Opinion
CIVIL ACTION NO. 3:19-CV-00473
01-12-2021
ALYSON NALE v. NURSE FINLEY, ET AL.
MAG. JUDGE KAREN L. HAYES
SEALED RULING
This is an action brought by Plaintiff Alyson Nale ("Nale") against Defendants Nurse Bryan Finley ("Finley"), Union Parish Detention Center (the "Detention Center"), and Travelers Indemnity Company (collectively "Defendants") for damages Nale allegedly sustained as a result of her three-and-a-half week confinement at the Detention Center between May and June of 2018.
Prior to Nale's incarceration, she was diagnosed with Raynaud's disease ("Raynaud's"), a condition that affects blood flow, typically in the fingers and toes. Nale contends Finley and the Detention Center failed to adequately treat her Raynaud's condition during her incarceration.
Pending here is a Motion for Summary Judgment filed by Defendants seeking judgment as a matter of law dismissing Nale's claims [Doc. No. 42]. Nale has filed an opposition [Doc. No. 56]. Defendants have filed a reply to the opposition [Doc. No. 59].
For the following reasons, Defendants' motion is GRANTED.
I. FACTS AND PROCEDURAL HISTORY
On May 21, 2018, Nale was arrested and booked into the Detention Center, on charges of illegal possession of a stolen motor vehicle, illegal possession of drug paraphernalia, and two counts of possession of a controlled dangerous substance, Schedule II (including Methamphetamine and Vyvanse).
At the time of Nale's detention, Finley served as the Detention Center's infirmary nurse. Finley worked on-site at the Detention Center generally between the hours of 6:00 a.m. and 2:00 p.m. and was available on-call at all times. Finley's medical care was supervised by Dr. Steven Venters ("Dr. Venters"), the Detention Center's Medical Director. Dr. Venters typically visited the Detention Center once a week. It is undisputed that Nale never saw Dr. Venters.
If an inmate wanted to be seen by Dr. Venters during his weekly visit to the Detention Center, the inmate requested a visit by submitting a sick-call form to a guard. Finley testified that he did not remember seeing a sick call slip from Nale; however, it is undisputed that Nale's medical records from the Detention Center, including any sick call slips related to Nale, are missing. At all other times, Dr. Venters was available remotely to consult with Finley. Finley explained that he would "run everything through Dr. Venters no matter how small." [Doc. No. 42-5, Bryan Finley Depo., p. 12]. Finley usually consulted with Dr. Venters regarding inmate care on a daily basis, typically by phone call or text message.
Nale first saw Finley the day after her arrest. At that time, Nale informed Finley that she had been diagnosed with Raynaud's. Finley observed Nale's left hand and noticed that the tips of her index and middle fingers were discolored. Although Nale contends that she told Finley that she was in pain, Finley states he did not believe Nale was in any kind of distress which required medical intervention
Nale told Finley that her Raynaud's condition was being treated by a Nurse Practitioner, Stephanie Dunn ("Dunn"), and that Dunn had prescribed her blood pressure medication for the condition. Nale provided Dunn's contact information to Finley, which Finley wrote down. Finley informed Nale that he would reach out to Dunn.
After Finley's initial encounter with Nale, he sent a text message to Dr. Venters, relaying the information he received from Nale concerning her medical condition. Finley did not have prior experience with Raynaud's, but Dr. Venters explained the condition to him. Dr. Venters instructed Finley to contact the physician who had been treating Nale prior to her incarceration and determine how that physician had been treating Nale's Raynaud's condition, so that the Detention Center could adopt the same course of treatment.
Finley eventually reached Dunn, who informed Finley that Nale had been receiving blood pressure medication and Ibuprofen. Thereafter, on June 5, 2018, during his weekly visit to the Detention Center, Dr. Venters approved an order for Amlodipine (a blood pressure medication) and Aspirin (used as an anti-inflammatory). The medications were filled by Brookshire's Pharmacy the same day. Once the medications were received at the Detention Center, the guards were responsible for distributing the medications to inmates each day.
Nale estimates she received blood pressure medication "six or seven times" during her incarceration. [Doc. No. 42-4, Nale Depo., p. 149]. According to Nale, Finley went to the infirmary "[a] couple days" after she was incarcerated and gave her a blood pressure medication directly from the infirmary. [Id., pp. 152, 153]. Thereafter, she started receiving the medication again about "a week and a half" after being incarcerated and "was supposed to get [the medication] at 2:00 every morning, but [] usually [got] it about three times out of the week." [Id., pp. 149, 153].
Nale saw Finley one other time while incarcerated, in the hallway, several weeks after arriving at the Detention Center. During that exchange, Finley saw that Nale's fingers were purple, and he encouraged Nale to keep taking her medications and allow the medications an opportunity to take effect. Nale contends that she attracted Finley's attention by waving her fingers at him, and that her fingers were actually dark blue black and smelled like rotten meat.
On June 15, 2018, Nale was bonded out and released from the Detention Center. Defendants point out that, after being released, Nale then waited 18 days before seeking any medical attention for the pain she was reportedly experiencing in her fingers. Nale responds that she had to get rides to the doctor because her car was stolen, and, therefore, she was subject to the whims of others who could drive her to appointments.
Nale visited a doctor's office on July 2, 2018 but left because "there was a waiting room sat full of people." [Id., p. 180]. Nale states that she went to the front desk and asked the receptionist to look at her fingers, and told her she could not stand it, but the receptionist told her to have a seat. [Id., pp. 180-181].
