Opinion
Civil Action 24-08-BAJ-SDJ
07-29-2024
BRUCE ZIERHUT (#320360) v. LOUISIANA DEPARTMENT OF CORRECTIONS, ET AL.
NOTICE
SCOTT D. JOHNSON UNITED STATES MAGISTRATE JUDGE
Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.
In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law, and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.
ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
The pro se Plaintiff, an inmate confined at Louisiana State Penitentiary, Angola, Louisiana, filed this proceeding pursuant to 42 U.S.C. § 1983 against Defendants Louisiana Department of Corrections, Louisiana State Prison Hospital, Secretary LeBlanc, Warden Hooper, and Our Lady of the Lake Hospital, complaining that his constitutional rights were violated due to medical negligence and/or deliberate indifference to his serious medical needs. He seeks monetary and injunctive relief.
On May 20, 2024, the Court ordered Plaintiff to amend his Complaint by (1) naming as defendants “persons” within the meaning of section 1983; (2) stating facts indicative of deliberate indifference to Plaintiff's serious medical needs; and (3) stating how each named Defendant was personally involved. See R. Doc. 4. On June 5, 2024, Plaintiff filed an Amended Complaint (R. Doc. 5). Therein Plaintiff alleged that due to his impairments caused by a stroke and because he is not a lawyer, he was unable to fully comply with the Court's Order to amend since he was not able to get a copy of his medical records in order to ascertain the names of additional defendants and assert their personal involvement.
28 U.S.C. §§ 1915(e) and 1915A
Pursuant to 28 U.S.C. §§ 1915(e) and 1915A, this Court is authorized to dismiss an action or claim brought by a prisoner who is proceeding in forma pauperis or is asserting a claim against a governmental entity or an officer or employee of a governmental entity if satisfied that the action or claim is frivolous, malicious, or fails to state a claim upon which relief may be granted. An action or claim is properly dismissed as frivolous if the claim lacks an arguable basis either in fact or in law. Denton v. Hernandez, 504 U.S. 25, 31 (1992), citing Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hicks v. Garner, 69 F.3d 22, 24-25 (5th Cir. 1995). A claim is factually frivolous if the alleged facts are “clearly baseless, a category encompassing allegations that are ‘fanciful,' ‘fantastic,' and ‘delusional.'” Id. at 32-33. A claim has no arguable basis in law if it is based upon an indisputably meritless legal theory, “such as if the complaint alleges the violation of a legal interest which clearly does not exist.” Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998). The law accords judges not only the authority to dismiss a claim which is based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the factual allegations. Denton v. Hernandez, supra, 504 U.S. at 32. Pleaded facts which are merely improbable or strange, however, are not frivolous for purposes of § 1915. Id. at 33; Ancar v. Sara Plasma, Inc., 964 F.2d 465, 468 (5th Cir. 1992). A § 1915 dismissal may be made any time, before or after service or process and before or after an answer is filed, if the court determines that the allegation of poverty is untrue; or the action is frivolous or malicious; fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2) and Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).
Plaintiff's Allegations
In his Complaint, as amended, Plaintiff alleges the following: On February 21, 2021, a chest x-ray, taken during Plaintiff's annual physical, revealed an abdominal aortic aneurysm. Documentation of the aortic aneurysm was placed in Plaintiff's medical file, but he did not receive any treatment for the same until the nurse practitioner, during Plaintiff's annual physical, reviewed Plaintiff's chart in February 2023 and discovered the x-ray report. This was the first time Plaintiff learned of his condition. In March of 2023, Plaintiff underwent surgery.
Plaintiff believes that due to the delay in treatment, six stents needed to be placed instead of only one or two which required additional hours of surgery resulting in “a seemingly endless future of pain and discomfort.” Plaintiff additionally believes that his quality of life is greatly diminished, and his life expectancy has been shortened. Plaintiff does not attribute any of the foregoing to the stroke he suffered in May of 2020 which left him weakened, unable to walk, unable to control his right side, and cognitively impaired.
Juridical Person
Section 1983 only imposes liability on a “person” who violates another's constitutional rights under color of law. In accordance with Rule 17(b) of the Federal Rules of Civil Procedure, Louisiana law governs whether a person or entity can be sued. Under Louisiana law, to possess such a capacity, an entity must qualify as a “juridical person.” This term is defined by the Louisiana Civil Code as an “entity to which the law attributes personality, such as a corporation or partnership.” See La. Civ. Code Ann. art. 24.
A prison and its administrative departments, such as medical, are not persons for the purposes of a suit under section 1983. Douglas v. Gusman, 567 F.Supp.2d 877, 892 (E.D. La. 2008) (citing United States ex rel. Arzonica v. Scheipe, 474 F.2d 720, 721 (3rd Cir. 1973); Cullen v. DuPage County, No. 99-1296, 1999 WL 1212570, *1 (N.D. Ill.Dec. 14, 1999); Whitley v. Westchester County Corr. Facility Admin., No. 97-0420(SS), 1997 WL 659100, at *6 (S.D.N.Y. Oct. 22, 1997); Sponsler v. Berks County Prison, No. 95-1136, 1995 WL 92370, at * 1 (E.D. Pa. 1995); Powell v. Cook County Jail, 814 F.Supp. 757, 758 (N.D. Ill. 1993)). Additionally, the Department of Public Safety and Corrections is not a “person” under § 1983. See Washington v. Louisiana, 425 Fed.Appx. 330, 333 (5th Cir. 2011) (per curiam) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 63-71 (1989)). As such, a plausible claim cannot be plead against either the Louisiana Department of Corrections or Louisiana State Prison Hospital.
