Floyd v. Cabrerra et al

Filing 47

MEMORANDUM: An appropriate judgment order is issued herewith sustaining the motion of defendants Thomas Cabrera, Ernest Jackson, Jill Perkins, Robert Jarrett, Ervin Simmons, Corizon, Inc., formerly known as Correctional Medical Services, and Jacks on Institutional Dental Services for summary judgment (Doc. 42) on Counts I and III, which will be dismissed with prejudice. The state law claims of Counts II and IV are dismissed without prejudice.. Signed by Magistrate Judge David D. Noce on 11/13/2012. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

WILLIAM FLOYD,

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Plaintiff,
v.
THOMAS CABRERA, et al.,
Defendants.

No. 2:11 CV 16 DDN

MEMORANDUM
This action is before the court on the uncontested motion of defendants Thomas Cabrera,
Ernest Jackson, Jill Perkins, Robert Jarrett, Ervin Simmons, Corizon, Inc., formerly known as
Correctional Medical Services, and Jackson Institutional Dental Services for summary judgment
(Doc. 42). The parties have consented to the exercise of plenary authority by the undersigned United
States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 26.)

I. BACKGROUND
On February 24, 2011, plaintiff William Floyd, an inmate in the custody of the Missouri
Department of Corrections (“MDOC”), commenced this action against defendants Thomas Cabrera
et al. alleging injuries resulting from the MDOC’s provision of medical services. (Doc. 1.) His
complaint alleges four counts of claims.
For Counts I and III plaintiff seeks relief under 42 U.S.C. § 1983. Count I alleges that
defendants Cabrera, Jackson, Jarrett, Simmons, and Perkins were deliberately indifferent to his
medical needs. Count III alleges that the policies, procedures, customs, and official actions of
defendants Corizon, Inc. (“Corizon”) and Jackson Institutional Dental Services (“JIDS”) result in
deliberate indifference to the medical needs of inmates. (Id.) Plaintiff invokes 28 U.S.C. §
1343(a)(3) to establish subject matter jurisdiction for these constitutional claims. (Id.)

Counts II and IV allege claims of medical negligence under Missouri law that share a
common nucleus of operative fact with Counts I and III. (Id.) Plaintiff invokes 28 U.S.C. 1367 to
establish subject matter jurisdiction for his state claims. (Id.)
Plaintiff seeks actual and punitive damages, attorney fees, and costs under 42 U.S.C. § 1988.
(Id.)

II. MOTION FOR SUMMARY JUDGMENT
Defendants argue that plaintiff failed to present substantial evidence to support Counts I and
III. Further addressing Count III, defendants also argue that plaintiff failed to state a claim upon
which relief can be granted. Regarding Counts II and IV, where plaintiff alleges medical negligence,
defendants argue that summary judgment is appropriate because medical negligence is not a
cognizable constitutional claim.

III. THE UNDISPUTED FACTS
The proffered evidence indicates that the following facts are not disputed. Plaintiff William
Floyd is an inmate in the custody of the MDOC, who was, at all times relevant, confined at the
Northeast Correctional Center (“NCC”). (Doc. 1 at ¶ 1; Doc. 10 at ¶ 1; Doc. 24 at ¶ 1.) Defendant
Corizon contracted with the state of Missouri to provide medical services to correctional institutions.
(Doc. 1 at ¶ 8; Doc. 10 at ¶ 8.) Defendant Corizon retained defendant Thomas Cabrera, a medical
doctor, as an independent contractor to provide medical care to MDOC inmates. (Doc. 1 at ¶ 3; Doc.
10 at ¶ 3.) Defendant Corizon also employed defendant Jill Perkin, a registered nurse, as the health
services administrator at NCC. (Doc. 1 at ¶ 4; Doc. 10 at ¶ 4.) Defendant JIDS, a corporation
organized and existing under Missouri law, provides dental services to inmates in the Missouri
Department of Corrections. (Doc. 1 at ¶ 7; Doc. 10 at ¶ 7.) Defendant Ernest Jackson, a dentist, is
the chief executive officer of JIDS. (Doc. 1 at ¶ 2; Doc. 10 at ¶ 2.) Defendant JIDS retained
defendant Robert Jarrett, a dentist, as an independent contractor. (Doc. 1 at ¶ 5; Doc. 10 at ¶ 5.)
Defendant Ervin Simmons is an oral and maxillofacial surgeon as well as a dentist, practicing in
Missouri. (Doc. 1 at ¶ 6; Doc. 24 at ¶ 2.)

