Burton v. Hoskins et al

Filing 28

MEMORANDUM AND ORDER...IT IS THEREFORE ORDERED that summary judgment is GRANTED for defendant Bryan Hoskins pursuant to 42 U.S.C. § 1997e(a). IT IS FURTHER ORDERED that plaintiff's claims against defendant Bryan Hoskins are DISMISSED with p rejudice pursuant to 42 U.S.C. § 1997e(a). IT IS FINALLY ORDERED that plaintiffs claims against defendants Felicia Dodge and Amanda Hill are DISMISSED without prejudice pursuant to Fed. R. Civ. P. 4(m). Bryan Hoskins, Felicia Dodge and Amanda Hill terminated. Signed by Honorable Stephen N. Limbaugh, Jr on 5/18/2011. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
VICTOR RAY BURTON,
Plaintiff,
vs.
BRYAN HOSKINS, et al.,
Defendants.

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Case No. 1:10-CV-00165-SNLJ

MEMORANDUM AND ORDER
Plaintiff Victor Ray Burton filed this 42 U.S.C. § 1983 claim against defendants Sgt.
Bryan Hoskins, Stephanie Kastings, Terry Mitchell, Felicia Dodge, Heather E. (last name
unknown), Amanda Hill, Amanda Gibson, Dr. Michael Hakala, and “unknown correctional
officers.” All the defendants are or were employees of the Southeast Correctional Center
(“SECC”) in Charleston, Missouri, where plaintiff was at one time incarcerated. Defendant
Hoskins filed a motion to dismiss, or alternatively, for summary judgment (#16) on January 24,
2011. Plaintiff filed a motion to compel the attorneys for defendants Gibson, Hakala, Kastings,
and Mitchell to waive service for defendants Dodge and Hill (#20) on February 23, 2011.
Responsive pleadings have been filed, and both matters are now ripe for disposition.
I. Case Summary
Plaintiff, now an inmate at Farmington Correctional Center in Farmington, Missouri,
claims that when he was confined at the SECC, the defendants failed to provide him with timely
and necessary medical treatment for his broken hand. Plaintiff alleges that the actions and
inactions of the defendants violated Missouri Department of Corrections (“MDOC”) policy,
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Correctional Medical Services, Inc. (“CMS”) policy, and his Eighth Amendment right to be free
from cruel and unusual punishment. The following facts are not disputed, except where
indicated.
On Friday, November 13, 2009, plaintiff was involved in a physical conflict with another
inmate. Correctional officers broke up the altercation and delivered plaintiff to a segregated
housing unit for confinement. On arrival, plaintiff was examined by defendants Dodge and
Heather E., nurses, in the presence of defendant Hoskins, the sergeant in charge of the housing
unit. Plaintiff maintains that all three defendants noted swelling and injury to plaintiff’s right
hand. Defendants Dodge and Heather E. provided him with bandages and ice bags, and told him
he would be examined by defendant Dr. Hakala for X-rays on Monday, November 16.
Plaintiff remained in the segregated housing unit until Wednesday, December 2, and he
was not taken to see Dr. Hakala for X-rays. Plaintiff alleges that in spite of his repeated
grumbling to defendants Hoskins, Dodge, and Mitchell (another nurse), his written medical
service requests went ignored and unanswered. Plaintiff contends in his affidavit that it took
defendant Hoskins over an hour to respond when plaintiff pushed his medical emergency button,
and another hour to notify medical personnel.
One week after being released from the segregated housing unit, plaintiff was seen by
defendants Hill and Gibson (nurses), who gave him a box of Ibuprofen 200mg tablets for the pain
in his right hand. Plaintiff alleges that in response to his December 20 request for more pain
medication, defendant Gibson told him that he could only have one box of Ibuprofen per month
and that he would see Dr. Hakala as soon as plaintiff could be scheduled.
Plaintiff states that he wrote defendant Kasting, the Director of Nursing at the SECC, on
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January 4, 2010, to complain about the lack of medical attention for his right hand. Within 48
hours after writing defendant Kasting, plaintiff’s hand was X-rayed and he was taken to see Dr.
Hakala in his office. Defendant Hakala informed plaintiff that he had a fracture in his right hand
and referred plaintiff to a specialist. He also prescribed Naproxen for plaintiff’s pain.
On January 22, 2010, plaintiff was brought to see Dr. David Flood, an orthopedic
specialist. According to plaintiff, Dr. Flood confirmed that due to the long delay, plaintiff’s right
hand would have to be re-broken, and then repaired with pins and screws. This surgery took
place on February 4. Plaintiff alleges that although Dr. Flood provided him with a specific postsurgery pain prescription, Dr. Hakala changed it upon his return to the SECC.
Plaintiff took actions to resolve the situation through the MDOC administrative grievance
process. He filed an informal resolution request (“IRR”) on January 20, 2010, a grievance on
April 20, and an appeal on June 22. Plaintiff mentioned defendants Dodge, Gibson, Hakala,
Heather E., Hill, and Kastings by name in these proceedings and detailed his grievances with the
medical staff at length. However, plaintiff neither mentioned nor discussed the names or actions
of defendant Hoskins, or any other MDOC employee, at any step of the grievance process.
In his complaint, plaintiff alleges that he has been permanently deformed and partially
disabled as a direct result of the defendants’ actions, inactions, and deliberate indifference to his
serious medical needs. He seeks to be awarded compensatory damages “in an amount equivalent
to gainful employment of an average laborer for at least a ten to fifteen year period” and punitive
damages “of a sum sufficient to punish defendants… but not less than $250,000.00 each.”

