Endicott v. Hurley et al

Filing 6

OPINION, MEMORANDUM AND ORDER: HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. 2 ] is GRANTED. FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $208.73 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 prison registration number; (3) the case number; and (4) that the remittance is for an origi nal proceeding. FURTHER ORDERED that if plaintiff fails to pay the initial partial filing fee within thirty (30) days of the date of this Order, then this case will be dismissed without prejudice. FURTHER ORDERED that the Clerk shall issue process or cause process to issue upon the complaint as to defendant Larry Allen. FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendant Larry Allen shall reply to plaintiff's claims within the time provided by the applicable provisio ns of Rule 12(a) of the Federal Rules of Civil Procedure. FURTHER ORDERED that defendants James Hurley, Scott Griggs, Jacob Baker, Alan Earls, George Lombardi, Corizon, Inc., Pasha Allen, Kendis Archer, Thomas Cabrera, Michelle Kelly, Roschell Davis , Lisa Ruby, Joyce Edwards, Kristin Cutt, C. Hoffman, Brooke Kurth, and James Rhodes are DISMISSED from this action without prejudice. FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard. An Order of Partial Dismissal will accompany this Memorandum and Order.( Initial Partial Filing Fee due by 2/9/2015.). Signed by District Judge Henry Edward Autrey on 01/09/2015. (CLK)

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. 2:14CV107 DDN

OPINION, MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Franklin Endicott (registration no.
157521), an inmate at Northeast Correctional Center, for leave to commence this action without
payment of the required filing fee. For the reasons stated below, the Court finds that the plaintiff
does not have sufficient funds to pay the entire filing fee and will assess an initial partial filing
fee of $208.73. See 28 U.S.C. § 1915(b)(1). Furthermore, after reviewing the complaint, the
Court will partially dismiss the complaint and will order the Clerk to issue process or cause
process to be issued on the non-frivolous portions of the complaint.
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 sixmonth 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.
Plaintiff has submitted an affidavit and a certified copy of his prison account statement
for the six-month period immediately preceding the submission of his complaint. A review of
plaintiff's account indicates an average monthly deposit of $11.33, and an average monthly
balance of $1,043.67. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly,
the Court will assess an initial partial filing fee of $208.73, which is 20 percent of plaintiff’s
average monthly balance.
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 against a defendant who is immune from such relief. An action
is frivolous if “it lacks an arguable basis in either law or in fact.” Neitzke v. Williams, 490 U.S.
319, 328 (1989). An action is malicious when it is undertaken for the purpose of harassing
litigants 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 judicial
experience and common sense.” Id. at 1950. The plaintiff is required to plead facts that show

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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 proffered conclusion is the most
plausible or whether it is more likely that no misconduct occurred. Id. at 1950, 1951-52.
The Complaint
Plaintiff brings this action under 42 U.S.C. § 1983 against eighteen prison officials and
medical personnel at Northeast Correctional Center (“NECC”). Defendants are sued in their
individual capacity only. Plaintiff has listed his claims in several categories, under the letters A
through G. The Court will address each of his claims in turn.
1.

Claim A

Plaintiff’s Allegations
In claim A, plaintiff alleges that he was purposefully denied medical care. Plaintiff was
playing dodgeball on January 11, 2014, when he felt his left ankle snap. Defendant Dr. Kendis
Archer ordered that plaintiff be sent to the emergency room by ambulance. Plaintiff’s ankle was
X-rayed at the ER, and he was diagnosed with an avulsion fracture. The ER doctor placed
plaintiff’s leg in a “splint cast” and told him he needed to see an orthopedic surgeon immediately
for follow up. Plaintiff was transferred back to NECC.
When plaintiff arrived at the prison infirmary, he was seen by defendant Pasha Allen, a
nurse. Allen told Archer about plaintiff’s prescriptions from the ER, but she did not tell him
about the referral to the orthopedic surgeon. Plaintiff alleges that she deliberately withheld that
information from the prison’s doctors because he was involved in a prison riot in 2006. After ten
days had passed, plaintiff asked Archer about the referral. Archer found it in the computer and
scheduled an appointment.

