Watson et al v. Witty et al

Filing 125

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that defendants Dr. Ashok Chada, Dr. Paul Jones and Katherine Bartons motion for summary judgment [Doc. # 91 ] is GRANTED. IT IS FURTHER ORDERED an appeal of this grant of summary judgment would not be made in good faith. A separate Order of Partial Judgment will accompany this Memorandum and Order. Signed by District Judge Henry Edward Autrey on 2/21/18. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
TERRY G. WATSON,
Plaintiff,
v.
KAREY L. WITTY, et al.,
Defendants.

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No. 2:16CV71 HEA

OPINION, MEMORANDUM AND ORDER
In this prisoner civil rights case, defendants Dr. Ashok Chada, Dr. Paul Jones and
Katherine Barton move for summary judgment on the grounds that plaintiff failed to properly
exhaust available administrative remedies. After reviewing the evidence and the arguments, the
Court will grant defendants’ motion.
Standard
To survive a motion to dismiss under Rule 12(b)(6), Aa civil rights complaint must contain
facts which state a claim as a matter of law and must not be conclusory.@ Gregory v. Dillards, Inc.,
565 F.3d 464, 473 (8th Cir. 2009) (en banc) (quotations and citation omitted). AA plaintiff must
assert facts that affirmatively and plausibly suggest that the pleader has the right he claims rather
than facts that are merely consistent with such a right.@ Id. (quotations and citation omitted).
AWhile a plaintiff need not set forth detailed factual allegations or specific facts that describe the
evidence to be presented, the complaint must include sufficient factual allegations to provide the
grounds on which the claim rests.@ Id. (quotations and citations omitted).
Rule 56(c) provides that summary judgment shall be entered Aif the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a judgment

as a matter of law.@ In ruling on a motion for summary judgment, the court is required to view the
facts in the light most favorable to the non-moving party and must give that party the benefit of all
reasonable inferences to be drawn from the underlying facts. AgriStor Leasing v. Farrow, 826 F.2d
732, 734 (8th Cir. 1987). The moving party bears the burden of showing both the absence of a
genuine issue of material fact and his entitlement to judgment as a matter of law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87 (1986); Fed. R. Civ. P. 56(c).
Once the moving party has met his burden, the non-moving party may not rest on the
allegations of his pleadings but must set forth specific facts, by affidavit or other evidence,
showing that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e). Anderson, 477 U.S. at
257; City of Mt. Pleasant, Iowa v. Associated Elec. Coop., Inc., 838 F.2d 268, 273-74 (8th Cir.
1988). Rule 56(c) Amandates the entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing sufficient to establish the existence
of an element essential to that party=s case, and on which that party will bear the burden of proof at
trial.@ Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Background
Plaintiff, an inmate at Moberly Correctional Center, brings this action under 42 U.S.C. §
1983, as well as the Americans with Disabilities Act (“ADA”). The Court did a pre-service review
of the action, pursuant to 28 U.S.C. § 1915, on March 9, 2017. In the pre-service review, the Court
found that plaintiff’s claims for deliberate indifference to his serious medical needs relative to his
leg and back issues survive review with respect to Dr. Ashok Chada, Dr. Paul Jones and Katherine
Barton. These defendants are all current or former employees of Corizon, Inc. The Court found
that several of plaintiff’s ADA claims also survive review with respect to Missouri Department of

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Corrections employees Lisa Pogue, Michelle Buckner and Correctional Officer Allen. 1 See
Memorandum and Order issued March 9, 2017, Docket #40. Plaintiff’s additional claims, as well
as several other defendants, however, were dismissed from this action. Id.
At all times relevant in this lawsuit, plaintiff was incarcerated at both South Central
Correctional Center (“SCCC”) and Moberly Correctional Center (“MCC”). By way of
background, plaintiff alleged in his amended complaint that when he entered the correctional
system in May of 2012, he had already been determined by the Department of Veteran’s Affairs to
be disabled, with a start date for his disability of October 2010. Plaintiff claims that his “disability”
was based on a myriad of conditions, including: (1) chronic adjustment disorder; (2) left knee
replacement; (3) degenerative disc lumbar spine; (4) spondylolisthesis-cervical spine; (5) left
lower extremity radiculopathy; (7) left hip trochanteric bursitis; (8) lateral left foot metatarsalgia;
(9) GERD with constipation; (10) tinnitus; (11) osteoarthritis-right knee; (12) radiculopathy-right
lower extremity; (13) bilateral hearing loss. However, as noted above, after § 1915 screening, the
Court found that plaintiff’s allegations relating to his assertion that the Corizon defendants were
deliberately indifferent to his serious medical needs for his leg and back issues were the only
claims that would move forward against these particular defendants. The factual assertions relating
to these issues against the Corizon defendants are as follows.
In Count I of the amended complaint, plaintiff asserts that he sought numerous services for
his chronic pain. He claims that while he was incarcerated at SCCC, in December 2015, he sought
treatment from Dr. Chada for “great pain in his cervical spine and left leg.” He claims that despite

