Watson et al v. Witty et al

Filing 40

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Clerk shall issue process on the following individuals in their individual capacity pursuant to the service agreement the Court maintains with Corizon: Dr. Aschok Chada; Dr. Paul Jones and Ca thy Barton for an alleged deliberate indifference to plaintiffs serious medical needs in violation of the Eighth Amendment relative to plaintiffs back and leg issues. Defendants shall answer plaintiffs claims relative to Count I of his amended com plaint. No other claims shall issue with respect to these defendants. IT IS FURTHER ORDERED that the Clerk shall not issue process on the following Corizon employees: Karey Witty, Ralf Sulke, Geeneen Wilhite, or Renee Tradaro. The claims in plaint iffs amended complaint against these individuals are subject to dismissal. The claims against Corizon, LLC are also subject to dismissal. IT IS FURTHER ORDERED that the Clerk shall issue process pursuant to the waiver of service agreement the Cour t maintains with the Missouri Attorney Generals Office on: Lisa Pogue, Michelle Buckner and Correctional Officer Allen, relative to plaintiffs claims pursuant to the Americans with Disability Act violations which allegedly occurred at SCCC and MCC . Defendant Pogue shall answer the claims encompassed in Counts II and III of plaintiffs amended complaint. Defendant Buckner shall answer the claims set forth in Count II in plaintiffs amended complaint. Defendant Allen shall answer the claims se t forth in Count IV of plaintiffs amended complaint. No other claims shall issue with respect to these defendants. IT IS FURTHER ORDERED that no claims shall issue on MDOC employees: Dean Minor, George Lombardi, Michael Bowersox, Matt Sturmm, or D eloise Williams. The claims in plaintiffs amended complaint against these individuals are subject to dismissal. IT IS FURTHER ORDERED that plaintiffs request for injunctive relief relating to his request for the Court to order new construction at Moberly Correctional Center [Doc. # 16 ] is DENIED WITHOUT PREJUDICE at this time. IT IS FURTHER ORDERED that plaintiffs requests for injunctive relief for a Court Order for automatic renewal of his Omeprazole [Doc. # 21 , # 24 and # 25 ] are DEN IED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that plaintiffs request for injunctive relief enjoining MCC from scheduling dispensing medications during meal times [Doc. # 26 ] is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that plaintiffs reque st for injunctive relief seeking to restrict defendants from enforcing the food visit policies against him at Moberly [Doc. # 28 ] is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that plaintiffs request for injunctive relief seeking to restrict defendants from threatening him with removal from the law library at MCC and with the disciplinary sanction of Ad-Seg [Doc. # 29 ] is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that the following declarations filed by plaintiff, offered as s upplements to his amended complaint or exhibits to the record [Doc. # 18 , # 19 , # 20 , # 22 , # 23 , # 27 , # 30 , # 31 , # 32 , # 33 , # 34 , # 35 , # 36 , # 37 , # 38 and # 39 ] are STRICKEN. An Order of Partial Dismissal shall accompany this Memorandum and Order. Signed by District Judge Henry Edward Autrey on 3/9/17. (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 PLC

MEMORANDUM AND ORDER
Before the Court is plaintiff’s amended complaint. Also before the Court are a plethora
of “declarations” and “exhibits,”1 as well as several motions for injunctive relief. It appears that
some of plaintiff’s “declarations” are supplements to his amended complaint, while other
declarations are “evidence” meant to be offered to the Court at this time. After reviewing the
amended complaint the Court will issue on the meritorious claims in plaintiff’s amended
complaint and dismiss the claims subject to dismissal, pursuant to 28 U.S.C. § 1915(e)(2)(B).
The Court will also dismiss all of plaintiff’s requests for injunctive relief at this time. A separate
Order of Partial Dismissal will accompany this Memorandum and Order.

1

Plaintiff was told in the Court’s December 2, 2016 Memorandum and Order that the Court does
not accept amendments by interlineation, as neither the Court nor defendants should be required
to comb through plaintiff’s multiple filings to “match-up” his allegations with the sixteen named
defendants. See, e.g., Popoalii v. Correctional Medical Services, 512 F.3d 488, 497 (8th
Cir.2008) (finding that it is appropriate to deny leave to amend a complaint when a proposed
amendment was not submitted with the motion). No supplements to his amended complaint,
or exhibits or motions to the court to “accept evidence” will be allowed during this
premature pleading stage. Plaintiff’s “declarations” and exhibits” will be stricken from the
Court’s record.

