Endicott v. Hurley et al

Filing 283

MEMORANDUM AND ORDER motion is IT IS HEREBY ORDERED that the motion of defendants Larry Allen, Roger Avery, Jacob Baker, Tyree Butler, Lori Calvin, David Cutt, Kristin Cutt, Joyce Edwards, Chantay Godert, Richard Griggs, James Hurley, William Jones, George Lombardi, Jeffrey Reid, and James Rhodes for summary judgment (Doc. 252 ) is GRANTED. IT IS FURTHER ORDERED that there being no remaining claims, this action is dismissed with prejudice. An appropriate judgment order is filed herewith. Signed by Magistrate Judge David D. Noce on 9/27/2021. (JMP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
FRANKLIN G. ENDICOTT,
Plaintiff ,
v.
JAMES HURLEY, et al.,
Defendants.

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No. 2:14 CV 107 DDN

MEMORANDUM AND ORDER
This action is before the court on the Missouri Department of Corrections
defendants’ motion for summary judgment. (Doc. 252.) The parties have consented to the
exercise of plenary authority by a United States Magistrate Judge pursuant to 28 U.S.C. §
636(c). The Court heard oral argument on the motion on March 29, 2021. The Court
grants the motion and dismisses the action with prejudice for the reasons set forth below.
BACKGROUND
Plaintiff Franklin G. Endicott filed this action pursuant to 42 U.S.C. § 1983 alleging
medical, retaliation, and other claims while he was incarcerated at Northeast Correctional
Center (NECC) in Bowling Green, Missouri. 1 The remaining defendants are or were
employed by NECC or the Missouri Department of Corrections (MDOC) or were
otherwise tasked with assisting inmates at NECC at the time relevant to this litigation.
Named as defendants are officials or employees: Larry Allen, Lieutenant; Roger Avery,
Corrections Officer I; Jacob Baker, Corrections Officer II; Tyree Butler, Functional Unit
Manager; Lori Calvin, Captain; David Cutt, Lieutenant; Kristin Cutt, caseworker,
Functional Unit Manager, and committee chair; Joyce Edwards, librarian at NECC;
1

Plaintiff was released from incarceration on November 14, 2020.

Chantay Godert, assistant warden; Richard Griggs, assistant warden; James Hurley,
warden; William Jones, Deputy Warden; George Lombardi, Director of MDOC; Jeffrey
Reid, corrections officer; and James Rhodes, investigator (MDOC defendants). Plaintiff
also named as a defendant medical services provider Corizon and/or Corizon, LLC
(Corizon) who was under contract with MDOC to provide medical services at NECC at the
times relevant to his litigation.
The Court dismissed counts 3, 7, 13, 14, 18, 21, and 22 of the Fifth Amended
Complaint for failure to state a claim and counts 17 and 20 for lack of subject matter
jurisdiction. Plaintiff and the Corizon defendants settled their disputed claims. Counts 4,
5, 6, 8, 9, 11, 12 and 15, directed against the MDOC defendants, remain.
The MDOC defendants move for summary judgment on those claims. (Doc. 252.)
Plaintiff opposes the motion. (Doc. 263.) In support of their motion, defendants submitted
as evidence, among other things, copies of plaintiff’s medical records and doctor’s notes,
plaintiff’s and others’ depositions, NECC operations manual, prison policies, grievances,
and affidavits.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “if there is no dispute of material fact and
reasonable fact finders could not find in favor of the nonmoving party.” Shrable v. Eaton
Corp., 695 F.3d 768, 770 (8th Cir. 2012); see also Fed. R. Civ. P. 56(a). The party moving
for summary judgment must demonstrate the absence of a genuine issue of material fact
and that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 327 (1986). A dispute is genuine if the evidence may prompt a reasonable jury to
return a verdict for either the plaintiff or the defendant, and it is material if it would affect
the resolution of a case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252 (1986);
Rademacher v. HBE Corp., 645 F.3d 1005, 1010 (8th Cir. 2011).

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The burden shifts to the non-moving party to demonstrate that disputes of fact do
exist only after the movant has made its showing. Id. It is the nonmoving party’s burden
to set forth affirmative evidence and specific factual support by affidavit and other evidence
to avoid summary judgment. Perry v. Martin, 2013 WL 6331474, at *1 (E.D. Mo. Dec. 5,
2013). If reasonable minds could differ as to the import of the evidence, then summary
judgment is not appropriate. Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986). Also,
pursuant to Local Rule 4.01(E), the movant’s statement of uncontroverted material facts is
deemed admitted unless specifically controverted by the opposing party.
APPLICABLE LAW
Deliberate Indifference. In actions by prison inmates against prison
officials for deliberate indifference, plaintiff must evidence that: 1) he suffered from
objectively serious medical needs; 2) defendant knew of the condition; and 3)
defendant deliberately disregarded the condition.