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In 2008, plaintiff sustained a gunshot wound to the face that caused injury to his mandible.
(Doc. 45-1 at 2-5.) On October 13, 2009, during the initial evaluation following his latest
incarceration, plaintiff admitted to smoking one pack of cigarettes a day for the past 20 years, and
he weighed 225 pounds. (Id. at 3.) On October 14, 2009, plaintiff saw Dr. Faisal Ahmed. (Id. at
2.) Plaintiff told Dr. Ahmed that he had multiple surgeries to reconstruct his jaw and needed three
more surgeries. (Id.) Dr. Ahmed referred plaintiff to the dental department. (Id.)
On October 15, 2009, plaintiff complained of jaw pain that increased when he attempted to
eat. (Id. at 4.) His mandible had been reconstructed with plates. (Id.) Plaintiff told Dr. Karanbir
Sandhu that he last underwent surgery in February 2009 and that, prior to his incarceration, he had
scheduled his next surgery for April 2009. (Id.) Dr. Sandhu requested a referral for an oral surgery
consultation. (Id. at 5.) On November 4, 2009, after receiving plaintiff’s prior medical records,
defendant Jackson approved the referral. (Id.)
On November 2, 2009, because of his inability to eat pears and apples, plaintiff requested
documentation for a food substitution, which he received shortly thereafter. (Id. at 6.) On November
17, 2009, plaintiff received his oral surgery consultation. (Id. at 5.) The oral surgeon opined that
plaintiff would benefit from a full mouth reconstruction involving bone grafting, which would repair
the bone defect and correct the placement of dental implants. (Id.) The oral surgeon also opined that
plaintiff would benefit from a more supportive reconstruction bar. (Id.) He also informed plaintiff
that he would have to stop smoking in order to undergo surgery. (Id.)
On December 19, 2009, plaintiff developed an abscess and infection in his right jaw and
received antibiotics. (Id. at 7.) On December 28, 2009, during a follow-up examination, Dr. Sandhu
noted that the swelling had subsided and reported no drainage inside plaintiff’s mouth. (Id. at 8.)
Plaintiff complained that he suffered pain while chewing. (Id.) Dr. Sandhu ordered plaintiff Ensure,
a liquid nutritional supplement, and instructed him on oral hygiene and the risks of not taking his
medication. (Id.)
On January 8, 2010, plaintiff complained of facial pain and requested an evaluation for
permission to cover his face. (Id. at 9.) He also stated that his prescribed medication, Neurontin,