Standard of Review
Under 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted.
To state a claim for relief, a complaint must plead more than “legal conclusions” and
“[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A plaintiff must

demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.”
Id. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. at 678. Determining whether a complaint states a plausible claim for relief is a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. Id. at 679.
When reviewing a complaint under 28 U.S.C. § 1915(e), the Court accepts the well-pled
facts as true. Furthermore, the Court liberally construes the allegations.
The Amended Complaint
Plaintiff, an inmate at Moberly Correctional Center (“MCC”), brings this action pursuant
to 42 U.S.C. § 1983, as well as the Americans with Disabilities Act (“ADA”).
Plaintiff names as defendants the following: Corizon Correction Health, Inc.; Karey
Witty (CEO, Corizon, Inc.); Ralf Sulke (VP, Corizon); Geeneen Wilhite (Corizon, Manager of
Health Services at MCC); Renee Tradaro, (Corizon, Manager of Health Services at South
Central Correctional Center (SCCC)); Cathy Barton (Manager of Nurses, SCCC); Dr. Paul Jones
(Corizon Employee at MCC); Dr. Aschok Chada (Corizon Employee at SCCC); Matt Sturmm
(Missouri Department of Corrections (“MDOC”), Division Director in Jefferson City); Deloise

2

Williams (MDOC, Asst. Director of Health Services in Jefferson City); George Lombardi
(Director of MDOC); Michael Bowersox (Warden, SCCC); Michelle Buckner (Asst. Warden,
SCCC); Unknown Allen (Correctional Officer, SCCC); Dean Minor (Warden, MCC); Lisa
Pogue (Asst. Warden, MCC).
Plaintiff states that the following defendants are “sued in their official capacity” for
nonfeasance: Matt Sturmm; George Lombardi: Deloise Williams: Michael Bowersox; Michelle
Buckner: Officer Allen; Dean Minor and Lisa Pogue.

Plaintiff states that the following

defendants are “sued in their personal [individual] capacity for deliberate indifference and
reckless disregard for petitioner’s health”: Karey Witty; Ralf Sulke; Geeneen Wilhite; Renee
Tradaro; Cathy Barton; Dr. Paul Jones; and Dr. Aschok Chada.
A. Count I
In the first part of plaintiff’s amended complaint, he claims generally that “defendants, as
a group,” have discriminated against him in various ways. He claims that he is a veteran, and he
was “disabled” when he entered prison. He asserts that he suffered a fall during training in the
U.S. Army in Germany in 1993, resulting in physical damage to his cervical spine, thoracic and
lumbar spine, left hip, left knee and left foot. Plaintiff also asserts that his hearing has been
damaged as a result of his service in the U.S. Army.
Plaintiff claims that Corizon, the medical service provider for the Missouri Department of
Corrections, has been given notice of his purported disabilities on several occasions. He claims
that despite having been rated as 100% disabled by the Department of Veterans Affairs, Corizon
has “ignored” his official documents relating to his disabilities and made it a practice to deny all
incarcerated persons necessary medical supplies and services. Plaintiff states that Corizon has

3

placed profit over health and safety, and he asserts generally that when he entered the prison
system in May 2012 that his treatments, access to specialists and pain mitigation stopped.
In Count I of the amended complaint, plaintiff asserts that he has 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 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 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
Cathy Barton “promised to correct the issues,” but failed to do anything about the situation.
Plaintiff claims he was transferred to Moberly Correctional Center a few months later. Plaintiff
asserts that after he was transferred to Moberly 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 Cathy Barton that MDOC’s
Central Office – Matt Sturmm and Deloise Williams – 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 complains that MDOC’s unofficial custom and habit is to keep cost
at a minimum by denying expensive care and only allow treating physicians to provide minimal
medications.
In his “Statement of Claim,” plaintiff asserts that Count I includes a deliberate
indifference, under the Eighth Amendment, by defendants Karey Witty, Ralf Sulke, Geeneen
Wilhite, Renee Tradaro, Cathy Barton, Dr. Jones, Dr. Chada, Matt Sturmm and Deloise Williams

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to “provide treatment or access to a specialist necessary to address [plaintiff’s] service connected
disabilities.” Plaintiff appears to believe he should have been taken to see an orthopedic surgeon,
a pain mitigation specialist, as well as an outside physical therapist.
B. Count II
Plaintiff claims that defendants Michelle Buckner and Lisa Pogue, ADA coordinators at
their respective correctional facilities, have failed to comply with the Americans with Disabilities
Act. Plaintiff states that the bunk beds and mattresses provided to the inmates are inadequate for
those with recognized back and neck and leg disabilities. He states that the inadequate facilities
exacerbate his chronic pain.

He claims that if the ADA coordinators recognized his VA

disability status, they would recognize that he should not be sleeping on a flat piece of steel and a
mattress made from inferior foam.
Plaintiff’s “Statement of Claim,” alleges “nonfeasance” on the part of George Lombardi;
Michael Bowersox; Michelle Buckner; Dean Minor; and Lisa Pogue for their purported failure to
recognize Section 38 of the Federal Code covering Disabled Veterans and applying the ADA and
Rehabilitation Act to assist disabled Veterans.
C. Count III
Plaintiff claims that the housing units at Moberly Correctional Center are not in
compliance with the Americans with Disabilities Act. He states that Lisa Pogue, the ADA
coordinator at MCC knows, or should know, that persons with bi-pedal issues or who are
wheelchair-bound, need ramps to enter or exit the housing unit, as each housing unit at MCC
requires stairs to get into or out of. Plaintiff states that he has to use a cane to walk because his
left leg is painful and cannot bend, and he states that stairs cause him considerable pain to
traverse and increase his chances of falling. Plaintiff claims that doctors have told him that if he