Kitchen v. Miller, 343 F.Supp.2d

820, 823 (E.D. Mo. 2004); Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997).
The absence of proof for any one of these three elements is dispositive in an action
for deliberate indifference under 42 U.S.C. § 1983.
To support a claim of deliberate indifference under § 1983, “[a] 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). A medical
decision not to order a particular course of treatment or testing does not represent
cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 107 (1976).
Likewise, mere displeasure with a course of medical treatment is not sufficient to
rise to a constitutional violation. Kitchen, 343 F.Supp.2d at 823.
“An inmate who complains that delay in medical treatment rose to a
constitutional violation must place verifying medical evidence in the record to
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establish the detrimental effect of delay in medical treatment to succeed.” Crowley
v. Hedgepeth, 109 F.3d 500, 502 (8th Cir. 1997). The objective portion of the
deliberate indifference standard requires a showing of “verifying medical evidence”
that the defendants ignored an acute or escalating situation, or that delays
adversely affected the prognosis given the type of injury in this case. Dulany v.
Carnahan, 132 F.3d 1234, 1243 (8th Cir. 1997).
Cellmate Selection. An inmate has no right to choose his cellmate, particularly
in administrative segregation (AdSeg). Hayes v. Wimberly, 625 F. Supp. 967, 970
(E.D. Ark. 1986).
Following State Law and Prison Regulations. There is no constitutional liberty
interest in having state officers follow state law or prison officials follow prison
regulations. McKee v. Missouri, 2019 WL 1780567 (E.D. Mo), citing Phillips v.
Norris, 320 F. 3d 844, 847 (8th Cir. 2003). Nor does a Missouri statute that creates
rights and duties under state law definitively establish rights and duties under
federal law. Randolph v. Rodgers, 170 F. 3d 850, 859 (8th Cir. 1999).
Administrative Segregation. A prisoner has no constitutionally protected liberty
interest in remaining in a less restrictive prison environment. Freitas v. Ault, 109
F.3d 1335, 1338 (8th Cir. 1997). The Eighth Circuit has consistently held that
administrative

and

disciplinary

segregation

are

not

atypical

and

significant

hardships. Portley–El v. Brill, 288 F.3d 1063, 1065 (8th Cir. 2002). Moreover, a
twenty-two month administrative segregation confinement is not in itself an
atypical and significant hardship implicating the Due Process Clause. Bunch v.
Long, 2008 WL 5082861 *4 (W.D. Mo. Nov. 24. 2008).
First Amendment Retaliation. To establish retaliation under 42 U.S.C. § 1983,
plaintiff must show that 1) he engaged in a protected activity; 2) the defendants
took adverse action against him that would chill a person of ordinary means; and 3)
the adverse action was motivated at least in part by the exercise of the protected
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activity. Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004). With respect to the
third prong, plaintiff must demonstrate that the retaliatory motive was a “but-for”
cause of the action. Monroe v. Precythe, 2020 WL 2322922, *17 (E.D. Mo. 2020).
Although the causal connection is generally a jury question, it can provide a basis
for summary judgment when the “question is so free from doubt as to justify taking
it from the jury.” Revels, 382 F.3d at 876. Plaintiff must also show that he was
singled out for exercising his constitutional rights. Baribeau v. City of Minneapolis,
596 F.3d 465, 481 (8th Cir. 2010).
A defendant may successfully defend a retaliatory discipline claim by
showing ‘some evidence’ the inmate actually committed a rule violation. Hartsfield
v. Nichols, 511 F.3d 826, 829 (8th Cir.2008), citing Goff v. Burton, 7 F.3d 734, 73839 (8th Cir. 1993). Accordingly, where some evidence shows that the offender
violated rules, he cannot prevail on retaliatory discipline case against a hearing
officer. King v. Dingle, 702 F. Supp. 2d 1049, 1081 (D. Minn. 2010).
Name calling and verbal threats by prison officials, without more, do not
invade a federally protected right. McDowell v. Jones, 990 F.2d 433, 434 (8th Cir.
1993). In fact, even when prison officials harass an inmate in an attempt to
dissuade him from filing a grievance, there is no Eighth Amendment violation if the
inmate was not denied access to the grievance procedure. Harris v. Henneberry,
2007 WL 4290739, *6 (E.D. Mo. 2007).
Qualified Immunity. Government officials, who are performing discretionary
functions, are generally shielded from liability for civil damages, unless their
conduct violates clearly established statutory or constitutional rights of which a
reasonable person would have known. See, Wilson v. Layne, 526 U.S. 603, 609
(1999); Young v. Harrison, 284 F.3d 863, 866 (8th Cir. 2002); Winters v. Adams, 254
F.3d 758, 766 (8th Cir. 2001). The contours of the constitutional right at issue “must
be sufficiently clear that a reasonable official would understand that what he is
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doing violates that right,” but “[t]his is not to say that an official action is protected
by qualified immunity unless the very action in question has previously been held
unlawful; but it is to say that in light of pre-existing law, the unlawfulness must be
apparent.”

Anderson

v.

Creighton,

483

U.S.

