Opinion
NUMBER 2014 CA 0733
03-09-2015
ROCHELLE LANDRY v. EAST BATON ROUGE PARISH SHERIFF'S OFFICE
John L. Young Matthew W. Langenberg New Orleans, LA and Joseph J. Long Baton Rouge, LA Counsel for Plaintiff/Appellant Rochelle Landry Mary G. Erlingson Tara L. Johnston Mary E. Colvin Catherine St. Pierre Baton Rouge, LA Counsel for Defendant/Appellee Sid J. Gautreaux, III in his official capacity as Sheriff of East Baton Rouge Parish
NOT DESIGNATED FOR PUBLICATION
Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No. 610,400 Honorable Timothy E. Kelley, Judge John L. Young
Matthew W. Langenberg
New Orleans, LA
and
Joseph J. Long
Baton Rouge, LA
Counsel for
Plaintiff/Appellant
Rochelle Landry
Mary G. Erlingson
Tara L. Johnston
Mary E. Colvin
Catherine St. Pierre
Baton Rouge, LA
Counsel for
Defendant/Appellee
Sid J. Gautreaux, III in
his official capacity as
Sheriff of East Baton
Rouge Parish
BEFORE: GUIDRY, THERIOT, AND DRAKE, JJ. GUIDRY, J.
The mother of a deceased inmate appeals the dismissal by summary judgment of wrongful death and survival action claims she filed against the Sheriff of East Baton Rouge Parish.
FACTS AND PROCEDURAL HISTORY
On February 9, 2012, 40-year-old George Turner was booked into the East Baton Rouge Parish Prison. On February 27, 2012, shortly after being released from prison, Mr. Turner died.
On March 21, 2012, the decedent's mother, Rochelle Landry, filed a petition for wrongful death and a survival action against the East Baton Rouge Parish Sheriff's Office, but later amended the petition to name Sid J. Gautreaux, in his official capacity as sheriff of East Baton Rouge Parish, and to add "East Baton Rouge Emergency Medical Services" as defendants. In the petition, Ms. Landry alleged that on February 18, 2012, while incarcerated in the East Baton Rouge Parish Prison, Mr. Turner became ill from a pre-existing condition and was later transported to Earl K. Long Hospital, where he died on February 27, 2012. She further alleged that because Mr. Turner was denied access to prescription medication that he needed, he became ill and died.
The City of Baton Rouge and Parish of East Baton Rouge, through Emergency Medical Services (EMS), responded to the petitions by filing a dilatory exception raising the objection of prematurity, asserting that pursuant to the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41, et seq., the plaintiff had to first present her claim to a medical review panel prior to filing suit in district court. The claims against EMS are not at issue in this appeal.
In answer to Ms. Landry's petitions, Sheriff Gautreaux acknowledged that Mr. Turner had been an inmate in the East Baton Rouge Parish Prison from February 9 until February 20, 2012, when he bonded out of jail, but he generally denied any liability for Mr. Turner's death. Thereafter, Sheriff Gautreaux filed a motion for summary judgment, asserting:
Plaintiff cannot meet her burden of proving any breach of duty, and actual or legal causation, since the undisputed facts show that (1)
Prison Medical Services is the sole provider of medical care to inmates housed in East Baton Rouge Parish Prison; (2) Prison Medical Services personnel are responsible for prescribing appropriate medication to prisoners; (3) Prison Medical Services personnel are responsible for dispensing prescribed medication to prisoners; and (4) [Sheriff Gautreaux] fulfilled his duty and complied with Physician's Orders by transporting George Turner to dialysis three times per week.Ms. Landry opposed the motion, and the matter proceeded to a hearing. At the hearing, the trial court considered the argument of the parties and held that no duty owed by the sheriff had been breached. In so holding, the trial court granted summary judgment in favor of Sheriff Gautreaux, dismissing Ms. Landry's claims against him with prejudice. It is from this judgment that Ms. Landry appeals.
ISSUES PRESENTED FOR REVIEW
In appealing the summary judgment granted in favor of Sheriff Gautreaux, Ms. Landry alleges:
I. The trial court erred when it concluded that [Sheriff Gautreaux] did not owe a duty to Mr. Turner.
II. The trial court erred in finding that there were no material facts in dispute as to [Sheriff Gautreaux's] conduct and whether [he] breached [his] own policies.
APPLICABLE LAW
A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. Johnson v. Evan Hall Sugar Cooperative, Inc., 01-2956, p. 3 (La. App. 1st Cir. 12/30/02), 836 So. 2d 484, 486. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2). An appellate court reviews a trial court's decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. George S. May International Company v. Arrowpoint Capital Corporation, 11-1865, p. 4 (La. App. 1st Cir. 8/10/12), 97 So. 3d 1167, 1170.