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Plaintiff saw an orthopedic surgeon via teleconference on January 29, 2014. The surgeon
told him he did not need surgery, but the doctor also told him that he would need to wear a boot
cast for up to six weeks. The surgeon said he would have a boot cast shipped overnight, so it
would be there the following day. And the surgeon also told him to use the boot cast to start
walking immediately, in order to avoid blood clots.
Plaintiff did not get the boot cast for four days. When he asked the nurses if it was there,
nobody had seen it. Finally, after asking again, Pasha Allen gave it to him. Plaintiff asserts that
Allen deliberately held the boot cast for four days in order to delay his treatment. He believes
this violates his constitutional rights because he could have suffered a blood clot.
Plaintiff filed a grievance regarding Allen’s deliberate delays to his medical care.
Plaintiff also complained to her supervisors that she had delayed his medical care when he had
surgery for varicose veins in 2010.
On March 19, 2014, defendant Larry Allen, a correctional officer and Pasha Allen’s
husband, took plaintiff to administrative segregation because he was allegedly being investigated
for gang activities. Plaintiff alleges that Larry Allen was actually retaliating against him because
he had filed a grievance about Pasha Allen. Plaintiff was not able to do the exercising that his
orthopedic surgeon wanted him to do while he was in administrative segregation.
Plaintiff alleges that defendant Roschell Davis denied his grievance about Pasha Allen in
order to “cover up” Pasha Allen’s delay in providing him medical treatment.
Plaintiff has not alleged that he was injured or suffered further harm as a result of the
delays in his medical care.

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Analysis
Plaintiff’s First Amendment retaliation claim against Larry Allen states a plausible claim
for relief under § 1983. As a result, the Court will direct the Clerk to serve process on Larry
Allen.
The Eighth Amendment obligates state prison officials to provide inmates with medical
care. Estelle v. Gamble, 429 U.S. 97, 103 (1976).
To prevail on a claim that a delay in medical care constituted cruel and unusual
punishment, an inmate must show both that: (a) the deprivation alleged was
objectively serious; and (b) the prison official was deliberately indifferent to the
inmate’s health or safety. When the inmate alleges that a delay in medical
treatment rises to the level of an Eighth Amendment violation, the objective
seriousness of the deprivation should also be measured by reference to the effect
of delay in treatment.
Laughlin v. Shiro, 430 F.3d 927, 929 (8th Cir. 2005) (emphasis in original; citation and
quotations omitted). Plaintiff has not alleged that he suffered any ill effects from the alleged
delays in care caused by Pasha Allen. He only claims that he could have suffered a blood clot or
other injury. Therefore, his claims against Pasha Allen do not rise to the level of plausibility
required by Iqbal, and these claims must be dismissed under 28 U.S.C. § 1915(e).
Plaintiff does not allege that defendant Dr. Archer failed to treat his injuries at any time.
Plaintiff claims that Archer was responsive to his needs and treated him accordingly. As a result,
plaintiff’s claims against Archer fail to state a claim upon which relief can be granted.
“Only persons who cause or participate in the [constitutional] violations are responsible.
Ruling against a prisoner on an administrative complaint does not cause or contribute to the
violation.” George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007) (citations omitted). As a result,
plaintiff’s claim against Roschell Davis regarding the denial of his grievance against Pasha Allen
is frivolous.

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2.