635,

640

(1987)

(citations

omitted); Nelson v. Correctional Medical Services, 583 F.3d 522, 531 (8th
Cir. 2009); Young v. Selk, 508 F.3d 868, 875 (8th Cir.2007). Thus, “[t]he doctrine
‘gives ample room for mistaken judgments but does not protect the plainly
incompetent or those who knowingly violate the law.’” Bagby v. Brondhaver, 98 F.3d
1096, 1098 (8th Cir. 1996). As a result, where appropriate, courts are permitted to
dispose of the qualified immunity issue on the issue of whether a violation of a
clearly established constitutional right has occurred. Parrish v. Ball, 594 F.3d 993,
1001-02 (8th Cir. 2010).
Conspiracy. A conspiracy claim requires evidence of specific facts that show a
‘meeting of minds' among conspirators. Habhab v. Hon, 536 F.3d 963, 969 (8th
Cir. 2008), quoting Barstad v. Murray County, 420 F.3d 880, 887 (8th Cir. 2005).
Denial of Library Privileges. To state a claim that a law library violates his
rights, an inmate must assert an actual injury to pending or contemplated legal
claims. Baughman v. Cradduck, 2016 WL 5662054 (W.D. Ark. 2016). To sustain a
claim based upon denial of access to legal materials, actual injury or prejudice must
be shown. Johnson v. Hamilton, 452 F. 3d 967, 973 (8th Cir. 2006).
DISCUSSION
Count 4 –
In Count 4, plaintiff alleges that defendants Avery, Calvin, D. Cutt, Reid, and the
Corizon defendants were deliberately indifferent to a serious medical need when they
delayed his transfer for vein ablation surgery on October 15, 2010. (Doc. 114, ¶¶ 189200.)

Defendants contend there was no serious medical need, no condition was
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intentionally ignored, and there was no detrimental effect from the delay in treatment.
Plaintiff makes no argument in support of this claim in either his opposition to MDOC
defendants’ motion or in his response to defendants’ uncontroverted material facts. (See
Docs. 262, 263.)
The evidence revealed the following. In 2010, Dr. Thomas Cabrera was employed
by Corizon Health, Inc. and served as medical director at NECC.

Statement of

Uncontroverted Material Facts in Support of Motion for Summary Judgment of MDOC
Defendants, ¶ 1 (hereinafter (“SOF ¶__”). Plaintiff was Dr. Cabrera’s patient. SOF ¶ 2.
Plaintiff had superficial phlebitis. SOF ¶ 3. The standard treatment for superficial phlebitis
is rest, bedrest, aspirin, and support hose. SOF ¶ 5. Vein stripping/ablation procedures are
also available. SOF ¶ 6. On July 30, 2010, Dr. Phillips saw plaintiff in consultation and
recommended that plaintiff undergo two ablation procedures, one of the right lesser
saphenous vein and the other of the right greater saphenous vein. SOF ¶ 7. After Dr.
Phillips performed the first procedure, a second procedure was scheduled for October 15,
2010. SOF ¶ 8.
On October 15, correction officer (CO) Jeffrey Reid and CO Roger Avery were
assigned to transport plaintiff (an “out count”) to Dr. Phillips’s office in Jefferson City.
SOF ¶ 9. Due to a staff shortage, earlier that morning Reid and Avery had taken another
offender to a medical appointment returning around 10-10:15 a.m. SOF ¶ 10. Avery
reported that the first out count took longer than expected, and that upon their return they
had to process the other offender and Reid had to receive a weapon along with the
paperwork on plaintiff. SOF ¶ 11. Plaintiff does not know what Reid and Avery were
required to do after returning from the previous out count and before taking him to
Jefferson City. SOF ¶ 12. He claims that during this time Lt. Calvin and Sgt. Cutt called
Reid and Avery into the office, although he does not know what transpired there. SOF ¶
13. Plaintiff knows of no reason why Reid or Avery would delay taking him, although he
believes that Calvin and Cutt disliked him. SOF ¶ 14.
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Once they departed NECC, Reid and Avery realized they neglected to bring
plastic restraints and they had to drive back to NECC for those. SOF ¶ 15. Upon reaching
Kingdom City, they called Dr. Phillips’s office, and the COs reported to plaintiff that the
doctor’s office told them they would have to reschedule because the doctor’s schedule
would not allow the late arrival.

SOF ¶ 16. The visit was rescheduled and the

procedure was performed on November 5, 2010. SOF ¶ 17.
As demonstrated, plaintiff had superficial phlebitis, a non-serious condition,
The second ablation procedure had to be rescheduled when due to staff shortage and an
earlier outcount, they would be arriving late. Even assuming arguendo, that plaintiff’s
phlebitis was a serious medical condition, no serious medical needs were ignored. See
Kitchen, 343 F.Supp.2d at 823; Coleman v. Rahija, 114 F.3d 784.
Moreover, plaintiff concedes that Reid and Avery had been on an earlier out
count, that they had to return for the plastic restraints, and that enroute they
called the doctor’s office to advise that they would be arriving late. Nothing suggests
deliberate indifference. The Court concludes the evidence fails to support a claim for
deliberate indifference. Estate of Rosenberg, 56 F.3d 35, 37 (to support a claim of
deliberate indifference, prisoner must show more than negligence, more even than gross
negligence)
Further, to support a claim for deliberate indifference, there must be a detrimental
effect. Crowley, 109 F.3d at 502 (an inmate complaining that delay in medical treatment
rose to a constitutional violation must place verifying medical evidence in the record to
establish the detrimental effect of delay in medical treatment to succeed); Dulany,
132 F.3d at 1243 (the objective portion of the deliberate indifference standard
requires a showing of “verifying medical evidence” that defendants ignored an acute
or escalating situation, or that delays adversely affected the prognosis given the
type of injury in this case). Here, plaintiff offers no verifying medical evidence. Instead,