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falls again he will suffer back and leg injuries again, which will be detrimental to his chronic
medical care.
Plaintiff also complains that the showers at MCC are not handicap accessible, as they do
not contain a seat or grab bars. Plaintiff claims that he requested a shower stool in April of 2016
from Corizon in a Medical Service Request, but his request was denied.
Plaintiff’s “Statement of Claim,” alleges “nonfeasance” on the part of George Lombardi;
Dean Minor; and Lisa Pogue at MCC. Plaintiff alleges that MCC housing units are not in
compliance with ADA law.
D. Count IV
Plaintiff claims that in violation of the ADA he has been disciplined as a result of his
medical disability, his hearing loss. He claims that defendant Correctional Officer Allen has
bullied him and made racial slurs towards him, as well as assessed conduct violations against
him because he has been unable to hear his commands due to his hearing loss.
Plaintiff states that he has requested from unnamed doctors at Corizon that he be taken to
an audiologist to determine if he needs hearing aids, but Corizon has refused to do so. Plaintiff
states that Corizon’s “test” for hearing loss involves a nurse standing on the side of the room and
slowly raising her voice asking plaintiff if he could hear her.
Plaintiff’s “Statement of Claim,” alleges that he received “discrimination and
punishment” by staff at MDOC. He claims “nonfeasance” by George Lombardi; Michael
Bowersox; Michelle Buckner; Dean Minor; and Lisa Pogue. He claims correctional officers
often discrimination at MDOC, but Directors and Supervisors turn a blind eye to the acts and
often fail to enforce Federal ADA law and current MDOC policy.
E. Count V

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Plaintiff states that he has suffered from multiple skin infections since he has been
incarcerated at MDOC. He states that he and others have been denied emergency services by
defendant Allen and a “Nurse Tablitha” because they had medical issues that purportedly were
not “life threatening.” He claims that on one such occasion he allegedly had a staff infection in
his skin.
In his “Statement of Claim,” plaintiff alleges “nonfeasance” occurred on the part of all
listed defendants by failure to ensure that emergency services are available to all persons
incarcerated at MDOC.
F. Count VI
Plaintiff states that he has requested he be sent to a specialist for his multiple skin
infections, but he was told “no” by some unnamed individual because purportedly “Matt Sturmm
and Deloise Williams” would not authorize the treatment. Plaintiff states that he has scarring on
much of his body due to multiple skin infections, and he recently found out he has pernicious
anemia. Plaintiff alleges that at least on one occasion Dr. Chada ordered Mupirocin treatment
for a skin infection for plaintiff, but Matt Sturmm and Deloise Williams denied the “necessary
treatment” for plaintiff due to cost.
Plaintiff alleges in his “Statement of Claim” that there was “nonfeasance” on the part of
Karey Witty; Ralf Sulke; Geeneen Wilhite; Renee Tradaro; Cathy Barton; Dr. Paul Jones; and
Dr. Aschok Chada for failure to provide necessary access to a specialist in bacterial infections of
the dermis.
G. Count VII
Last, plaintiff complains about the conditions of confinement at MCC. Plaintiff asserts
that the housing units at Moberly are “infested” German Brown cockroaches which defendants

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only treat with ineffective watered-down insecticide or boric acid. Plaintiff purports that MDOC
refuses to have an extermination company come in to treat the bugs because of the expense.
Plaintiff additionally complains that the heat in the cells often reaches over 100 degrees
in the summer and below freezing in the winter. Plaintiff also complains that there is a rodent
problem in the cells.
In his “Statement of the Claim,” plaintiff alleges that there was “nonfeasance” on the part
of George Lombardi; Dean Minor and Lisa Pogue because defendants have a duty to ensure that
the housing units comport with the health and safety of all persons being housed.
H. Request for Relief
In his request for relief plaintiff seeks: an order from this Court ordering MDOC to
recognize Federal Law as it pertains to Veteran’s Disabilities and Benefits; an order from this
Court requiring MDOC to treat all recognized Veteran’s Disabilities just as they are treated
outside of prison; an order from this Court into “depraved heart” murders by Corizon and
MDOC staff; compensatory damages of 25 million dollars and punitive damages of 100 million.
Discussion
A. Discussion of the Merits of Plaintiff’s Allegations in the Amended Complaint
a. Count I
In Count I, plaintiff brings a claim for deliberate indifference to his serious medical needs
in violation of the Eighth Amendment against defendants Karey Witty, Ralf Sulke, Geeneen
Wilhite, Renee Tradaro, Cathy Barton, Dr. Jones, Dr. Chada, Matt Sturmm and Deloise
Williams. He asserts that these defendants failed to “provide treatment or access to a specialist
necessary to address [his] service connected disabilities.” Plaintiff appears to believe that as a
result of his leg and back issues, he should have been taken to see an orthopedic surgeon, a pain

