Guillory v. La. Dep't of Health & Hosps., CIVIL ACTION NO. 16-787-JWD-RLB

CourtUnited States District Courts. 5th Circuit. Middle District of Louisiana
Writing for the CourtJUDGE JOHN W. deGRAVELLES UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA
PartiesARTHUR GUILLORY v. LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS, ET AL.
Decision Date20 March 2018
Docket NumberCIVIL ACTION NO. 16-787-JWD-RLB

ARTHUR GUILLORY
v.
LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS, ET AL.

CIVIL ACTION NO. 16-787-JWD-RLB

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

March 20, 2018


RULING

Before the Court is a Motion to Dismiss ("Motion") filed by the Louisiana Department of Health ("LDH"), Hampton "Steve" Lea, Michael DeCaire, Dr. John Thompson, Dr. Monique Attuso, Dr. Sanket Vayas, Dr. Alan Perego, Dr. Patrick McCrossen, Dr. Elizabeth Cain, Dr. Gabriel Onor, Carlos Green, Katina Chaney, Lacey Betholet, Otis Drew, Sammie Dunn, Jimmie Holmes, Matthew McKey, Ronald Johnson, and Paula Bryant (collectively "Defendants").1 Plaintiff has filed an Opposition to the Motion.2 The Defendants have filed a Reply.3 The Court's jurisdiction is pursuant to 28 U.S.C. § 1331. Oral argument is unnecessary. For the following reasons, the Motion shall be GRANTED, but Plaintiff Guillory is given 30 days to amend his complaint to cure any deficiencies.

I. FACTUAL AND PROCEDURAL BACKGROUND

Arthur Guillory ("Guillory") is a patient housed at the Eastern Louisiana Mental Health System's Feliciana Forensic Facility ("ELMHS") in Jackson, Louisiana. Although

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Guillory's status at ELMHS is not clear from the First Amended Complaint, Guillory's opposition to this motion states he is "involuntarily committed to [ELMHS] as a result of the Not Guilty by Reason of Insanity (NGRI) acquittal in a criminal case."4 On November 24, 2015, while housed in the D-wing of the Admissions Special Security Area ("ASSA") unit at ELMHS, Guillory was granted a transfer to the less restrictive Intermediate Treatment Unit ("ITU").5 Guillory alleges that because of a bed space shortage at ITU, he was ordered by Defendant Dr. Sanket Vayas ("Dr. Vayas") to return to ASSA the following day.6

On November 25, 2015, Guillory claims that he was transferred back to ASSA and, under the direction of Defendant Captain Matthew McKey ("Captain McKey"), was placed in the A-wing instead of being returned to the D-wing.7 Guillory asserts that he had expressed a safety concern to Captain McKey regarding his placement in the A-wing, contending that it housed several of his known enemies and other patients who regarded him as a "rat" based on a belief that he previously informed on them.8 Guillory also alleges that the A-wing was commonly regarded as a violent tier where injury was likely to occur.9

Guillory asserts that he was attacked by other patients housed in the A-wing—some of whom he claims had a known history of violence towards other patients—while getting ready to shower on November 26, 2015.10 Guillory alleges that Defendants Jimmie Holmes ("CGT Holmes") and Sammie Dunn ("CGT Dunn"), who were both employed by ELMHS as Correction Guard Therapeutics ("CGT"), were assigned to the

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tier and tasked with monitoring the physical safety of patients under their control.11 Guillory further alleges that CGT Dunn was specifically tasked with providing "close visual observation" on Guillory at the time of the incident.12 Guillory contends that CGT Holmes left the unit upon witnessing the commencement of the attack, and only acted to stop the attack once he returned with backup.13

According to his First Amended Complaint, Guillory was initially examined by Defendant Carlos Green ("Nurse Green"), who was employed as a nurse by ELMHS, shortly after the incident in question.14 Guillory alleges that he requested that Nurse Green transfer him to the hospital because he felt extreme pain on the left side of his body and had difficulty breathing. Guillory states that Nurse Green told him that there was no reason to transfer him to the hospital or to provide any additional follow up care.15 Guillory further alleges that Nurse Green failed to include his complaints of pain or difficulty breathing on the injury report form that was completed after Nurse Green's examination.16 Guillory contends that Defendant Michael DeCaire ("AOD DeCaire"), ELMHS' Assistant Chief Executive Officer and the Administrator on Duty at the time of the incident, was notified of the attack but did not provide any follow up care beyond Nurse Green's initial assessment.17

Guillory states that he was transferred out of the A-wing into an ITU dorm on November 27, 2015.18 Guillory alleges that upon his transfer he informed Nurse Henrietta