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failed to alleviate his pain.1 (Id.) On January 11, 2010, Dr. Gene Roxas issued an order allowing
plaintiff to cover his face when the temperature dropped below 40 degrees. (Id. at 10.)
On January 13, 2010, defendant Jarrett requested an evaluation of plaintiff’s mandible at
Jefferson City Oral Surgery. (Id.) Defendant Jackson denied the referral and requested that plaintiff
undergo a blood test to determine his nicotine usage. (Id.) On January 18, 2010, plaintiff stated that
he had not smoked in 30 days and was willing to take a blood test. (Id. at 9.) On January 26, 2010,
the test results indicated plaintiff’s continued use of nicotine. (Id. at 11.) A nurse reviewed the test
results with plaintiff and informed him that he needed to quit smoking to undergo surgery. (Id. at
13.) He told her that he would quit smoking that day and that he wanted to schedule another blood
test. (Id.)
From February 9 to March 29, 2010, plaintiff refused to take his medication, Neurontin.
(Doc. 45-1 at 14-82; Doc. 45-2 at 1-22.) On March 30, 2010, Dr. Roxas ordered that plaintiff
discontinue Neurontin. (Doc. 45-2 at 24.)
On February 9, 2010, plaintiff took another blood test, and the results indicated that plaintiff
had stopped using nicotine. (Doc. 45-1 at 13.) On February 11, 2010, plaintiff went into segregation
because of his potential for self-harm. (Id. at 22.) He remained in segregation for at least 30 days.
(Id. at 71.)
On February 16, 2010, defendant Jarrett again requested an evaluation of plaintiff’s mandible.
(Id. at 33.) Defendant Jackson approved, but Dr. Elizabeth Conley, the regional medical director for
Corizon, questioned the medical necessity of the surgery. (Id. at 43.) On March 15, plaintiff
requested information regarding the status of his surgery and scheduled a meeting with a doctor. (Id.
at 77.) On March 17, 2010, because plaintiff could still chew and eat, the referral was denied. (Id.
at 33.) Later that day, plaintiff refused to attend his scheduled meeting. (Id. at 77.)
On March 18, 2010, plaintiff complained that his jaw hurt due to a particularly forceful bite
of food and that he could no longer chew. (Doc. 45-2 at 2.) The nurse noted that plaintiff had two
titanium plates holding his lower jaw together. (Id.) Plaintiff stated that a loose screw caused the
right side of his jaw to come apart. (Id.) The nurse noted the absence of tenderness, protrusion, and
1

Neurontin, also known as Gabapentin, is used to prevent and control seizures. WebMD,
http://www.webmd.com/drugs (last visited on October 16, 2012).
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edema, and referred plaintiff to the dental department. (Id.) Plaintiff weighed 220 pounds. (Id.)
On March 24, 2010, defendant Jarrett met with plaintiff and again deferred the surgery because of
the lack of medical necessity. (Id.)
On April 25, 2010, plaintiff complained that he felt his jaw “pop” and that his jaw and the
titanium rod felt disconnected. (Id. at 25.) He also complained of jaw pain. (Id.) A nurse noted that
the right side of his mouth appeared swollen but that he could still open his mouth and speak. (Id.)
On April 27, 2010, plaintiff met with defendant Jarrett and stated that he could not chew due to the
loosening of the plate in his jaw. (Id. at 26.) Defendant Jarrett requested an oral surgery
consultation, but defendant Jackson denied the request because no medical necessity had been
established. (Id. at 27.)
On May 11, 2010, plaintiff again requested an oral surgery consult. (Id. at 28.) Defendant
Jackson inquired about plaintiff’s weight and requested his canteen log. (Id.) The next day,
defendant Jackson approved the consult. (Id. at 29.)
On May 25, 2010, defendant Simmons evaluated plaintiff’s mandible and the placement of
his reconstruction plate. (Id. at 31.) Plaintiff stated that a plate had been placed in his jaw on
December 11, 2008, but after two months, the plate was removed and replaced. (Id.) Plaintiff also
complained of jaw pain and periodic infections that required drainage. (Id.) Defendant Simmons
noted that plaintiff’s mandible appeared relatively stable but had poor occlusion.2 (Id.) He assessed
that plaintiff’s jaw had a functional problem and requested an evaluation for oral surgery. (Id. at 32.)
However, because defendant Jackson did not to receive plaintiff’s x-rays for review, he denied the
request on June 10, 2010. (Id.)
On July 21, 2010, plaintiff complained of facial twitches and requested Neurontin. (Id. at
33.) On September 3, 2010, defendant Jackson approved a request for a Panorex x-ray scan for the
evaluation of his mandibular plating. (Id. at 34.) On September 23, 2010, plaintiff received the
Panorex x-ray scan.3 (Id.)

