Ewing v. Kempker et al

Filing 15

MEMORANDUM AND ORDER re: 13 MOTION for Preliminary Injunction filed by Plaintiff Jermaine S. Ewing, 2 MOTION to Appoint Counsel filed by Plaintiff Jermaine S. Ewing, 5 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Jermaine S. Ewing, 7 MOTION to Appoint Counsel filed by Plaintiff Jermaine S. Ewing. IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. #5] is GRANTED. IT IS FURTHER ORDERED that plaintiff sh all pay an initial filing fee of $5.37 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 pr ison registration number; (3) the case number; and (4) that the remittance is for an original proceeding. IT IS FURTHER ORDERED that the Clerk shall add "Omar L. Clark" as adefendant in this case. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue, because the amended complaint is legally frivolous and fails to state a claim upon which relief can be granted. See 28 U.S.C. § 1915. IT IS FURTHER ORDERED that plaintiff's motions for appointmen t of counsel [Docs. #2 and #7] are DENIED as moot. IT IS FURTHER ORDERED that plaintiff's motion for preliminary injunction [Doc. #13] is DENIED, without prejudice. A separate Order of Dismissal shall accompany this Memorandum and Order. (Initial Partial Filing Fee due by 3/12/2014.). Signed by District Judge Stephen N. Limbaugh, Jr on 2/10/14. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

JERMAINE S. EWING,
Plaintiff,
v.
DEWAYNE KEMPKER, et al.,
Defendants.

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No. 1:13-CV-114-SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the filing of plaintiff’s amended complaint
[Doc. #6]1 and motion for leave to proceed in forma pauperis [Doc. #5]. For the
1

On August 27, 2013, the Court instructed plaintiff to file an amended
complaint on a Court-provided form, selecting the transaction or occurrence he
wished to pursue and limiting his facts and allegations to the defendant(s) involved
in said occurrence. The Court specifically advised plaintiff that the amended
complaint would replace his original complaint and would be the only pleading this
Court reviews [Doc. #4]. Plaintiff filed his amended complaint on September 12,
2013 [Doc. #6]; however, the Court notes that he later filed a sixteen-page
document styled “Motion for Preliminary Injunctive Relief” [Doc. #13]. A review
of this document indicates that plaintiff has in no way addressed the standards set

forth in Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 113-14 (8th Cir.
1981), but rather is attempting to supplement his amended complaint with
additional claims, allegations, and defendants, the majority of which pertain to
individuals and instances that are outside the purview of the instant amended
complaint. The Court declines to allow plaintiff to supplement his pleading in this
manner. Accordingly, the motion will be denied, without prejudice to refiling as a
new and separate action(s), if plaintiff wishes to do so.

reasons set forth below, the Court will grant plaintiff’s motion and will assess an
initial partial filing fee of $5.37. Furthermore, after reviewing plaintiff’s allegations
pursuant to 28 U.S.C. § 1915, the Court will dismiss this action as to all defendants
pursuant to 28 U.S.C. § 1915(e)(2)(B).
28 U.S.C. § 1915(b)(1)
Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma
pauperis is required to pay the full amount of the filing fee. If the prisoner has
insufficient funds in his or her prison account to pay the entire fee, the Court must
assess and, when funds exist, collect an initial partial filing fee of 20 percent of the
greater of (1) the average monthly deposits in the prisoner’s account, or (2) the
average monthly balance in the prisoner’s account for the prior six-month period.
After payment of the initial partial filing fee, the prisoner is required to make monthly
payments of 20 percent of the preceding month’s income credited to the prisoner’s
account. 28 U.S.C. § 1915(b)(2). The agency having custody of the prisoner will
forward these monthly payments to the Clerk of Court each time the amount in the
prisoner’s account exceeds $10, until the filing fee is fully paid. Id.
A review of plaintiff’s financial affidavit and information indicates an average
monthly deposit of $26.83 and an average monthly balance of $20.04. Plaintiff has
insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an
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initial partial filing fee of $5.37, which is 20 percent of plaintiff’s average monthly
deposit.
28 U.S.C. § 1915(e)
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.
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
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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.
The Amended Complaint
Plaintiff, an inmate at Southeast Correctional Center (“SECC”), brings this
action pursuant to 42 U.S.C. §§ 1983 and 1985 for the alleged violations of his civil
rights. Plaintiff also asserts pendent state-law claims for the violation of prison
policy and numerous Missouri statutes. Named as defendants are: Dwayne Kemper
(Deputy Division Director of Adult Institutions); Ian Wallace (Warden, SECC);
William Stange (Assistant Warden, SECC); Webster R. Arends (Investigator, SECC);
Paula Huffman-Phillips (Function Unit Manager, SECC); D. Novack (Correctional
Officer, SECC); Cheryl Dowdy-Thompson (Functional Unit Manager, SECC);
Kenneth Richardson (Assistant Prosecuting Attorney, Mississippi County, Missouri);
George Lombardi (Director, Missouri Department Of Corrections); Dave Dormire
(Director, Division of Adult Institutions); Stephanie Kastings-Novack (Nurse,
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Corizon, Inc.); Ruth Taylor (Nurse, Corizon, Inc.); Kenna Sadler (Nurse, Corizon,
Inc.); Paula Unknown (Nurse); Michael Hakala (Doctor, Corizon, Inc.); Unknown
Regional Director (Corizon, Inc.); Unknown Senior Regional Vice President
(Corizon, Inc.);Unknown Regional Investigator Manager; Unknown Inspector
General of Missouri; and Omar L. Clark.2 Liberally construing the amended
complaint, plaintiff is suing defendants in their individual and official capacities.3
Plaintiff alleges that he “suffered injuries” on December 22, 2012, following
an “altercation” with his cell mate. Plaintiff’s allegations arise out of this incident
and the medical treatment that defendants rendered, or failed to render, to him. For
the following reasons, the Court will dismiss this action as to all defendants.