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the appointment was rescheduled, and the procedure was successfully performed. There
was no detrimental effect, accordingly, under Crowley and Dulany the claim fails.
Moreover, plaintiff’s speculation about what conversation took place when Reid
and Avery were called to the office by Cutt and Calvin does not support his
claim. Plaintiff has provided no evidence of an improper intent on the part of Avery, Reid,
Cutt or Calvin. Finally, under these facts there was no violation of a clearly established
constitutional right, and therefore defendants are entitled to qualified immunity. See
Anderson, Nelson, Young, Bagby and Parrish.
Count 5 In Count 5, plaintiff alleges Lt. Allen and Nurse Allen retaliated against him during
and after his transfer to administrative segregation. (Doc. 114, ¶¶ 218–225.) Defendants
contend any perceived or actual events fail to rise to the level of retaliation.
On March 13, 2014, offender Brian Haynes provided a “kite” to Gang Task Force
Coordinator Pamela Elliott requesting to meet. SOF ¶ 18. Haynes offered information
that offender Albert Strutton had supplied drugs, marijuana, and K2 to plaintiff, and that
plaintiff provided protection to Strutton in the yard. SOF ¶ 19. Offender Robert Lyle made
similar claims against plaintiff. SOF ¶ 20. Elliott and NECC Administrative Inquiry
Officer James Rhodes met with Haynes, who gave them a letter received from Strutton.
SOF ¶ 21. In the letter, Strutton told Haynes that he (Strutton) and another offender, when
released from AdSeg, were “planning mayhem & malice.” SOF ¶ 22. Rhodes then
undertook an investigation of nineteen subjects, including plaintiff, many of whom were
known gang members. SOF ¶ 23. Rhodes did not think plaintiff was a gang member, but
he had been identified as involved in incidents that had gang related components. SOF ¶
24. Although there is no formal definition of “gang activity,” the rules of conduct for
offenders prohibit threats, assault, contraband, and organized disobedience. SOF ¶ 25.
Plaintiff testified at his deposition that he knows of no reason Rhodes would invent the

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story and concedes that fellow inmates may have had an incentive to associate his name
with gang activities. SOF ¶ 26.
On March 19, 2014, because he was the subject of an investigation, plaintiff was
placed in Temporary Administrative Segregation Confinement (TASC or AdSeg), as were
the other eighteen subjects, some of whom were already in AdSeg. SOF ¶ 27. Upon
transfer to TASC, plaintiff was told that he was there pending investigation of gang related
activities. SOF ¶ 28
Although plaintiff believes that Larry Allen arranged to have him transferred
to TASC, he concedes that he does not know whether Rhodes asked Allen to place
him in AdSeg.

SOF ¶ 29.

Allen placed plaintiff in cuffs, which is standard

procedure, and handed plaintiff to the correctional officers who took him to medical. SOF
¶ 30. Plaintiff claims that Allen made a snide comment, gritted his teeth and jaw, and
handcuffed him in a rough manner. However, there was no assault, and Allen did not
accompany plaintiff to medical. SOF ¶ 31. It is standard procedure to go to medical for a
“vitals” check before going to AdSeg. SOF ¶ 32.
On November 20, 2014, following release from TASC, plaintiff was given a medical
slip to go for vitals at 9:00 p.m. SOF ¶ 33. While plaintiff was in medical, Allen was
sitting with another officer. After several minutes, five other officers came in and sat down.
No officer spoke to plaintiff and he only heard them speaking under their breath. After 15
to 20 minutes, the other officers left, and Allen remained there with the other officer.
Plaintiff understood this as an attempt to intimidate him. SOF ¶ 34.
Plaintiff does not know whether Allen and his wife, non-MDOC nurse defendant
Pascha Allen, ever talked about him. SOF ¶ 71.
It is undisputed that two offenders, Haynes and Lyles, implicated plaintiff in gang
related activities. Plaintiff concedes there could be reasons for offenders to implicate him,
albeit “falsely,” as well as the serious danger of gang activity, and that it ought to be
investigated. SOF ¶ 36.
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That two offenders implicated him in gang activity constitutes “some evidence” that
plaintiff committed a rule violation. Such evidence defeats plaintiff’s claim for retaliatory
discipline. Hartsfield, 511 F.3d at 829, citing Goff, 7 F.3d at 738-39.