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II. Legal Standard
The Prison Litigation Reform Act’s administrative exhaustion requirement is an
affirmative defense that the defendant has the burden to plead and to prove. Nerness v. Johnson,
401 F.3d 874, 876 (8th Cir. 2005). Where a motion for summary judgment is founded on an
affirmative defense, the moving party has the burden to present facts that establish that defense.
See Ballard v. Rubin, 284 F.3d 957, 964 n.6 (8th Cir. 2002). Rule 56 of the Federal Rules of
Civil Procedure permits a district court to grant summary judgment with respect to an affirmative
defense if the defendant shows that there is no genuine dispute as to any material fact and the
defendant is entitled to judgment as a matter of law. A district court has discretion to determine
when an issue is ripe for summary judgment. Pony Computer, Inc. v. Equus Computer Systems of
Missouri, Inc., 162 F.3d 991, 996 (8th Cir. 1998). “Discovery does not need to be complete
before a case is dismissed on summary judgment.” Id.; Dulany v. Carnahan, 132 F.3d 1234,
1238 (8th Cir. 1997). With these principles in mind, the Court turns to the discussion.
III. Discussion
Defendant Hoskins has moved to dismiss, or, in the alternative, for summary judgment on
plaintiff’s 42 U.S.C. § 1983 claim against him.
A. Prison Litigation Reform Act (42 U.S.C § 1997e)
Under the Prison Litigation Reform Act, a prisoner may not bring a § 1983 action unless
he has exhausted all available administrative remedies. 42 U.S.C. § 1997e(a); Porter v. Nussle,
534 U.S. 516, 524 (2002) (holding that exhaustion is mandatory). “Under the plain language of
Section 1997e(a), an inmate must exhaust administrative remedies before filing suit in federal
court.” Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003) (emphasis in original).
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In order for a Missouri prisoner to satisfy the exhaustion requirement, he must avail
himself of the administrative grievance process established by MDOC. Foulk v. Charrier, 262
F.3d 687, 694 (8th Cir. 2001); Dashley v. Correctional Medical Services, 345 F. Supp. 2d 1018,
1022-23 (E.D. Mo. 2004).
To initiate this process, an inmate must file an Informal Resolution Request
(“IRR”) within fifteen days of the date of the incident giving rise to the IRR. If the
inmate is dissatisfied with the response to his IRR, he can file an Offender
Grievance within seven working days of receiving the response. If the inmate is
dissatisfied with the response to his Grievance, he can file a Grievance Appeal
within seven days of receiving that response. The failure to file a timely appeal
will result in the appeal being considered abandoned. Only after the inmate
receives a response to his appeal is the administrative grievance procedure
exhausted.
Wewerka v. Roper, No. 4:09-CV-1973, 2010 WL 4628093, at *2 (E.D. Mo. Nov. 8, 2010). The
exhaustion requirement applies to all inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege excessive force or some other
wrong. Porter, 534 U.S. at 532. Exhaustion is required regardless of the relief offered through
the administrative process. Booth v. Churner, 532 U.S. 731, 741 (2001).
Plaintiff has failed to satisfy the exhaustion requirement of the Prison Litigation Reform
Act with respect to defendant Hoskins. In his response (#21) to defendant Hoskins’ motion,
plaintiff maintains that the grievance he filed was on the incident in its entirety, “which
encompassed defendant Hoskins’ deliberate indifference to plaintiff’s serious medical needs
along with the other defendants’ deliberate indifference to plaintiff’s serious medical needs.”
Plaintiff states that MDOC policy precludes prisoners from filing multiple grievances on the
same incident.

