ORDER AND REASONS

KAREN ROBY, Magistrate Judge

This matter is before the undersigned United States Magistrate Judge upon consent of the parties pursuant to Title 28 U.S.C. § 636(c). The defendants, MiMi Schultz, Dr. Richard Richoux, and Dr. Laurence Durante, filed a Motion for Summary Judgment and/or Motion to Dismiss (Rec. Doc. No. 63) which was heard with oral argument on March 10, 2004. The plaintiff has opposed the motion.

I. Factual and Procedural Background

The plaintiff, Robert Andrew Parish ("Parish"), filed this pro se and in forma pauperis complaint pursuant to Title 42 U.S.C. § 1983 against Jefferson Parish Sheriff Harry Lee, the Jefferson Parish Community Correctional Center ("JPCC") Medical Program, Medical Director Mimi Shultz, and Medical Administrator Gary Schwabe.

In his original complaint, Parish alleged that, beginning April 14, 2002, he filed 11 requests for medical attention for a hernia problem before he was allowed to see a doctor at the prison. He also alleges that from June 18, 2002 until the time of the filing of his complaint, he suffered with vomiting and pain which prevented him from eating and drinking.

Parish also claimed that the prison doctor told him that the physicians were not "babysitters" and that he needed to learn to keep his food down. He also claimed that, on several occasions, the doctors refused to treat him over the course of 25 days.

He stated that eventually, he began vomiting blood and was sent to the hospital. The prison doctors told him that they could not help, and the vomiting continued for another 22 days. He complains that he submitted additional grievance complaints to the medical unit but received no response or medical attention. Parish seeks monetary damages for the continued pain and suffering.

B. The Spears Hearing

Parish testified that Sheriff Lee failed or refused to provide him with medical attention in spite of the fact that he sent grievances to Sheriff Lee and communications to Lee's administration. He conceded that he filed suit against Sheriff Lee seeking liability pursuant to respondeat superior.

He also testified that he filed suit against the JPCC medical department because they ignored his requests for medical attention beginning on June 18, 2002. He complained that the doctors only told him that he needed to learn not to be sick. He further testified that the prison doctor refused to treat him when he complained to the medical unit on June 24, 2002.

Parish further stated that, when he first became ill, he went 27 days without eating or drinking anything, and eventually, he started vomiting up blood and coffee grinds. It was at this time that the defendants decided to send him to the Medical Center of Louisiana at New Orleans ("(MCLNO") (f/k/a Charity Hospital). He also testified that he had dropped in weight by forty-eight pounds, and his blood pressure dropped.

Parish testified that on July 3, 2002, he received new medicine which stopped the vomiting. However, the medical personnel discontinued the medicine. He also returned to the doctor on July 11, 2002, and according to Parish, the doctor did not provide him with medical treatment.

He went to the hospital on July 13, 2002 and was released on July 17, 2002. According to Parish, the hospital decompressed his stomach and provided him with an intravenous drip. He testified that he was not told anything about his medical condition. He returned to JPCC and began vomiting again on July 23, 2002.

He requested medical attention that day but was not seen for treatment until July 25, 2002. He testified that on July 29, 2002, the prison medical staff performed blood work and placed him on a liquid diet. He indicated that he submitted a request and letter for medical treatment on August 1, 2002 and August 4, 2002.

On August 11, 2002, he was seen by a female doctor at the prison who prescribed Fenegrin, an anti-nausea medication. He was told that he needed to see a psychiatrist, which he did. He testified that he was diagnosed with a bipolar disorder 20 years earlier and has been told that his medical condition is related to his mental disorder. On September 30, 2002, he was told that he had a hernia that came loose and it was re-rapped. He testified that since then, he has not experienced any vomiting and bleeding, but he continues to have some problems. He remained hospitalized until November 5, 2002.

Parish testified that he filed suit against Mimi Schultz because, as the medical director, he had spoken with her about the need to change the dressings on his wound. According to Parish, Schultz would have the medical coordinator respond to the grievance, who only indicated that his needs were being addressed.

Parish also testified that he filed suit against Gary Schwabe, the medical administrator at the facility, because he should be held responsible for the lack of proper medical treatment he received. Parish clarified his allegations regarding Donna, a nurse, and Dr. Williams. He further confirmed that he seeks $500,000 in damages.