Personal Involvement
In order for a prison official to be found liable under § 1983, the official must have been personally and directly involved in conduct causing an alleged deprivation of an inmate's constitutional rights, or there must be a causal connection between the actions of the official and the constitutional violation sought to be redressed. Lozano v. Smith, 718 F.2d 756, 768 (5th Cir. 1983). Any allegation that the defendant is responsible for the actions of subordinate officers or co-employees under a theory of vicarious responsibility or respondeat superior is alone insufficient to state a claim under § 1983. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009), citing Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). See also Bell v. Livingston, 356 F. App'x. 715, 716-17 (5th Cir. 2009) (recognizing that “[a] supervisor may not be held liable for a civil rights violation under any theory of respondeat superior or vicarious liability”). Further, in the absence of direct personal participation by a supervisory official in an alleged constitutional violation, an inmate plaintiff must allege that the deprivation of his constitutional rights occurred as a result of a subordinate's implementation of the supervisor's affirmative wrongful policies or as a result of a breach by the supervisor of an affirmative duty specially imposed by state law. Lozano v. Smith, supra, 718 F.2d at 768.
Plaintiff has not alleged any personal involvement on the part of Defendants LeBlanc or Hooper. Nor has Plaintiff alleged that the delay in treatment of his abdominal aortic aneurysm occurred as a result a subordinate's implementation of either defendants' wrongful policies or as a result of a breach by either LeBlanc or Hooper of an affirmative duty imposed by state law. As such, Plaintiff has failed to allege sufficient personal involvement on the part of Defendants LeBlanc and Hooper.
Deliberate Indifference
A prison official violates the Eighth Amendment's prohibition of cruel and unusual punishment if the official shows deliberate indifference to a prisoner's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 103-06 (1976). The official must “know[ ] of and disregard[ ] an excessive risk to inmate health or safety” and “be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists”. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The official also must draw that inference. Id.
Failed treatments, negligence, and medical malpractice are insufficient to give rise to a claim of deliberate indifference. Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). A prisoner who disagrees with the course of treatment or alleges that he should have received further treatment also does not raise a claim of deliberate indifference. Domino v. Tex. Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). Instead, an inmate must show that prison officials denied him treatment, purposefully provided him improper treatment, or ignored his medical complaints. Id. A delay in treatment may violate the Eighth Amendment if the delay was the result of the prison official's deliberate indifference and substantial harm-including suffering-occurred during the delay. Easter v. Powell, 467 F.3d 459, 464-65 (5th Cir. 2006).
Failure to State a Claim
Plaintiff alleges a delay in medical care but does not allege that he suffered any substantial harm during the delay. Plaintiff does not allege that the abdominal aortic aneurysm was symptomatic at any time, or that he was even aware of the condition until it was pointed out to him by the nurse practitioner in February of 2023. Furthermore, his allegations that the delay caused him to undergo a longer surgery with placement of multiple stents is purely speculative and not supported by the medical literature available to the Court. Likewise, his complaints about his shortened life expectancy and future pain and suffering are also speculative and without a factual basis. Plaintiff has not alleged any harm due to the delay in treatment, much less substantial harm. As such, Plaintiff has not stated a claim for deliberate indifference to his serious medical needs against any named or unnamed defendant.
See https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2999302/ (accessed 7/11/2024); https://my.clevelandclinic.org/health/treatments/22291-endovascular-aneurysm-repair (accessed 7/11/2024); https://www.mountsinai.org/health-library/surgery/aortic-aneurysm-repair-endovascular (accessed 7/11/2024) (all discussing and/or depicting placement of single stent graft).
Supplemental Jurisdiction
To the extent that Plaintiff's allegations may be interpreted as seeking to invoke the supplemental jurisdiction of this court over potential state law claims, a district court may decline the exercise of supplemental jurisdiction if a plaintiff's state law claims raise novel or complex issues of state law, if the claims substantially predominate over the claims over which the district court has original jurisdiction, if the district court has dismissed all claims over which it had original jurisdiction, or for other compelling reasons. 28 U.S.C. § 1367. In the instant case, having recommended that Plaintiff's federal claims be dismissed, the Court further recommends that the exercise of supplemental jurisdiction be declined.
RECOMMENDATION
It is recommended that the Court decline the exercise of supplemental jurisdiction over any potential state law claims, and that this action be dismissed, with prejudice, for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915(e) and 1915A.
Plaintiff is advised that 28 U.S.C. § 1915(g) provides that, “In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section [Proceedings in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.”