Grace v. Hakala et al

Filing 76

MEMORANDUM AND ORDER. IT IS HEREBY ORDERED that the Clerk shall issue process or cause process to issue upon the second amended complaint as to defendants Michael Hakala, John Matthews, Amanda Gibson, Terrye Mitchell, Kimberly Sterling, Lacy Derricks on, Ruth Taylor, Stephanie Novak and Lynette Williams.IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2),defendants Michael Hakala, John Matthews, Amanda Gibson, Terrye Mitchell,Kimberly Sterling, Lacy Derrickson, Ruth Taylor, Steph anie Novak and LynetteWilliams shall reply to plaintiffs claims within the time provided by the applicableprovisions of Rule 12(a) of the Federal Rules of Civil Procedure.IT IS FURTHER ORDERED that plaintiffs claim against some unnameddefendant for l oss of weight/denial of Ensure will be dismissed as it is legally frivolous or fails to state a claim upon which relief can be granted, or both. IT IS FURTHER ORDERED that plaintiffs motion to add a party [Doc. #31] is DENIED AS MOOT given the filing of the second amended complaint.IT IS FURTHER ORDERED that plaintiffs motions for injunctive relief[Doc. #37, #47, #50, #52 and #53] are DENIED. IT IS FURTHER ORDERED that plaintiffs motions for discovery [Doc. #34, #48, #49, #51, #55, #61, #62, #63 , #64, #65, #66, #67, #68, #69 and #71] are DENIED. IT IS FURTHER ORDERED that defendants motion to strike plaintiffs prematurely-served interrogatories [Doc. #40] is GRANTED.IT IS FURTHER ORDERED that defendants motion for extension of time to respo nd to plaintiffs interrogatories is DENIED AS MOOT, given that plaintiff has not yet been granted leave to propound discovery in this matter. IT IS FURTHER ORDERED that plaintiffs third motion for appointment of counsel [Doc. #38] is DENIED.An appropriate Order of Partial Dismissal shall accompany this Memorandumand Order. Signed by Honorable Stephen N. Limbaugh, Jr on 10/6/11. (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 approximately twenty-two (22) motions filed by plaintiff,
two motions and various responses filed by defendants, and an amended complaint
and several documents that plaintiff plainly intends to be supplements to his
complaint. Of the twenty-two (22) motions filed by plaintiff, fifteen (15) relate to
discovery [Doc. #34, #48, #49, #51, #55, #61, #62, #63, #64, #65, #66, #67, #68, #69
and #71], one represents plaintiff’s third motion for appointment of counsel [Doc.
#38], one seeks to add, by interlineation, an additional defendant to this action [Doc.
#31], and five seek preliminary injunctive relief [Doc. #37, #47, #50, #52, and #53].
Although defendants have responded to several of plaintiff’s motions, the two
defense motions before the Court include a motion to strike plaintiff’s interrogatories.
[Doc. #40] and a motion for extension of time to respond to plaintiff’s interrogatories
[Doc. #74].

Prior to taking up the plethora of filings, the Court will review plaintiff’s
second amended complaint, pursuant to 28 U.S.C. § 1915 for frivolousness,
maliciousness and for failure to state a claim.1
Discussion
1.

The Second Amended Complaint
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a complaint

filed in forma pauperis if the action is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a defendant who is immune
from such relief. An action is frivolous if it “lacks an arguable basis in either law or
fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is malicious if it is
undertaken for the purpose of harassing the named defendants and not for the purpose
of vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63
(E.D.N.C. 1987), aff’d 826 F.2d 1059 (4th Cir. 1987).
To determine whether an action fails to state a claim upon which relief can be
granted, the Court must engage in a two-step inquiry. First, the Court must identify
the allegations in the complaint that are not entitled to the assumption of truth.
1

Due to the piecemeal manner in which plaintiff was attempting to add
parties and claims in this action, on August 9, 2011, the Court ordered plaintiff to
file a cohesive second amended complaint. Because the August 9, 2011
Memorandum and Order contains a full explanation of the procedural history in
this case, the Court will delve directly into plaintiff’s second amended complaint.
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Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009).

These include “legal

conclusions” and “[t]hreadbare recitals of the elements of a cause of action [that are]
supported by mere conclusory statements.” Id. at 1949. Second, the Court must
determine whether the complaint states a plausible claim for relief. Id. at 1950-51.
This is a “context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. at 1950. The plaintiff is required to
plead facts that show more than the “mere possibility of misconduct.” Id. The Court
must review the factual allegations in the complaint “to determine if they plausibly
suggest an entitlement to relief.”