8

mitigation specialist, as well as an outside physical therapist. All of the defendants have been
named in their individual capacity except for Matt Sturmm and Deloise Williams, MDOC
Division Medical Directors, who have been named in their official capacities only.
Unfortunately, in the body of Count I, plaintiff has only made personal allegations
against Dr. Chada, Cathy Barton, and Dr. Jones. As such, defendants Karey Witty, Ralf Sulke,
Geeneen Wilhite and Renee Tradaro will be dismissed from Count I due to plaintiff’s failure to
allege lack of causal connection. Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990); see
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to
Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through
the official’s own individual actions, has violated the Constitution.”).
Plaintiff states that he told Dr. Chada, Cathy Barton and Dr. Jones that the naproxen and
Effexor he was being given for pain, as well as the prior treatment for his cervical spine and leg,
was not working and that he needed additional treatment. Plaintiff states that none of these
particular individuals provided him with additional treatment even though they knew he was in
pain and the prior treatment wasn’t working. Plaintiff also states that Dr. Chada and Cathy
Barton “explained to him” that the MDOC Central Office, made up of Matt Sturmm and Deloise
Williams – would not approve additional treatment because it was too expensive.
Plaintiff has also made an allegation that MDOC had a policy and/or custom of keeping
costs at a minimum by failing to approve additional treatments for VA disabled or chronic care
inmates. Plaintiff’s conclusory statement, told to him by two Corizon employees, cannot form
the basis for an official capacity claim against defendants Sturrm and Williams, Medical
Directors at MDOC. Moreover, naming Sturrm and Williams in their official capacities is the
equivalent of naming the Missouri Department of Corrections in this action, or in this case the

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State of Missouri. Will v. Michigan Dep=t of State Police, 491 U.S. 58, 71 (1989). “[N]either a
State nor its officials acting in their official capacity are ‘persons’ under § 1983.” Id. As a
result, the amended complaint fails to state a claim against defendants Sturrm and Williams with
respect to plaintiff’s Eighth Amendment claims.
Plaintiff’s individual capacity allegations, however, against defendants Dr. Chada, Cathy
Barton and Dr. Jones all survive § 1915 review under the Eighth Amendment for deliberate
indifference to plaintiff’s serious medical needs for his leg and back issues.
b. Count II
In Count II of plaintiff’s amended complaint he complains that defendants Michelle
Buckner, Assistant Warden at SCCC, and Lisa Pogue, Assistant Warden at MCC, are the ADA
coordinators at their respective facilities and have failed to comply with the ADA by failing to
provide mattresses and bunk beds that are adequate for those with recognized back, neck and leg
disabilities.2 Plaintiff’s claims against Pogue and Buckner have been brought under the ADA in
their official capacities.
Title II of the ADA applies to inmates in state prisons. See Pennsylvania Dep=t of
Corrections v. Yeskey, 524 U.S. 206, 209-11 (1998). “To state a prima facie claim under [Title II
of] the ADA, a plaintiff must allege: 1) he is a person with a disability as defined by statute; 2)
he is otherwise qualified for the benefit in question; and 3) he was excluded from the benefit due

2

In his “Statement of Claim,” in Count II, plaintiff states that he is also bringing Count II against
George Lombardi, Michael Bowersox and Dean Minor, but he has not made any specific claims
against these individuals. Accordingly, plaintiff’s claims against these persons will be dismissed.
See Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990); see Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009) (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a
plaintiff must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.”).
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to discrimination based upon disability.” Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir.
1999); see 42 U.S.C. § 12132.
Reading his amended complaint as a whole, the Court finds that at this time, plaintiff has
alleged enough to survive § 1915 review for an ADA claim against Lisa Pogue and Michelle
Buckner, in their official capacities, for a failure to accommodate his back, neck and leg pain in
relation to the bunk beds and mattresses at SCCC and MCC. The Court will order the Clerk to
issue process on these claims.
c. Count III
Plaintiff’s claims in Count III of his amended complaint are against Lisa Pogue,
alleged ADA coordinator at MCC. Plaintiff asserts that because he has back and leg disabilities,
he is forced to use a cane to traverse. He claims that the housing units cannot be accessed
without using stairs to get into or out of the units. He also claims that the showers are not handicapped accessible, as they do not have a seat or grab-bars, and he has requested and been denied
a seat. The Court will issue process on plaintiff’s claims relating to the handicap accessibility of
the housing units at MCC (relating to the stairs), as well as the handi-cap accessibility of the
showers at MCC. Although plaintiff has named George Lombardi and Dean Minor in his
“Statement of Claim,” the proper defendant is Lisa Pogue as the ADA coordinator, in her official
capacity only. Plaintiff’s claims against Dean Minor and George Lombardi with respect to his
ADA claims in Count III will be dismissed.
d. Count IV
Plaintiff claims that Correctional Officer Allen has disciplined him in violation of one his

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disabilities – his hearing loss. He asserts that Allen has given him conduct violations for “failing
to follow orders,” even though he was simply unable to hear commands when given. Plaintiff
brings his allegations against defendant Allen in his official capacity.
Plaintiff’s conclusory allegations against “directors and supervisors” at MDOC is not
enough to state a claim against George Lombardi, Michael Bowersox, Michelle Buckner, Dean
Minor or Lisa Pogue in this instance. Thus, these allegations are subject to dismissal.
However, plaintiff has alleged enough to survive § 1915 review for an ADA violation
against Correctional Officer Allen in this instance. Title II of the ADA provides that “no
qualified individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or activities of a public entity,
or be subjected to discrimination by any such entity.” 42 U.S.C.