The mover bears the burden of proving that he is entitled to summary judgment. La. C.C.P. art. 966(C)(2). However, if the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent's claim, action, or defense. See La. C.C.P. art. 966(C)(2). If the non-moving party fails to produce factual support sufficient to establish it will be able to satisfy the evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2). Whether a particular fact in dispute is "material" for summary judgment purposes is viewed in light of the substantive law applicable to the case. MB Industries, LLC v. CNA Insurance Company, 11-0303, p. 15 (La. 10/25/11), 74 So. 3d 1173, 1183.
DISCUSSION
In her first assignment of error, Ms. Landry questions whether La. R.S. 15:703 operates to relieve Sheriff Gautreaux of any liability based on the agreement between the City of Baton Rouge/Parish of East Baton Rouge and Emergency Medical Services (EMS) to provide health care services to prisoners. We find that it does not.
Section 703 of Louisiana Revised Statutes, title 15, provides the duty of a "governing authority" in regard to providing health care services to prisoners. Although it is not expressly stated that a sheriff is not a "governing authority," reading Section 703 in pari materia with other provisions contained in Chapter 7 of Title 15, which section is titled "Prisons and Correctional Institutions," makes it clear that the Louisiana Legislature did not intend to include "sheriffs" as a "governing authority." For example, La. R.S. 15:705(A)(2) provides that the "sheriff or governing authority" may obtain or collect reimbursement for certain expenses related to the inmate's incarceration. (Emphasis added.) So, as indicated by the statutory scheme, a "sheriff" is not a "governing authority," and thus the provisions of La. R.S. 15:703 would not apply to Sheriff Gautreaux. Nevertheless, Sheriff Gautreaux contends that because La. R.S. 15:703 requires the governing authority of each parish to arrange and pay for the health care services provided to prisoners confined in parish jails, the Louisiana Legislature relieved him of responsibility regarding the health care so provided.
Under Louisiana law, confining authorities, such as a sheriff in charge of a parish jail, still maintain a legal obligation to provide medical treatment for prisoners. The standard of care imposed upon the confining authority in providing for the medical needs of prisoners is that those services be adequate and reasonable. Jacoby v. State, 434 So. 2d 570, 573 (La. App. 1st Cir.), writ denied, 441 So. 2d 771 (La. 1983); see also Elsey v. Sheriff of Parish of East Baton Rouge, 435 So. 2d 1104, 1106 (La. App. 1st Cir.), writ denied, 440 So. 2d 762 (La. 1983); Wells v. Louisiana Department of Public Safety and Corrections, 46,428, p. 27 (La. App. 2d Cir. 8/24/11), 72 So. 3d 910, 926, writ denied, 11-2637 (La. 2/10/12), 80 So. 3d 474; Cole v. Acadia Parish Sheriff's Dept., 07-1386, p. 5 (La. App. 3d Cir. 11/5/08), 998 So. 2d 212, 216, writ denied, 08-2875 (La. 2/6/09), 999 So. 2d 784; Calloway v. City of New Orleans, 524 So. 2d 182, 186 (La. App. 4th Cir.), writ denied, 530 So. 2d 84 (La. 1988). Thus, the issue to be resolved in this appeal is not whether a duty was owed by Sheriff Gautreaux, but whether Ms. Landry established that a genuine issue of material fact exists as to whether Sheriff Gautreaux breached the duty owed under the applicable law and evidence presented, as asserted in her second assignment of error. We observe that the trial court did not conclude that Sheriff Gautreaux did not owe a duty to Mr. Turner, but rather it concluded that Sheriff Gautreaux did not breach any duty owed by him to Mr. Turner.
In her petitions, Ms. Landry alleged that Sheriff Gautreaux negligently failed to provide Mr. Turner prescribed medication and reasonable medical care. In his motion for summary judgment, however. Sheriff Gautreaux asserted that Ms. Landry cannot prove that he breached the duty to provide reasonable medical services to Mr. Turner, as Mr. Turner received treatment in accordance with the assessment and instructions of Prison Medical Services. In support of this assertion, Sheriff Gautreaux submitted, as attachments to the affidavit of Dennis Grimes, warden of East Baton Rouge Parish Prison, a copy of inmate transportation logs showing dates that Mr. Turner was transported for dialysis treatment, a copy of excerpts from the E.B.R. Parish Prison Inmate Rules and Regulations, and a copy of the East Baton Rouge Parish Prison Intake Form signed by Mr. Turner.