C. First Amended Complaint Filed by Appointed Counsel

Through his court appointed counsel, Parish filed an Amended and Supplemental Complaint (Rec. Doc. No. 37) asserting claims against the Jefferson Parish Correctional Center Medical Program, LLC, Dr. Joseph Hamrick, Miriam Schultz, RN, Dr. Richard Richoux, Dr. P. Orlando, Dr. Soeteres, Dr. L. Durante, Dr. Williams, Donna McGaffee, J. Llout, N. Wallace, M. Tate, T. Chisley, and Nurse "R.M." In the Amended Complaint, counsel for plaintiff reiterated the claims asserted in the Original Complaint and at the Spears Hearing with supplementation.

Parish alleged in the Amended Complaint that, on December 14, 2001, Dr. Richoux changed his medication for a bipolar disorder without consulting plaintiff's private physician. As a result, his health began to deteriorate and his requests for attention were ignored. He made sick call requests for treatment of anxiety, pain in his right side, vomiting and other ailments. The nurses and doctors at the prison ignored his complaints.

Parish also claims that, between December 2001 and April 2002, he filed twenty sick call requests complaining of his hernia, hypothyroidism, and mental health. He alleges that these complaints and ailments were ignored or were not properly treated.

In May 2002, defendant J. Llout recommended that plaintiff be moved to a bottom bunk due to his hernia and general ill health. In spite of this medical recommendation, the prison officials failed to comply. As a result, plaintiff claims that his hernia grew in size and became more painful. He claims that his complaints and obvious need for care went unanswered.

During the same time period, plaintiff claims that his vomiting became worse because of the enlarged hernia. He alleges that, in June 2002, the doctors at MCLNO recommended that he be scheduled for surgery. However, the prison officials and medical staff failed to schedule him for surgery until September, 2002. After the surgery, plaintiff claims, the prison medical staff failed to provide adequate post-surgical care for his wound.

Parish claims that these failings violated La. Civ. Code Art. 2315 et seq. and the Eighth and Fourteenth Amendments to the Constitution which entitled him to redress under § 1983.

D. Second Amended Complaint Filed by Appointed Counsel

In the Second Amended Complaint (Rec. Doc. No. 56), filed December 11, 2003, Parish, through counsel reiterated the claims against the defendants and added additional § 1983 and state tort claims against Sheriff Harry Lee in his individual capacity. Specifically, Parish alleged that on December 12, 2001, the medical staff at JPCC recommended that he be given a lower bunk bed, which he received.

He claims that on March 8, 2002, he was moved to a top bunk because of "space needs." He did not receive another bottom bunk until May 10, 2002. Parish claims that, during this period, he complained to the prison staff and the medical personnel. He alleges that the top bunk caused him intense pain and aggravated his hernia.

Parish alleges that Sheriff Lee is the final authority on bunk assignments and is responsible for the failure to provide him with a bottom bunk in accordance with the physician's recommendation. He also claims that this amounted to a deliberate indifference to his medical conditions.

Parish claims that these failings violated La. Civ. Code Art. 2315 et seq. and the Eighth and Fourteenth Amendments to the Constitution which entitled him to redress under § 1983.

D. Procedural Posture of the Case

Prior to the filing of the First Amended Complaint, the undersigned issued a Report and Recommendation conducted a statutory frivolousness review addressing a Motion to Dismiss filed by the two of the original defendants, the Jefferson Community Correctional Center Medical Program, LLC, and Mimi Schultz. Pursuant to that recommendations therein, the District Judge granted the motion in part and dismissed the state law claims of negligent treatment and medical malpractice against the Medical Program and Schultz for failure to exhaust state statutory malpractice remedies. The motion was denied in part as to the § 1983 inadequate medical care claims and those claims remain pending before the Court.

In addition, pursuant to the recommendations arising from this Magistrate Judge's frivolous review, the District Judge dismissed with prejudice the § 1983 claims against Sheriff Lee brought under a theory of respondeat superior. The Court also dismissed without prejudice the state law negligence claims against urged against the Medical Administrator Gary Schwabe for failure to exhaust state statutory remedies, as recommended.

Thereafter, the plaintiff filed a motion to voluntarily dismiss the remaining claims against the defendant Gary Schwabe, which was granted. Since that time, the plaintiff has also voluntarily dismissed the Jefferson Parish Community Correctional Center Medical Program, P. Orlando, Dr. Soeteres, Dr. Williams, Donna McGaffee, J. Llout, N. Wallace, M. Tate, T. Chisley, and the unidentified party "R.M."