12132. Title II of the ADA

applies to inmates in state prisons. Randolph v. Rodgers, 170 F.3d 850, 857 (8th Cir. 1999)
(“Randolph I”) (citing Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206, 209–11
(1998)).
Here, plaintiff asserts that he is hearing impaired and that he is being discriminated
against through punishment for his inability to respond to alarms, announcements, and
commands that he purportedly cannot hear. Plaintiff’s ADA claims against MDOC (or Officer
Allen in his official capacity under the ADA) survive review under 28 U.S.C. § 1915(e). United
States v. Georgia, 546 U.S. 151, 159 (2006) (noting that “Title II [of the ADA] creates a private
cause of action for damages against the States for conduct that actually violates the Fourteenth
Amendment, [and thus,] Title II validly abrogates state sovereign immunity.”); Randolph v.
Rogers, 253 F.3d 342, 348 (8th Cir. 2001) (“Randolph II”) (noting that Supreme Court precedent

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“permits an injunction against a state official in his official capacity to stop an ongoing violation
of federal law.”) (citing Ex parte Young, 209 U.S. 123, 159–60 (1908)).
e. Count V
In Count V plaintiff claims, generally, that “it is the custom and habit of MDOC
personnel and Corizon nurses” to deny inmates emergency services. Plaintiff then notes that he
has suffered from skin infections for years while incarcerated at MDOC and a Nurse Tablitha
and Correctional Officer Allen failed to provide him “emergency services” when he had a
painful staff infection that was draining one weekend.
Plaintiff does not state that either defendant failed to provide him with any health services
whatsoever. He merely states that “defendants” have a habit of failing to provide “emergency
services.”
To state a claim for medical mistreatment, plaintiff must plead facts sufficient to indicate
a deliberate indifference to serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976);
Camberos v. Branstad, 73 F.3d 174, 175 (8th Cir. 1995). Allegations of mere negligence in
giving or failing to supply medical treatment will not suffice. Estelle, 429 U.S. at 106. In order
to show deliberate indifference, plaintiff must allege that he suffered objectively serious medical
needs and that defendants actually knew of but deliberately disregarded those needs. Dulany v.
Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997).
Plaintiff does not allege that the brief delay in treatment was responsible for aggravating
his purported condition. “The Constitution does not require jailers to handle every medical
complaint as quickly as each inmate might wish.” Jenkins v. County of Hennepin, Minn., 557
F.3d 628, 632 (8th Cir. 2009) (citing Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006)).
A delay as brief and as non-detrimental as plaintiff alleges does not state a claim for deliberate

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indifference to his serious medical needs. See Johnson, 452 F.3d at 973 (concluding that a onemonth delay in treating a fractured finger did not rise to a constitutional violation); Givens v.
Jones, 900 F.2d 1229, 1233 (8th Cir. 1990) (finding that a prisoner’s claim for delay of one
month between complaint of leg pain and visit with doctor was insufficient to state a
constitutional claim absent allegations the condition required immediate attention or the delay in
treatment aggravated the condition).
Accordingly, plaintiff’s amended complaint fails to state a claim against either
Correctional Officer Allen and Nurse Tablitha. Additionally, the defendants mentioned in the
“Statement of the Claim” – Karey Witty, Ralfe Sulke, Geeneen Wilhite, Renee Tradaro, Cathy
Barton, Dr. Paul Jones, and Dr. Aschok Chada – are also subject to dismissal, as no specific
allegations were made against these defendants.
f. Count VI
In Count VI of plaintiff’s amended complaint he claims that he requested a specialist
review his chronic skin infections, but he was told that would not be possible because
purportedly “Matt Sturmm and Deloise Williams” (MDOC Medical Directors) would not
authorize the treatment. Plaintiff has failed to articulate who told him this information and
exactly who told him he would not be able to see a specialist.3
However, plaintiff does allege that on at least one occasion, Dr. Chada authorized
treatment of his skin with Mupirocin treatment, but Matt Sturmm and Deloise Williams denied