2

Plaintiff does not identify Omar Clark in the caption of the amended
complaint or set forth his title or what position he holds. Liberally construing the
amended complaint, Clark is a correctional employee at SECC.
3

Plaintiff states on page two of the complaint, as follows: “All defendants
are being sued in their individual capacities under the authority of 42 U.S.C. §
1983, as well as in their official capacities under the authority of 42 U.S.C. §
1985(2), (3).”
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Discussion
I. Section 1985 Claims
Plaintiff generally alleges that “all defendants . . . acted as is required, in
concert and under color of state law,” and that “[a]ll the occurrences described fall
under the authority of 42 U.S.C. § 1985(2) and (3).”
Title 42 U.S.C. § 1985 concerns conspiracies to interfere with civil rights.
"[A] conspiracy claim . . . requires allegations of specific facts tending to show a
'meeting of the minds' among the alleged conspirators." Murray v. Lene, 595 F.3d
868, 870 (8th Cir. 2010) (citations omitted). Even affording plaintiff's factual
allegations a liberal construction, they simply do not suggest a "meeting of the
minds" among the defendants in this action. Plaintiff’s allegations are, at best,
nothing more than a “[t]hreadbare recital[] of a cause of action’s elements” and are
not entitled to an assumption of truth. Iqbal, 129 S. Ct. at 1949. Moreover, to state
a claim under § 1985(3), a plaintiff must establish that (1) he is a member of a class
suffering from invidious discrimination; and (2) defendants’ actions were motivated
by racial animus or some other type of class-based discrimination. United Bhd. of
Carpenters, Local 610 v. Scott, 463 U.S. 825, 834-39 (1983); Griffin v. Breckenridge,
403 U.S. 88, 102-03 (1971) (plaintiff must allege these two elements to state §
1985(3) claim). Nothing in the amended complaint indicates that plaintiff is a
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member of a protected class or that defendants were motivated by purposeful
discrimination. For these reasons, plaintiff’s § 1985 claims will be dismissed as
legally frivolous.
II. Section 1983 Claims
A. Official Capacity Claims
Plaintiff is suing defendants in both their official and individual capacities.
Naming a government official in his or her official capacity is the equivalent of
naming the government entity that employs the official, in this case the State of
Missouri. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).
“[N]either a State nor its officials acting in their official capacity are ‘persons’ under
§ 1983.” Id. As a result, the amended complaint is legally frivolous and fails to state
a claim upon which relief can be granted as to all defendants in their official
capacities.
B. Individual Capacity Claims
(1). Claims against Defendants Kenna Sadler and Paula Unknown
Plaintiff summarily alleges that he “suffered injuries from a[n] altercation with
a cell mate that was under investigation and [he] was assessed by [Sadler and Paula
Unknown] but [they] never treated [him,] violating his rights to the Eighth
Amendment.” Plaintiff further alleges that Sadler “was well aware of [his] injuries
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[but] refused to treat [him],” and Paula Unknown “failed to ensure plaintiff received
treatment.”
To state a claim for unconstitutional medical mistreatment, a plaintiff must
plead facts sufficient to indicate deliberate indifference to serious medical needs.
Estelle v. Gamble, 429 U.S. 97, 106 (1976); Camberos v. Branstad, 73 F.3d 174, 175
(8th Cir. 1995). To show deliberate indifference, a plaintiff must allege that he
suffered objectively serious medical needs and that defendants actually knew of but
disregarded those needs. Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997).
Moreover, “the prisoner must show more than negligence, more even than gross
negligence, and mere disagreement with treatment decisions does not rise to the level
of a constitutional violation.” Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th
Cir. 1995).