Id. at 1951.

When faced with alternative

explanations for the alleged misconduct, the Court may exercise its judgment in
determining whether plaintiff’s conclusion is the most plausible or whether it is more
likely that no misconduct occurred. Id. at 1950, 51-52.
Plaintiff, an inmate at Southeast Correctional Center (“SECC”), seeks relief
pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act (“ADA”)2. In
his second amended complaint [Doc. #36]3, plaintiff names as defendants Michael

2

Although it is far from clear, plaintiff may also be asserting a claim for
discrimination under the Rehabilitation Act for denial of proper medical care.
3

The various “supplements” plaintiff has filed in this case are not considered
part of his second amended complaint, per this Court’s August 9, 2011
Memorandum and Order. Thus, plaintiff’s only allegations presently before this
Court are outlined in Docket No. 36.
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Hakala (doctor, Correctional Medical Services (“CMS”)), John Matthews (HIV
Specialist, CMS), Amanda Gibson (nurse, CMS), Terrye Mitchell (nurse, CMS),
Kimberly Sterling (nurse, CMS), Lacy Derrickson and Ruth Taylor (Director of
Nursing, CMS). Also named as defendants in the body of plaintiff’s second amended
complaint are CMS nurses Lynette Williams and Stephanie Novak.
Plaintiff claims that he is HIV positive, a recognized disability under the ADA,
and that on several specific occasions he has been denied medication by defendant
nurses Gibson, Mitchell, Sterling, Derrickson and Williams.
Plaintiff claims that defendants Taylor and Novak, supervisory nurses
employed by CMS, acted with deliberate indifference to his serious medical needs
when they failed to properly supervise the nurse defendants in their administration
of the medications once they knew that plaintiff was not receiving his medications.
Plaintiff claims generally that defendants Gibson, Mitchell, Derrickson,
Sterling, Hakala and Matthews violated his rights under the ADA and § 1983 when
they failed to provide him with proper treatment for his HIV. Plaintiff also appears
to assert that these defendants acted in a retaliatory manner in denying him the proper
treatment after he filed grievances related to their purported deliberate indifference.
Lastly, plaintiff claims that he has lost weight and been denied Ensure,
asserting that this violates his right to “humane conditions of confinement.” Plaintiff
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does not state which of the defendants are purportedly responsible for denying him
Ensures, and he does not state how the denial of Ensures is a constitutional violation,
in and of itself. Plaintiff merely alleges that he has lost weight and should have been
provided with Ensures by some unknown defendant in order to counteract this
“wasting.” Thus, he surmises that the unknown person’s failure to provide him with
Ensure shows deliberate indifference to his serious medical needs.
All of plaintiff’s claims survive initial review under § 1915 except for
plaintiff’s conclusory claims against an unnamed defendant relating to the denial of
Ensure. As plaintiff has failed to articulate how the denial of Ensure resulted in a
constitutional violation, and in addition, he has failed to name the individual(s)
responsible for said actions, his claims relating to the denial of Ensure and loss of
weight are subject to dismissal.
As the claims against the named defendants have survived review under §
1915, the Court will Order the Clerk to effectuate process on the second amended
complaint as to these defendants.
2.

Motions for Injunctive Relief [Doc. #37, #47, #50, #52 and #53]
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 day
and double trays.” Plaintiff states that he has “lost his appetite,” that his weight has
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fluctuated around 130 pounds and that defendants Hakala and Matthews 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 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).

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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.
Defendants have filed an affidavit from Dr. Michael Hakala, plaintiff’s treating
physician, in response to plaintiff’s request for injunctive relief. Defendant Hakala
testifies that plaintiff’s medical history shows a continuous fluctuation of 3-5 pounds
- both upward and downward. Dr. Hakala asserts that plaintiff’s weight is currently
reflecting an increase, rather than the decrease plaintiff believes to be occurring. In
fact, pursuant to plaintiff’s weight chart, he has lost only 7 lbs in the past 15 months.
Thus, there is no indication that his weight is a matter for emergency injunctive relief.
As the Court cautioned plaintiff in its last Memorandum and Order, plaintiff
needs to understand the difference between deliberate indifference to serious medical
needs and disagreement with treatment decisions. While the former violates the
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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). Plaintiff simply has
not provided a cogent argument showing that if his 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). Rather, defendants have
shown that plaintiff’s weight constantly fluctuates and that he has not suffered a
substantial weight loss in the past 15 months.4 Consequently, the motions for
injunctions will be denied.
3.