3

Plaintiff again lists several persons as defendants in his “Statement of Claim,” but he has not
provided any factual assertions against these defendants. Accordingly, the Court must dismiss
these defendants – Karey Witty; Ralf Sulke; Geeneen Wilhite; Renee Tradaro; Cathy Barton; Dr.
Paul Jones; and Dr. Aschok Chada – due to a lack of causal connection with the allegations in
this claim. Because plaintiff has not named specifically which defendant denied him access to a
specialist when it was purportedly medically necessary, the Court cannot issue on that individual
defendant for a violation of the Eighth Amendment.
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the treatment due to cost. Plaintiff sues Matt Sturmm and Deloise Williams in their official
capacities. Unfortunately, as noted above, because plaintiff has sued these individuals in their
official capacities, his claims against them are subject to dismissal. See Will v. Michigan Dep=t
of State Police, 491 U.S. 58, 71 (1989).
g. Count VII
In Count VII of plaintiff’s amended complaint, he complains about the conditions of
confinement at MCC. He asserts that the cells are infested with cockroaches and rodents, which
are not adequately treated by MDOC. Plaintiff also claims that MCC facilities are deplorable,
with poor insulation, outdated heating/air-conditioning and old windows. Plaintiff alleges that in
the summer the heat can reach as high as 100 degrees in the cells, while in the summer it can go
below freezing.
Although plaintiff has named George Lombardi, Dean Minor and Lisa Pogue in his
“Statement of Claim,” he has not articulated one individual that he has reported the alleged poor
conditions of confinement to and received a response back from relating to the alleged
conditions. Plaintiff also has not indicated how any of the three individuals named would have a
causal connection to the aforementioned allegations, other than being supervisory individuals in
the MDOC system, itself, as well as at MCC. Plaintiff’s failure to do so must result in a
dismissal of this allegation at this time. See Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir.
1990); see Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is
inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.”);
Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995) (“a general responsibility for

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supervising the operations of a prison is insufficient to establish the personal involvement
required to support liability.”).
B. Plaintiff’s Motions for Injunctive Relief
a. Docket No. 16 – Conditions of Confinement Issue
On January 1, 2017 [Doc. #16], plaintiff filed a request for injunctive relief, seeking an
injunction ordering MDOC to make “improvements to [MCC] to comply with human decency
and replace the windows or other repairs that meet ANSI standards or local building codes.”
Plaintiff stated in his motion that the windows in the housing unit lacked appropriate seals and
the winter winds and rainstorms often blow hard enough to invade the plastic taping over the
window coverings. Plaintiff indicated in his motion that he had not grieved his request prior to
filing his motion for injunctive relief.
To determine whether preliminary injunctive relief is warranted, the Court must balance
threat of irreparable harm to movant, the potential harm to the nonmoving party should
injunction issue, the likelihood of success on merits, and the public interest. Dataphase Sys. v.
CL Sys., 640 F.2d 109, 113-14 (8th Cir. 1981) (en banc).
In his motion for injunctive relief, plaintiff suffers from the same difficulty as the Court
noted in Count VII above. First, plaintiff has not stated that he made a request to anyone at the
prison to fix the aforementioned situation. Moreover, although plaintiff anticipates that there
may be difficulties as the Winter and Spring progress, such as high winds and rain, he cannot
state with certainty that such problems will occur. Rather, plaintiff states in a conclusory manner
that he believes that on the night of the filing of the motion the temperature in his cell will be the
same inside as it is outside and the “heat radiator type from the 1960s cannot keep up.”

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The Court cannot and will not enter an anticipatory injunction. If plaintiff believes that
his cell is too cold, he should immediately report it through the proper prison channels, including
the IRR and grievance process. Once he has done so, he may bring the matter to the Court’s
attention if remedial measures are not taken by the MDOC. However, the Court will not order
MDOC to do “improvements to the prison” without evidence that there is indeed a serious issue
that has first been informally addressed within the confines of the grievance system. His motion
for injunctive relief will be denied.
b. Docket Nos. 21, 24, 25 – Automatic Renewal of Omeprazole Medication
On January 23, 2017, [Doc. #21] plaintiff filed a request for injunctive relief, seeking a
mandatory injunction against defendants Karey Witty, Ralf Sulke, Matt Sturmm, Deloise
Williams, Geeneen Wilhite and “associated doctors and/or staff at Moberly Correctional Center
and Corizon Medical Facility,” to provide plaintiff an automatic renewal for a medication called
Omeprazole.4
Plaintiff stated in his motion that defendants had failed to provide him with an automatic
renewal for his gastroesophageal medical because they did not recognize his GI issues, or reflux
disorder/irritable bowel disorder as a chronic care issue. Plaintiff asserts that each time he needs
the medication he must visit the nurse with a medical service request and ask the nurse to
schedule a visit with the doctor, which can require a wait. Plaintiff complains that sometimes he
may have to go without his medication for several days as a result of “defendants’” failure to
schedule the doctor visit in a timely manner.