Accordingly,

because defendants have some evidence showing that plaintiff violated the rules, he cannot
prevail on retaliatory discipline claim against hearing officers. King, 702 F. Supp. 2d at
1081.
Moreover, to establish a claim for retaliation under § 1983, plaintiff must show
that the adverse action was motivated at least in part by the exercise of the protected
activity. Revels, 382 F.3d at 876. To do this plaintiff must demonstrate that the retaliatory
motive was a “but-for” cause of the action. Monroe, 2020 WL 2322922,*17. Here, the
evidence shows that after being assigned to AdSeg, Lt. Allen made a snide comment,
gritted his teeth and jaw, hand-cuffed plaintiff roughly, and handed him to other officers to
accompany plaintiff to medical and then to AdSeg. This fails to establish that Allen was
responsible for assigning plaintiff to AdSeg, or that Allen had a motive to retaliate. It also
fails to meet the “but-for” causation requirement.
While it is not clear how the November 20, 2014 event, which took place
after plaintiff’s release from AdSeg, is related to plaintiff’s AdSeg claim, the events in this
case do not rise to the level of retaliation. See McDowell, 990 F.2d at 434 (name calling
and verbal threats by prison officials, without more, do not invade a federally protected
right). Even when prison officials harass an inmate in an effort to dissuade him from filing
a grievance, there is no Eighth Amendment violation if the inmate was not denied access
to the grievance procedure. Harris, 2007 WL 4290739, *6.
As is seen, under these facts there was no violation of a clearly established
constitutional right and under Anderson, Nelson, Young, Bagby and Parrish qualified
immunity bars the claim. Finally, there is no evidence of a conspiracy because plaintiff
admits in his deposition that he does not know whether Larry Allen and his wife ever talked

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about him. Absent facts showing a meeting of the minds, the conspiracy claim fails.
Habhab, 536 F.3d at 969.
Count 6 –
In Count 6, plaintiff alleges defendants Hurley, Griggs, Jones, Godert, Rhodes, K.
Cutt, and Butler retaliated against him by transferring him to AdSeg and by failing to
provide a hearing and identify the charges against him. (Doc. 114, ¶¶ 218–25.) Defendants
argue that plaintiff was advised he was under investigation based on reports of gang related
activity and that he was provided a hearing.
When transferred to AdSeg, plaintiff was advised that he was under investigation
for gang related activity. SOF ¶ 35. He concedes that gangs are a serious issue in prison,
that they can create a danger for offenders and officers, and that gang activity should be
investigated. SOF ¶ 36. Upon arrival in TASC on March 19, 2014, a hearing was
scheduled for March 26, 2014. SOF ¶ 37. The TASC hearing, which plaintiff attended,
however, took place on March 28, 2014.

SOF ¶¶ 38-39.