2

Occlusion is the contact between upper and lower teeth. Stedman's Medical Dictionary, 1355
(28th ed., Lippincott Williams & Wilkins 2006).
3
A panorex is defined by defendants as “a two-dimensional dental x-ray that displays both the
upper and lower jaws and teeth, in the same film.” (Doc. 44 at 10.)
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On September 16, 2010, defendant Jarrett took impressions of plaintiff’s teeth for a partial
upper denture and a mouth guard. (Id. at 35.) On October 7, 2010, plaintiff received his mouth
guard, and defendant Jarrett took plaintiff’s bite registration for his partial upper denture. (Id. at 36.)
On October 27, 2010, plaintiff received his denture. (Id. at 39.)
On October 11, 2010, plaintiff requested and received a refill for Ensure, which he needed
because he had no lower front teeth. (Id. at 36-37.) On October 14, 2010, defendant Jackson
informed plaintiff that he found surgery unnecessary because plaintiff’s weight remained stable. (Id.
at 38.)
On December 6, 2010, plaintiff experienced cold sensitivity in one of his teeth. (Id. at 40.)
Defendant Jarrett found no evidence of decay and bonded the tooth surface with composite to
eliminate the sensitivity. (Id.)
On January 14, 2011, plaintiff again complained that his jaw hurt and that biting caused the
right side of his jaw to fold. (Id. at 41.) On January 18, 2011, defendant Jarrett found that the arch
bar stabilizing plaintiff’s lower right mandible was loose and that plaintiff could not chew because
of the resulting movement. (Id.) He recommended a liquid diet for 30 days, which plaintiff began
the following day. (Id.) Defendant Jarrett also requested an oral surgery consultation, which
defendant Jackson approved. (Id.)
On February 15, 2011, plaintiff went to Jefferson City Oral Surgery. (Id. at 41.) Dr. Eric
Bessey noted instability in plaintiff’s right jaw during occlusion and the associated pain. (Id.) Dr.
Bessey opined that plaintiff needed reconstructive surgery. (Id. at 42.) He proposed removing the
infected screws from plaintiff’s jaw and performing a bone graft using plaintiff’s hip bone. (Id.)
Plaintiff admitted to smoking half a pack per day, and Dr. Bessey told him that he needed to quit
prior to the bone graft procedure. (Id.)
On February 18, 2011, plaintiff requested switching his prescription for Neurontin with
Ultram.4 (Id. at 44.) On March 3, 2011, defendant Jackson denied his request for a stronger pain
medication. (Id. at 45.)

4

Ultram, also known as Tramadol, is used to help relieve moderate to moderately severe pain.
WebMD, http://www.webmd.com/drugs (last visited on October 16, 2012).
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On February 23, 2011, plaintiff complained that his lower jaw hurt and that he was unable
to open his mouth. (Id. at 44.) Plaintiff weighed 210 pounds. (Id.) Dr. Michael Gilmore prescribed
Tramadol. (Id.) Defendant Jarrett requested oral surgery for plaintiff, which defendant Jackson
denied because he failed to receive surgical records and x-rays. (Id. at 45.)
On March 30, 2011, Dr. Gilmore discontinued plaintiff’s liquid diet at his request. (Id. at
46.)

On April 4, 2011, because he could not eat the entire regular diet, plaintiff requested a soft

diet. (Id. at 47.)
On August 17, 2011, plaintiff complained of increased jaw pain after lunch the previous day.
(Id. at 48.) He reported that his jaw folded when he applied pressure and that he could not bite. (Id.)
He also reported that the pain radiated to his right ear. (Id.) A nurse noted slight swelling in his
chin. (Id.) Defendant Jarrett recommended that plaintiff continue his medications and soft diet.
(Id.) Plaintiff requested an x-ray because he thought a screw was loose, and the nurse referred him
to the dental department. (Id.)
On August 23, 2011, defendant Jarrett recommended rejoining the loose plates in plaintiff’s
jaw to improve functionality. (Id. at 50.) Defendant Jarrett requested an oral surgery consultation,
which defendant Jackson approved on September 13, 2011. (Id.)
On September 28, 2011, plaintiff complained of a toothache. (Id. at 51.) A nurse noted
swelling on the right side of his jaw. (Id.) Plaintiff was prescribed Bactim, an antibiotic, and
referred to the dental department. (Id.) The next day, defendant Jarrett requested a facial CT scan
without contrast to evaluate plaintiff’s mandible. (Id. at 52.)
On October 5, 2011, defendant Jackson approved the CT scan but also requested that plaintiff
undergo a blood test to determine his nicotine usage. (Id.) The next day, plaintiff received the CT
scan, which revealed that the plates were anchored on one side by three screws. (Id. at 55.) Two of
the screws had fractured, and the other screw appeared either loose or infected. (Id.) Defendant
Jarrett informed plaintiff of the scheduled blood test and advised him to stop smoking. (Id. at 53.)
On October 11, 2011, plaintiff met with Dr. Bessey to review the CT scan and discuss the
risks and benefits of a hip graft. (Id. at 56.) He was advised to continue his soft diet and smoking
cessation. (Id.)

