Grace v. Hakala et al

Filing 29

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that plaintiffs motion for reconsideration of the Courts May 19, 2011 dismissal of defendants Gibson, Mitchell, Norman, Roger, Clark and Derrickson [Doc. #10] is DENIED. IT IS FURTHER ORDERED that plaintiffs motion for extension of time to pay the initial partial filing fee of $3.83 [Doc. #13] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $3.83 within thirty (30) days of the date of this Order. Plainti ff is instructedto make his remittance payable to Clerk, United States District Court, and toinclude upon it: (1) his name; (2) his prison registration number; (3) the casenumber; and (4) that the remittance is for an original proceeding.IT IS FURTHE R ORDERED that if plaintiff fails to pay the initial partialfiling fee within thirty (30) days of the date of this Order, then this case will be dismissed without prejudice. Plaintiff will not be given any additionalextensions of time to pay the init ial partial filing fee without good cause being shown. T IS FURTHER ORDERED that the Clerk of Court shall provide toplaintiff, along with a copy of this Order, a blank complaint form for the filing of a prisoner civil rights complaint. IT IS FURTHER ORDERED that plaintiff shall file a second amended complaint, in accordance with the instructions set forth above, no later than thirty (30) days from the date of this Order. IT IS FURTHER ORDERED that if plaintiff fails to timely file a second amend ed complaint or fails to comply with the instructions set forth above relating to the filing of the second amended complaint, the Court shall dismiss this action without prejudice. IT IS FURTHER ORDERED that upon the filing of the second amended comp laint, it will be subject to review under 28 U.S.C. § 1915. IT IS FURTHER ORDERED that plaintiffs motions to add parties [Doc. #11, #16, #21 and #25] are DENIED without prejudice. IT IS FURTHER ORDERED that plaintiffs motions for discovery [Doc. #8 and #12] are DENIED without prejudice. IT IS FURTHER ORDERED that plaintiffs motions for injunctions [Doc.#15 and #22] are DENIED without prejudice. IT IS FURTHER ORDERED that plaintiffs motions for appointment of counsel [Doc. #7 and #24] are DENIED without prejudice. ( Initial Partial Filing Fee due by 9/9/2011., Response to Court due by 9/9/2011.). Signed by Honorable Stephen N. Limbaugh, Jr on 8/9/11. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
WILLIAM GRACE,
Plaintiff,
v.
MICHAEL HAKALA, et al.,
Defendants.

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No. 1:11CV81 LMB

MEMORANDUM AND ORDER
Before the Court are a myriad of filings from plaintiff, including several
motions related to discovery [Doc. #8 and #12], what appears to be a motion for
reconsideration of the partial dismissal of several defendants from this action
[Doc. #10], an amended complaint [Doc. #17], a motion for extension of time to
pay the initial partial filing fee [Doc. #13], motions for appointment of counsel
[Doc. #7 and #24], two requests for injunctions [Doc. #15 and #22] and several
motions to add parties [Doc. #11, #16, #21 and #25]. Plaintiff has also filed
several supplemental documents, presumably in support of his amended
complaint. See, e.g., Doc. #9 and #14.
Given the sheer number of filings before the Court and the piecemeal
manner in which plaintiff is attempting to add parties and claims in this action, the
Court will attempt to bring cohesion to the present lawsuit by ordering the plaintiff