Medical malpractice alone is not actionable under the Eighth

Amendment. Smith v. Clarke, 458 F.3d 720, 724 (8th Cir. 2006). Moreover, prison
officials do not violate the Eighth Amendment when, in the exercise of their
professional judgment, they refuse to implement a prisoner’s requested treatment.
Kayser v. Caspari, 16 F.3d 280, 281 (8th Cir. 1994). A mere difference of opinion
between plaintiff and his treating health care professional about what treatment is
appropriate does not give rise to a colorable claim under § 1983. Warren v. Fanning,
950 F.2d 1370,1373 (8th Cir. 1990).
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Plaintiff’s generalized allegations of having sustained “injuries” simply do not
show that he suffered objectively serious medical needs and that defendants actually
knew of but deliberately disregarded those needs. Dulany v. Carnahan, 132 F.3d
1234, 1239 (8th Cir. 1997). Accordingly, plaintiff has not stated a constitutional
violation. Moreover, plaintiff’s claims relative to defendants Sadler and Paula
Unknown’s alleged assessment, but lack of treatment, of plaintiff do not rise to the
level of deliberate indifference or state an Eighth Amendment claim. As such, the
amended complaint is legally frivolous and fails to state a claim against defendants
Sadler and Paula Unknown.
(2). Claims against Defendants Webster Arends, Kenneth
Richardson, Paula Huffman-Phillips, D. Novak, Cheryl Thompson, Omar Clark,
and William Stange
Plaintiff alleges that (1) upon completion of the investigation on February 8,
2013, defendant Arends “went ten days beyond the allotted time for an investigation
and issued a conduct violation, violating plaintiff’s rights to the Fourteenth
Amendment”; (2) on February 15, 2013, plaintiff received “a warrant charged by
Kenneth R. Richardson who violated Criminal Rule of Civil Procedure 22.04(a) [by]
unlawfully issuing the warrant[,] violating plaintiff’s rights under the Sixth
Amendment”; (3) on February 22, 2013, defendants Huffman-Phillips and Novak
“conducted a disciplinary hearing, violating plaintiff’s rights to due process under the
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Fourteenth Amendment . . . and RSMo 217.380”; (4) after being given a minor
conduct violation on May 24, 2013,4 plaintiff “was placed on ‘special security orders’
by D. Novack, who also supervised a planned use of force” [Doc. #10, page 10];5 (5)
Cheryl Thompson “violated RSMo 217.410(10)[,] disregarding plaintiff’s rights and
Missouri Department of Corrections Policy and Procedure by . . . her denial of
plaintiff’s valid complaint, displaying deliberate indifference to plaintiff’s Fourteenth
Amendment rights”; (6) defendant Clark “completely disregarded” prison policy and
Missouri law when he responded to plaintiff’s informal resolution request relative to
a May 24, 2013 false conduct violation; and (7) defendant Stange’s response to a
grievance plaintiff filed “disregarded plaintiff’s [constitutional] rights” and violated
prison policy and Missouri law.
Plaintiff’s claims against defendants Arends, Richardson, Huffman-Phillips,
Novak, Thompson, Clark, and Stange are conclusory and fail to state a claim or cause
of action under § 1983. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (legal

4

Plaintiff does not state what prison rule he allegedly violated; he states
only that he was “issued a conduct violation in retaliation for filing [a] grievance,”
and he does not identify who allegedly issued the conduct violation.
5

