Mixon v. Pohlmann

1

KAREN ROBERTS MIXON, ET AL., Plaintiffs v. JAMES POHLMANN, ET AL., Defendants

Civil Action No. 20-1216

United States District Court, E.D. Louisiana

December 23, 2021

SECTION “E” (1)

ORDER AND REASONS

SUSIE MORGAN, UNITED STATES DISTRICT JUDGE

Before the Court is a motion to dismiss filed by Defendant CorrectHealth St. Bernard, LLC (“CHSB”).^[1] Also before the Court is a motion to dismiss filed by Defendants Dr. Phillip Nowlin, PA Juniata Alexander-Sallier, FNP Joyce Brown, LPN Audrey Lewis, LPN Keshonka Rucker, LPN Stefanie Bisesi, LPN Donna Baker, and Jean Llovet (collectively, the “Medical Personnel Defendants”).^[2] Plaintiffs Karen Roberts Mixon and Lindsey Elaina Mixon filed a consolidated opposition to both motions.^[3] CHSB and the Medical Personnel Defendants filed a joint reply.^[4] For the following reasons, the motions to dismiss by CHSB and the Medical Personnel Defendants are GRANTED.

BACKGROUND^[5]

On October 24, 2019, Edward Mark Mixon was arrested by deputies of the St. Bernard Parish Sheriff's Office and detained in St. Bernard Parish Jail.^[6] Four days later, on October 28 2019, Mixon died while incarcerated.^[7] Plaintiffs, Mixon's surviving wife and daughter, allege Mixon did not receive the appropriate medications or medical care for his various serious medical conditions while incarcerated, despite his requests.^[8]

Mixon was a daily user of heroin, taking one to two grams daily.^[9] He also suffered from several serious medical conditions, including Chronic Obstructive Pulmonary Disease (COPD), atrial fibrillation (AFib), high blood pressure, and other cardiac problems.^[10] Mixon took several prescription medications for his conditions including Percocet, Xanax, Eliquis, Lisinopril, and Gabapentin.^[11]

The St. Bernard Parish Sheriff's Office contracted with CHSB to provide medical and mental health services to prisoners at the St. Bernard Parish Prison.^[12] The Medical Personnel Defendants all are CHSB's employees or independent contractors.^[13] Mixon was under the Medical Personnel Defendants' care during his incarceration.^[14]

On October 24, 2019, the day of Mixon's arrest, LPN Baker conducted his intake screening, which lasted from 3:40 p.m. to 3:54 p.m.^[15] Baker did not take Mixon's vital signs, but she documented that Mixon did not appear to be under the influence of or withdrawing from drugs or alcohol.^[16] Baker documented Mixon's heroin use, his COPD, and that he had an irregular heartbeat.^[17] She also documented the medications Mixon was prescribed and taking.^[18] Baker listed the priority of Mixon's appointments as level one, the highest priority.^[19] After concluding Mixon's intake screening, Baker placed him in the prison's general population.^[20] That day, Baker ordered Mixon's medications.^[21] Sometime that day, Mixon's vital signs were taken, although Plaintiffs do not specify by whom or when, but no medications were reported administered to Mixon.^[22]

On October 25, 2019, no medications were reported administered to Mixon, and his vital signs were not taken.^[23]

On October 26, 2019, Mixon's vital signs were taken one time, although Plaintiffs do not specify by whom or when.^[24] Eliquis and Tudorza Pressair, Mixon's first doses of medication, were administered to him at 8:00 p.m., but again Plaintiffs do not specify by whom.^[25] After Mixon's death, Nursing Supervisor Llovet stated Mixon was not given his medications until 8:00 p.m. on October 26 because “it's safe to miss doses due to the concentration of the medication already contained in Mixon's body.”^[26]

On October 27, 2019, PA Alexander-Sallier checked in the medications LPN Baker had ordered for Mixon.^[27] That day, LPN Lewis notified FNP Brown of Mixon's withdrawal symptoms, and Brown ordered that Lewis was to start Mixon on a detox regimen.^[28] After Mixon's death on October 28, 2019, Nursing Supervisor Llovet explained it is CHSB nursing protocol that “unless otherwise instructed by a provide [sic], inmates are not given detox medications until symptoms arise.”^[29] Witness #1 confirmed Mixon was given detox medication on October 27.^[30] At 8:00 a.m. on October 27 Mixon was administered Eliquis, Potassium, Sotalol, Tudorza Pressair, and Venlafaxine, although Plaintiffs do not allege by whom.^[31] At 2:19 p.m. Mixon called his wife and told her “he is sick as a dog and the nurses won't give him a klonopin.”^[32] He told his wife to “tell the nurses to give him something for nausea.”^[33] Mixon's wife responded that he should “inform the nurses he is detoxing, ” but he replied that “they won't help him.”^[34] At 8:00 p.m., Mixon was administered Atorvastin, Clonazepam, Clonidine, Eliquis Metroclopramide, Sotalol, and Tudorza Pressair, again with no allegation by whom.^[35] Sometime that day, Mixon's vital signs were taken, although Plaintiffs again do not specify by whom or when.^[36]