On July 3, 2018, Nale sought medical treatment at Gold Cross Urgent Care, where she was instructed to report to the emergency room. [Sealed Doc. No. 43-5, Excerpts of Gold Cross Certified Records, p. 5]. Later that day, Nale went to the emergency room at Baptist Health Medical Center where she reported that she had started experiencing discoloration and increasing pain in her fingers three weeks earlier (i.e., approximately at the time she was released from the Detention Center. [Sealed Doc. 43-6, Excerpts of Baptist Medical Center certified records, p. 11]. The emergency room physician found no current signs of infection, encouraged Nale to quit smoking, and referred Nale to a hand surgeon for an outpatient visit. [Id., p. 16].
However, Nale states that The Medical Center of South Arkansas notes in pertinent part, "Pain began 15 weeks ago began as Raynaud's." [Doc. No. 56-4, Excerpts of Medical Center of South Arkansas, at p. 2]. It also notes, "The symptoms/episode began/occurred 4 months ago and became worse 3 weeks ago . . ." [Id., p. 5].
On July 6, 2018, Nale saw Dr. Kenneth Gati, an orthopedist. [Sealed Doc. No. 43-7, Excerpts of Certified Records of South Arkansas Ortho. & Sports Medicine, p. 4]. She reported that she had been experiencing the symptoms in her fingers for the "last couple weeks." [Id.] Dr. Gati concluded that Nale had developed gangrene, and recommended she have the tips of her left index and middle fingers amputated. [Id., p. 2]. The procedure was performed on July 12, 2018. [Id.]
On April 12, 2019, Nale filed suit against Defendants. The parties have since had ample opportunity for discovery, and the discovery deadline has now passed. [Doc. No. 22] This matter is now ripe for summary judgment.
II. LAW AND ANALYSIS
A. Summary Judgment
Summary judgment "shall [be] grant[ed] . . . if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if proof of its existence or nonexistence would affect the outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is "genuine" if the evidence is such that a reasonable fact finder could render a verdict for the nonmoving party. Id.
If the moving party can meet the initial burden, the burden then shifts to the nonmoving party to establish the existence of a genuine issue of material fact for trial. Norman v. Apache Corp., 19 F.3d 1017, 1023 (5th Cir. 1994). The nonmoving party must show more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In evaluating the evidence tendered by the parties, the Court must accept the evidence of the nonmovant as credible and draw all justifiable inferences in its favor. Anderson, 477 U.S. at 255.
B. Analysis
Defendants seek judgment as a matter of law dismissing Nale's federal claims as well as her claims under state law. The Court will address the federal claims first.
1. Federal Claims
Nale first alleges that the Detention Center and Nurse Finley "violated [her] Fourth, Eighth and Fourteenth Amendment Rights [by] failing to provide adequate treatment to her serious medical needs while a prisoner at the Union Parish Detention Center." [Doc. No. 1, ¶ 17]. She contends that the Detention Center and Finley showed "willful indifference" to her "serious medical needs," and, as a result, she "had to have [her] fingers amputated." [Id.].
Defendants contend that Nale's Fourth and Eighth Amendment claims fail as a matter of law, as the Fourth and Eighth Amendments do not provide a cause of action to a pretrial detainee for failure to provide adequate medical care. Defendants further contend that Nale's Fourteenth Amendment claim against Finley fails because she cannot show he was deliberately indifferent to a serious medical need, and that her Fourteenth Amendment claim against the Detention Center fails because she cannot establish the elements of municipal liability.
a. Fourth Amendment Claim
Defendants assert that the Fourth Amendment is inapplicable to Nale's claims because it provides protections from unreasonable searches and seizures. U.S. CONST. AMEND. IV. Nale does not dispute Defendants' argument in her opposition.
The Fourth Amendment does not provide a basis for a claim of denial of medical care by an inmate. Further, the Fourth Amendment protects persons who have not yet been arrested or are currently being arrested. It does not apply to pretrial detainees. Once an arrest is complete, pretrial detainees are protected by the Due Process Clause. Gutierrez v. City of San Antonio, 139 F.3d 441, 452 (5th Cir. 1998) ("[O]nce an arrest is complete, pretrial detainees are protected by the due process clause of the Fifth or Fourteenth Amendments."); See also Valencia v. Wiggins, 981 F.2d 1440, 1445 (5th Cir. 1993); Brothers v. Klevenhagen, 28 F.3d 452, 456 (5th Cir. 1994). The Fifth Circuit has made clear that "[a]fter the initial incidents of a seizure have concluded. and an individual is being detained by police officials but has not yet to be booked, an arrestee's right to medical attention, like that of a pretrial detainee, derives from the Fourteenth Amendment." Nerren v. Livingston Police Dep't., 86 F.3d 469, 473 (5th Cir. 1996).
Here, Nale contends the Detention Center and Finley violated the Fourth Amendment by failing to provide her adequate medical care "while a prisoner at the Union Parish Detention Center." [Doc. No. 1, ¶ 17]. Thus, her allegations pertain exclusively to conduct that allegedly occurred after she was booked into the Detention Center. The Fourth Amendment does not apply to any such alleged conduct. Accordingly, Defendants' Motion for Summary Judgment on Nale's Fourth Amendment claim is GRANTED, and this claim is DISMISSED WITH PREJUDICE.
b. Eighth Amendment
Defendants contend that Nale likewise does not have a viable claim under the Eighth Amendment. Again, Nale does not dispute Defendants' contention in her opposition. A pretrial detainee's right to medical care arises from the Fourteenth Amendment's guarantee of due process. Baughman v. Hickman, 935 F.3d 302, 306 (5th Cir. 2019). The Eighth Amendment's protections extend to convicted prisoners, not pretrial detainees. Id. It is undisputed that Nale was a pretrial detainee while incarcerated at UPDC. Thus, Nale does not have a viable claim under the Eighth Amendment for failure to provide adequate medical care, and her Eighth Amendment claim should therefore be dismissed. See also Hyatt v. Thomas, 843 F.3d 172, 177 (5th Cir. 2016) ("[P]retrial detainees . . . are not protected by the Eighth Amendment."). Accordingly, Defendants' Motion for Summary Judgment on Nale's Eighth Amendment claim is GRANTED, and this claim is DISMISSED WITH PREJUDICE.