In the amended complaint, plaintiff states that the special security orders
consisted of “alternative meals, magnet status, limited property, placement in the
isolation cell without clothes, and two-hour searches.”
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conclusions and threadbare recitals of the elements of a cause of action that are
supported by mere conclusory statements are not entitled to the assumption of truth);
Gardner v. Howard, 109 F.3d 427, 430 (8th Cir. 1997) (no § 1983 liability for prison
policy violation); Williams v. Hopkins, 130 F.3d 333, 337 (8th Cir. 1997) (alleged
violation of state law does not by itself state claim redressable by § 1983 action);
Bagley v. Rogerson, 5 F.3d 325 (8th Cir. 1993) (allegation of state law violation,
statutory or decisional, does not, in itself, state claim under federal Constitution or
§ 1983); Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976) (prosecutor absolutely
immune from suit for damages under § 1983 for alleged violations committed in
"initiating a prosecution and in presenting the state's case"); Myers v. Morris, 810
F.2d 1437, 1446-48 (8th Cir. 1987) (immunity extends to allegations of vindictive
prosecution). Moreover, the “special security orders” allegedly issued by defendant
Novack do not indicate that plaintiff was subjected to an "atypical and significant
hardship . . . in relation to the ordinary incidents of prison life." Sandin v. Conner,
515 U.S. 472, 484 (1995) (protected liberty interest is generally limited to freedom
from restraint that imposes atypical and significant hardship on inmate in relation to
ordinary incidents of prison life). For these reasons, the amended complaint will be
dismissed against defendants Arends, Richardson, Huffman-Phillips, Novak,
Thompson, Clark, and Stange.
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(3). Claims against Defendant Michael Hakala
Plaintiff alleges that Dr. Hakala issued an order for “Naproxen” on March 13,
2013, “for plaintiff’s hands,” although plaintiff had never submitted a medical
request for injuries to or pain in his hands. Plaintiff alleges that Dr. Hakala’s order
was “an attempt at covering up the policy violations by altering the medical records,”
in violation of plaintiff’s Eighth Amendment rights.
Plaintiff’s claims of a cover-up by altering medical records do not rise to the
level of a constitutional violation and fail to state an Eighth Amendment claim.
Moreover, mere negligence does not rise to the level of a constitutional violation, see
Daniels v. Williams, 474 U.S. 327, 328 (1986); Estelle v. Gamble, 429 U.S. at 106
(mere negligence is not cognizable as Eighth Amendment violation), and even
medical malpractice alone is not actionable under the Eighth Amendment. Smith v.
Clarke, 458 F.3d at 724. For these reasons, the amended complaint will be dismissed
as to Dr. Hakala.
(4). Claims against Defendants Ruth Taylor, Stephanie Kastings-Novack,
Unknown Regional Medical Director, Senior Regional Vice President, Regional
Investigator Manager, and Inspector General
Plaintiff alleges that defendant Ruth Taylor “is accountable for the nursing
staff . . . [but] failed to monitor the efficiency of the safety and delivery of the nursing
to offenders.” Plaintiff further alleges that Taylor’s “dereliction of duty allowed the
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inactions of [defendants Sadler and Paula Unknown].”