Plaintiff cannot say what

different information he could have provided had the hearing taken place two days earlier.
SOF ¶ 40.
Monthly TASC meetings were held. SOF ¶ 41. Although invited to each hearing,
plaintiff attended only the first and last hearing because the institution would not give him
information and he was not permitted to ask questions. SOF ¶ 42. Plaintiff does not know
whether an investigation actually took place. SOF ¶ 43. On August 1, 2014, he was
released from TASC. SOF ¶ 44.
In response to Grievance NECC14-1322, plaintiff was advised by memorandum
dated November 14, 2014, that offenders were not allowed access administrator inquiry
policy and that he was named as one of 19 offenders as subject to gang related
administrative inquiry. SOF ¶ 45. With respect to individuals sued in Count VI, plaintiff
believes:
a. James Hurley was motivated to retaliate against him because he
was friends with Larry Allen. The only evidence he can give
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regarding Hurley are the “records“ pertaining to his case ordering
him to AdSeg.
b. Griggs said that he had a stack of plaintiff’s IRRs on his desk,
indicating he was retaliating.
c. William Jones was over the AdSeg and had a meeting with Hurley
upon placement in AdSeg. Plaintiff knows of no animosity or of a
reason Jones would have to retaliate.
d. Godert signed off on the AdSeg “without being provided and
information as to why I’m being held” and she never provided any
information as to the delay or the reason for AdSeg.
e. Rhodes has no known motive to retaliate, but plaintiff believes the
release of others from AdSeg before him shows there was no
investigation; he concedes that he does not know when the
investigation concluded.
f. Kristin Cutt is motivated by the library grievance plaintiff filed
and she is married to Lt. Cutt.
g. Butler’s ill will is shown by his not allowing plaintiff to ask
questions or make a statement at his AdSeg hearing.
SOF ¶ 46.
Plaintiff has no constitutional liberty interest in having state officers follow state
law or in having prison officials follow prison regulations. McKee, 2019 WL 1780567,
citing Phillips, 320 F. 3d at 847. Nor does a Missouri statute that creates rights and duties
under state law definitively establish rights and duties under federal law. Randolph, 170
F. 3d at 859. Accordingly, plaintiff had no right to have the TASC hearing on March 26
rather than March 28, 2014. Moreover, he cannot say what additional information would
have been provided. Accordingly, the two-day delay was not a constitutional deprivation.
Moreover, plaintiff’s assertion that he was not told why he was placed in AdSeg is
refuted by his admission that he was told he was there pending investigation for gangrelated activities. While he was not given information about the investigation itself, which
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was part of the institutional policy for investigations, he cannot deny that an investigation
took place. Monthly TASC hearings were conducted but he declined to attend all but the
first and the last hearing. Although he infers ill motives on the part of Hurley, Griggs,
Jones, Godert, Rhodes, Cutt and Butler, he has presented no evidence of such. The facts
do not support a claim for a constitutional violation.
Finally, these facts fail to establish a violation of a clearly established constitutional
right occurred. Accordingly, under Anderson, Nelson, Young, Bagby and Parrish qualified
immunity bars the action.
Count 8 –
In Count 8, plaintiff alleges defendants Baker and D. Cutt retaliated against him by
placing him in a cell with a known gang member while in AdSeg. (Doc. 114, ¶¶ 112-24;
226-33.) Defendants contend the record evidence shows that there was no retaliation as
defendants followed institutional cell assignment policy. (Doc. 253 at 16.)
The evidence demonstrates plaintiff was assigned to a cell in AdSeg according to
the institutional classification system. SOF ¶ 47. He was not celled with someone on his
enemy’s list, or with someone on whose enemy’s list he was on. SOF ¶ 48. While in
AdSeg, he was not in a fight, nor was he physically injured. SOF ¶ 49. When plaintiff
refused to accept the cell assignment, he was secured to a bench until an assignment could
be found pursuant to standard procedure. SOF ¶ 50.
The facts before the Court do not demonstrate retaliation. The evidence establishes
that the defendants followed the cell assignment policy; the classification system was
applied and neither plaintiff nor his cellmates were declared enemies. Nor is there
any evidence of retaliatory motive. The evidence fails to establish a cause of action for
retaliation.
Moreover, plaintiff’s claim against defendants Baker and David Cutt are barred by
the doctrine of qualified immunity. Plaintiff has no right to select his cellmate, particularly
in AdSeg. Hayes, 625 F.Supp. at 970. Plaintiff was assigned a cellmate based upon the
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institutional classification system; he was not celled with someone on his enemy’s list or
someone whose enemy’s list he was on. The question is whether Baker and David Cutt
should have known that by celling plaintiff, a convicted sex-offender, with a member of a
gang that was known to dislike sex offenders, they were violating plaintiff’s clearly
established constitutional right. Parrish, 594 F. 3d at 1001-02. More than mere mistaken
judgment must be involved. Bagby, 98 F.3d at 1098.
Neither party has presented case authority, addressing whether plaintiff had a
constitutional right to be reassigned a cellmate in these particular circumstances. Plaintiff
has presented no evidence Baker and David Cutt should have known they were violating
plaintiff’s rights by applying the institution’s policy for cell-mate selection. Moreover, the
validity of the policy was demonstrated by the fact that no fight took place, and no one was
injured. Under Parrish and Bagby, Baker and David Cutt have qualified immunity from
this claim.
Count 9 –
In Count 9, plaintiff alleges that defendants Griggs, Jones, Butler, K. Cutt, and
Edwards retaliated against him for filing grievances by denying him access to the law
library resulting in a delay in filing a motion to recall a mandate that had been entered in a
criminal case 18 years earlier.
NECC policy IS8-1.4 “Access to Law Library Materials” provides:
II DEFINITIONS:
J. Qualified Legal Claims: Any legal action challenging an