Claim B

Plaintiff’s Allegations
In claim B, plaintiff alleges that defendant Dr. Thomas Cabrera was negligent in
switching his prostate medication without a blood test or notifying him first. Plaintiff says he
had pain and difficulty urinating because of the change. Plaintiff says defendant Lisa Ruby, a
correctional officer, would not allow him into morning sick call on August 29, 2014, because he
arrived three minutes late. Plaintiff disputes his tardiness. Plaintiff does not state whether he
told Ruby what condition he was in or whether he was suffering from pain. Plaintiff saw Dr.
Babich on September 20, 2014, and Dr. Babich switched the medication back to what he had
been taking before.
Analysis
Plaintiff’s claims A and B are unrelated and refer to different defendants. Federal Rule of
Civil Procedure 20(a)(2) provides: “Persons . . . may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect
to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.” Thus, “Claim
A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2.”
George, at 607. Therefore, these claims are not properly joined under Rule 20, and claim B must
be dismissed.
Claim B also fails to state a claim for relief. To state a claim for medical mistreatment,
plaintiff must plead facts sufficient to indicate a deliberate indifference to serious medical needs.
Estelle, at 106. Allegations of mere negligence in giving or failing to supply medical treatment
will not suffice. Id. In order to show deliberate indifference, plaintiff must allege that he
suffered objectively serious medical needs and that defendants actually knew of but deliberately

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disregarded those needs. Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997). In order to
state a claim against Corizon, plaintiff must allege that there was a policy, custom or official
action that caused an actionable injury. Sanders v. Sears Roebuck & Co., 984 F.2d 972, 95-76
(8th Cir. 1993).
Plaintiff specifically pleads negligence against defendant Dr. Cabrera regarding the
change of his prostate medication. And his allegations do not demonstrate that Cabrera knew of
but disregarded his serious medical needs. Therefore, plaintiff’s claim against Cabrera fails to
state a claim upon which relief can be granted.
Plaintiff does not allege that he told defendant Ruby about his medical condition. As a
result, he has failed to state a claim for deliberate indifference against Ruby.
Plaintiff does not allege that a policy or custom of Corizon was responsible for any injury
or deprivation. Therefore his claims against Corizon do not state a claim for relief.
3.

Claim C

Plaintiff’s Allegations
In claim C, plaintiff restates his claim that defendant Ruby denied his access to morning
sick call on August 29, 2014. Plaintiff says he filled out an Internal Resolution Request, the first
step in the grievance process, and gave it to defendant C. Hoffman for filing. However, Hoffman
did not file it on time. Plaintiff says he tried to file a grievance but that defendant Brooke Kurth
would not accept it because his IRR was not timely filed. He believes this violated his right of
access to the courts and right to due process.
Analysis
The allegations and defendants in claim C are unrelated to those in claim A. As a result,
claim C must be dismissed because it is not properly joined under Rule 20(a).

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Moreover, the Prison Litigation Reform Act requires prisoners to exhaust all
“administrative remedies as are available.” 42 U.S.C. § 1997e(a) (emphasis added). Where
administrative remedies are “effectively unavailable,” such as when prison officials interfere
with an inmate’s ability to proceed with the grievance process, the PLRA does not require
exhaustion.

E.g., Albino v. Baca, 697 F.3d 1023, 1030-31 (9th Cir. 2012).

Therefore,

defendants C. Hoffman and Brooke Kurth cannot interfere with plaintiff’s right to bring a civil
action in this Court by refusing to process his grievances, and plaintiff’s claim against these
defendants fails.
4.

Claim D

Plaintiff’s Allegations
In claim D, plaintiff claims that he was forced to cell with a gang member while he was
in administrative segregation. He claims the doors in the cells made them unsafe if he were to
get into a fight with the gang member. He does not claim that they fought or that he suffered any
injuries.
Analysis
Claim D involves different defendants and is unrelated to claim A. As a result, it will be
dismissed as improperly joined under Rule 20(a).
Furthermore, plaintiff does not have a constitutional right to a single man cell. Nor does
§ 1983 protect prisoners from hypothetical harms, like plaintiff’s claims about the doors in
administrative segregation. Therefore, plaintiff’s allegations in claim D fail to state a cause of
action under § 1983.

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5.

