Fulson v. Anderson et al

Filing 50

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that defendant Larry Preston's motion to dismiss (Doc. 22) is GRANTED. An Order of Partial Dismissal will be filed forthwith. Signed by District Judge Catherine D. Perry on August 3, 2017. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
ANDRE L. FULSON,
Plaintiff,
v.
TAMARA ANDERSON, et al.,
Defendants,

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No. 2:16-CV-78 CDP

MEMORANDUM AND ORDER
This matter is before me on defendant Larry Preston’s motion to dismiss
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The motion is
granted.
Background
Plaintiff brought this action under 42 U.S.C. § 1983, the Americans with
Disabilities Act, and state law against several prison officials and medical
personnel at the Northeast Correctional Center (“NECC”). Defendant Preston is a
maintenance worker at NECC.
Plaintiff has a type of inflammatory myopathy.1 His symptoms include loss
of physical strength and unreliable mobility, which cause him to fall. On May 19,

Myopathy is “[a]ny abnormal condition or disease of the muscular tissues;
commonly designates a disorder involving skeletal muscle.” Stedman’s Medical
Dictionary 585150 (2014).
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2015, after he fell more than forty times, his doctor prescribed a wheelchair for
him.
Corizon officials did not process the paperwork for the prescription for two
months, until approximately July 19, 2017. After the paperwork for the wheelchair
was processed, Correctional Officer David Cutt told plaintiff that there were no
available wheelchairs. Cut further told plaintiff, “‘when one becomes available, it
will be provided.’” Compl. p. 17.
Plaintiff alleged that the processing of the wheelchair prescription required
Preston “to prepare a broken wheelchair or order a new one.” Id. at 16. Plaintiff
did not allege, however, that Preston was aware he needed a wheelchair or refused
to provide him with one.
The wheelchair prescription was cancelled on about August 21, 2015.
Standard
To state a claim under the Federal Rules of Civil Procedure, a complaint
must contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A pleading need
not include “detailed factual allegations,” but it is not sufficient to tender “naked
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assertion[s]” that are “devoid of further factual enhancement.” Id. (internal
quotation marks omitted). A complaint must do more than allege “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action.” Id.
Discussion
Preston moves to dismiss on the grounds that plaintiff’s allegations fail to
state a plausible claim for relief and that he is entitled to qualified immunity. In his
response brief, plaintiff did not respond to any of Preston’s legal or factual
arguments.
Preston argues that plaintiff has failed to allege facts demonstrating that he
was deliberately indifferent to plaintiff’s serious medical needs because plaintiff
did not allege he was personally responsible for the failure to provide him with a
wheelchair.
“Liability under § 1983 requires a causal link to, and direct responsibility
for, the alleged deprivation of rights.” 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 supervising the operations of a prison
is insufficient to establish the personal involvement required to support liability.”).
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Plaintiff’s allegations do not show that Preston knew of his need for a
wheelchair or that he refused to provide plaintiff with a wheelchair. Rather, it was
the Corizon officials who failed to process the request and the lack of available
wheelchairs that resulted in the deprivation. Therefore, the complaint fails to state
a plausible claim against Preston under the Eighth Amendment.
Moreover, plaintiff has not alleged facts showing that Preston was
deliberately indifferent to his serious medical needs.

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). As stated
above, plaintiff has not alleged that Preston was aware of his need for a
wheelchair. So, plaintiff’s Eighth Amendment claim fails for this reason as well.
Preston also argues that he is entitled to qualified immunity. “The doctrine
of qualified immunity protects government officials ‘from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Pearson
v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). I agree with Preston. No reasonable person in his situation
could have known that his conduct was unconstitutional. As a result, he is entitled
to qualified immunity.
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Finally, Preston argues that plaintiff’s ADA claims against him in his
individual and official capacities fail because the ADA does not apply to
individuals, see Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n. 8 (8th Cir.
1999) (en banc), and because the state is entitled to qualified immunity. In my
Order reviewing the amended complaint under 28 U.S.C. § 1915(e), I did not find
that plaintiff stated a plausible ADA claim against Preston. Plaintiff did not allege
any facts demonstrating Preston violated the ADA, and so, any such allegations
fail to state a claim upon which relief can be granted.
Accordingly,
IT IS HEREBY ORDERED that defendant Larry Preston’s motion to
dismiss (Doc. 22) is GRANTED.
An Order of Partial Dismissal will be filed forthwith.
Dated this 3rd day of August, 2017.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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