At the March 10, 2004, hearing held on the instant motion, the Court granted the Motion for Summary Judgment and/or Motion to Dismiss in part dismissing with prejudice Parish's claims against Dr. Joseph T. Hamrick and the Jefferson Parish Community Correctional Center Medical Program. The plaintiff has failed to allege any individual or supervisory involvement by Dr. Hamrick as a physician or the medical director in the medical care or accommodations provided to the plaintiff. In addition, the Jefferson Community Correctional Center Medical Program is not a proper defendant for purposes of suit under § 1983.

Before the Court are the remaining issues raised in the Motion for Summary Judgment and/or Motion to Dismiss as it relates to MiMi Schultz, Dr. Richard Richoux, and Dr. Laurence Durante. III. Standards of Review A. Motion for Summary Judgment

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court's task is not to resolve disputed issues of fact, but to determine whether there exists any factual issues to be tried. See Andersen v. Liberty Lobby, Inc., 477 U.S. 242, 247-49 (1986). In making this determination, all of the facts must be viewed in the light most favorable to the non-moving party. Id., at 248.

However, the non-moving party must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion. Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460 (3d Cir. 1989). The non-moving party cannot survive by relying on unsupported assertions, conclusory allegations, or mere suspicions. Id.; see also Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir. 1991).

B. Motion to Dismiss

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a district court may dismiss a complaint for failure to state a claim upon which any relief may be granted. See Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss, the court must accept as true all well-pleaded facts and must draw all reasonable inferences from those allegations in the plaintiff's favor. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). A complaint shall only be dismissed if it is beyond doubt that the plaintiff can prove no facts in support of his claim that would entitle him to relief. Home Builders Ass'n of Ms., Inc. v. City of Madison, Ms., 143 F.3d 1006, 1010 (5th Cir. 1998).

In resolving a Rule 12(b)(6) motion, the court is generally limited to considering only those allegations appearing on the face of the complaint. However, matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may be taken into account. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3rd Cir. 1990). While conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent the granting of a Rule 12(b)(6) motion to dismiss, such motions are viewed with disfavor and are rarely granted. Lowrey v. Texas A M Univ. Sys., 117 F.3d 242, 246 (5th Cir. 1997).

IV. Summary of the Arguments

In their motion, the defendants argue that Parish has failed to exhaust all of the steps available in the administrative grievance process regarding his particular medical care claims at JPCC and is therefore prohibited by Title 42 U.S.C. § 1997e from filing suit. They also argue that, assuming that he has exhausted, he has failed to allege a deliberate indifference to his medical needs. The defendants further argue that Parish has failed to allege a physical injury and is therefore prohibited from recovering damages under Title 42 U.S.C. § 1997e. They also argue that plaintiff can not show substantial harm or causation as a result of the medical treatment at the prison. Furthermore, the defendants argue that Parish has failed to exhaust remedies under the Louisiana Medical Malpractice Act as to the state law negligent treatment claims raised.

The plaintiff opposed the motion on the basis that the exhaustion defense was waived. At oral argument, the plaintiff conceded this point on the basis that the exhaustion defense had been timely raised.

Alternatively, however, the plaintiff argues that the defendants prohibited him from completing exhaustion by finding that treatment was being provided and that he exhausted what was available to him. Next, the plaintiff argues that the elements of indifference have been alleged and that genuine issues of fact exist as to the indifference. The plaintiff concedes that he is not seeking supervisory liability under § 1983 against these defendants but instead alleged personal involvement by each, the failure to supervise the subordinate care takers, and state tort liability.

The plaintiff also argues that he has not alleged negligent care on the part of these defendants but instead urges that their actions were intentional. Therefore, there is no requirement that the Louisiana Medical Malpractice Act be exhausted.

Finally, the plaintiff argues that he has evinced sufficient physical injury resulting from the denial of medical care for his serious medical conditions to entitle him to seek relief under § 1997e.

V. Exhaustion of Administrative Remedies

The defendants contend in their motion that Parish failed to exhaust the available prison administrative remedies before he filed his suit such that the Court should dismiss his complaint for lack of jurisdiction under Title 42 U.S.C. § 1997e. The plaintiff argues that he has exhausted the administrative remedies procedure for medical complaints at JPCC.