Claim E

Plaintiff’s Allegations
In claim E, plaintiff alleges that he was denied access to the law library while he was in
administrative segregation, from March 19 through August 1, 2014, in violation of his right of
access to the courts. Plaintiff claims that defendant Joyce Edwards, the law librarian, would not
give him access to law books or to a prison law clerk because he did not have an authorized
Qualified Legal Claim.
Plaintiff says he tried to get an authorized Qualified Legal Claim because he wanted to
file a motion to recall the mandate in his direct appeal from his criminal conviction, Missouri v.
Endicott, 881 S.W. 2d 661 (1994). Plaintiff was also trying to draft a complaint raising the issue
in claim A, and he believed that there is a one-year statute of limitations for § 1983 cases.
Analysis
Claim E is unrelated to claim A and will be dismissed as improperly joined under Rule
20(a).
Furthermore, “[t]o state a claim [for denial of meaningful access to the courts], inmates
must assert that they suffered an actual injury to pending or contemplated legal claims.” Myers
v. Hundley, 101 F.3d 542, 544 (8th Cir. 1996). Even if the filing of his motion to recall the
mandate in his 1994 direct appeal was delayed, plaintiff cannot show actual injury.

The

Missouri courts do not permit motions to recall the mandate in felony conviction cases because
Missouri Supreme Court Rule 29.15 is the exclusive means for relief in felony conviction cases.
See Missouri v. Turner, 972 S.W.2d 438, 440 (Mo. Ct. App. 1998). And plaintiff filed the
instant action well within Missouri’s five-year statute of limitations for personal injury cases.
Therefore, plaintiff’s claim E fails to state a claim upon which relief can be granted.

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6.

Claim F

Plaintiff’s Allegations
In claim F, plaintiff claims that his right to due process was violated because he was held
in administrative segregation pending an investigation into alleged “gang activities” but he was
never given any information about the findings of the investigation. He says that defendants
James Rhodes, George Lombardi, and James Hurley all had a duty to tell him about the nature of
the investigation and what the findings were. And he complains that there is no policy directing
prison investigators to complete their investigations within a prescribed time frame.
Analysis
To state a claim under § 1983 for unconstitutional placement in administrative
segregation, a prisoner “must show some difference between his new conditions in segregation
and the conditions in the general population which amounts to an atypical and significant
hardship.” Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003). Plaintiff has made no such
allegations. E.g., Hemphill v. Delo, 124 F.3d 208 (8th Cir. 1997) (unpublished) (four days
locked in housing unit, thirty days in disciplinary segregation, and approximately 290 days in
administrative segregation not atypical or significant). As a result, plaintiff’s claim F fails to
state a claim upon which relief can be granted.
7.

Claim G

Plaintiff’s Allegations
In claim G, plaintiff alleges that he tried to file IRRs and grievances about the delay in his
medical care and his placement in administrative segregation but that defendants Brook Kurth
and C. Hoffman refused to process his complaints.

He says he was therefore denied the

opportunity to exhaust his administrative remedies and preserve his claims for federal court.

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Analysis
This claim fails to state a claim upon which relief can be granted for the same reasons as
claim C.
For each of these reasons, all of plaintiff’s claims will be dismissed except for plaintiff’s
retaliation claim against defendant Larry Allen.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF
No. 2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $208.73
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
prison registration number; (3) the case number; and (4) that the remittance is for an original
proceeding.
IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partial filing fee
within thirty (30) days of the date of this Order, then this case will be dismissed without
prejudice.
IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to
issue upon the complaint as to defendant Larry Allen.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendant
Larry Allen shall reply to plaintiff's claims within the time provided by the applicable provisions
of Rule 12(a) of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that defendants James Hurley, Scott Griggs, Jacob Baker,
Alan Earls, George Lombardi, Corizon, Inc., Pasha Allen, Kendis Archer, Thomas Cabrera,

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Michelle Kelly, Roschell Davis, Lisa Ruby, Joyce Edwards, Kristin Cutt, C. Hoffman, Brooke
Kurth, and James Rhodes are DISMISSED from this action without prejudice.
IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard.
An Order of Partial Dismissal will accompany this Memorandum and Order.
Dated this 9th day of January, 2015.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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