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On November 10, 2011, plaintiff received a blood test, and the results indicated that he had
stopped using nicotine. (Id. at 57-58.) On November 23, 2011, defendant Jarrett requested
reconstructive surgery for plaintiff, and defendant Jackson approved on November 30, 2011. (Id.
at 59.)
On January 22, 2012, plaintiff complained that his mouth was infected and that he could taste
drainage when he ate or rinsed his mouth. (Id. at 61.) A nurse observed redness in his chin but no
drainage. (Id.) The next day, defendant Jarrett prescribed antibiotics. (Id. at 62.)
Plaintiff saw Dr. Bessey for a mandibular reconstruction consultation. (Id. at 59.) Dr. Bessey
recommended University Hospital for the procedure, but the hospital had no surgeons willing to treat
convicted felons. (Id. at 60.) On January 26, 2012, at the suggestion of the regional office,
defendant Jarrett contacted Dr. Renner to discuss plaintiff’s surgery, but the clinic had closed. (Id.
at 62.) The next day, he faxed plaintiff’s CT scan results and Dr. Bessey’s notes to Dr. Renner. (Id.
at 63.) On January 30, 2012, Dr. Renner’s office informed that Dr. Renner had taken vacation that
week and that he would receive plaintiff’s information upon his return. (Id. at 64.)
On February 14, 2012, plaintiff complained that his jaw hurt and that the left side of his face
was swollen and hot. (Id. at 65.) The nurse continued plaintiff on antibiotics and instructed him to
gargle warm water and salt. (Id. at 66.) On February 15, 2012, defendant Jarrett requested a surgery
consultation with Dr. Renner, which Defendant Jackson approved. (Id. at 66-67.)
On February 23, 2012, plaintiff complained of jaw pain that had increased since the
expiration of his antibiotics order. (Id. at 68.) The nurse noted slight swelling on the right side of
jaw and referred him to the dental department. (Id.) The next day, plaintiff reported that eating and
talking increased the severity of the pain and that nothing alleviated his pain. (Id. at 69.) The nurse
noted warmth and slight redness and informed plaintiff that the dental department had been notified.
(Id.)
On March 1, 2012, defendant Jackson missed an appointment with plaintiff because he was
unable to work that day. (Id. at 70.) On March 22, 2012, Dr. Renner met with plaintiff and
requested a current CT scan on plaintiff’s jaw and an evaluation by Dr. Jeff Jorgensen. (Id. at 67.)
On March 24, 2012, Dr. Kendis Archer requested the CT scan and evaluation, which were approved.
(Id. at 71-72.)
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On March 25, 2012, plaintiff reported a painful protrusion from his gums. (Id. at 72.) A
nurse noted that a sharp object could be felt through plaintiff’s lower left gum. (Id. at 73.) The next
day, plaintiff reiterated his complaint and added that his pain was pulsating. (Id. at 73-74.)
Defendant Jarrett prescribed plaintiff antibiotics and advised him to apply heat. (Id. at 74.)
On April 6, 2012, plaintiff received a CT scan on his jaw. (Id. at 71.) The CT scan revealed
no abscess collection, no acute fractures, and no problems with the submandibular and parotid
glands. (Id.) On April 10, 2012, Dr. Jorgensen met with plaintiff and recommended microvascular
reconstruction. (Id. at 72.) On April 13, 2012, plaintiff weighed 252 pounds. (Id. at 76.) On April
19, 2012, Dr. Archer requested a referral for the surgery. (Id.) On April 24, 2012, defendant Jarrett
discontinued plaintiff’s soft diet due to noncompliance. (Id. at 70.)
On April 30, 2012, the regional medical director found the procedure not medically necessary
because plaintiff continued a regular diet and had gained weight. (Id. at 76-77.) The director also
recommended monitoring plaintiff to determine the medical necessity of the procedure. (Id. at 77.)
On May 7, 2012, plaintiff met with Dr. Archer to discuss the referral for his surgery. (Id. at
80.) Dr. Archer informed plaintiff that his weight would be monitored and that the referral would
be reevaluated if a significant changed occurred. (Id.) On May 30, 2012, plaintiff complained of
jaw pain and requested a dental examination. (Id. at 81.)
On June 13, 2012, plaintiff again complained of jaw pain and swelling and reported that the
screws were no longer attached to his jawbone. (Id. at 85.) A nurse noted slight swelling in the right
side of his jaw and a deformed gum line and that he could only chew on the right side of his mouth.
(Id.) On June 14, 2012, plaintiff weighed 236 pounds. (Id. at 82.) A nurse offered plaintiff a liquid
diet, which he refused. (Id.)
On June 18, 2012, Dr. Paul Jones prescribed antibiotics. (Id. at 86.) The next day, plaintiff
refused the antibiotics, complaining that the medication caused stomach pain. (Id.) On June 20,
2012, Dr. Jones discussed with plaintiff the denial of his surgery. (Id. at 83-84.) On June 27, 2012,
plaintiff weighed 235 pounds. (Id.)