Title 42 U.S.C. § 1997e(a), as amended by the Prison Litigation Reform Act of 1996 ("PLRA"), provides that "[n]o action shall be brought with respect to prison conditions under section 1983. . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." The United States Supreme Court has held that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516 (2002). Therefore, by its very terms, the PLRA applies to the § 1983 claims raised by Parish.

"'Dismissal under § 1997e is made on pleadings without proof.'" Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003) (quoting Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir. 1998)). According to the Fifth Circuit, "'[a]s long as the plaintiff has alleged exhaustion with sufficient specificity, lack of admissible evidence in the record does not form the basis for dismissal.'" Id. at 866 (quoting Underwood, 151 F.3d at 296). However, the Court has also held that the plaintiff must be given an opportunity to establish exhaustion before a sua sponte dismissal is entered. See Hines v. Texas, 76 Fed. Appx. 564, 2003 WL 22228457 (5th Cir., Sept. 29, 2003). Exhaustion in this case has been raised by the defendants and both sides have presented documentary evidence in support of their respective positions on the exhaustion issue.

The Jefferson Parish Community Correctional Center Medical Program Procedure No. 525 sets forth for the JPCC inmates the policies and procedures for "access to health care services and the processing of medical complaints." Rec. Doc. No. 72, Exh. F. Procedure No. 525, dated April 1, 1987 and revised February 1, 1996, provides in relevant part as follows:

II. Grievance Procedure

A. Inmates may submit complaints or comments regarding medical care to one (1) of the following:

1. Inmate Council: a body which includes inmate representatives, elected in each area of the facility, and staff members, who meet regularly to hear complaints, resolve differences and review new institutional programs.

2. Corrections Administration: which includes staff members whose names are listed in the inmate handbook.

3. Medical Director: who gathers information and replies to complaints or questions, either in person, through the Medical Program workers, or in writing.

B. There are three (3) stages in resolving inmate grievances:

1. Initial Complaint.

a.Report general complaints to the Pod Officers and request that they be recorded in the Pod Log and referred to the proper authority for action.

b.Report requests for medical services directly to Medical Program workers twice (a.m. and p.m.), [sic] daily, during medication pass visits to each inmate housing area.

c.Report personal problems or complaints to the Inmate Service Officer during visits to housing areas or by mail.

d.Report problems requiring confidentiality to the Chaplain's Officer for referral to administration for action.

2. Follow-up.

a.Follow-up unresolved general complaints in writing to the Chief of Operations, citing the Pod Officer who received initial complaint if desired,

b.Follow-up medical complaints by written communication to the Medical Director,

c.Follow-up unresolved general complaints by presentation to the Inmate Council, through an inmate representative.

3. Final Appeal.

a. Report unresolved grievances and all steps taken to obtain assistance, in writing, using Jefferson Community Correctional Center "Grievance Procedure" and Inmate Grievance Form.

This was the grievance procedure available to Parish for resolution of his medical complaints while he was housed in JPCC. The question before the Court is whether Parish complied with this procedure so as to exhaust the claims raised in this complaint.

On May 7, 2002, Parish filed an Inmate Grievance Form stating that he had written to the medical unit on April 4, 2002, about his hernia getting larger and starting to hurt worse. Rec. Doc. No. 72, Exh. C-3. He claimed to have written to medical personnel over eight times and to ranking prison officials requesting a lower bunk. He complained that he received a disciplinary write-up because he could not keep climbing in and out of the top bunk for roll call. He stated that on May 6, 2002, the nursing supervisor told him that he could not get a bottom bunk in spite of the fact that lower bunks opened up and were given to new white inmates. He indicated that he had written several requests to see a doctor and that he had talked to all of the nurses who agreed he needed a bottom bunk.

The grievance was received by Deputy Chief Gary Schwabe on May 8, 2002. The grievance was accepted and referred to MiMi Schultz. On May 10, 2002, Jean Llouet, LPN, found the grievance to be founded, in other words Parish's grievance had merit. She explained that he was seen for the hernia on April 14, 2002 and a bottom bunk was recommended. She called classification to move Parish to a bottom bunk. Parish received the Response and did not sign for further review, having been told that he would receive the relief he sought.