to file a second amended complaint. In light of this fact, many of plaintiff’s
motions will be denied without prejudice. Moreover, because it is not at all clear
that the allegations contained in plaintiff’s requests for injunctions are connected
to the allegations in the current complaint, plaintiff’s motions for injunctive relief
will be denied at this time.
Procedural Background
Plaintiff, an inmate at Southeast Correctional Center (“SECC”), filed the
instant action pursuant to 42 U.S.C. § 1983 on May 5, 2011. Because plaintiff
sought leave to proceed in forma pauperis, the Court reviewed plaintiff’s
complaint for frivolousness, maliciousness and/or failure to state a claim, pursuant
to 28 U.S.C. § 1915.
In his original complaint, plaintiff named the following as defendants:
Michael Hakala (doctor, Correctional Medical Services (“CMS”)); John Matthews
(HIV Specialist, CMS); Becky Lizenbee (nurse, CMS); Jeffery Norman (Warden);
Terry Roger (Asst. Warden); Omer Clark (Deputy Warden); Kimberly Sterling
(nurse, CMS); Terry Mitchell; Amanda Gibson and Lacey Derrickson.
In his original complaint, plaintiff asserted that he is HIV positive, a
recognized disability under the Americans with Disabilities Act (“ADA”), and that
defendants Hakala, Matthews and Lizenbee have noticed a decline in his
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bloodwork but refused his request to provide him with an adjustment to his
medication. Plaintiff asserted that on one occasion, defendant Sterling failed and
refused to give him his medication for HIV. Plaintiff also appeared to assert that
the aforementioned defendants retaliated against him unlawfully under the ADA
as a result of his disease.
Plaintiff additionally asserted that defendants Norman, Roger and Clark
failed to intervene with the medical decisions made by defendants Hakala,
Matthews and Lizenbee, despite his complaints. Plaintiff failed to make any
allegations against defendants Mitchell, Gibson or Derrickson in his original
complaint.
Pursuant to 28 U.S.C. § 1915, the Court dismissed defendants Norman,
Roger and Clark from the action, as the claims against these defendants sounded in
respondeat superior. Similarly, plaintiff’s failure to make specific allegations
against defendants Mitchell, Gibson or Derrickson allowed dismissal of these
defendants from the lawsuit as well. However, the Court ordered the Clerk to
serve process on defendants Hakala, Matthews, Lizenbee and Sterling for
deliberate indifference to plaintiff’s serious medical needs and for
retaliation/discrimination under the ADA. These defendants have been served and
filed an Answer to the complaint on July 18, 2011.
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Discussion
1.

Plaintiff’s Motion for Reconsideration of the Dismissal of Defendants
Mitchell, Gibson, Derrickson, Norman, Clark and Roger [Doc. #10] and
His Motions to Add Parties [Doc. #11, #16, #21 and #25]
Plaintiff seeks reconsideration of this Court’s May19, 2011 dismissal of his

allegations against defendants Mitchell, Gibson, Derrickson, Norman, Clark and
Roger. In his motion, plaintiff lists specific dates he believes the nurses have
denied him his HIV medication, and he argues that the supervisory defendants
should not have been dismissed because he could have made allegations against
them for failing to properly supervise the medical defendants.1
In addition to his assertion that the aforementioned defendants should be
reinstated, plaintiff also seeks to add the following defendants to this action:
Lynette Williams (nurse, CMS)2, George Lombardi (Commissioner, Missouri
Department of Corrections); Taylor Ruth (Director of Nursing, SECC); and
Stephanie Novak (Former Director of Nursing, SECC). It appears that plaintiff
wishes to add Ms. Williams for denial of medical treatment on certain specific
occasions, much like his claims against defendant Sterling.

1

These claims were not included in the actual complaint.

2

Although plaintiff has not formally indicated that he wishes to add Ms.
Williams as a defendant, he has made allegations against Ms. Williams for the
denial of medical treatment in Document #10.
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However, it appears that defendants Lombardi, Ruth and Novak are
supervisory defendants or persons who denied his grievances. As plaintiff has
previously been told, liability under § 1983 requires a causal link to, and direct
responsibility for, the alleged deprivation of rights.” Madewell v. Roberts, 909
F.2d 1203, 1208 (8th Cir. 1990); see also Martin v. Sargent, 780 F.2d 1334, 1338
(8th Cir. 1985) (claim not cognizable under § 1983 where plaintiff fails to allege
defendant was personally involved in or directly responsible for incidents that
injured plaintiff). “Only persons who cause or participate in the [Constitutional]
violations are responsible. Ruling against a prisoner on an administrative
complaint does not cause or contribute to the violation.” George v. Smith, 507 F.
3d 605, 609 (7th Cir. 2007) (citations omitted). Thus, it is highly unlikely that
plaintiff will be able to make a claim against these supervisory defendants.
Regardless, as plaintiff will be required to file a second amended complaint
which will supersede his previous pleadings, his motions to add parties and for
reconsideration of the partial dismissal will be denied without prejudice. To the
extent that plaintiff wants to add these claims and parties in his second amended
complaint, he may do so. However, plaintiff should be aware that these claims
and these additional defendants will only survive to the extent that his claims
against these individuals are non-frivolous and legally state a claim. After
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plaintiff files his second amended complaint, the Court will undertake a review of
the pleading pursuant to 28 U.S.C. § 1915 and may dismiss any frivolous portions
of his second amended complaint.
2.