In addition, plaintiff

summarily claims that defendant Kastings-Novack “is accountable for the supervisor
[sic] of personnel . . . [and] the delivery of contracted services . . .[and] her failure
to carry out these duties contributed to the negligence of Ruth Taylor, Kenna Sadler,
and Nurse Paula Unknown.” As to defendant Unknown Regional Medical Director,
plaintiff alleges “negligence [in allowing] the actions of the responsible healthcare
professionals at SECC.” With regard to Senior Regional Vice President, plaintiff
alleges “dereliction of duty” and negligence in failing “to do what was required.” As
to Regional Investigator Manager, plaintiff alleges negligence in overseeing
investigators’ activities. Concerning defendant Inspector General, plaintiff alleges
negligence in “providing guidance and direction to the criminal investigation unit.”
"Liability under section 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).
Because plaintiff does not set forth any facts indicating that defendants Taylor,
Kastings-Novack, Regional Medical Director, Senior Regional Vice President,
Regional Investigator Manager, and Inspector General were directly involved in or
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personally responsible for the violation of his constitutional rights, and because the
respondeat superior theory is inapplicable in § 1983 actions, Boyd v. Knox, 47 F.3d
966, 968 (8th Cir. 1995), plaintiff's claims are legally frivolous as to these
defendants. Additionally, and as previously noted, claims of mere negligence do not
rise to the level of a constitutional violation. See Daniels v. Williams, 474 U.S. at
328; Estelle v. Gamble, 429 U.S. at 106.
(5). Claims against Defendants Dwayne Kempker, Ian Wallace, Dave
Dormire, and George Lombardi
Plaintiff alleges that defendant Kempker denied “plaintiff’s valid complaint
and ignor[ed] the allegations of neglect, due process violations and the disregard for
[prison policy] by the staff . . . by his support and failure to act, as was his obligation,
[on] the decision of Ian Wallace.” In addition, plaintiff summarily claims that
Kempker displayed “deliberate indifference, acting in concert with SECC staff,” and
that he violated plaintiff’s Fourteenth and Eighth Amendment rights, as well as
numerous Missouri statutes. Plaintiff alleges that defendant Wallace engaged in a
“procedure violation” relative to a grievance plaintiff had previously made and was
“obligated as the chief administrative officer to ensure plaintiff received medical
attention for his injuries.” Plaintiff adds that Wallace “maliciously and deliberately
denied [his] complaint,” in violation of the Constitution and Missouri law. Plaintiff

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further complains that Wallace approved certain “special security orders” that had
been ordered by defendant Novak in May 2013. Plaintiff alleges that defendant
Dormire, through “the negligence of his duties required by [Missouri law] and
maliciousness, ignored and/or disregarded plaintiff’s complaints.”

Plaintiff

additionally claims that defendant Lombardi appointed Ian Wallace as the warden of
SECC and “through his negligence” in supervising Wallace and Dormire, violated
plaintiff’s constitutional rights.
“Liability under § 1983 requires a causal link to, and direct responsibility for,
the alleged deprivation of rights.” Madewell v. Roberts, 909 F.2d at 1208; see also
Martin v. Sargent, 780 F.2d at 1338 (claim not cognizable under § 1983 where
plaintiff fails to allege defendant was personally involved in or directly responsible
for incidents that injured plaintiff); Boyd v. Knox, 47 F.3d at 968 (respondeat superior
theory inapplicable in § 1983 suits); see also, Keeper v. King, 130 F.3d 1309, 1314
(8th Cir. 1997) (noting that general responsibility for supervising operations of prison
is insufficient to establish personal involvement required to support liability under
§ 1983); Woods v. Goord, 1998 WL 740782, at *6 (S.D.N.Y. October 23, 1998)
(receiving letters or complaints does not render prison officials personally liable
under § 1983). Because plaintiff has not set forth any non-conclusory facts
indicating that any of the named supervisory defendants were directly involved in or
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personally responsible for the alleged violations of his constitutional rights, the
amended complaint fails to state a claim upon which relief as to these defendants.
See Iqbal, 129 S. Ct. at 1948. As noted above, supervisors cannot be held vicariously
liable under § 1983 for the actions of a subordinate. See id. For these reasons, the
amended complaint is legally frivolous and will be dismissed as to defendants
Kempker, Wallace, Dormire, and Lombardi.
III. Pendent State-Law Claims
Because plaintiff's federal claims will be dismissed, all remaining pendent state
claims will be dismissed, as well. See 28 U.S.C. § 1367(c)(3); United Mine Workers
v. Gibbs, 383 U.S. 715, 726 (1966) (if federal claims are dismissed before trial,
remaining state claims should also be dismissed); Hassett v. Lemay Bank & Trust
Co.,851 F.2d 1127, 1130 (8th Cir. 1988) (where federal claims have been dismissed,
district courts may decline jurisdiction over pendent state claims as a "matter of
discretion").
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. #5] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of
$5.37 within thirty (30) days of the date of this Order. Plaintiff is instructed to make
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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 the Clerk shall add “Omar L. Clark” as a
defendant in this case.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue, because the amended complaint is legally frivolous and fails to state
a claim upon which relief can be granted. See 28 U.S.C. § 1915.
IT IS FURTHER ORDERED that plaintiff’s motions for appointment of
counsel [Docs. #2 and #7] are DENIED as moot.
IT IS FURTHER ORDERED that plaintiff’s motion for preliminary
injunction [Doc. #13] is DENIED, without prejudice.
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 10th day of February, 2014.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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