It is important to note, however, that while Nale does not have a viable claim under the Eighth Amendment, the courts apply the same analysis to Eighth Amendment and Fourteenth Amendment claims. Baughman, 935 F.3d at 306 (noting that the "proper analysis of each category of claims is the same."). Thus, functionally, this may largely be a distinction without a difference.
c. Fourteenth Amendment
Defendants contend that Nale's Fourteenth Amendment claim against Finley fails because she cannot show Finley was deliberately indifferent. They further contend that Nale's Fourteenth Amendment claim against the Detention Center fails because she cannot establish the elements of municipal liability.
A pretrial detainee's claim for failure to provide adequate medical care is analyzed using one of two standards, depending upon the nature of the allegations. Which standard applies depends upon whether the plaintiff challenges the constitutionality of: (1) a condition of confinement or (2) an episodic act or omission. Westfall v. Luna, 903 F.3d 534, 551 (5th Cir. 2018).
In their motion, Defendants argue that Nale does not complain of general conditions of confinement; rather, she complains of alleged actions and inactions by certain Detention Center employees. Nale, on the other hand, asserts in her opposition that she has adequately alleged that Defendants are liable under both condition of confinement and as an episodic act or omission.
In their reply to the opposition, Defendants argue that Nale has not properly alleged a condition of confinement claim and is foreclosed from now pursuing such a claim. Defendants further reply that, even if Nale has asserted a condition of confinement claim, such claim would fail, and, therefore, they are entitled to judgment as a matter of law.
i. Condition of Confinement
The distinction between condition of confinement and episodic act or omission claims was first developed by the Fifth Circuit, sitting en banc, in Hare v. City of Corinth, Miss., 74 F.3d 633 (5th Cir. 1996). In a condition of confinement case, the plaintiff challenges the "general conditions, practices, rules, or restrictions of pretrial confinement." Id. at 644. To prevail on a condition of confinement claim, a plaintiff must show: (1) the existence of a condition, (2) which was not reasonably related to a legitimate government objective, and (3) which caused the violation of the inmate's constitutional rights. See Cadena v. El Paso Cnty., 946 F.3d 717, 727 (5th Cir. 2020). To satisfy the first element, a plaintiff must present evidence of either an explicit or a de facto policy. Shepherd v. Dallas Cnty., 591 F.3d 445, 452 (5th Cir. 2009).
"In contrast, where the complained-of harm is a particular act or omission of one or more officials, the action is characterized properly as an 'episodic act or omission' case." Scott v. Moore, 114 F.3d 51, 53 (5th Cir. 1997). In episodic act or omission cases, courts apply the "deliberate indifference" standard. Westfall v. Luna, 903 F.3d 534, 551 (5th Cir. 2018).
Defendants first argue that, in her Complaint, Nale's only allegations pertain to specific alleged acts and omissions by Finley and certain unnamed guards. They contend that Nale never sets forth any allegations pertaining to a condition of confinement (through either an explicit or de facto policy). See Doc. No. 1, Complaint. Nale even expressly asserts in multiple sections of her Complaint that the deliberate indifference standard should be applied to her claims — thereby attacking alleged episodic acts or omissions, not conditions of confinement. In paragraph 17 of her Complaint, Nale alleges, in relevant part: "The Defendants have shown willful indifference to Plaintiff's serious medical needs." [Id. at ¶ 17]. In Paragraph 21 of her Complaint, Nale seeks "punitive damages from Defendants Finley and Union Parish Detention Center for their willful indifference. . ." [Id. at ¶ 21].
Defendants further state that, throughout Nale's subsequent pleadings in this matter, she has continued to assert that only the deliberate indifference standard should be applied to her claims. For instance, Nale recently recognized the "ultimate issue" in this case is whether Defendants exhibited "willful indifference to Nale's serious medical needs." [Doc. 37, Opposition to Motion in Limine, pp. 3-4].
Defendants argue that Nale is now asking this Court to don judicial blinders and disregard her repeated prior representations to this Court. Defendants ask this Court to decline that invitation. Defendants state that this Court has previously recognized Nale's constitutional claims are based solely upon an episodic act or omission theory, having recently stated: "Nale's damage claims are based on: (1) willful indifference to her serious medical needs, and (2) medical negligence in failing to care for her serious needs during her detention." [Doc. 45, Ruling, p. 2] Defendants further argue, having consistently asserted only an episodic act or omission claim, Nale cannot now rely upon a condition of confinement theory at this stage. See Estate of Henson v. Wichita Cnty., Tex.,795 F.3d 456, 464-65 (5th Cir. 2015) (refusing to construe claims as attacking conditions of confinement when plaintiffs consistently asserted the deliberate indifference standard should apply).
This Court finds that, even viewing the Complaint in the light most favorable to Nale, the Complaint cannot be construed to allege a condition of confinement claim. It clearly alleges only episodic acts or omissions on the part of Defendants. Further, Nale's other pleadings have consistently asserted the deliberate indifference standard should apply, which is applicable only to episodic act or omissions claims. Additionally, pursuant to this Court's Scheduling Order, the deadline for amendment of pleadings was August 28, 2020. Thus, it is too late for Nale to amend her Complaint to add a condition of confinement claim. [Doc. No. 22, Scheduling Order, p. 3].
Therefore, for these reasons alone, Defendants are entitled to judgment as a matter of law dismissing Nale's last minute condition of confinement claim.