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Specifically, plaintiff alleged that the MDOC defendants failed to provide him with adequate
mattresses and beds at their respective facilities to accommodate his back, neck and leg
disabilities. He further alleges against defendant Lisa Pogue that the housing units in MCC are
not handicap accessible in violation of the ADA. Finally, plaintiff alleges that defendant Allen
issued him conduct violations in violation of the ADA which were a result of his hearing loss.
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having been told by a specialist prior to being incarcerated that he would need disc replacement
surgery, he was only being given naproxen and Effexor for pain. He told Dr. Chada he needed
additional treatment, but Dr. Chada told him in December of 2015 that it was him, and not the
President of the United States, who would decide at MDOC who was disabled. Plaintiff claims that
he filed a grievance relating to Dr. Chada’s refusal to treat his medical issues, and defendant Ms.
Cathy Barton “promised to correct the issues,” but ultimately failed to do anything about the
situation.
Plaintiff claims he was transferred to MCC a few months later, in March of 2016. Plaintiff
asserts that after he was transferred to MCC he saw Dr. Jones, who also failed to treat his leg and
back issues adequately.
Plaintiff states “it was explained to him” by Dr. Chada and Katherine Barton that MDOC’s
Central Office would not approve the type of treatment plaintiff was in need of because they did
not recognize his VA ratings and because the treatment was too expensive. Plaintiff appears to be
asserting that he should have been taken to see an orthopedic surgeon, a pain mitigation specialist,
as well as an outside physical therapist.
Plaintiff does admit that when he was transferred to SCCC in March 2013, he provided
information about his VA disabilities and was taken to see a physical therapist at that time.
Plaintiff states that he was then given exercises that helped mitigate his pain, but he complains that
no other visits were then scheduled.
Facts Relative to Plaintiff’s Exhaustion of Administrative Remedies
against the Corizon Defendants
Plaintiff’s MDOC records show that plaintiff did not file any grievances concerning
conduct or treatment against Katherine Barton or Dr. Jones. In addition, plaintiff filed only one
single grievance against Dr. Chada, received on January 19, 2016.
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In Grievance No. SCCC 16-61, filed by plaintiff against Dr. Chada, which was received by
MDOC on January 19, 2016, plaintiff stated that he was treated by Dr. Chada on December 6,
2015 for chronic medical issues and pain and that Dr. Chada failed to renew all of his lay-ins. In
response to the grievances, plaintiff was advised that his medical record would be reviewed with
the physician and that his IRR was untimely filed. Plaintiff never filed a “formal” grievance
regarding Grievance No. SCCC 16-61. Accordingly, it appears he failed to fully exhaust his
grievance against Dr. Chada.
Under the policy of the Missouri Department of Corrections the administrative grievance
process is initiated by filing an IRR within fifteen (15) calendar days of the alleged incident. If an
inmate is dissatisfied with the response to an IRR, the inmate must file an Offender Grievance
within seven (7) calendar days of receiving a response to the IRR. If an inmate is dissatisfied with
the response to the Offender Grievance, the inmate may file a Grievance Appeal within seven (7)
days of receiving the response.
Discussion
Under 42 U.S.C. § 1997e(a), a prisoner may not bring an action under §1983 Auntil such
administrative remedies as are available are exhausted.@ AAn inmate exhausts a claim by taking
advantage of each step the prison holds out for resolving the claim internally and by following the
>critical procedural rules= of the prison=s grievance process to permit prison officials to review and,
if necessary, correct the grievance >on the merits= in the first instance.@ Reed-Bey v. Pramstaller,
603 F.3d 322, 324 (6th Cir. 2010) (quoting Woodford v. Ngo, 548 U.S. 81, 95 (2006)).
Defendants argue, as mentioned above, that plaintiff did not fully exhaust his grievances
against Dr. Chada, and that he did not file any administrative remedies against Katherine Barton or
Dr. Jones. Thus, defendants assert that this action is subject to dismissal.