Almost two months later, on June 5, 2002, Parish completed another Inmate Grievance Form. Rec. Doc. No. 72, Exh. C-1, in which he wrote:

Since Apr. 4 I have complained about my hernia. I sent in request after request, I seen the night supervisor nurse she stated I needed surgery. The hernia was the size of a marble and is now the size of a baseball. All because I was in a top bunk. You moved me to a bottom bunk but to [sic] late. It now hurts bad. I go to trial on the 17th of June. I can't even pass a physical without it being repaired. I need to see a doctor and have it fixed. . . . I've written medical 8 or 9 times and have yet to see a doctor. They told me they would take care of it. Even surgery. I've been here 6 months and have yet to get to see a doctor or go for surgery, (only if I'll be OK by the 17th).

The grievance was again received by Schwabe on June 6, 2002. The grievance was accepted and referred to MiMi Schultz. On June 9, 2002, Llouet found Parish's grievance to be unfounded or without merit. Rec. Doc. No. 72, Exh. C-2. In her Response to Grievance she indicated that Parish was scheduled for an appointment within the next month with the surgery clinic at the Medical Center of Louisiana at New Orleans. Parish received the Response but did not sign the blank requesting further review.

Parish filed another Inmate Grievance Form on August 7, 2002, complaining about the lack medical attention. Rec. Doc. No. 72, Exh C-5, 6. He stated that he saw the doctor on several occasions about vomiting every day for six weeks. He complained that the doctors were refusing to see him and that the medication was not working. He indicated that when he began to vomit blood, the doctors sent him to MCLNO. After 20 hours in the emergency room, the doctors resolved that, because of stress, he lost mobility in his stomach. After five days in the hospital, he was returned to JPCC. He complained that he was vomiting and unable to eat. He complained that his requests to see a doctor were to no avail. He stated that he wrote to MiMi Schultz requesting to see a doctor or psychiatrist for medication to relax his stomach but he received no response. He claimed that he lost over 40 pounds in 45 days because of the vomiting.

On August 8, 2002, Deputy Chief Schwabe accepted the grievance and referred it to MiMi Schultz. The grievances was marked unfounded without a signature on the Response to Grievance. Rec. Doc. No. 72, Exh. C-7. The response acknowledged that Parish was admitted into MCLNO from June 13 through 17, 2002 for severe esophagititis. The doctors ordered Prevacid, Reglan Liquid and medication for his thyroid condition and depression. The respondent wrote that, since his return from the hospital, he consistently refused the medication and there were no sick call complaints. It was recommended that Parish follow-up with the sick call doctor. Parish received the Response but did not sign to proceed to the next level of review.

Parish filed another Inmate Grievance Form on August 16, 2002 complaining that he was told that he needed surgery on June 24, 2002, and would get an appointment to see a heart doctor before the surgery. Rec. Doc. No. 72, Exh. C-8. He claimed that the doctors and nurses acted as if they knew nothing about it.

Schwabe accepted the grievance and referred it to MiMi Schultz. On August 20, 2002, Joy Chairs, LPN, determined the grievance to be unfounded because Parish was scene in the cardiology clinic at MCLNO on August 19, 2002. Rec. Doc. No. 72, Exh. C-9. He was cleared for anesthesia and surgery. She indicated that Parish also went to MCLNO general medicine clinic on August 20, 2002. She stated that the appointment dates had not been revealed to Parish for security reasons. Parish signed the Response and did not seek further review.

He filed another Inmate Grievance Form on August 28, 2002. Rec. Doc. No. 72, Exh. C-10. In this grievance, Parish complained that he asked Nurse Donna at the medical pass-out to let him see a doctor for kidney pain. She advised him to complete a sick call request because there was no doctor on duty and she was too busy. He stated "[t]his was the first time she has told me they can't help me. . . . Attempted to tell her I was in pain could not lay on my left side. She did not want to talk to me." Again, Chairs determined that the grievance was unfounded on September 5, 2002. Rec. Doc. No. 72, Exh. C-11. She indicated that Parish was seen by Dr. Williams on August 30, 2002 after he filed a sick call request on August 29, 2002. In addition, on September 1, 2002, Parish complained of "pain to his left side and N/V" to Nurse Donna. At that time, the physician on call ordered that Parish be taken to MCLNO for evaluation and treatment. This Response is not signed by Parish.