Nevertheless, assuming arguendo that Nale has adequately and timely asserted such a claim, the Court will consider whether Nale has met her burden of establishing a genuine issue of material fact as to: (1) the existence of a condition, (2) which was not reasonably related to a legitimate government objective, and (3) which caused the violation of her constitutional rights.
As indicated above, to satisfy the first element, a plaintiff must present evidence of either an explicit or de facto policy. It is not enough to show that a plaintiff suffered from episodic acts or omissions of jail officials, but instead, a plaintiff must show that the disputed acts are indicative of a system-wide, extended, pervasive problem. Shepherd v. Dallas Cty., 591 F.3d 445, 455 (5th Cir. 2009).
Nale does not argue that an explicit policy existed, but instead attempts to prove the existence of a de facto policy. [Doc. No. 56, Opposition, pp. 17-21]. Nale argues that there was a pattern of acts and omissions by the Detention Center's guards and Finley which were so pervasive that they amounted to a system-wide problem pertaining to inattention to chronic, serious, medical conditions. Nale testified that when she was first detained at the Detention Center, she attempted to tell prison official, Wayne Thang, about her fingers, and Thang responded, "I don't give a fuck about your fingers." [Nale Depo., Doc. No. 56-2, p. 147]. Another detainee, Raven Johnston ("Johnston"), testified that Nale would beg guards for help regarding her fingers. [Johnston Depo., Doc. No. 56-7, p. 48]. Johnston testified Nale even explained her Raynaud's condition to the guards and said she had an appointment with her doctor. [Id.] The guards would often respond, "there wasn't anything they could do, or they'd tell [Nale] they would go get the nurse and nothing would ever be done." [Id., pp. 42-43]. Johnston testified that she saw Nale, day and night, crying at the Union Parish Detention Center. [Id., p. 43].
Johnston further testified that the problem was so pervasive that other detainees started a letter writing campaign to attempt to persuade the warden and Finley at the Detention Center to provide immediate medical attention to Nale. [Id., pp. 44, 45]. Johnston testified she wrote "quite a few times," and Finley never responded or called for Nale to return to the infirmary. [Id., p. 45]. Johnston stated she repeatedly gave these letters to the guards. [Id., p. 51]. Further, Johnston testified that Nale had multiple sick call slips sent to Finley. [Id., pp. 55-56].
Nale also argues that the actions of the Detention Center and Finley are in direct contradiction to Louisiana's "Minimum Jail Standards," which states, "Inmates shall have access to routine health care by a physician within 48 hours after making such request." Louisiana Administrative Code 22:III.2909 (F). She asserts that the general level of medical care provided to pretrial detainees during the time she was detained was not reasonably related to a legitimate governmental objective and, therefore, punished her, in violation of her Fourteenth Amendment due process rights. The level of medical care was so inadequate that it resulted in a serious deprivation of her basic human needs.
Nale further states that she never saw a doctor the whole time she was detained, and that she was only able to get Finley's attention by waving her fingers at him in the hallway. Even then, he did not examine her fingers, but merely looked at them. She also states that there are no records that even a medical intake was done, other than Finley's self-serving testimony.
Here, Nale's allegations pertain exclusively to certain alleged acts or omissions by the Detention Center's staff. She seems to argue that the various alleged acts or omissions combined to create a pervasive pattern of serious deficiencies in providing for her basic human needs. In Shepherd, the court explained: "Isolated examples of illness, injury, or even death, standing alone, cannot prove that conditions of confinement are constitutionally inadequate . . . Rather, a detainee challenging jail conditions must demonstrate a pervasive pattern of serious deficiencies in providing for basic human needs . . ." Id. at 454. Courts in the Fifth Circuit have inferred the existence of a de facto policy on very few occasions, and in all such cases, the plaintiff's evidence showing a widespread unconstitutional practice was "exhaustive or authoritative." Cadena, 946 F.3d at 728 (examining prior Fifth Circuit condition of confinement cases).
Nale's allegations of alleged deficiencies regarding her own medical care cannot establish a pervasive, widespread practice. Nale offers no competent summary judgment evidence of the Detention Center providing inadequate medical care to other inmates. Indeed, the only evidence in the record pertaining to medical treatment of other inmates shows they were provided, not denied, treatment. See Doc. 56-2, Nale Depo., at p. 56 (Nale stated the "girl next to [her] cut her leg shaving" and was given ibuprofen but she "couldn't even get it."); see also Doc. 56-7, Raven Johnston Depo., at p. 27 (explaining witness Raven Johnston received prenatal care while at the Detention Center. Even "[a] few isolated events" involving other inmates is not enough. See Cadena, 946 F.3d at728.
Accordingly, for these reasons, the Court finds that even if Nale had alleged a condition of confinement theory, such claim must fail. The Court will next examine Nale's episodic act or omission claim.
ii. Episodic Act or Omission
In episodic act or omission cases, courts apply the "deliberate indifference" standard. Westfall v. Luna, supra. Defendants contend that Nale's Fourteenth Amendment claim against Finley fails because she cannot show Finley was deliberately indifferent. To prove deliberate indifference, a plaintiff must show: (1) that an official was aware of facts from which an inference of a substantial risk of serious harm could be drawn; (2) the official actually drew that inference and disregarded that risk by failing to take reasonable measures to abate it; and (3) "substantial harm" resulted from the official's alleged deliberately indifferent conduct. Baldwin v. Dorsey, 964 F.3d 320, 326 (5th Cir. 2020).
"Subjective deliberate indifference 'is an extremely high standard to meet.'" Baughman, 935 F.3d at 307 (quoting Domino v. Tex. Dep't of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001)). "To reach the level of deliberate indifference, official conduct must be 'wanton,' which is defined to mean 'reckless.'" Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 420 (5th Cir. 2017). To show deliberate indifference, a plaintiff must submit evidence that officials "refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs." Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (citation and quotations omitted).