offender’s conviction or sentence...this includes direct appeals
of conviction, federal and state habeas corpus actions, and civil
rights complaints pertaining to conditions of confinement.
K. Special Units: Those units who do not have open access to the
library including...temporary administrative segregation units.....
III. PROCEDURES:
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D. Schedule:
1.c. The warden...may grant an offender with a qualified legal
claim special access...if the offender demonstrates an
exception need, such as:...(2) an identifiable deadline imposed
by court rule or statute within 30 calendar days of the request....
***
F. Special Units:
1. Offenders in special units may not be afforded direct access
to the law library; however, limited access shall be provided as
follows:
a. offenders in special units must show proof that they are
working on a qualified legal claim.... (1) Classification staff will
verify its using the Qualified Legal Claim Verification form.
b. classification staff will provide Special Unit Legal Request
form..., to offenders needing legal material or assistance from
a law library staff member.
SOF ¶ 52.
In applying IS8-1.4, there were differing views as to whether plaintiff needed a
Qualified Legal Claim to access the library; the assistant warden thought materials could
be obtained upon filing a Special Unit Legal Request, and the law librarian thought a
Qualified Legal Claim was needed. SOF ¶ 53.
No time limit applied to plaintiff’s motion, and the motion was ultimately
filed and subsequently denied. SOF ¶ ¶54-55. Plaintiff cannot complain that any delay in
filing his motion affected the outcome. SOF ¶ 56. Nor does he know why Griggs,
Edwards, Butler Jones or Cutt would be motivated to deny him library access. SOF ¶ 72.
Plaintiff’s claim for denial of access to the library fails because plaintiff suffered
no actual injury or prejudice. Baughman, 2016 WL 5662054 (to state a claim that a law
library violates his rights inmate must assert an actual injury to pending or
contemplated legal claims.); Johnson, 452 F. 3d at 973 (to sustain a claim based
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upon denial of access to legal materials, actual injury or prejudice must be shown).
Here, plaintiff was under no time limit to file his motion and his motion was ultimately
filed.
Moreover, the facts do not demonstrate ill will but uncertainty about the
interpretation of policy IS8-1.4. Plaintiff has produced no evidence that Griggs, Jones,
Butler, K.Cutt and Edwards acted with a retaliatory intent and he knows of no reason they
would do so. Therefore there is no factual basis for the retaliation claim.
Finally, these facts fail to evidence a violation of a clearly established
constitutional right. Defendants, therefore, are entitled to qualified immunity.
Count 11 In Count 11, plaintiff alleges that defendants Hurley, Griggs, Jones, and Godert
tacitly authorized retaliation against him, specifically by abrogating their responsibility to
investigate his grievances. (Doc 114, ¶¶ 251-58.) Defendants argue plaintiff has offered
no evidence or motive for retaliation and that his grievances show investigations and
responses on the face of the grievances. (Doc. 254 ¶¶ 58-59.)
In support of their motion, defendants offered evidence in the form of the grievances
themselves demonstrating that investigations occurred and that responses were made to
plaintiff. Specifically:
a. NECC-10-1786 (Corizon’s failure to send numbing gel for first
ablation procedure). The 13-page grievance packet includes medical
records and comments from medical providers. The response admits
that medical staff inadvertently omitted sending the gel but noted
that it was sent for the second procedure, p. 03465. Plaintiff’s appeal
thanked them for admitting the mistake.
b. NECC 10-1842 (Missed medical procedure on 10/15/10). The 9page Informal Resolution Request (IRR) packet contains statements
from the two CO’s explaining that due to staff shortage they had to
take an earlier out count that went longer than expected and resulted
in leaving NECC late for plaintiff’s appointment in Jefferson City, and
while in route the doctor’s office advised of the need to reschedule.
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Plaintiff was sent an explanatory response.
c. NECC 11-332 (Deletion of medical records). The 30-page grievance
packet contains medical records and statements from medical
providers explaining the archiving of the hard-chart and their relation
to electronic records. Responses to plaintiff are provided by medical
personnel.
d. NECC 14-136 (Deliberate delay in providing boot cast). The 30page grievance packet contains medical records and statements from
healthcare providers. Responses to plaintiff are provided by medical
personnel.
e. NECC 14-430 (AdSeg placement). The 3-page IRR contains
statements from James Rhodes and Larry Allen explaining the reason
for the AdSeg placement. The IRR recounts the discussion between
plaintiff and K. Cutt and contains plaintiff’s signature stating the
“IRR Resolved by discussion/withdrawn.”
f. NECC 14-712 (Library access). The 25-page grievance packet
contains the applicable policies, statements from witnesses, plaintiff’s
statement, and explanatory responses from the acting assistant
warden, acting warden and Deputy Division Director.
g. NECC 14-878 (Cellmate/kill grate AdSeg assignment). The 30-page
grievance packet contains applicable policy provisions, statements
from the Functional Unit Manager and statements to him from the
assistant warden, warden and Deputy Division Director explaining
the purpose of the metal fins on the doors and the cellmate selection
policy.
h. NECC 14-1322 (Library access/AdSeg placement). The 78-page
grievance packet contains applicable policies, various forms signed by
plaintiff, records of the AdSeg hearings, statements of staff involved,
including that plaintiff refused to meet with AIO Rhodes, and
explanatory responses from the assistant warden, acting warden and
Deputy Division Director.
SOF ¶ 59.
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As is demonstrated, contrary to plaintiff’s assertion, plaintiff’s IRRs and grievances
were taken seriously. Witnesses were contacted, statements were obtained, and policies
were reviewed. Plaintiff was responded to directly and in detail. In one case, plaintiff
thanked the medical staff for admitting its mistake. Plaintiff presented no evidence that