Parish filed another Inmate Grievance Form on November 7, 2002 claiming that, since his release from the hospital on November 5, 2002, the doctors orders from his hospital were not being followed. Rec. Doc. No. 72, Exh. C-12. He also complained that he was not receiving basic postoperative care. He stated that he was concerned about infection and had other complaints he wanted to discuss with MiMi Schultz. Deputy Chief Schwabe referred this grievance to MiMi Schultz.

Chairs answered the grievance on November 13, 2002, finding it to be unfounded. Rec. Doc. No. 72, Exh. C-13. She indicated that Parish had a conversation with MiMi Schultz and "HSA" on November 12, 2002. She stated that all post-operative orders were to be followed and his care would continue. This Response is not signed by Parish.

On December 22, 2002, Parish filed another grievance complaining that the post-operative wound care was not being followed. Rec. Doc. No. 72, Exh. C-14. He complained that the tubes were only supposed to be in him for a few weeks but it had been nine weeks since his surgery. He also complained that the nurse told him that he was to have three more visits with the doctor but no appointments had been scheduled. He stated that the medical department was neglecting his care because of his pending lawsuit, i.e. the instant lawsuit. He noted that he had written to MiMi Schultz and spoken with several nurses to no avail. He also referred the grievance reviewer to the log books which would show that he was not getting the care ordered by the doctors. This grievance was also accepted and referred to MiMi Schultz.

On January 2, 2003, Chairs determined the grievance was unfounded. Rec. Doc. No. 72, Exh. C-15. She referenced Parish's hospital visit on December 31, 2002, which did not contain wound care orders. She noted that he had pending requests for appointments with the MCLNO surgery clinic.

Parish filed another grievance on February 28, 2003, complaining that he had not received any pain medication after seeing the doctor on February 24, 2003, for stomach pain. Rec. Doc. No. 72, Exh. C-16. He complained that the nurses tell him he will get medication but nothing is delivered. This grievance was accepted and referred to Nurse Chairs, who determined on March 6, 2003, that it was unfounded. Rec. Doc. No. 72, Exh. C-17. She indicated that he was awaiting an appointment at the surgery clinic for medication regimen.

The defendants argue that, as reflected on each of the grievances referenced here, Parish failed to sign the request for further review of the grievance and therefore failed to complete or exhaust the grievance procedure. The plaintiff argues that he was not obligated to do so under Procedure No. 525. The Court agrees.

The PLRA requires that Parish exhaust the remedies available to him. As cited above, this means that he must comply with the procedure set forth by the prison in order to exhaust. Counsel for the defendants could not deny at oral argument that Procedure No. 525 is the policy to be followed for medical complaints and no such argument has been briefed. It appears that the defendants are confused as to which policy is to be followed by the inmates.

The language in Procedure No. 525 under "Final Appeal" may also be ambiguous, in that it is the final appeal but directs the inmate to follow the JPCC Grievance Procedure and complete the Inmate Grievance Form. This could mean fill out the form and send it where instructed; or it technically could be a requirement that the inmate complete a whole other three, redundant steps.

The latter would be an absurd consequence in light of the requirement that three steps have been completed per the written policy peculiar to medical complaints. The inmates must be given the benefit of the doubt based on what appears to be the written policy to which they are bound.

Thus, based on the Inmate Grievance Forms, the Responses to Grievances, and relevant sick call requests attached to the defendant's motion, the Court finds that Parish exhausted the administrative remedies set forth under Procedure No. 525. Based on the representations therein, Parish made his initial complaints to the medical program workers, followed up with written communications to MiMi Schultz, and as the "Final Appeal" completed an Inmate Grievance Form. For the foregoing reasons, Parish has exhausted available administrative remedies as to his claims of inadequate medical care. The defendants' motion is denied in part.

This does not include, however, inadequate medical care for psychiatric treatment. None of the Final Appeal grievances outlined above, or provided by the parties, implicate complaints about psychiatric care in particular or even by reference. For these reasons, the defendants' motion is granted in part.

VI. Physical Injury under § 1997e

Before proceeding to the issue of inadequate medical care, the defendants request that the Court find that the plaintiff has failed to state a cognizable claim because he has not alleged a physical injury for which he can recover for his pain and suffering. The plaintiff alleges that his swollen and untreated surgical site, nausea, vomiting, pain, and physical deterioration resulting from the defendants' failure to provide or delayed medical care, are sufficient to proceed under the PLRA.