Thus, "[t]he deliberate indifference standard is a subjective inquiry; [a] plaintiff must establish that the jail officials were actually aware of the risk, yet consciously disregarded it." Lawson v. Dallas Cnty., 286 F.3d 257, 262 (5th Cir. 2002) (citing Farmer v. Brennan, 511 U.S. 825, 837, 839 (1994)). "[T]he 'failure to alleviate a significant risk that [the official] should have perceived but did not' is insufficient to show deliberate indifference." Domino, 239 F.3d at 756 (quoting Farmer, 511U.S. at 838)).
"Prison officials charged with deliberate indifference might show, for example, that they did not know of the underlying facts indicating a sufficiently substantial danger and that they were therefore unaware of a danger, or that they knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent." Farmer, 511 U.S. at 844. Further, "officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted." Id.
Defendants assert, as an initial matter, Nale cannot show that she was at a substantial risk of serious harm while incarcerated at the Detention Center, as she has no evidence showing any action or inaction by the Detention Center had any effect on her medical condition. Additionally, assuming a substantial risk of harm existed, Defendants contend Nale cannot show that Finley had actual knowledge of the risk. And even if Finley had actual knowledge of a substantial risk to Nale, Nale cannot show that Finley ignored the risk.
Under Section 1983, a defendant can be held liable in his individual capacity only if the defendant was personally involved in a constitutional violation, or his wrongful actions were causally connected to the violation. Jones v. Lowndes Cnty., Miss., 678 F.3d 344, 349 (5th Cir. 2012). Thus, only Finley's conduct may be considered when evaluating Nale's Fourteenth Amendment claim against him.
Defendants state that it is undisputed that Finley saw Nale two times during her three-and-a-half-week incarceration. First, he met with Nale shortly after her arrival at the Detention Center. During that meeting, Nale informed him of her Raynaud's diagnosis, and Finley observed her two effected fingertips. Nale provided Finley the name of the medical provider who had most recently treated her condition, which Finley wrote down. Finley informed Nale that he would reach out to the provider. At that time, the only abnormality Finley observed with Nale was the discoloration in the tips of two of her fingers. He did not believe that Nale was in any sort of distress, requiring medical intervention.
After this initial interaction with Nale, Finley reached out to Dr. Venters, to report the information he received from Nale concerning her medical condition. That is when Dr. Venters instructed Finley to contact the physician who had been treating Nale prior to her incarceration and determine how that physician had been treating her Raynaud's condition, so that the Detention Center could adopt the same course of treatment.
Finley eventually reached Nale's provider in Arkansas, who informed Finley that Nale had been receiving blood pressure medication and Ibuprofen. This is corroborated by the medical records, which show that Nale visited Gold Cross Urgent Care on May 19, 2018, where she was prescribed Nifedipine (a blood pressure medication). Thereafter, on June 5, 2018, during his weekly Tuesday visit to the Detention Center, Dr. Venters approved an order for Amlodipine (an alternative blood pressure medication) and Aspirin (used as an anti-inflammatory). The medications were filled by Brookshire's Pharmacy the same day. To the extent Nale alleges the moderate delay in receiving the medications constitutes deliberate indifference, there is no evidence that Finley intentionally delayed obtaining the medications.
Defendants conclude, in sum, that there is no evidence showing there was a substantial risk of serious harm to Nale, that Finley had knowledge of any substantial risk of harm to Nale, or that he ignored any such risk. Additionally, Defendants assert that Nale cannot show she suffered any substantial harm because of any actions or inactions by Finley. To prevail on a deliberate indifference claim, a plaintiff must also prove that a substantial harm resulted from the defendant's alleged deliberately indifferent conduct. Baldwin, 964 F.3d at 326; Mendoza v. Lynaugh, 989 F.2d 191, 193-95 (5th Cir. 1993). There is no evidence any conduct by Finley substantially harmed Nale.
In her opposition, Nale argues that Finley was aware of the fact that she had restricted blood flow to her fingers, from which an inference could be drawn that the darkening of her fingers was the result of restricted blood flow that could result in a substantial risk of serious harm. She further argues that, with the excruciating pain she endured during her 25 days in detention, she was substantially harmed by Finley's alleged conduct. Nale focuses much of her analysis on the "objective prong" of the deliberate indifference inquiry. Nale cites numerous cases (primarily district court cases) from other jurisdictions in support of her argument that Finley was aware of facts from which the inference could be drawn that she was at a substantial risk of serious harm.
Nale further argues that, even if the Court finds it was not obvious, she has nevertheless shown deliberate indifference. "To prevail on a claim for deliberate indifference, the plaintiff must show that a federal actor denied him treatment, ignored his complaints, knowingly treated him incorrectly, or otherwise evidenced a wanton disregard for his serious medical needs." Carlucci v. Chapa, 884 F.3d 534, 538 (5th Cir. 2018). Nale asserts that Finley and the Detention Center's guards and warden were deliberately indifferent to her very serious medical condition. Both the sight and smell of her index finger and middle finger of her left hand would indicate a need for immediate medical intervention. Yet the Defendants ignored her.
The Court finds that Nale offers no evidence showing that Finley actually drew an inference that she was at a substantial risk of harm. She argues that Finley's knowledge of Raynaud's (acquired from Dr. Venters) "should have alerted [him] to the need for her to see a doctor and receive her blood pressure medication timely." [Doc. No. 56, Opposition, p. 21]. But the courts have repeatedly held "[i]t is not enough to identify a significant risk that the official should have perceived but did not." Cleveland v. Bell, 938 F.3d 672, 676 (5th Cir. 2019) (citation and quotations omitted). An official must actually draw the inference and consciously disregard it. Id. Nale offers no evidence to make that showing.