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Plaintiff argues that his failure to exhaust should be excused by exigent circumstances,
namely that he feels that the grievance procedure was futile, or could not have provided an
effective remedy. In his brief in opposition, plaintiff states that with regard to Grievance No.
SCCC 16-61, he was told by Katherine Barton that his concerns about his “disabilities” would be
remedied, but they were not, and in fact, he was transferred to another facility two weeks later.
Plaintiff has also attached evidence of Grievance No. SCCC 16-61, showing that he signed the IRR
form on February 29, 2016, acknowledging that he had the right to file a formal grievance in seven
(7) days and that his failure to do so would be considered abandonment of his claim.
The fact that plaintiff feels the grievance procedure might have been futile or perhaps may
not have been an effective remedy in his case does not excuse his failure to use it. See Chelette v.
Harris, 229 F.3d 684, 688 (8th Cir. 2000) (“Section 1997e(a) says nothing about a prisoner’s
subjective beliefs, logical or otherwise, about the administrative remedies that might be available
to him. The statute’s requirements are clear: If administrative remedies are available, the prisoner
must exhaust them. [Plaintiff] failed to do so, and so his complaint must be dismissed…”).
Plaintiff does not dispute his failure to file a formal grievance regarding Grievance No.
SCCC-16-00061. This failure is fatal to his claim. See Hammett v. Cofield, 681 F.3d 945, 948 (8th
Cir. 2012) (finding that a failure to complete all three levels amounts to a failure to exhaust the
MDOC grievance procedure).
Plaintiff further submits that when he was transferred to another facility a couple of weeks
later, he filed another grievance to address his concerns, Grievance No. MCC 16-599, which he
claims was pursued through appeal. Plaintiff argues that this grievance shows that he complained
of discrimination due to being hearing impaired and requested ADA accommodations for claimed

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hearing loss. The underlying grievance did not make any allegations regarding any conduct by the
Corizon defendants named in this lawsuit.
The documents provided by plaintiff show that in his grievance appeal, he also complained
of systemic discrimination by Corizon against persons with disabilities, and made additional
complaints related to various medical issues, among other complaints. However, additional
complaints made in the formal grievance filing or on appeal do not control the determination of
exhaustion. Instead, it is the complaint made at the first level that is relevant to the analysis. See,
e.g., Dashley v. Corr. Med. Servs., Inc., 345 F. Supp. 2d 1018, 1024 (E.D. Mo. 2004) (finding no
exhaustion of administrative remedies due to no fair notice of the claim where the defendant’s
alleged conduct was not raised by the offender in the grievance process until his first appeal).
Moreover, a review of plaintiff’s filings shows that his appeal in Grievance No. MCC
16-599 still did not identify any conduct of the Corizon defendants named in this lawsuit. While
Plaintiff may not have to identify the Corizon defendants by name in his grievances, the grievance
still must fairly put the defendants on notice of his claims. Woodford v. Ngo, 548 U.S. 81, 90
(2006) (providing that the exhaustion requirement is in part intended to “give the agency a fair and
full opportunity to adjudicate their claims.”); Jones v. Bock, 549 U.S. 199, 219 (2007); see also
Porter v. Nussle, 534 U.S. 516, 524–25 (2002) (“Beyond doubt, Congress enacted § 1997e(a) to
reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded
corrections officials time and opportunity to address complaints internally before allowing the
initiation of a federal case.”). Plaintiff cannot establish this in the absence of allegations in any
completed grievance regarding the purported conduct of the Corizon defendants. Therefore,
plaintiff’s claims against the Corizon defendants are unexhausted and should be dismissed. 2

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Plaintiff also briefly mentions Grievance SCCC 13-1671 and claims that it put defendants on
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Accordingly,
IT IS HEREBY ORDERED that defendants Dr. Ashok Chada, Dr. Paul Jones and
Katherine Barton’s motion for summary judgment [Doc. #91] is GRANTED.
IT IS FURTHER ORDERED an appeal of this grant of summary judgment would not be
made in good faith.
A separate Order of Partial Judgment will accompany this Memorandum and Order.
Dated this 21st day of February, 2018.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

notice of his medical issues. However, this grievance made only due process allegations. It
complained that plaintiff was unjustly issued a conduct violation because of a paging equipment
failure and his hearing loss. It did not involve the Corizon defendants.
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