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Johnson ("Nurse Johnson"), who is not named as a Defendant in the First Amended Complaint, that the left side of his body was in pain.19 Guillory further alleges that after being notified of his complaints of pain by Nurse Johnson, Defendant Dr. Alan Perego ("Dr. Perego") commenced a painful examination that included an auscultation and the application of pressure to his stomach and ribs.20 Guillory maintains that, although Dr. Perego verbally informed him that one of his lungs may not be functioning properly, he failed to document this observation and ordered only that Guillory be given prune juice to address issues related to constipation.21 Guillory also contends that Dr. Perego failed to take his recent attack into account when making his assessment.22

Guillory alleges that he continued to report feeling pain on the left side of his body and even started to observe bruising during his monthly assessment with Defendant Nurse Latshum Lacey ("Nurse Lacey") on November 28, 2015.23 Guillory further alleges that Nurse Lacey failed to document his reported pain, bruising, or the recent attack on the report form, instead merely indicating "no new impairments."24

On December 8, 2015, ten days following his monthly assessment by Nurse Lacey, Guillory alleges that Dr. Vayas, his treating psychiatrist, and Dr. John Thompson ("Dr. Thompson"), ELMHS' Chief of Staff, received laboratory reports that he contends reflected changes in his blood chemistry.25 Guillory asserts that neither Dr. Vayas nor Dr. Thompson took the steps necessary to identify the specific cause of the change in his

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blood chemistry.26 Guillory further alleges that Dr. Vayas merely followed up by prescribing him sodium chloride tablets, but did not further investigate the underlying cause of the change.27

Ten days following his evaluation by Dr. Vayas, Guillory alleges that he informed Defendant Nurse Otis Drew ("Nurse Drew") of pain in his back and ribs and of his trouble breathing.28 Guillory asserts that Nurse Drew merely followed up by offering him Vicks VapoRub to address his shortness of breath and referred him to Defendant Dr. Elizabeth Cain ("Dr. Cain").29 Guillory contends that Dr. Cain failed to offer any substantive follow up on his complaints of shortness of breath.30

Guillory asserts that his reports of pain and shortness of breath were dismissed for two months following his evaluations by Nurse Drew and Dr. Cain.31 Guillory states that he was forced to endure significant pain in order to comply with his proscribed exercise regimen or risk dropping a therapeutic level, impacting his ability to seek release and maintain privileges.32 Guillory contends that he was informed that various medical personnel including Nurse Green and Nurse Drew told the CGTs that his complaints were all imagined and a function of his delusion.33

Guillory alleges that on January 14, 2016, his complaints of pain and shortness of breath were followed up with a prescription of Albuterol and a chest x-ray by Nurse Rosemary Stagg ("Nurse Stagg"), who is not a named Defendant in his First Amended

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Complaint.34 Guillory contends that the results of his chest x-ray revealed a massive effusion around his left lung, which was so significant that his sternum and heart had been shifted to the right.35

Guillory asserts that he was immediately routed to the emergency room at University Medical Center ("UMC"), where a radiologist concluded that his ribs on his left side were fractured and his left lung had collapsed.36 Guillory claims that the physicians at UMC noted that they were particularly concerned about a potential blood clot due to the old age of the effusion and the amount of blood that was pooled around his lung.37 Ultimately, Guillory contends that his medical issues required extensive surgery in order to drain the effusion and re-inflate his lung.38 This required Guillory to remain at UMC for over a month, chained to his hospital bed at all times, until he was transferred to Villa Feliciana Nursing Home to recuperate for an additional month.39 Guillory alleges that he was eventually returned to ELMHS on March 26, 2016, nearly four months after his initial injury.40

Guillory claims that the attack he endured in November 2015 was not referred to the LDH's Adult Protective Services ("APS") for investigation until February 10, 2016.41 Guillory states that on March 9, 2016, an Investigative Review Committee ("IRC") unanimously found that allegations of caregiver neglect against CGT Dunn, CGT Holmes, and Nurse Green were substantiated after the IRC noted that CGT Dunn and CGT

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Holmes failed to follow shower procedures and that Nurse Green had failed to complete a post fall assessment or include any follow up care notes in his report.42

Guillory alleges that ELMHS Chief Executive Officer, Hampton Steve Lea ("CEO Lea"), was provided with the IRC's findings against all three ELMHS personnel (CGT Dunn, CGT Holmes, and Nurse Green) but only agreed with the finding of caregiver neglect against CGT Dunn.43 Guillory further contends that CEO Lea failed to supply any basis for his findings, which resulted in unsubstantiated findings of caregiver neglect against CGT Holmes and Nurse Green.44

Guillory filed the instant lawsuit on November 23, 2016 asserting claims against the Defendants arising under the United States Constitution; 42 U.S.C. § 1983; Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12131, 42 U.S.C. § 1988, and 42 U.S.C. § 12205, et. seq. ("ADA"); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("RA"); the Louisiana Medical Malpractice Act, La. R.S. §40:1231.1, et. seq...

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