The Second Amended Complaint
As noted above, plaintiff has attempted to amend his proceedings through

the filing of several different motions and supplements. It appears as though
plaintiff is attempting to amend his complaint by interlineation, or requesting that
the Court add additional claims and parties to this action without providing the
Court with a pleading which includes all of the claims he wishes to pursue in this
action.
Although the Court will allow plaintiff leave to amend his complaint, it will
not accept plaintiff’s attempts to amend by interlineation. All claims in an action
must be included in one, centralized complaint form, as neither the Court nor
defendants wish to search through supplemental pleadings in order to piece
together plaintiff’s claims.
Accordingly, the Court will order plaintiff to file a second amended
complaint in this action. Plaintiff must, however, follow the Court’s instructions
relating to the filing of his second amended complaint, or he will face dismissal of
his action, without prejudice.
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Plaintiff is required to submit his second amended complaint on a courtprovided form, and it must comply with Rules 8 and 10 of the Federal Rules of
Civil Procedure. Rule 8(a) requires that a complaint contain a short and plain
statement of the claim showing that the pleader is entitled to relief and a demand
for the relief sought. And Rule 10(b) requires that a party must state its claims or
defenses in separately numbered paragraphs, each limited as far as practicable to a
single set of circumstances.
Plaintiff must clearly state all of the defendants which he is pursuing
allegations against, and he must articulate, for each of those defendants, the factual
circumstances surrounding their alleged wrongful conduct. Plaintiff’s failure to
make specific and actionable allegations against any of the defendants will result
in their dismissal from this case.
Plaintiff shall have thirty (30) days from the date of this Order to file a
second amended complaint. Plaintiff is warned that the filing of the second
amended complaint completely replaces the original complaint and the amended
complaint, and claims that are not re-alleged are deemed abandoned. E.g., In re
Wireless Telephone Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928
(8th Cir. 2005). If plaintiff fails to file the second amended complaint within
thirty (30) days, the Court will dismiss this action without prejudice.
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It is worth repeating that after the filing of plaintiff’s second amended
complaint, the Court will review the pleading pursuant to 28 U.S.C. § 1915 for
frivolousness, maliciousness and/or failure to state a claim. A claim and/or
defendant must survive § 1915 review in order for plaintiff to proceed on those
claims in this lawsuit.
3.

Plaintiff’s Motions for Discovery [Doc. #8 and #12]
Because the Court has ordered plaintiff to file a second amended complaint

in this matter, the Court will deny plaintiff’s motions for discovery without
prejudice. After plaintiff files his second amended complaint, and the Court
reviews the pleading pursuant to 28 U.S.C. § 1915, process will be issued on the
pleading. Only after defendants have answered and a Case Management Order
(“CMO”) has been entered in the case can discovery begin. In other words, the
Court will not entertain any discovery motions until process has been effectuated
and a CMO has been entered. The CMO will set out specific guidelines for
discovery. To the extent that plaintiff wishes to seek discovery in excess of what
is allowed for under the CMO, he will have to seek leave to do so.
4.

Plaintiff’s Motions for Injunction [Doc. #15 and #22]
In his motions for injunctive relief, plaintiff states that he is losing weight

and requests that the Court order defendants to provide him with “two Ensures per
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day and double trays.” Plaintiff states that he has “lost his appetite,” that his
weight has fluctuated around 130 pounds and that defendants Hakala and
Mathews refuse to put him on Ensure. Plaintiff has not articulated how his alleged
weight loss is connected to his claims regarding defendants’ purported failure to
provide him with the “proper HIV medication.” Nor has plaintiff clearly
enunciated how he believes the relief he requests for additional food and
supplements will remedy his situation.
To determine whether preliminary injunctive relief is warranted, the Court
must balance the threat of irreparable harm to movant, the potential harm to the
nonmoving party should an injunction issue, the likelihood of success on the
merits, and the public interest. Dataphase Sys. V. CL Sys., 640 F.2d 109, 113-14
(8th Cir. 1981) (en banc). “A preliminary injunction is an extraordinary remedy,
and the burden of establishing the propriety of an injunction is on the movant.”
Watkins, Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003) (citations omitted).
“The party seeking injunctive relief bears the burden of proving all the Dataphase
factors.” Id.
“A court issues a preliminary injunction in a lawsuit to preserve the status
quo and prevent irreparable harm until the court has an opportunity to rule on the
lawsuit's merits. Thus, a party moving for a preliminary injunction must
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necessarily establish a relationship between the injury claimed in the party’s
motion and the conduct asserted in the complaint.” Devose v. Herrington, 42 F.3d
470, 471 (8th Cir. 1994).
As noted, it is not entirely clear how plaintiff’s alleged weight loss is in any
way associated with his claims of denial of “proper HIV medications.” Of course,
there may well be such an association, but it is plaintiff’s burden to clearly show
one, and he has failed to do so in this instance. Additionally, plaintiff has not
shown how providing him with double trays or supplements will remedy his “loss
of appetite,” or the presumed irreparable harm of additional weight loss. Indeed,
he states that defendants (medical providers) are aware of the his health conditions
and have told him that putting him on supplements and giving him double trays
will not remedy his conditions.
Plaintiff needs to understand the difference between deliberate indifference
to serious medical needs and mere disagreement with treatment decisions. While
the former violates the Constitution, the latter does not rise to the level of a
constitutional violation. See Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th
Cir. 1995). It is not an easy matter for the Court to substitute its own medical
judgment for the judgment exercised by trained providers. In order for the Court
to do so, plaintiff must provide some prevailing argument showing that if his
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request for relief (additional food and supplements) is not granted, he will suffer
irreparable harm (presumably the loss of additional weight and other serious
medical conditions). He has failed to do so in this instance. Consequently, the
motions for injunctions will be denied.
5.