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IV. SUMMARY JUDGMENT STANDARD
Summary judgment must be granted when the pleadings and proffer of evidence demonstrate
that no genuine issue of material fact exists and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Citrate, 477 U.S. 317, 322 (1986); Torgerson
v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). A fact is “material” if it could
affect the ultimate disposition of the case, and a factual dispute is “genuine” if there is substantial
evidence to support a reasonable jury verdict in favor of the nonmoving party. Rademacher v. HBE
Corp., 645 F.3d 1005, 1010 (8th Cir. 2011). The court must view the evidence in the light most
favorable to the nonmoving party and accord it the benefit of all reasonable inferences. Scott v.
Harris, 550 U.S. 372, 379 (2007).

V. DISCUSSION
Defendants argue that plaintiff’s claims of deliberate indifference are not supported by legally
sufficient evidence. Defendants further argue that plaintiff’s claims of medical negligence are not
cognizable constitutional claims.

A. Count I
In Count I of his complaint, plaintiff alleges that defendants Cabrera, Jackson, Perkins,
Jarrett, and Simmons were deliberately indifferent to his medical needs. Defendants argue that
plaintiff has failed to support this claim with evidence sufficient to allow a reasonable jury to find
in his favor.
The Eighth Amendment governs the treatment of prisoners and the conditions of their
confinement, placing both duties and restraints on prison officers. Farmer v. Brennan, 511 U.S. 825,
832 (1994). However, “not every governmental action affecting the interests or well-being of a
prisoner is subject to Eighth Amendment scrutiny.” Whitley v. Albers, 475 U.S. 312, 319 (1986).
For prison officials to violate the Eighth Amendment, the alleged deprivation must be sufficiently
serious and the prison officials must have a sufficiently culpable state of mind. Farmer, 511 U.S.
at 834. Specifically, for claims alleging the failure to provide medical care, prisoners must show that