Plaintiffs allege, throughout Mixon's incarceration, he was unable to keep his medication down due to nausea and vomiting caused by drug withdrawal.^[37] Mixon told Witness #1 that he was vomiting and “detoxing bad, ” and that he thought Defendants “needed to give him something.”^[38] Witness #1 confirmed Mixon could not keep his food down and stated the medical staff knew of Mixon's withdrawal symptoms and lack of appetite but waited several days until October 27 to respond to Mixon's request for detox medication.^[39] On October 28, 2019, the day of Mixon's death, Dr. Nowlin approved the medications LPN Baker had ordered for Mixon.^[40] Plaintiffs allege that on that morning Defendants did not check on Mixon from midnight to 9:42 a.m.^[41] However, Plaintiffs also allege LPN Baker administered Mixon medications that morning at 9:07 a.m.^[42] At that time, Baker did not give Mixon all of his medications because she did not realize some of them had come in, and Mixon later had to return to the medication cart to retrieve his missed medications.^[43] By 9:15 a.m., back in his cell, Mixon's condition deteriorated, and his body appeared tense, with labored breathing.^[44] At 9:17 a.m. Mixon appeared to have stopped breathing.^[45] At 9:41 a.m. Mixon was found unresponsive in his cell during a headcount.^[46] A code blue was issued, and LPN Baker and RN Biesi arrived at Mixon's cell to respond.^[47] Several unspecified deputies and LPNs attempted to revive Mixon with CPR and a defibrillator, but their efforts were unsuccessful.^[48] EMS personnel also attempted to revive Mixon for thirty minutes per their protocol, but their efforts also were unsuccessful.^[49]

Plaintiffs sue James Pohlmann in his official capacity as Sheriff of St. Bernard Parish, the St. Bernard Parish Sheriff's Office, CHSB, and the Medical Personnel Defendants for compensatory and punitive damages under 42 U.S.C. § 1983 for violations of his Eighth and Fourteenth Amendment right to adequate medical care while detained.^[50] Plaintiffs also seek attorneys' fees under 42 U.S.C. § 1988.^[51] In addition, Plaintiffs sue Defendants for negligence and intentional torts under Louisiana Civil Code articles 2315, 2315.1, 2315.2, and 2316.^[52]

Plaintiffs initially filed their complaint on April 17, 2020.^[53] On May 21, 2021, the Court granted Plaintiffs leave to file their first amended complaint in order to add CHSB and the Medical Personnel Defendants as Defendants.^[54] CHSB and the Medical Personnel Defendants subsequently filed their first motion to dismiss for failure to state a claim.^[55]The Court allowed Plaintiffs to file a second amended complaint to address the arguments made in the first motion to dismiss.^[56] Plaintiffs filed their second amended complaint on August 18, 2021, ^[57] and the Court denied the first motion to dismiss without prejudice on August 24, 2021.^[58] CHSB and the Medical Personnel Defendants now move to dismiss Plaintiffs' § 1983 claims against them in the second amended complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.^[59] Plaintiffs' § 1983 claims against CHSB and the Medical Personnel Defendants are set forth below.

Plaintiffs allege LPN Baker failed to provide Mixon his constitutionally guaranteed medical care through her deliberate indifference to his medical needs.^[60] They allege Baker was aware of some or all of Mixon's medical needs and observed his deteriorating condition but failed to notify Dr. Nowlin, PA Alexander-Sallier, FNP Brown, or an RN of Mixon's condition; failed to give him necessary medications; failed to monitor him; and failed to transfer him to a hospital or other medical facility.^[61]

Plaintiffs allege LPN Lewis failed to provide Mixon his constitutionally guaranteed medical care through her deliberate indifference to his medical needs.^[62] They allege Lewis was aware of some or all of Mixon's medical needs and observed his deteriorating condition but failed to notify Dr. Nowlin, PA Alexander-Sallier, FNP Brown, or an RN of Mixon's condition; failed to give him necessary medications; failed to monitor him; and failed to transfer him to a hospital or other medical facility.^[63]

Plaintiffs allege LPN Rucker failed to provide Mixon his constitutionally guaranteed medical care through her deliberate indifference to his medical needs.^[64] They allege Rucker was aware of some or all of Mixon's medical needs and observed his deteriorating condition but failed to notify Dr. Nowlin, PA Alexander-Sallier, FNP Brown, or an RN of Mixon's condition; failed to give him necessary medications; failed to monitor him; and failed to transfer him to a hospital or other medical facility.^[65]

Plaintiffs allege RN Bisesi failed to provide Mixon his constitutionally guaranteed medical care through her deliberate indifference to his medical needs.^[66] They allege Bisesi was aware of some...