Motions Relative to Discovery [Doc. #34, #40, #48, #49, #51, #55, #61, #62,

#63, #64, #65, #66, #67, #68, #69, #71 and #74]
The Court specifically stated in its August 9, 2011 Memorandum and Order
that it would not entertain any discovery motions until the second amended complaint
had been reviewed pursuant to 28 U.S.C. § 1915, process had been effectuated on the
second amended complaint and a Case Management Order (“CMO”) had been
entered. As noted by the Court at that time, the CMO will set forth very specific
guidelines for discovery in this matter. Because a CMO has not yet been entered in
this case, discovery has not officially commenced. Thus, all of plaintiff’s discovery

4

Defendants have also provided evidence that they have given plaintiff “diet
packs,” or extra supplements, when medically called for.
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motions will be denied, without prejudice. And defendants’ motion to strike
plaintiff’s interrogatories will be granted, given that plaintiff’s interrogatories are
premature.5 Should plaintiff file any additional discovery motions prior to the filing
of the CMO, these motions will also be denied without prejudice, pursuant to this
Memorandum and Order.
Moreover, the Court will remind plaintiff that although he is representing
himself pro se, he is still obligated to read and follow this Court’s Orders and both the
Local Rules and the Federal Rules of Civil Procedure. Enumerated in the rules are
specific procedures that must be accomplished before discovery motions should be
filed with the Court. Just as an example, this Court will not entertain a discovery
motion unless the movant has shown, by documentary evidence, that he has conferred
in good faith with the opposing party and tried to resolve a discovery dispute without
court action. See, e.g., Fed.R.Civ.P. 37(a) and L.R. 37-3.04.
4.

Plaintiff’s Third Motion for Appointment of Counsel [Doc. #38]
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
5

Defendants’ motion for extension of time to respond to plaintiff’s
interrogatories [Doc. #74] will be denied as moot, given that plaintiff has not been
granted leave to begin discovery in this matter.
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(8th Cir. 1984). In determining whether to appoint counsel, the Court considers
several factors, including (1) whether the plaintiff has presented non-frivolous
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 learning disability, he has
been able to prepare and file a plethora 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 the Clerk shall issue process or cause
process to issue upon the second amended complaint as to defendants Michael
Hakala, John Matthews, Amanda Gibson, Terrye Mitchell, Kimberly Sterling, Lacy
Derrickson, Ruth Taylor, Stephanie Novak and Lynette Williams.

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IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2),
defendants Michael Hakala, John Matthews, Amanda Gibson, Terrye Mitchell,
Kimberly Sterling, Lacy Derrickson, Ruth Taylor, Stephanie Novak and Lynette
Williams shall reply to plaintiff’s claims within the time provided by the applicable
provisions of Rule 12(a) of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that plaintiff’s claim against some unnamed
defendant for loss of weight/denial of Ensure will be dismissed as it is legally
frivolous or fails to state a claim upon which relief can be granted, or both.
IT IS FURTHER ORDERED that plaintiff’s motion to add a party [Doc. #31]
is DENIED AS MOOT given the filing of the second amended complaint.
IT IS FURTHER ORDERED that plaintiff’s motions for injunctive relief
[Doc. #37, #47, #50, #52 and #53] are DENIED.
IT IS FURTHER ORDERED that plaintiff’s motions for discovery [Doc.
#34, #48, #49, #51, #55, #61, #62, #63, #64, #65, #66, #67, #68, #69 and #71] are
DENIED.
IT IS FURTHER ORDERED that defendants’ motion to strike plaintiff’s
prematurely-served interrogatories [Doc. #40] is GRANTED.

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IT IS FURTHER ORDERED that defendants’ motion for extension of time
to respond to plaintiff’s interrogatories is DENIED AS MOOT, given that plaintiff
has not yet been granted leave to propound discovery in this matter.
IT IS FURTHER ORDERED that plaintiff’s third motion for appointment of
counsel [Doc. #38] is DENIED.
An appropriate Order of Partial Dismissal shall accompany this Memorandum
and Order.
Dated this 6th day of October, 2011.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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