Harris v. Corizon et al

Filing 42

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the motion of defendants George Lombardi and Ian Wallace to dismiss [Doc. #27] is granted. An order of partial dismissal will be filed separately. Signed by District Judge Carol E. Jackson on 9/21/2015. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JIM HARRIS, JR.,

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Plaintiff,
vs.
CORIZON, LLC, et al.,
Defendants.

Case No. 1:15-CV-26-CEJ

MEMORANDUM AND ORDER
This matter is before the Court on the motion of defendants George Lombardi
and Ian Wallace to dismiss for failure to state a claim, pursuant to Fed. R. Civ. P.
12(b)(6). Plaintiff has responded, and the issues are fully briefed.
I.

Background

Plaintiff has been incarcerated in the Missouri Department of Corrections
(MDOC) since 2012.

Defendant Lombardi is the director of the MDOC. At all

relevant times, plaintiff was an inmate in the Southeast Correctional Center (SECC)
in Charleston, Missouri. Defendant Wallace is the warden of the prison.
Several years prior to his incarceration, plaintiff was in a car accident in
which he suffered a nonunion bone fracture of his lower right mandible, with
resultant nerve damage.

Plaintiff’s injuries intensified over time. He developed

temporomandibular joint (TMJ) disorders, a jawbone infection, and weight loss
because he could not eat solid food. According to the complaint, “[u]pon entering
SECC, Plaintiff notified the dental and staff of the nonunion and his relevant medical
history, including his food and medication allergies.” Amend. Compl. ¶19.

On March 26, 2013, plaintiff consulted with Eric Bessey, D.D.S., an oral
surgeon, who recommended a bone graft procedure to treat the nonunion.
However on May 6, 2013, instead of performing the bone graft procedure, Bessey
implanted a metal plate in plaintiff’s jaw. Plaintiff experienced pain, soreness, and
swelling near the surgical site in the days following the procedure.
On June 25, 2013, Bessey recommended that plaintiff see an infectious
disease specialist for treatment of his infection.
antibiotic therapy that was ineffective.

Plaintiff instead was prescribed

Also, Bessey prescribed penicillin for

plaintiff even though he knew plaintiff was allergic to it.
suffered an allergic reaction.

As a result, plaintiff

He was not given medication for that reaction for

seven days.
Because the antibiotic did not alleviate the infection, plaintiff continued to
have swelling in his face. Infected material drained from the surgical site into his
mouth and throat, which caused gastrointestinal distress. Plaintiff also experienced
blurred vision in his right eye and hearing impairment in his right ear.

On

September 3, 2013, plaintiff was examined by Lorenzo McKnelley, D.O., an
infectious disease specialist, who recommended that the metal plate be removed.
On October 29, 2013, Bessey removed the metal plate from plaintiff’s mandible.
Still, the pain and swelling in plaintiff’s jaw and face continued. Plaintiff alleges that
“[d]efendants at all relevant times had actual knowledge of Plaintiff’s serious
medical conditions as a result of Plaintiff’s verbal complaints and filing of Medical
Services Requests on the appropriate form.” Amend. Compl. ¶45.
After exhausting his intra-prison administrative remedies, plaintiff initiated
this 42 U.S.C. § 1983 action on February 2, 2015.

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He alleges that defendants

Lombardi and Wallace violated his constitutional right to be free from cruel and
unusual punishment. According to plaintiff, Lombardi and Wallace knew about his
medical condition and they maintained a policy, practice, or custom of deliberate
indifference to his medical needs. Plaintiff also alleges Lombardi and Wallace failed
to train and supervise their employees, causing his injuries.
Plaintiff brings this action against Lombardi and Wallace in their official
capacities. He seeks an injunction requiring MDOC to provide him with bone graft
surgery and to treat his nerve damage. Plaintiff also requests that Lombardi and
Wallace be required to implement a written policy detailing the communication
protocol between doctors and nurses at SECC, and that Lombardi and Wallace
provide adequate medical care to all inmates. Finally, plaintiff seeks compensatory
and punitive damages against Lombardi and Wallace.

II.

Legal Standard

The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal
sufficiency of the complaint. Fed. R. Civ. P. 12(b)(6). The factual allegations of a
complaint are assumed true and construed in favor of the plaintiff, “even if it strikes
a savvy judge that actual proof of those facts is improbable.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007) (citing Swierkiewicz v. Sorema N.A., 534 U.S.
506, 508 n.1 (2002)); Neitzke v. Williams, 490 U.S. 319, 327 (1989) (“Rule
12(b)(6) does not countenance . . . dismissals based on a judge’s disbelief of a
complaint’s factual allegations.”); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)
(stating that a well-pleaded complaint may proceed even if it appears “that a
recovery is very remote and unlikely”). The issue is not whether the plaintiff will
ultimately prevail, but whether the plaintiff is entitled to present evidence in
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support of his claim. Scheuer, 416 U.S. at 236. A viable complaint must include
“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550
U.S. at 570; see id. at 563 (stating that the “no set of facts” language in Conley v.
Gibson, 355 U.S. 41, 45–46 (1957), “has earned its retirement”); see also Ashcroft
v. Iqbal, 556 U.S. 662, 678–84 (2009) (holding that the pleading standard set forth
in Twombly applies to all civil actions).