Nale asserts that she only received her blood pressure medication to help with her fingers 6 to 7 times while detained at the Detention Center despite her being detained for 25 days. Further, there was a serious delay in providing the medication, as it was not ordered until June 5, 2018--a fifteen delay in taking blood pressure medication to control her Raynaud's.
However, to the extent Nale alleges the delay in receiving the medication constitutes deliberate indifference, there is no evidence that Finley intentionally delayed obtaining the medications. In Black v. Wilkinson, No. 09-1966, 2010 WL 793448 (W.D. La. Mar. 2, 2010), the court held that an 18-day delay in providing an inmate with a prescribed medication did not amount to deliberate indifference. In Black, the inmate was prescribed a medication to treat his glaucoma. Id. at *1. Prison officials did not provide him the medication until 18 days after it was prescribed. Id. The inmate alleged he "submitted 5 inmate request forms and made numerous trips to the infirmary" between the time the medication was prescribed and when he received it. Id. The inmate was subsequently prescribed a different medication and experienced a seven-day delay in receiving it. Id. The inmate alleged that prison officials were deliberately indifferent, by failing to timely provide him the prescribed medications. The court dismissed the inmate's claims as frivolous. Id. at *4. The court reasoned that there "was no reason to believe that the defendants purposefully delayed providing the prescribed medications." Id. Further, the inmate failed to prove the delay resulted in "substantial harm." Id.
The Court held that an 11-day delay in providing an inmate with four prescribed medications did not constitute deliberate indifference in Poole v. Lincoln Parish Detention Center, No. 3:16-cv-1029, 2016 WL 9528071 (W.D. La. Oct. 7, 2016), adopted by, 2017 WL 3725994, at *1 (W.D. La. Aug. 28, 2017). In Poole, the inmate was transferred from one correctional institution to another. Id. at *1. At the time of the transfer, the inmate was taking three different blood pressure medications and an anxiety medication. Id. Several days after arriving at the new facility, the guard in charge of issuing medications informed the inmate that his medications were not on the cart. Id. Over the next 11 days, the inmate allegedly spoke to numerous prison employees, and submitted multiple grievances and medication requests, but never received a response. Id. Due the delay in receiving treatment, the inmate allegedly suffered from headaches and fever. Id. at *2. As in Black, the court concluded that the inmate failed to prove deliberate indifference, as "there [was]no reason to believe that the defendants purposefully delayed providing the prescribed medications." Id. at *3. Further, there was no evidence that the delay resulted insubstantial harm. Id
Similarly, here, there is no reason to believe that Finley purposefully delayed providing the prescribed medications to Nale. Instead, there was a brief delay in Finley being able to reach Nale's medical provider to determine the course of treatment the provider had been following. Once Finley reached the provider, Dr. Venters approved the medication order on June 5, 2018, during his weekly visit to the Detention Center. There is no evidence suggesting Finley intentionally delayed the medication process.
According to Nale, she received the blood pressure medication approximately six or seven times. As the medication was dispensed on June 5, 2018 and Nale was released on June 15, 2018, this would be consistent with her receiving the medication a majority of the days after it was prescribed and filled. Further, Finley was not responsible for administering the medications, since the guards administered medications. Regardless, there is no evidence showing Finley intentionally prevented Nale from receiving the medication.
Nale contends that Finley ignored her complaints about her discolored fingers and the amount of pain it was causing, and further ignored the sick calls slips that she (and others on her behalf) submitted. She contends that she and others asked guards for additional medical treatment for Nale. "For an episodic act claim relying on an alleged denial or delay of medical care, [a detainee] can show deliberate indifference by demonstrating that an official 'refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs.'" Baughman v. Hickman, 935 F.3d 302, 309 (5th Cir. 2019). (Citations omitted).
However, these arguments do not support a showing of deliberate indifference by Finley. Even if it is assumed that Finley received sick call slips from Nale, or from other inmates on her behalf, Finley did not ignore Nale's medical condition. Instead, as fully set forth above, Nurse Finley communicated with Dr. Venters regarding Nale's condition, and coordinated a plan of treatment with Dr. Venters.
Nale seems to suggest that she should have received a different course of treatment while at the Detention Center. However, "[u]nsuccessful medical treatment, acts of negligence, or medical malpractice do not constitute deliberate indifference." Gobert, 463 F.3d at 346. Further, disagreement with one's medical treatment is insufficient to show deliberate indifference. Gibson v. Collier, 920 F.3d 212, 216 (5th Cir. 2019). The decision whether to provide additional or different medical treatment is a "classic example of a matter for medical judgment." Gobert, 463 F.3d at 346 (citation and quotations omitted). Thus, Nale's alleged disagreement with the course of her medical treatment cannot support a claim of deliberate indifference.
Furthermore, Finley relied upon Dr. Venters' medical opinions as to the proper course of treatment. In sum, there is simply no evidence showing there was a substantial risk of serious harm to Nale, that Finley had knowledge of any substantial risk of harm to Nale, or that he ignored any such risk.