The PLRA codified the long standing principle that an inmate cannot recover for "mental and emotional injury suffered while in custody without a prior showing of physical injury." Title 42 U.S.C. § 1997e(e). The defendants argue, without citation, that pain is no more than a mental or emotional injury. The plaintiff disagrees because of the longevity and severity.

The United States Fifth Circuit, in interpreting this provision, has held that the phrase "physical injury" in § 1997e(e) means an injury that is more than de minimis, but need not be significant. Alexander v. Tippah County, Miss., 351 F.3d 626 (5th Cir. 2003), (quoting Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999) (quoting Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) (where the Fifth Circuit first set forth its § 1997e(e) definition of physical injury).

While the Fifth Circuit did not specifically define what constitutes a physical injury in these cases, it is clear by inference that the ailments identified were physical injuries, but that those injuries simply were not more than de minimis ones.

For example, in Alexander, the court agreed that some nausea and vomiting caused by the unclean prison atmosphere were not more than de minimis physical injuries. This was not a medical indifference case, however. Nor was the premier case of Siglar, in which the court determined that a sore, bruised ear lasting three days was not more than de minimis physical injury. Siglar was an excessive force case. Nonetheless, the ailments described were physical injuries.

In a case raising medical indifference, the Fifth Circuit required a closer look at the side-effects resulting from the failure to comply with an inmates medical work-restrictions. Calhoun v. Hargrove, 312 F.3d 730, 734-35 (5th Cir. 2002). In that case, the Court held that the increase in the inmates blood pressure had to be considered in determining the level of physical injury under § 1997e(e). The Court noted that severe negative impacts on a person's vital organs and that certain elevated pressures could require emergency care. The Court determined that the elevated blood pressure may have caused Calhoun to be light-headed and near stroke-level, which required that the issues be further examined through evidentiary hearing to determine if any "actual" injury occurred as a result of these conditions. Id. at 735.

Under § 1997e(e), "[a] physical injury is an observable or diagnosable medical condition requiring treatment by a medical care professional." Luong v. Hatt, 979 F. Supp. 481 (N.D. Tx. 1997). The seriousness of that injury will determine whether it fits within the de minimis standard set forth in Siglar and its progeny cited herein. Within these parameters, pain from swelling and possible infection may not be enough without repeated complaints about the pain, sick call requests, or requests for treatment while being examined for other ailments. See Leach v. Womble, 2004 WL 575950 at *12 (N.D. Tex. Mar. 23, 2004).

In this case, Parish has at least alleged more than de minimis physical injuries to his person to survive summary dismissal and warrant, at least, a hearing to develop the severity of any physical injury. Calhoun; see also, Caldwell v. District of Columbia, 201 F. Supp.2d 27, 34 (D.D.C. 2001) (pain caused by trigger of allergies and aggravation of arthritis need not be permanent to recover under § 1997e(e)); Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003) (inmate's allegations that he developed lumps behind ear after untreated ear infection and developed chronic hypertension and contracted hepatitis after delayed medical treatment should survive dismissal under § 1997e(e)).

For the foregoing reasons, the plaintiff has stated sufficient physical injury to survive summary dismissal. At a minimum, there remain genuine issues of material fact regarding the existence of physical injuries required for recovery under § 1997e(e). The defendants' motion should be denied in this regard.

VII. Intentional Indifference to Serious Medical Needs

The defendants allege that the plaintiff has failed to allege an intentional indifference to his medical needs and has failed to establish a substantial harm resulting from the care given. In addition, the defendants argue that the medical records do not contain any indication that the plaintiff required care other than that given. The plaintiff's allege that the medical records themselves establish that the plaintiff did not receive care for his known wounds and ailments as ordered by the doctors, surgeons and treating physicians.

Whether pretrial or convicted, in order to establish a constitutional violation, Johnson would have to allege facts sufficient to show "at a minimum, that the prison officials realized there was imminent danger and have refused-consciously refused, knowingly refused-to do anything about it." Campbell v. Greer, 831 F.2d 700, 702 (7th Cir. 1987). The Supreme Court has made it clear that § 1983 permits recovery for serious physical harm "only where the defendant acts intentionally" or with an analogous state of mind usually described as "deliberate indifference" to deprivation of the victim's constitutional right. See Manarite v. City of Springfield, 957 F.2d 953, 955 (1st Cir.), cert. denied, 506 U.S. 837 (1992) (citing Canton v. Harris, 489 U.S. 378, 388-390 (1989)) (discussing deliberate indifference standard in Fourteenth Amendment municipal liability, police denial of medical treatment case).