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(1) they suffered objectively serious medical conditions; and (2) prison officials knew of but
deliberately disregarded those needs. Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000).
Defendants argue that plaintiff has failed to present sufficient evidence regarding the second,
subjective component of the two-part test. “For the prison officials to be liable for deliberate
indifference to a serious dental need, ‘the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.’” Holden v. Hirner, 663 F.3d 336, 343 (8th Cir. 2011). Such evidence is absent from the
record.
To the contrary, the proffered evidence before this court indicates unequivocally that
plaintiff’s needs were not at all disregarded. Plaintiff periodically made medical complaints to
nurses. (See e.g., Doc. 45-2 at 2, 25, 65.) Sometimes the nurses themselves treated plaintiff, and
other times the nurses arranged for plaintiff to receive appointments with doctors, including
defendant Jarrett on multiple occasions. (Id.) The doctors evaluated plaintiff usually within a couple
days of his complaint and offered treatment or referred him to doctors practicing outside the prison.
(See e.g., id at 2, 25, 34, 40-41.) Many of these referrals were promptly approved. (See e.g., id. at
34, 41.) The reasons for denials included awaiting results of blood tests, concluding that petitioner
continued to use tobacco, failing to receive medical records for review, and finding referrals not
medically necessary. (Doc. 45-1 at 10, 33; Doc. 45-2 at 2, 32, 38, 45, 76-77.) Concerning plaintiff’s
requested reconstructive surgery, the doctors based their determinations of medical necessity on
plaintiff’s weight and his ability to eat. (Doc. 45-1 at 33; Doc. 45-2 at 76-77.)
In short, plaintiff failed to proffer sufficient evidence to allow a reasonable jury to find that
defendants deliberately disregarded his condition. The record does not show that prison officials
ignored his complaints or unreasonably refused him medical treatment. Disagreement with the
course of treatment provided is not a sufficient basis for a claim of deliberate indifference. Kayser
v. Caspari, 16 F.3d 280, 281 (8th Cir. 1994). Accordingly, defendants’ motion for summary
judgment regarding Count I is sustained.

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B. Count III
In Count III plaintiff alleges that the policies, procedures, customs, and official actions of
defendants Corizon and JIDS resulted in deliberate indifference to his medical needs. Defendants
again argue that plaintiff has failed to support this claim with evidence sufficient to allow a
reasonable jury to find in his favor.
Corporations acting under color of state law are liable under § 1983 for their own
unconstitutional policies or customs. Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975-76 (8th
Cir. 1993). “The proper test is whether there is a policy, custom or action by those who represent
official policy that inflicts injury actionable under § 1983.” Id. at 976.
Here, as discussed above, plaintiff has failed to show an underlying actionable injury under
§ 1983. When a plaintiff fails to provide evidence of an actionable injury, the plaintiff’s claim
against a corporation for its unconstitutional policies or customs also fails. Jackson v. Douglas, 270
F. App'x 462 (8th Cir. 2008). Accordingly, defendants’ motion for summary judgment on Count III
is sustained.

C. Counts II and IV
In Counts II and IV, plaintiff claims medical negligence under Missouri law. Defendants
argue that medical negligence is not a cognizable claim under § 1983. However, defendants
misconstrue plaintiff’s state claims as claims of constitutional violations.
Plaintiff invokes supplemental subject matter jurisdiction under 28 U.S.C. § 1367 for his
Counts II and IV state law claims. However, courts have the discretion to decline supplemental
jurisdiction if the court has “dismissed all claims over which it has original jurisdiction.” 28 U.S.C.
§ 1367(c)(3). “[I]n the usual case in which all federal-law claims are eliminated before trial, the
balance of factors to be considered under the pendent jurisdiction doctrine ... will point toward
declining to exercise jurisdiction over the remaining state-law claims.” Williams v. Hobbs, 658 F.3d
842, 853 (8th Cir. 2011). Because defendants have been granted summary judgment on plaintiff’s
federal claims, the court declines to exercise supplemental jurisdiction over the remaining, state law
claims. Accordingly, Counts II and IV are dismissed without prejudice.

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VI. CONCLUSION
An appropriate judgment order is issued herewith sustaining the motion of defendants
Thomas Cabrera, Ernest Jackson, Jill Perkins, Robert Jarrett, Ervin Simmons, Corizon, Inc., formerly
known as Correctional Medical Services, and Jackson Institutional Dental Services for summary
judgment (Doc. 42) on Counts I and III, which will be dismissed with prejudice. The state law
claims of Counts II and IV are dismissed without prejudice.

/S/ David D. Noce
UNITED STATES MAGISTRATE JUDGE

Signed on November 13, 2012.

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