4

Plaintiff filed two supplements to his motion for injunction relief concerning this matter on
January 31, 2017 and again on February 2, 2017. See Docket Nos. 24 and 25. In Doc.#25
plaintiff acknowledges that “outside of the normal process,” someone from Corizon ordered
pantoprazole from Sam’s pharmacy and mitigated the length of time plaintiff was without his
medication for GERD.
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The gist of plaintiff’s argument is that defendants will not recognize GERD as a chronic
condition and treat it within the chronic care policy, which allows for automatic refills. Instead,
each month the refill expires and a new refill must be obtained.
To determine whether preliminary injunctive relief is warranted, the Court must
balance threat of irreparable harm to movant, the potential harm to the nonmoving party should
injunction issue, the likelihood of success on merits, and the public interest. Dataphase Sys. v.
CL Sys., 640 F.2d 109, 113-14 (8th Cir. 1981) (en banc).
Plaintiff has not indicated which of the named defendants he has asked to make his
GERD medication a “chronic care medication” pursuant to the chronic care policy, such that it
would be eligible for the automatic refill policy.5
Plaintiff has also failed to indicate which of the defendants have interfered with the
timely refill of his omeprazole. In fact, plaintiff concedes, in Docket No. 25 that “someone from
Corizon” provided he and others at MCC with GERD medication in a timely manner in order to
make sure they did not run out of their medication. Given such factual circumstances, the Court
is unable to grant plaintiff’s motion for injunctive relief. His request will be denied.
c. Docket No. 26 – Medication Dispensation Time Periods
On February 8, 2017, plaintiff filed a third request for injunctive relief, seeking to restrain
defendants at Moberly from scheduling dispensing medications during meal times. [Doc. #26]
Plaintiff states that on 2/2/2017 he failed to receive his dermatitis medication because he failed
to arrive at the medication pickup, with his medical cards turned in by 12:45. Plaintiff claims
that medical cards must be placed in the “cup” no later than 12:45 or 5:45, or the nurses cannot

5

Moreover, plaintiff has not articulated exactly what the “chronic care policy” is, or why
plaintiff’s GERD medication is not considered part of the “chronic care policy” such that it is not
subject to automatic renewal.
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provide the medication refills. Because plaintiff did not arrive until 12:50, the nurse on duty
denied him a refill, plaintiff claims. Thus, plaintiff believes that defendants should be enjoined
from such a medication dispensation policy.
In his own words, plaintiff states that inmates can receive medication at either the noon or
the evening meal times. Because plaintiff alleges in his motion that he was late for only the noon
meal-time, the Court cannot find that he is entitled to an injunction that the medication
dispensation time period is unreasonable and should be enjoined based on the facts provided by
plaintiff. In other words, plaintiff could have gone to pick up his medication at the evening meal
time instead. Plaintiff’s request for an injunction is denied.
d. Docket No. 28 – Food Visitation Rights
On February 13, 2017, plaintiff filed a fourth request for injunctive relief, seeking to
restrict defendants from enforcing the “food visit policies” against him at Moberly. [Doc. #28]
Plaintiff seeks to have a “food visit” with his family, but he claims that in order to “earn” the
visit a prisoner has to be able to work or attend a class while housed at MCC. Plaintiff believes
such a policy is discriminatory when it will be applied to persons who are disabled. Plaintiff
asserts that he is “unable to work” and has “a four-year degree” so “requiring him to attend
classes that are far below his education level is redundant and purposeless” and will “violate his
Fifth Amendment right.”
Plaintiff has not included a copy of the Food Visit Policy at MCC with a copy of his
request for injunctive relief. Additionally, plaintiff has not included factual information relating
to when he purportedly asked for a food visit and was denied such an event.
Indeed, it is clear from the wording of the motion for injunctive relief that the motion for
injunction is anticipatory, as the denial has not yet occurred. Additionally, once again, plaintiff

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has indicated that he has not grieved his anticipated denial of a food visit with the authorities at
the MDOC or MCC. The Court will not entertain plaintiff’s motion for injunction relating to a
“policy” or “custom” of the prison or MDOC without first having plaintiff present his request to
the prison authorities and grieve, if necessary, the authorities’ response.
If plaintiff believes that the MDOC response is discriminatory or infringes upon his
constitutional rights in some way, he should renew his request for relief at a later date. His
motion for injunctive relief with respect to his anticipated food visitation rights will be denied.
e. Docket No. 29 – Verbal Threats Relating to Access of Law Library
On February 13, 2017, plaintiff filed a fifth request for injunctive relief, seeking to enjoin
an individual by the name of Jennifer Cook, a librarian at MCC, from “threatening” him from
removal from the law library at MCC, in addition to one time threatening him with “Ad-Seg.”
[Doc. #29]
Plaintiff states that on February 9, 2017, he was using the law library at MCC to assist
another inmate named Ja’Juam Williams with his lawsuits. Plaintiff claims that “while at the
library, several persons came to the table or computer to ask plaintiff a question concerning the
law.” Plaintiff believes that because several of the individuals were African American, Jennifer
Cook, the librarian threatened plaintiff by ordering him from the law library that day.
Plaintiff claims that he was “specifically in the law library doing research and
interviewing witnesses for the lawsuits” and Ms. Cook “threatened him with possible sanction of
Ad-Seg.” Plaintiff states that this is the fourth incident he has had with Ms. Cook in the past