The Supreme Court defined the "deliberate indifference" standard by explaining that a prison official is not liable "unless the official knows of and disregards an excessive risk to inmate health or safety." Farmer, 534 U.S. at 837 (emphasis added); see also Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998). "Deliberate indifference encompasses only the unnecessary and wanton infliction of pain repugnant to the conscience of mankind." McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997); see also Bradley, 157 F.3d at 1025.

The standard of conduct imposed on defendants with respect to medical care of inmates was clearly established by the Supreme Court in Estelle v. Gamble, 429 U.S. 97 (1976). In Estelle, the Court held that deliberate indifference to serious medical needs of prisoners constitutes the "unnecessary wanton infliction of pain," proscribed by the Eighth Amendment. Id. at 104. This is true where the indifference is manifested by prison doctors in their response to the prisoner's needs. It is also true where the indifference is manifested by prison officials in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Id. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference that can offend "evolving standards of decency" in violation of the Eighth Amendment. Id.

In the instant case, a review of the medical records attached to the defendants' motion confirms that some treatment was provided to Parish. It begs the question, however, that the medical records DO NOT show that care was not given. The issue before the Court is whether care other than that given by the defendants was supposed to have been provided, including whether the care provided was in compliance with the instructions of the surgeons and whether that care was given in a timely manner so as to avoid substantial harm to the plaintiff.

For these reasons, genuine issues of fact exist as to whether the plaintiff was provided with adequate medical care. The defendants' motion is denied in this respect.

VIII. Louisiana Medical Malpractice Act

Finally, the defendants argue that the plaintiff has failed to exhaust the administrative remedies available under the Louisiana Medical Malpractice Act with regard to his claims of negligent treatment. The plaintiff disagrees stating that the claims urged are of an intentional nature and are not covered by the Act.

This issue was first addressed by the Court in the Partial Report and Recommendation (Rec. Doc. No. 27) entered May 20, 2003. In that Report, the Court determined that it had supplemental jurisdiction over Parish's state law claims. See Title 28 U.S.C. § 1367. However, the Court noted that, before bringing the malpractice and negligence claims to this or any other court, Parish must present his medical malpractice claim or negligent treatment claims to a state medical review panel as required by Louisiana law. La. Rev. Stat. § 40:1299.39.1(A)(1), (B)(1)(a)(I). This exhaustion is a condition precedent before bringing a lawsuit against the defendants. Richardson v. Advanced Cardiovascular Sys., Inc., 865 F. Supp. 1220, 1221-22 (E.D. La. 1994); Ginn v. Woman's Hosp. Foundation, Inc., 770 So.2d 428, 431 (La.App. 1st Cir. 2000); Hidalgo v. Wilson Certified Exp., Inc., 676 So.2d 114, 116-17 (La.App. 1st Cir. 1996).

However, the law is also clear that Louisiana law defines medical malpractice as an unintentional tort. La. Rev. Stat. Ann. § 40:1299.41(A)(8). Parish, however, has alleged that the defendants' actions were intentional torts and also amounted to intentional indifference under § 1983. As previously held, and as adopted by the District Court (Rec. Doc. No! 29), Parish is not required to present his § 1983 claims of intentional indifference to a medical review panel. Thomas v. James, 809 F. Supp. 448, 449 (W.D. La. 1993). Thus, Parish may proceed with his intentional tort and § 1983 claims against the defendants. The defendants' motion is denied with respect to this issue.

Accordingly, for the foregoing reasons,

IT IS ORDERED that the defendants' Motion for Summary' Judgment and/or Motion to Dismiss (Rec. Doc. No. 63) is GRANTED in part dismissing without prejudice the plaintiff's claims for inadequate psychiatric care for failure to exhaust administrative remedies.

IT IS FURTHER ORDERED that the defendants' Motion be DENIED in part because the plaintiff has exhausted administrative remedies as to the inadequate medical care claims and is not required to exhaust the Louisiana Medical Malpractice Act and because genuine issues of material fact exists as to the existence of a physical injury and as to whether the defendants' were intentionally indifferent to his serious medical needs. These issues remain for trial previously scheduled.