Fulson v. Anderson et al

Filing 52

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that defendants Hurley and Chenoweth's motions to dismiss (Docs. 26 , 28 ) are GRANTED. An Order of Dismissal will be filed forthwith. Signed by District Judge Catherine D. Perry on 8/11/2017. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
ANDRE L. FULSON,

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Plaintiff,
v.
TAMARA ANDERSON, et al.,
Defendants,

No. 2:16-CV-78 CDP

MEMORANDUM AND ORDER
This matter is before me on defendants James Hurley and Terrie
Chenoweth’s motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. The motions are granted.
Background
Plaintiff brings this action under 42 U.S.C. § 1983, the Americans with
Disabilities Act (“ADA”), and state law against several prison officials and
medical personnel at the Northeast Correctional Center (“NECC”). At all times
relevant to the complaint, James Hurley was the Warden of NECC and Terrie
Chenoweth was a Correctional Officer.
When plaintiff arrived at NECC in 2013, the prison doctor assessed him and
gave him a diagnosis of inflammatory myopathy. The doctor prescribed a physical
therapy regimen, which included walking outside, weight lifting, and use of both a

treadmill and an elliptical machine. He was allowed to follow the regimen for two
years.
In early 2015, Hurley said the prescription violated the Missouri Department
of Corrections’ (“MoDOC”) policy.
When Chenoweth learned about plaintiff’s exercise regimen, she ordered
plaintiff to produce the medical documentation. She also spoke to the medical
defendants several times about plaintiff’s treatment program, suggesting that it be
modified to comply with policy. Plaintiff says she “was allowed by [plaintiff’s
doctor and nurses] to have [his] medical treatment plan altered, modified, changed,
reduced and ultimately discontinued.”
Plaintiff claims defendants violated the ADA because they had a policy that
all inmates should be employed.

And he says the policy did not contain a

provision for disability accommodations as required by the ADA.
Plaintiff alleges he was placed in administrative segregation for six months
in retaliation for filing grievances against a nurse. He does not allege, however,
that either of the defendants were responsible for the placement.
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
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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
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.
Determining whether a complaint states a plausible claim for relief is a contextspecific task that requires the reviewing court to draw on its judicial experience
and common sense. Id. at 679.
Discussion
Defendants move to dismiss on the grounds that (1) all of the the claims are
moot, (2) the deliberate indifference claims fail to state a plausible claim for relief,
(3) that they are entitled to qualified immunity, and (4) the ADA claims are
conclusory.

In his response brief, plaintiff did not respond to defendants’

arguments. Instead, he resubmitted portions of his complaint and attached some
grievance records.
1.

Mootness

Defendants argue that plaintiff’s causes of action are moot because he has
been moved to a different facility, and therefore, there is no longer any “live
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controversy” to decide. They are incorrect. “[B]y definition claims for past
damages cannot be deemed moot.”

Taxpayers for the Animas-La Plata

Referendum v. Animas-La Plata Water Conservancy Dist., 739 F.2d 1472, 1479
(10th Cir. 1984).
2.

Deliberate Indifference Claims

“To prevail on an Eighth Amendment claim of deliberate indifference to
serious medical needs, an inmate must prove that he suffered from one or more
objectively serious medical needs, and that prison officials actually knew of but
deliberately disregarded those needs.” Roberson v. Bradshaw, 198 F.3d 645, 647
(8th Cir. 1999). For a claim of deliberate indifference, “the 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). Deliberate
indifference is akin to criminal recklessness, which demands more than negligent
misconduct. Olson v. Bloomberg, 339 F.3d 730, 736 (8th Cir. 2003).
Additionally, “[l]iability 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
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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.”).
Plaintiff alleges that Hurley announced that his treatment plan violated
MoDOC’s policy. But plaintiff does not say what policy was violated. Nor does
he claim that the policy prohibited him from receiving treatment. In her response
to plaintiff’s grievance, Sarah Starks, RN, Assistant Director of Nursing, explained
to him that his lay-in “did not meet scheduling allowed by the Department of
Corrections. Thus, an alternate treatment plan and lay-in were put in place by the
physician to accommodate both [his] medical needs and the scheduling of the
Department of Corrections.”

Pl.’s Resp. at 16.

The same information was

provided to plaintiff in the response to his grievance appeal. Id. at 20. The Court
does not accept the grievance responses as necessarily true; however, plaintiff’s
allegations against Hurley are so vague that he could be alleging his treatment plan
was altered by a schedule change as opposed to restriction of his treatment. As a
result, plaintiff’s allegations against Hurley fail to rise to the level of plausibility
required by Iqbal.
Plaintiff’s allegations against Chenoweth are equally vague and conclusory.
He alleges that she questioned him and the medical defendants about the validity of
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his lay-in. And as stated above, he says she “was allowed by [plaintiff’s doctor
and nurses] to have [his] medical treatment plan altered, modified, changed,
reduced and ultimately discontinued.” However, this statement suffers from the
same ambiguity as his claims against Hurley. Additionally, in the same section of
the complaint, he alleges that it was the medical defendants’ decisions and
Corizon’s policies that were responsible for the discontinuation of his treatment.
Am. Cmpl. at 10. Plaintiff’s allegations against Chenoweth fail to rise above the
level of mere possibility, and therefore, his deliberate indifference allegations
against her fail to state a claim upon which relief can be granted.
3.

Qualified Immunity

“Qualified immunity may protect government officials from liability under
42 U.S.C. § 1983, but not if their conduct violated clearly established statutory or
constitutional rights of which a reasonable person would have known.” Nelson v.
Corr. Med. Servs., 583 F.3d 522, 527 (8th Cir. 2009) (en banc) (quotation omitted).
The tests for whether an officer is entitled to qualified immunity are: (1) whether
the facts alleged, taken in the light most favorable to the injured party, show that
the officer’s conduct violated a constitutional right; and (2) whether the
constitutional right was clearly established at the time of the deprivation so that a
reasonable officer would understand his conduct was unlawful.
Callahan, 555 U.S. 223, 231 (2009).
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Pearson v.

As stated above, plaintiff has not shown that defendants violated his
constitutional rights. Additionally, he has failed to demonstrate that their actions,
in enforcing MoDOC’s unspecified policy, violated a clearly established federal
right. Therefore, defendants are entitled to qualified immunity.
4.

ADA Claim

Plaintiff alleges that defendants “created and implemented a policy geared
towards total inmate employment assignment” that did not contain the
accommodation requirements of the ADA. He does not allege, however, that he
was required to maintain a job.
Plaintiff’s allegations fall under Title II of the ADA, which 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. Plaintiff does not allege any facts showing that he was
denied the benefit of a prison program because of a disability. So, his allegations
under the ADA fail to state a claim upon which relief can be granted.
Finally, I decline to exercise supplemental jurisdiction over plaintiff’s claims
arising under state law. See 28 U.S.C. § 1367(c)(3).
Accordingly,

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IT IS HEREBY ORDERED that defendants’ motions to dismiss (Docs. 26,
28) are GRANTED.
An Order of Dismissal will be filed forthwith.
Dated this 11th day of August, 2017.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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