We observe that several documents were offered in support and in opposition to the motion for summary judgment that were not authenticated or sworn to by affidavit or deposition and therefore are not competent evidence to consider on the motion for summary judgment. See La. C.C.P. arts. 966(B)(2) and 967. A document that is not an affidavit or sworn to in any way, or is not certified or attached to an affidavit, is not of sufficient evidentiary quality on summary judgment to be given weight in determining whether or not there remain genuine issues of material fact. Boland v. West Feliciana Parish Police Jury, 03-1297, pp. 5-6 (La. App. 1st Cir. 6/25/04), 878 So. 2d 808, 813, writ denied. 04-2286 (La. 11/24/04), 888 So. 2d 231. Thus, we have not considered any unsworn or unauthenticated evidence in our review of this appeal.
In opposition to the motion, Ms. Landry pointed out a provision contained in the E.B.R. Parish Prison Inmate Rules and Regulations, titled "Inmates in possession of medications," which provision states: "Family or friends PENDING PRISON PHYSICIAN AUTHORIZATION AND APPROVAL may bring medications into the facility. This will be accomplished through verification with prescribing physician and/or pharmacy." (Emphasis in original text.) (R. 89) Ms. Landry submitted the affidavit of Mr. Turner's sister, Billie Jean Sheppard, to establish that Sheriff Gautreaux violated this provision. In her affidavit, Ms. Sheppard stated that "she tried numerous times to provide East Baton Rouge Parish Prison with Mr. Turner's prescription medicines and/or the information regarding what medicines Mr. Turner required, but her requests were denied each time." In her affidavit, she specifically identified two persons that she informed about Mr. Turner's prescription medication, an officer "Moore," whom we assume is a prison employee, and a nurse "Thomas," whom we assume is a Prison Medical Services employee.
We note that the spelling of Ms. Sheppard's name as it is typewritten in the affidavit is shown as "Billy Jean Shepard"; however, her actual signature on the documents shows that the correct spelling of her name is "Billie Jean Sheppard."
Based on our de novo review of the competent evidence in the record before us, and considering the applicable law, we find no error in the summary judgment rendered by the trial court in favor of Sheriff Gautreaux. In Calloway, even though the appellate court affirmed the trial court's determination that the medical personnel at Central Lockup were negligent in their medical treatment of the plaintiff inmate, the court nevertheless found that the record did not show that the sheriff violated his duty to provide reasonable medical services, but rather, the negligence of the sheriff was predicated on his failure to follow his own established procedures. Calloway, 524 So. 2d at 186.
In this case, there is no showing that Sheriff Gautreaux violated his own established procedures or that he otherwise had reason to know that the medical care being provided by Prison Medical Services was not reasonable. While Ms. Landry relies on the provision in the E.B.R. Parish Prison Inmate Rules and Regulations whereby family and friends "may" be allowed to bring medications into the facility, pending prison physician approval, the key term in that provision is the word "may."
The statutory and jurisprudential rules for statutory construction and interpretation apply equally well to ordinances, rules, and regulations. Cao v. Stalder, 04-0650, p. 5 (La. App. 1st Cir. 5/6/05), 915 So. 2d 851, 854. Under the general rules of statutory construction, the word "shall" is mandatory and the word "may" is permissive. See La. R.S. 1:3: La. C.C.P. art. 5053. Although Ms. Landry contends that Sheriff Gautreaux violated the "Inmates in possession of medications" provision, a plain reading of the provision does not support her contention. Use of the term "may" means that prison officials had discretion whether to allow family or friends to bring medication into the prison. See City of Bossier City v. Vernon, 12-0078, p. 6 (La. 10/16/12), 100 So. 3d 301, 306. As the provision relied on does not mandate that family or friends be allowed to bring medication into the facility, the sheriff, through his employees, cannot be said to have violated the provision by not allowing Mr. Turner's sister to bring medication into the prison. The provision provided for a process by which approval was to be sought from Prison Medical Services, which Ms. Sheppard did seek, but never received. Hence, we find Ms. Landry has failed to produce factual support sufficient to establish that she will be able to meet her burden of proving any breach of duty by Sheriff Gautreaux. See La. C.C.P. art. 966(C)(2). Accordingly, we find no merit in Ms. Landry's second assignment of error.
In her appellate brief, Ms. Landry argues for the first time that the case was not "ripe" for summary judgment, because she did not have an opportunity to complete discovery by which she could further establish that genuine issues of material fact exist. See La. C.C.P. art. 966(C)(1). Rule 1-3 of the Uniform Rules of Louisiana Courts of Appeal provides that "[t]he Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise." We see nothing in the present appeal to trigger the rule's exception, and therefore, we decline to consider whether adequate discovery had been conducted at the time the summary judgment motion was heard.
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CONCLUSION
For the foregoing reasons, we affirm the summary judgment rendered in favor of Sheriff Sid J. Gautreaux, dismissing the claims filed against him with prejudice. All costs of this appeal are assessed to the plaintiff, Rochelle Landry.
AFFIRMED.