Nixon v. Neal
| Decision Date | 07 June 2021 |
| Docket Number | CIVIL ACTION NO. 20-2934 SECTION "L" (2) |
| Parties | HERMAN NIXON JR. v. PETIE NEAL ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
Plaintiff Herman Nixon Jr. filed this complaint pro se and in forma pauperis pursuant to 42 U.S.C. § 1983 against Defendants Petie Neal, Richard Neal (Medical Staff also known as Petie Neal), LaSalle Management, Catahoula Correctional Center, Terrebonne Parish Criminal Justice Complex ("TPCJC"), LaSalle Corrections Inmate Transport, and the Terrebonne Parish Medical Staff. ECF Nos. 4, 4-6.
These matters were referred to the undersigned United States Magistrate Judge to conduct a hearing, including an evidentiary hearing, if necessary, and to submit proposed findings and recommendations for disposition pursuant to Local Rule 73.2(A) and 28 U.S.C. § 636(b)(1)(B) and (C), including statutory frivolousness review under 28 U.S.C. § 1915, and § 1915A, and as applicable, 42 U.S.C. § 1997e(c)(1) and (2). Upon review of the record, I have determined that these matters can be resolved without further hearings.
Plaintiff Herman Nixon Jr. is incarcerated at the TPCJC. ECF No. 4-1, at 3. During the October 12, 2020 return trip after a hurricane evacuation, Plaintiff was moved to the Catahoula Correctional Center, which is managed by LaSalle Management Company. Id. at 5; ECF No. 12, at 1. On the return trip to TPCJC while in a prison transport van convoy, several vans (including Plaintiff's) were involved in a motor vehicle accident. Plaintiff claims that every vehicle in the van convoy was driving recklessly before a multi-vehicle accident. ECF No. 12, at 1.
Plaintiff contends that he was not treated for injuries at the scene nor sent to a hospital. ECF No. 4-1, at 5-6; ECF No. 12, at 2. Rather, Plaintiff left the scene and returned to TPCJC where, after a couple of hours, he was seen by medical staff at TPCJC, with some inmates sent to the hospital and others sent back to their cells. ECF No. 12, at 2. He contends that he should have been checked at the scene and brought to the hospital for proper testing. Id. He seeks damages from LaSalle Management for hiring Catahoula Parish, against Catahoula Parish for having a driver who was not properly licensed, and against TPCJC and its medical staff for the improper handling and treatment of his injuries,. ECF No. 4-1, at 5-6.
On January 14, 2021, I conducted a telephone conference in this matter. Participating were plaintiff, pro se, Brian Marceaux (counsel for Terrebonne Parish Criminal Justice Complex and Terrebonne Parish Criminal Justice Complex Medical Staff), William Dodd (counsel for Terrebonne Sheriff's Office), and Stephen Gieger (counsel for Lasalle Management Company). Plaintiff was sworn and testified for all purposes permitted by Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), overruled on other grounds by Neitzke v. Williams, 490 U.S. 319 (1989), and its progeny. ECF No. 16. The conference was electronically recorded.
During the Spears hearing, Plaintiff elaborated on the allegations in his Complaint. He indicated that, on October 12, 2020, he was being transported in a shuttle bus even though he had recently had surgery, and was not seat-belted. His feet were shackled and he had zip ties on his hands. Plaintiff could not remember the name of the driver, but testified that the driver was paying attention to his phone and not the highway. Plaintiff saw the lights ahead of him, and then saw thedriver look up and slam on his brakes. They skidded, hit the van in front of them and then the van behind them hit them. Plaintiff testified that the driver could have avoided the accident had he been paying attention to the road. He also explained that he injured his left side in the October 12, 2020 accident at issue as opposed to this right side, which was already damaged from an earlier October 1, 2020 accident for which he had already received treatment.
Plaintiff testified that, after the impact of the accident, an inmate returning from the bathroom fell over Plaintiff on his left side, and he had a sharp pain down his left leg and shoulder. The impact caused him to hit his left leg on the seat to his right and he sustained an abrasion on his leg and he has numbness in his leg. Plaintiff stated that he has discussed these issues with medical professionals. After a November 19, 2020 fall in the shower, he had x-rays taken. Plaintiff contends that, after the accident, he should have been transported to the hospital from the accident to receive treatment for his pain and not subjected to the 2-hour drive back to Terrebonne Parish before receiving pain medications. Plaintiff states that he continues to have pain, and he submits requests for medication for pain. His pain medication regime ended approximately three days before the Spears hearing, and he had not submitted a new request for pain medications. Plaintiff also testified that, after filing this proceeding, he has not been able to get medical request forms.
By order dated December 9, 2020, this Court ordered the TPCJC to provide both the court and Plaintiff with a copy of his medical records. ECF No. 11. During the Spears conference, Plaintiff confirmed that he received the copy of his medical records. ECF No. 18.
Plaintiff's medical records reflect that he was involved in a motor vehicle accident on October 1, 2020, prior to arrival at TPCJC on October 6, 2020. As a result of that accident, Plaintiff sustained multiple fractures to his right femur and cervical spine for which he wasreceiving continued treatment and follow-up care after arrival to TPCJC. See, e.g., ECF No. 18, TPCJC 0084, 102; see also 0029-37 (November 10, 2020 UMC-NO follow-up visit) and 0041-50 (October 26, 2020 UMC-NO follow-up visit). Also, after a fall in the shower, Plaintiff also received emergency treatment which included x-rays. Id. 007-16 & 0019-24 (November 19, 2020 Ochsner-Chabert ER visit).
In addition to these hospital visits, TPCJC medical notes reflect the following additional medical interactions after the October 12, 2020 accident at issue and through delivery of the medical records on December 22, 2020:
Plaintiff's medical records also reflect he received Ibuprofen from October 1-20, 2020 and Percocet from October 8-19. ECF No. 18, at TPCJC 0074-75; 0017-18. Thus, according to Plaintiff's medical records, he has had at least 11 medical interactions at TPCJC since the October 12, 2020 accident plus three hospital visits which included x-rays on November 19, 2020, with an additional follow-up consultation scheduled for December 2020. Id. at 0029 (); 0019 (handwritten note indicating appointment already scheduled).
As soon as practicable after docketing, the court must review a prisoner's § 1983 complaint for a cognizable claim, or dismiss the complaint if it is frivolous and/or fails to state a claim.1 A prisoner's in forma pauperis complaint that fails to state a claim may be dismissed sua sponte at any time if the court determines that the complaint is frivolous or malicious.2 A claim is frivolous if it "lacks an arguable basis in law or fact."3 A claim lacks an arguable basis in law if it is "based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legalinterest which clearly does not exist."4 A factually frivolous claim alleges only facts that are "'clearly baseless,' . . . are 'fanciful,' 'fantastic,' and 'delusional' . . . [or] rise to the level of the irrational or wholly incredible . . . ."5 A court may not dismiss a claim simply because the facts are "unlikely."6
A complaint fails to state a claim on which relief may be granted when the factual allegations do not rise above a speculative level, with the assumption that all factual allegations in the complaint are true,...
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