Hurley, Griggs, Jones or Godert had any motive to retaliate against him. SOF ¶ 60. On
this basis, there is no factual basis to support plaintiff’s claim that defendants tacitly
authorized retaliation.
Under these facts, in addition to failing to state a claim, there was no violation of a
clearly established constitutional right and, as a result, defendants are entitled to qualified
immunity.
Count 12 Plaintiff alleges in Count 12 that defendants Baker and D. Cutt subjected him to
cruel and unusual punishment in violation of the Eighth Amendment by placing him in a
cell with horizontal, chest-level, steel grates or fins on the door. (Doc. 114, ¶¶ 112-24,
259-71.)
The Eighth Amendment imposes duties on prison officials to provide human
conditions of confinement, including the duty to “take reasonable measures to guarantee
the safety of inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations omitted).
The Supreme Court has held that failure to alleviate an objectively significant risk of harm
does not rise to an Eighth Amendment violation; the prison official must have actually
perceived the risk of harm and “consciously disregarded” it. Id. at 837-38. Where harm
is alleged, a plaintiff may recover damages. Id. Where the risk of harm has not yet ripened
into actual injury, a plaintiff may still recover nominal damages. See, e.g., Memphis Cmty.
Sch. Dist. v. Stachura, 477 U.S. 299, 308 (1986).
Defendants presented evidence that the fins are there to prevent offenders from
kicking cell doors and to enhance safety and security of the institution. SOF ¶ 62. The cell
doors can be damaged by kicking, which can cause the doors to pop open. SOF ¶ 63.
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Plaintiff knows the name of one person who was cut on such a door, but knows no one
seriously injured, and is aware that some offenders kick the inside of doors. SOF ¶ 64.
Plaintiff acknowledges that there are other hard objects in the cell, such as the concrete
floor, stainless steel toilet, bed frame, and the door itself. SOF ¶ 65. The cells have
emergency call buttons. SOF ¶ 66.
The metal fins on the inside of the AdSeg cell doors serve the legitimate penal
interest of preventing offenders from kicking the doors, which can be damaged and pop
open, and thereby enhance safety and security. Plaintiff testified about knowing one person
who was cut on the fins, but he did not know of anyone seriously injured. Nor is there any
evidence that the metal fins pose a greater hazard than the steel door, the steel toilet, the
metal bedframe, or the concrete floor. There is no basis to find that the fins constitute a
danger, much less a showing necessary for an Eighth Amendment violation.
Count 15 In Count 15, plaintiff alleges that Lt. Allen and Nurse Allen conspired to deprive
him of medical care and his constitutional rights in retaliation for filing grievances against
Nurse Allen and others concerning his medical care and treatment. (Doc. 114.) Defendants
contend there is no evidence of conspiracy or meeting of the minds.
On November 20, 2014, at about 9:15 p.m., plaintiff was given a slip to go to
medical to have his vital signs taken. SOF ¶ 67. While plaintiff sat in an area where there
were no cameras, six guards were present, including Lieutenant Allen, whispering to each
other, sitting, and looking at plaintiff. SOF ¶ 68. Although no one spoke to him, plaintiff
believed from their body language they were attempting to intimidate him. SOF ¶ 69-70.
Plaintiff does not know if Larry Allen and his wife ever talked about him. SOF ¶ 71.
As with Count 6, to establish retaliation under §1983, plaintiff must show that the
adverse action was motivated at least in part by the exercise of the protected activity.
Revels, 382 F.3d at 876. To do this, plaintiff must demonstrate that the retaliatory motive
was a “but-for” cause of the action. Monroe, 2020 WL 2322922, *17. Here, the evidence
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reveals that on November 20, 2014, plaintiff was given a slip to go to medical to have his
vital signs taken. While he sat in an area where there were no cameras, six guards were
present, including Larry Allen, whispering to each other, sitting, and looking at plaintiff.
From their body language, plaintiff assumed they were attempting to intimidate him. No
one spoke to him. Plaintiff does not know if Larry Allen and his wife ever talked about
him.
Name calling and verbal threats by prison officials, without more, do not invade a
federally protected right. McDowell, 990 F.2d at 434. And even when prison officials
harass an inmate in an attempt to dissuade him from filing a grievance, there is no Eighth
Amendment violation if the inmate was not denied access to the grievance procedure.
Harris, 2007 WL 4290739, *6. Applying McDowell and Harris, plaintiff’s assertion, that
a group of guards were standing and whispering in his presence in an attempt to intimate
him, without further evidence, fails to support a cause of action.
Likewise, plaintiff has not presented any evidence of a conspiracy. Plaintiff admits
that he does not know whether Larry Allen and his wife ever talked about him. He rests
on argument and speculation that the defendants conspired with one another but provides
no evidence to support his allegation. He also has not provided any evidence of an
agreement between the defendants. See Habhab, 536 F.3d at 969 (absent facts showing a
meeting of the minds, a conspiracy claim fails). Both the facts of the event itself and the
lack of evidence of a meeting of the minds, defeats any claim for conspiracy.
Moreover, the facts fail to establish a violation of a clearly established
constitutional right. Defendant Larry Allen, therefore, has qualified immunity
under Anderson, Nelson, Young, Bagby and Parrish.
CONCLUSION
For the reasons set forth above,

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IT IS HEREBY ORDERED that the motion of defendants Larry Allen, Roger
Avery, Jacob Baker, Tyree Butler, Lori Calvin, David Cutt, Kristin Cutt, Joyce Edwards,
Chantay Godert, Richard Griggs, James Hurley, William Jones, George Lombardi, Jeffrey
Reid, and James Rhodes for summary judgment (Doc. 252) is GRANTED.
IT IS FURTHER ORDERED that there being no remaining claims, this action is
dismissed with prejudice. An appropriate judgment order is filed herewith.

/s/ David D. Noce___________
UNITED STATES MAGISTRATE JUDGE
Signed on September 27, 2021.

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