Plaintiff’s Motions for Appointment of Counsel [Doc. #7 and #24]
Asserting that he has a “learning disability,” plaintiff seeks appointment of

counsel on his behalf. There is no constitutional or statutory right to appointed
counsel in civil cases. Nelson v. Redfield Lithograph Printing, 728 F.2d 1003,
1004 (8th Cir. 1984). In determining whether to appoint counsel, the Court
considers several factors, including (1) whether the plaintiff has presented nonfrivolous allegations supporting his or her prayer for relief; (2) whether the
plaintiff will substantially benefit from the appointment of counsel; (3) whether
there is a need to further investigate and present the facts related to the plaintiff’s
allegations; and (4) whether the factual and legal issues presented by the action are
complex. See Johnson v. Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986);
Nelson, 728 F.2d at 1005.
After considering these factors, the Court finds that the facts and legal
issues involved are not so complicated that the appointment of counsel is
warranted at this time. Moreover, despite plaintiff’s assertions regarding his
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learning disability, he has been able to prepare and file a myriad of documents on
his own behalf. As such, the Court will deny plaintiff’s motions for appointment
of counsel without prejudice.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for reconsideration of
the Court’s May 19, 2011 dismissal of defendants Gibson, Mitchell, Norman,
Roger, Clark and Derrickson [Doc. #10] is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion for extension of time
to pay the initial partial filing fee of $3.83 [Doc. #13] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing
fee of $3.83 within thirty (30) days of the date of this Order. Plaintiff is instructed
to make his remittance payable to “Clerk, United States District Court,” and to
include upon it: (1) his name; (2) his prison registration number; (3) the case
number; and (4) that the remittance is for an original proceeding.
IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partial
filing fee within thirty (30) days of the date of this Order, then this case will be
dismissed without prejudice. Plaintiff will not be given any additional
extensions of time to pay the initial partial filing fee without good cause being
shown.
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IT IS FURTHER ORDERED that the Clerk of Court shall provide to
plaintiff, along with a copy of this Order, a blank complaint form for the filing of a
prisoner civil rights complaint.
IT IS FURTHER ORDERED that plaintiff shall file a second amended
complaint, in accordance with the instructions set forth above, no later than
thirty (30) days from the date of this Order.
IT IS FURTHER ORDERED that if plaintiff fails to timely file a second
amended complaint or fails to comply with the instructions set forth above relating
to the filing of the second amended complaint, the Court shall dismiss this action
without prejudice.
IT IS FURTHER ORDERED that upon the filing of the second amended
complaint, it will be subject to review under 28 U.S.C. § 1915.
IT IS FURTHER ORDERED that plaintiff’s motions to add parties [Doc.
#11, #16, #21 and #25] are DENIED without prejudice.
IT IS FURTHER ORDERED that plaintiff’s motions for discovery [Doc.
#8 and #12] are DENIED without prejudice.
IT IS FURTHER ORDERED that plaintiff’s motions for injunctions [Doc.
#15 and #22] are DENIED without prejudice.

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IT IS FURTHER ORDERED that plaintiff’s motions for appointment of
counsel [Doc. #7 and #24] are DENIED without prejudice.
Dated this 9th day of August, 2011.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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