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Plaintiff may have been procedurally barred from filing separate grievances in regard to
the actions and inactions of defendant Hoskins. However, plaintiff failed to include defendant
Hoskins or any other MDOC employee in the IRR, grievance, and appeal that he did file. In fact,
the scope of plaintiff’s IRR, grievance, and appeal is entirely limited to the actions and inactions
of the SECC medical staff.
Because no genuine issue of disputed fact exists regarding whether plaintiff exhausted his
administrative remedies with respect to his claims against defendant Hoskins, plaintiff’s claims
against Hoskins will be dismissed pursuant to 42 U.S.C. § 1997e(a). See Dashley, 345 F. Supp.
2d at 1024 (holding that where an inmate’s medical grievance did not allege that a correctional
employee denied him treatment, the correctional employee “received no notice through the
process that [the inmate] was specifically grieving against him, as opposed to the medical staff”)
(citing Johnson, 340 F.3d at 626-27).
B. Failure to State an Official Capacity Claim and Qualified Immunity
The Court need not reach these arguments because it finds that plaintiff’s claim against
defendant Hoskins is precluded by his failure to advance and exhaust a deliberate indifference
claim against defendant Hoskins or any other MDOC employee through the administrative
grievance process.
IV. Motion to Compel
Plaintiff seeks to compel the attorneys for defendants Gibson, Hakala, Kastings, and
Mitchell to waive service for defendants Dodge and Hill. In the alternative, plaintiff cites Fed. R.
Civ. P. 4(h) for the proposition that service of process on defendants Dodge and Hill was already
properly effectuated.
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Plaintiff’s arguments are baseless. The attorneys for defendants Gibson, Hakala, Kastings,
and Mitchell have no authority to waive service of process on behalf of defendants Dodge and
Hill. Furthermore, John J. Treu, attorney for CMS, has no authority to receive service of process
on behalf of defendants Dodge and Hill, both of whom are former employees.
Because 120 days have passed since plaintiff’s complaint was filed, the actions against
defendants Dodge and Hill are to be dismissed without prejudice. See Fed. R. Civ. P. 4(m).
V. Conclusion
Summary judgment will be granted to defendant Hoskins and the claims against
defendants Dodge and Hill will be dismissed without prejudice.
Accordingly,
IT IS THEREFORE ORDERED that summary judgment is GRANTED for defendant
Bryan Hoskins pursuant to 42 U.S.C. § 1997e(a).
IT IS FURTHER ORDERED that plaintiff’s claims against defendant Bryan Hoskins
are DISMISSED with prejudice pursuant to 42 U.S.C. § 1997e(a).
IT IS FINALLY ORDERED that plaintiff’s claims against defendants Felicia Dodge
and Amanda Hill are DISMISSED without prejudice pursuant to Fed. R. Civ. P. 4(m).

Dated this 18th day of May, 2011.

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UNITED STATES DISTRICT JUDGE

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