Additionally, Nale cannot show she suffered any substantial harm because of any actions or inactions by Finley. To prevail on a deliberate indifference claim, a plaintiff must also prove that a substantial harm resulted from the defendant's alleged deliberately indifferent conduct. Baldwin, 964 F.3d at 326; Mendoza v. Lynaugh, 989 F.2d191, 193-95 (5th Cir. 1993). As discussed further below, there is no evidence that any conduct by Finley substantially harmed Nale.
iii. Municipal Liability
Municipal liability under Section 1983 may not be predicated on respondeat superior. Rather, to establish municipal liability in an episodic act or omission case, a plaintiff must show "(1) that the municipal employee violated the pretrial detainee's clearly established constitutional rights with subjective deliberate indifference; and (2) that this violation resulted from a municipal policy or custom adopted and maintained with objective deliberate indifference." Garza v. City of Donna, 922 F.3d 626, 635 (5th Cir. 2019) (citation and quotations omitted)
Under the second prong, a plaintiff must identify an official with final policymaking authority who adopted or maintained a policy or custom, and, must also show that the policy or custom was the "moving force" for the episodic acts or omissions of its employee(s). Id. at 637. "The official policy itself must be unconstitutional or, if not, must have been adopted with deliberate indifference to the known or obvious fact that such constitutional violations would result." James v. Harris Cnty., 577 F.3d 612, 617 (5th Cir.2009) (citation and quotations omitted). An official policy can take the form of written policy statements, ordinances, regulations, or a widespread practice that is so common and well-settled as to constitute a custom that fairly represents municipal policy. Id.
Defendants move for judgment as a matter of law on the basis that Nale cannot establish either element of municipal liability. First, Nale cannot show any Detention Center employee violated any constitutional right with subjective deliberate indifference. Furthermore, Nale makes no allegations in her Complaint regarding any Detention Center policy or custom, and there is no evidence that the Detention Center's final policymaker maintained an unconstitutional policy, which was the moving force behind the alleged constitutional violation. Accordingly, Defendants assert the Detention Center is entitled to summary judgment on Nale's federal claims against it.
Nale opposes the motion on the basis that she has shown the subjective deliberate indifference of Finley. She also argues:
Here, it appears that Dr. Venters, whether intentional or not, delegated policy making authority to nurse Finley beyond his discretion regarding day to day decisions pertaining to medical care. Arguably, since Dr. Venters only came to UPDC once a week, nurse Finley had policy making authority for the remaining days of the week pertaining to the infirmary. It has become clear that pertaining to Nale, she was not given the opportunity to have her fingers observed by a physician despite nurse Finley knowing she had a lack of blood flow to her fingers. Furthermore, the sick calls from Nale and other detainees were ignored, as noted supra. In fact, nurse Finley was deliberately indifferent to the known and obvious consequences of his actions. The number of instances that sick calls or letters written to nurse Finley which were ignored shows a custom. That custom was the moving force behind the constitutional violations.[Doc. No. 56, Opposition, pp. 26-27].
Defendants reply that, in her opposition, Nale now contends, for the first time, that the Detention Center maintained an unconstitutional custom adopted by Finley. She explains that "it appears that Dr. Venters . . . delegated policymaking authority to [N]urse Finley. . . regarding medical care," thereby "arguably" granting Finley "policymaking authority" for the days Dr. Venters was not at the Detention Center. (Doc. 56, Opposition, pp. 26-27) (emphasis added).
Defendants argue, first, that Nale has not properly alleged a municipal liability claim and, therefore, cannot now raise such a claim at this stage. Secondly, Defendants contend that Nale's assumptions do not provide competent summary judgment evidence. "Identification of an official as a final policymaking authority is a question of state and local law." Garza, 922 F.3d at 637. They assert that Nale has failed to direct this Court to any law establishing Finley as a final policymaker, and Defendants submit no such law exists. Furthermore, even if Nale could show Finley was a final policymaker, there is no evidence of an official policy, nor is there any evidence showing the policy was the moving force behind the alleged violation.
After reviewing the record, including the Complaint [Doc. No. 1], the Court agrees that Nale has failed to properly allege a municipal liability claim. Nale makes no allegations in her Complaint regarding any Detention Center policy or custom. Additionally, assuming arguendo that she has properly alleged such a claim, the Court, for the reasons set forth earlier in this Ruling, has already found that Nale cannot show any Detention Center employee violated any constitutional right with subjective deliberate indifference. Further, Nale has failed to point to any law establishing Finley as a final policymaker. Nale's assumptions in memoranda do not constitute summary judgment evidence. Finally, Nale points to no evidence of an official policy or evidence showing that the policy was the moving force behind the alleged violation.
Accordingly, for these reasons, Defendants' Motion for Summary Judgment on Nale's Fourteenth Amendment claims is GRANTED, and those claims are DISMISSED WITH PREJUDICE.
2. State Law Claim
Nale also contends Defendants are liable for "medical negligence" under Louisiana state law:
Defendant Union Parish Detention Center and its employee, Nurse Finley, have demonstrated medical negligence in failing to care for Plaintiff's serious needs. The care provided was woefully below the standard of care and the cause in fact of Plaintiff's amputation. But for this negligent care, Plaintiff would likely have saved her fingers from amputation.[Doc. 1, Complaint, ¶ 18].
Under Louisiana law, a confining authority has a duty to provide inmates "reasonable" medical care and services. Wells v. La. Dept. of Pub. Safety & Corrs., 46,428(La. App. 2 Cir. 8/24/11), 72 So. 3d 910, 926; Bonnet v. Lafayette Par. Sheriff, 08-905 (La. App. 3 Cir. 2/4/09), 2 So. 3d 1280, 1284.
To succeed in proving a negligence claim under Louisiana law, a plaintiff must prove five elements: (1) the defendant had a duty to conform his conduct to a specific standard of care, (2) the defendant failed to conform his conduct to the appropriate standard of care, (3) the defendant's substandard conduct was the cause-in-fact of the plaintiff's injuries, (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries and (5) actual damages. Bonnet, 2 So. 3d at 1283; see also Bedingfield v. Deen, No. 09-369, 2011 WL 3206872, at *13 (W.D. La. July 27, 2011) (applying five-element standard to inmate's medical negligence claim against jail).