“Factual allegations must be enough to

raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
III.

Discussion
A. Official capacity

Plaintiff sues Lombardi and Wallace in their official capacities only. “A claim
against a public official in his or her official capacity is merely another way of
pleading an action directly against the public entity itself.”

Williamson v. Steele,

No. 4:12-CV-1548-CAS, 2014 WL 555910, at *3 (E.D. Mo. Feb. 12, 2014) (citing
Hafer v. Melo, 502 U.S. 21, 25 (1991)). “The Eleventh Amendment prohibits the
imposition of monetary damages against the state, or against state officials in their
official capacities.” Id. at (citing Edelman v. Jordan, 415 U.S. 651, 663 (1974)).
Therefore, plaintiff is not entitled to monetary damages as a result of any judgment
rendered against Lombardi or Wallace in their official capacities.
B. Claims against Wallace
Plaintiff alleges that Wallace, as SECC warden, maintains policies, practices,
or customs that caused the corrections officers and medical personnel to be
deliberately indifferent to his medical needs and those of other inmates. Plaintiff
also alleges that Wallace failed to train or supervise the corrections officers and
medical personnel, and that plaintiff was injured as a result.

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“While prison

supervisors cannot [be] held liable under § 1983 on a theory of respondeat
superior, they can incur liability when their corrective inaction amounts to
deliberate indifference to or tacit authorization of an Eighth Amendment violation.”
Schaub v. VonWald, 638 F.3d 905, 924 (8th Cir. 2011) (citing Langford v. Norris,
614 F.3d 445, 460 (8th Cir. 2010)).

To succeed on a claim of deliberate

indifference, a plaintiff must show “‘(1) that [he] suffered [from] objectively serious
medical needs and (2) that the prison officials actually knew of but deliberately
disregarded those needs.’”

Fourte v. Faulkner Cty., 746 F.3d 384, 387 (8th Cir.

2014) (quoting Jolly v. Knudson, 205 F.3d 1094, 1096 (8th Cir. 2000)).

It is

undisputed that plaintiff’s medical needs are objectively serious. See id.
Plaintiff alleges that he made verbal complaints about his condition and
submitted written Medical Service Request forms seeking treatment.

However,

plaintiff does not allege that he informed Wallace directly about his medical
condition or that Wallace, by virtue of his position, would have been aware of
plaintiff’s problems. Additionally, plaintiff does allege that Wallace was involved in
making treatment decisions or that he was responsible for responding to plaintiff’s
complaints or requests for medical services.
otherwise,

it

is

not

plausible

that

Wallace,

In the absence of facts stating
who

occupies

the

high-level

administrative position of warden of a prison, would have been aware of the
individual medical issues of a particular inmate.

See Keeper v. King, 130 F.3d

1309, 1314 (8th Cir. 1995). Therefore, plaintiff fails to state a claim of deliberate
indifference against Wallace, and the claim will be dismissed.
C. Claims against Lombardi

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Plaintiff similarly alleges that Lombardi, as director of MDOC, maintains
policies, practices, or customs that caused the defendant guards and medical
personnel to be deliberately indifferent to plaintiff’s medical needs and those of
other inmates. Plaintiff also alleges that Lombardi failed to train or supervise the
other defendants, which caused plaintiff’s injuries.

“[G]eneral responsibility for

supervising the operations of a prison is insufficient to establish the personal
involvement required to support liability.”

Id.

Plaintiff has not set forth facts

sufficient to establish that it is plausible that Lombardi was involved beyond his
general oversight of the state-wide prison system.
removed from plaintiff’s medical needs than Wallace.

Indeed, he is even further
Plaintiff has not set forth

facts from which the Court could reasonably draw the inference that Lombardi was
aware of his serious medical needs. Thus, plaintiff’s claims against Lombardi fail to
state a claim and will be dismissed.
****
For the foregoing reasons,
IT IS HEREBY ORDERED that the motion of defendants George Lombardi
and Ian Wallace to dismiss [Doc. #27] is granted.
An order of partial dismissal will be filed separately.

__________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 21st day of September, 2015.

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