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several months, and he believes Ms. Cook is racist.6 Plaintiff believes Ms. Cook is impeding his
access to the Courts and he seeks to enjoin her behavior.
To determine whether preliminary injunctive relief is warranted, the Court must balance
threat of irreparable harm to movant, the potential harm to the nonmoving party should
injunction issue, the likelihood of success on merits, and the public interest. Dataphase Sys. v.
CL Sys., 640 F.2d 109, 113-14 (8th Cir. 1981) (en banc).
Plaintiff is not entitled to an injunction on his claim relating to the verbal threats against
Ms. Cook because he cannot show that he suffered an actual injury to a pending or contemplated
legal claim. See Myers v. Hundley, 101 F.3d 542, 544 (8th Cir. 1996). Additionally, plaintiff has
not indicated that he was ever placed in Administrative Segregation as a result of Ms. Cook’s
threats, or that he was kept from working in the library as a result of her alleged threat. As
plaintiff has no likelihood of success on the merits at this time relative to his request for
injunctive relief, his request must be denied.
Accordingly,
IT IS HEREBY ORDERED that the Clerk shall issue process on the following
individuals in their individual capacity pursuant to the service agreement the Court maintains

6

Plaintiff states in his motion that Ms. Cook threatened him with Ad-Seg on only one occasion.
He does not state how or why this verbal threat came up in conversation or whether or not Ms.
Cook has such a power to transfer plaintiff to Ad-Seg. This purported Averbal harassment@ does
not rise to the level required to establish a constitutional violation. See, e.g., McDowell v. Jones,
990 F.2d 433, 434 (8th Cir. 1993); King v. Olmsted, 117 F.3d 1065, 1067 (8th Cir. 1997) (verbal
harassment actionable only if it is so brutal and wantonly cruel that it shocks the conscience, or if
the threat exerts coercive pressure on the plaintiff and the plaintiff suffers from a deprivation of a
constitutional right). Moreover, a mere threat to do an unconstitutional act does not create a
constitutional wrong. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir.1987) (noting that a mere naked
threat to engage in an act prohibited by the Constitution is not equivalent to doing the act itself).
A deprivation of Apeace of mind@ similarly does not support a constitutional claim. King, 117
F.3d at 1067.
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with Corizon: Dr. Aschok Chada; Dr. Paul Jones and Cathy Barton for an alleged deliberate
indifference to plaintiff’s serious medical needs in violation of the Eighth Amendment relative to
plaintiff’s back and leg issues. Defendants shall answer plaintiff’s claims relative to Count I of
his amended complaint. No other claims shall issue with respect to these defendants.
IT IS FURTHER ORDERED that the Clerk shall not issue process on the following
Corizon employees: Karey Witty, Ralf Sulke, Geeneen Wilhite, or Renee Tradaro. The claims in
plaintiff’s amended complaint against these individuals are subject to dismissal. The claims
against Corizon, LLC are also subject to dismissal.
IT IS FURTHER ORDERED that the Clerk shall issue process pursuant to the waiver
of service agreement the Court maintains with the Missouri Attorney General’s Office on: Lisa
Pogue, Michelle Buckner and Correctional Officer Allen, relative to plaintiff’s claims pursuant
to the Americans with Disability Act violations which allegedly occurred at SCCC and MCC.
Defendant Pogue shall answer the claims encompassed in Counts II and III of plaintiff’s
amended complaint. Defendant Buckner shall answer the claims set forth in Count II in
plaintiff’s amended complaint. Defendant Allen shall answer the claims set forth in Count IV of
plaintiff’s amended complaint. No other claims shall issue with respect to these defendants.
IT IS FURTHER ORDERED that no claims shall issue on MDOC employees: Dean
Minor, George Lombardi, Michael Bowersox, Matt Sturmm, or Deloise Williams. The claims in
plaintiff’s amended complaint against these individuals are subject to dismissal.
IT IS FURTHER ORDERED that plaintiff’s request for injunctive relief relating to his
request for the Court to order new construction at Moberly Correctional Center [Doc. #16] is
DENIED WITHOUT PREJUDICE at this time.

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IT IS FURTHER ORDERED that plaintiff’s requests for injunctive relief for a Court
Order for automatic renewal of his Omeprazole [Doc. #21, #24 and #25] are DENIED
WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that plaintiff’s request for injunctive relief enjoining
MCC from scheduling dispensing medications during meal times [Doc. #26] is DENIED
WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that plaintiff’s request for injunctive relief seeking to
restrict defendants from enforcing the “food visit policies” against him at Moberly [Doc. #28] is
DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that plaintiff’s request for injunctive relief seeking to
restrict defendants from threatening him with removal from the law library at MCC and with the
disciplinary sanction of “Ad-Seg” [Doc. #29] is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that the following declarations filed by plaintiff, offered
as supplements to his amended complaint or exhibits to the record [Doc. #18, #19, #20, #22, #23,
#27, #30, #31, #32, #33, #34, #35, #36, #37, #38 and #39] are STRICKEN.
An Order of Partial Dismissal shall accompany this Memorandum and Order.
Dated this 9th day of March, 2017

___________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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