Under Louisiana law, expert medical testimony is generally required to prove causation. Hutchinson v. Shah, 94-0264 (La. App. 1 Cir. 12/22/94), 648So. 2d 451, 452. The only exception is when causation is within "common knowledge." Id. "[T]he conditions that courts have found to be 'common knowledge' tend to be more minor, more common, and more general in nature." Talbot v. Elect. Ins. Co., No. 17-299,2018 WL 6274314, at *2 (M.D. La. Nov. 30, 2018).
At the summary judgment stage in cases where expert testimony is required, if a plaintiff fails to provide expert testimony in support of causation, the mover is entitled to summary judgment. See id.
Here, Defendants contend that Nale has no evidence that any action or inaction by Finley (or any other Detention Center employee) caused or contributed to her alleged injuries. Defendants argue that this is not the type of case where causation is within "common knowledge." They argue that Nale's condition is not minor, nor general in nature, but is, instead complicated. Nale's Raynaud's is chronic and was present prior to her incarceration at the Detention Center. Moreover, Nale waited 18 days before seeking medical treatment. Thus, analyzing the cause of Nale's alleged injuries is complex, and necessitates expert testimony.
Defendants have produced the expert testimony of Luanne Trahant ("Trahant"), MSN (Master of Science in Nursing), APRN (Advanced Practice Registered Nursing), and FNP-BC (Family Nurse Practitioner-Board Certified). Trahant has opined that no action or inaction by Finley caused or contributed to Nale's alleged injury. [Doc. No. 42-10, Trahant Affidavit, at ¶ 6; Doc. No. 42-11, Trahant Report]. Instead, Trahant concluded, within a reasonable degree of nursing probability, that Nale's past chronic condition of Raynaud's progressively deteriorated over the 18-day period after her incarceration at the Detention Center, during which time she sought no medical attention from any provider. [Doc. No. 42-10, at ¶ 6; Doc. No. 42-11]. During that 18-day period, she developed necrosis that progressed to gangrene, ultimately necessitating the amputation of Nale's first two fingers at the first joints. [Id.].
Defendants further assert that Trahant's opinions are uncontradicted. See Lieux v. Mitchell, 06-0382 (La. App. 1 Cir. 12/28/06), 951 So. 2d 307, 315 (the "requirement of producing expert medical testimony is especially apt when the defendant has filed a motion for summary judgment and supported such motion with expert opinion evidence that [] treatment met the applicable standard of care.")
Defendants conclude that Nale cannot satisfy her burden of proving causation; and, therefore, they are entitled to summary judgment on her state-law claims.
Nale responds that this is a case where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. See Wells v. La. Dep't of Pub. Safety & Corr., 46,428 (La. App. 2 Cir. 08/24/11); 72 So. 3d 910, 917. Nale argues that her condition was obvious to a lay person, given her blue, black, and purple fingers, and the fact her fingers smelled like rotting meat. Nale also testified that she could see puss oozing from her fingers. [Doc. No. 56-2, Nale Depo., p. 152].
Nale has further produced the affidavit of Nurse Kathryn J. Wild ("Wild"), RN (Registered Nurse), MPAM (Masters in Public Administration), and CCHP-RN (Certified Correctional Healthcare Professional), [Doc. No. 56-6], which concludes Finley breached the applicable standard of care, and that his negligence caused Nale unnecessary and intractable pain.
Defendants reply that Wild's expert report contains no opinions on causation, and, further, that Wild previously testified that she is "not giving any opinion on causation in this case." [Doc. No. 59-1, Wild Depo., p. 2]. Defendants contend that, after they raised the issue of Nale's failure to provide expert testimony on causation, through their Motion for Summary Judgment, Wild has suddenly adjusted the opinions in her expert report. The deadline for Nale to provide expert reports has passed, and Wild cannot now offer an opinion on an entirely new issue (particularly considering she previously testified she was not providing any such opinion). Accordingly, Defendants object to Wild's statements on causation in her Affidavit and respectfully ask this Court to not consider such opinions.
Additionally, Defendants state that, even if Wild could provide expert testimony on causation, it remains that Nale still has no expert opinion on what caused her injuries- as Wild does not offer an opinion as to what caused the need for Nale's two fingertips to be amputated.
The Court finds that this is not a case where causation can be established without expert testimony. It is not the type of case where causation is within "common knowledge." Nale's condition is not minor, nor general in nature. Nale's Raynaud's is chronic and was present prior to her incarceration at the Detention Center. Moreover, Nale waited 18 days after being released before she sought medical treatment. Thus, analyzing the cause of Nale's alleged injuries while in the Detention Center is complex and necessitates expert testimony.
Defendants have produced expert testimony from Trahant that Nale's past chronic condition of Raynaud's progressively deteriorated over the 18-day period after her incarceration at the Detention Center, during which time she sought no medical attention from any provider, and that, during that 18-day period, she developed necrosis that progressed to gangrene, ultimately necessitating the amputation of Nale's first two fingers at the first joints.
Nale, on the other hand, has produced nothing other than a report from Wild, who originally stated in her deposition that she was not giving an opinion on causation in this case, but who now, at this late juncture, gives an affidavit that Finley breached the standard care. However, as argued by Defendants, even that affidavit fails to address the issue of causation. It does not offer an opinion as to what caused the need for Nale's two fingertips to be amputated.
The Court therefore finds that Nale has failed to establish a genuine issue of material fact that Defendants caused her alleged injuries. Accordingly, Defendants' Motion for Summary Judgment on her state law claim is GRANTED, and that claim is DISMISSED WITH PREJUDICE. III. Conclusion
Accordingly, for these foregoing reasons, Defendants' Motion for Summary Judgment [Doc. No. 42] is GRANTED. Plaintiff's claims against Defendants are DISMISSED WTH PREJUDICE.
MONROE, LOUISIANA, this 12th day of January, 2021.
/s/ _________
TERRY A. DOUGHTY
UNITED STATES DISTRICT JUDGE