidering and failing to follow the recommendations of another
treating physician does not amount to deliberate indifference,” Gobert, 463 F.3d at 349 n.32.
3

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b.

Duty Status

Poe claims that by refusing to assign him a no-duty status, Hearn and Fuller were
deliberately indifferent to his serious medical needs. [Record Document 1 at 4]. While neither
EHCC nor LSP required Poe to work, “[d]isagreement with [one’s] medical classification does
not state a constitutional claim.” Thomas, 593 F. App’x at 343 (quoting Winston v. Stacks, 243
F. App’x 805, 807 (5th Cir. 2007) (per curiam)). Moreover, medical staff at DWCC reevaluated
his classification multiple times and made modifications to further limit his activity. [Record
Document 37-3 at 17–23]. Again, this Court must infer that Poe continued to be in pain while
he was working, but the record of review of his duty status prevents any conclusion that his
light-work duty status was the product of deliberate indifference. See Banuelos v. McFarland, 41
F.3d 232, 235 (5th Cir. 1995).
c.

Failure to Order Surgery
i.

Hearn

Poe claims that Hearn was deliberately indifferent because she canceled the surgery
that he was scheduled to have at EHCC. [Record Document 1 at 4]. However, the EHCC
records indicate that a surgical evaluation had been scheduled, not that a surgery had been
scheduled. [Record Document 45-3 at 2]. After Poe arrived at DWCC, Hearn referred him for
a consultation with the UH-M orthopedic clinic. [Record Document 37-3 at 1]. Although the
Court infers that Hearn did make disparaging comments about the unlikelihood of Poe
receiving the surgery while incarcerated, there is no evidence that Hearn continued to be
involved in Poe’s treatment after the initial referral to the UH-M clinic. Because referral was

13

an appropriate response to Poe’s hip pain, Hearn is entitled to summary judgment on this
issue.
ii.

Fuller

After Poe was seen at UH-M, Fuller saw him multiple times, but did not refer him to
see another surgeon. [Record Documents 37-2 at 4, 37-3 at 13–14, and 45-9 at 4]. Poe alleges
that failing to locate a surgeon other than Britt constituted deliberate indifference. [Record
Document 1 at 4]. A prisoner has a constitutional right to adequate medical care, but not to a
physician of his choice. See Parker v. Smith, 22 F.3d 1094 (5th Cir. 1994) (unpublished table
decision); Allen v. Gunn, No. 1:08CV393-RHW, 2009 WL 3561541, at *1 (S.D. Miss. Oct. 30,
2009) (“Plaintiff is not constitutionally entitled to a physician of his choice. He is entitled only
to constitutionally adequate treatment.”). When an alleged denial of medical care results from
an inmate’s refusal to accept the care offered, there is no Eighth Amendment violation. Allen,
2009 WL 3561541, at *1.
While treating Poe, Fuller learned from the medical record that Poe had refused to
allow Britt to perform the operation. [Record Documents 37-3 at 8 and 45-5 at 11, 13]. Poe
had thus been presented with an opportunity to have surgery but declined to avail himself of
it. Poe has pointed this Court to no authority for the proposition that failing to shop around
to find a second surgeon after an inmate refuses care from a first is constitutionally required. 4
The record also contains Britt’s letter in which he terminated the doctor-patient
relationship. [Record Document 45-8 at 2]. Had Fuller been aware of this letter, it is arguable
that failing to locate a surgeon who would treat Poe would constitute deliberate indifference.
However, Fuller testified that he only became aware of Britt’s refusal to continue treating Poe
shortly before the deposition. [Record Document 45-5 at 49]. In fact, Poe even represents that
it was Poe who had refused treatment from Britt: “Thus, Dr. Fuller and Dr. Hearn were seizing
upon the fact that prior to being incarcerated Archie Poe had previously rejected the “First
4

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Moreover, the UH-M records state that Poe “will have to live with his condition at this
time.” [Record Document 37-3 at 8]. Thus, Fuller had a specialist’s opinion that Poe’s
condition was not life-threatening or likely to worsen. Fuller also continued to treat Poe,
providing new medication and restricting him to light duty. [Id. at 12–14, 19]. Although Poe
claims that Fuller refused to allow him to have the surgery that EHCC determined was
necessary, EHCC had only scheduled an evaluation. [Record Documents 1 at 4 and 45-3 at 2].
While it appears that Poe would have benefited from having the surgery while at DWCC, this
Court cannot conclude that Fuller’s conduct rose to the level of deliberate indifference given
the UH-M opinion and Fuller’s subsequent treatment of Poe.
D.

Negligence

Poe also alleges that Fuller and Hearn’s treatment of him was negligent in violation of
Article 2315 of the Louisiana Civil Code. [Record Document 1 at 8]. Because Defendants’
motion does not address the negligence claim, summary judgment is DENIED as to this
claim.
IV.

Conclusion
The motion for summary judgment [Record Document 37] is GRANTED IN PART

and DENIED IN PART. Because the medical care provided by Hearn and Fuller at DWCC
met constitutional muster, summary judgment is GRANTED as to all § 1983 claims against
Fuller and all § 1983 claims against Hearn for care at DWCC. Summary judgment is DENIED

Doctor”, who was a colleague of Dr. Taylor, as their reason to deny Archie Poe surgery while
at DWCC/DOC.” [Record Document 45 at 8–9].
15

for the care Hearn provided at LPDC. Because Defendants did not address Poe’s negligence
claim, summary judgment is also DENIED as to that claim.
The claims on which summary judgment has been granted are DISMISSED WITH
PREJUDICE.
THUS DONE AND SIGNED in Shreveport, Louisiana, on this 28th day of
____
March
__________________, 2019.

_______________________________
ELIZABETH E. FOOTE
UNITED STATES DISTRICT JUDGE

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