Human v. Hurley et al

Filing 38

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED the Defendants' Motion for Summary Judgment 30 is GRANTED. Plaintiff's Crew Work claim is dismissed with PREJUDICE. All other claims are dismissed without prejudice. IT IS FURTHER ORDERED the Plaintiffs Motion to Compel 26 is DENIED as moot. Signed by District Judge E. Richard Webber on 3/28/2018. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
DANIEL HUMAN,
Plaintiff,
v.
JAMES HURLEY, et al.,
Defendants.

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No. 2:17CV008 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Defendant, James Hurley, Terri Chenoweth,
Daniel Wombles, Roxane Speagle, Timothy Wood, and Ronald Crum’s Motion for Summary
Judgement [30] and Plaintiff Daniel Human’s Motion to Compel Defendants to Produce
Documents [26].
I.

BACKGROUND
Plaintiff Daniel Human (“Plaintiff”) initiated this lawsuit by filing a complaint on

February 10, 2017 [1]. In this Complaint, Plaintiff asserts two counts against Defendants James
Hurley (“Hurley”), Terri Chenoweth (“Chenoweth”), Daniel Wombles (“Wombles”), Roxane
Speagle (“Speagle”), Timothy Wood (“Wood”), and Ronald Crum (“Crum”). In Count I,
Plaintiff alleges Defendants intended to cause him physical and emotional pain and distress with
malicious and cruel acts which deprived him of his constitutional rights to be secure in his person
and free from the imposition of “cruel and unusual punishment.” In Count II, Plaintiff alleges
Defendants, individually and in tandem with each other, meant to harm him with conscious
disregard of his constitutional right to have his medical restrictions observed and with the intent
to deprive Plaintiff of his constitutional right to adequate medical treatment for known risks to

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his health.
On November 27, 2017, Defendants Hurley, Chenoweth, Wombles, Speagle, Wood, and
Crum filed this Motion for Summary Judgment [ECF No.30]. Defendants seek summary
judgment on both counts of Plaintiff’s Complaint on the basis Plaintiff had not exhausted his
administrative remedies with regard to any of his complaints in violation of the Prison Litigation
Reform Act and Plaintiff cannot prove a genuine issue of material fact supporting any
constitutional violation. Alternatively, Defendants rely on qualified immunity to prevail in this
action.
A.

Uncontroverted Facts

Plaintiff has been an inmate at Northeast Correctional Center (“NECC”) in Bowling
Green, Missouri since November 12, 2013. On March 13, 2014, Plaintiff was assigned to work
on the “Captain’s Crew” (“Crew”). On April 11, 2014, Dr. Deborah Harrell, APRN FNP-C,
examined Plaintiff and issued work restrictions stating Plaintiff was restricted from “repetitive
bending, stooping, or squatting” for work assignments. On April 26, 2014, when Plaintiff
reported to the Crew and showed Defendant Chenoweth and Wombles his medical restriction,
both of them told him to go to work.
Before filing a prior complaint in case number 2:14CV00073, on April 30, 2014, Plaintiff
filed an Informal Resolution Request (“IRR”) form asserting working on the Crew violated his
medical restrictions. Prison officials did not respond to Plaintiff’s IRR within forty days and the
form was marked “exceeding time limit” and “grievance given 6-23-14” according to the
Missouri Department of Corrections (“MDOC”) offender grievance procedure. On June 24,
2014, Plaintiff filed an Offender Grievance regarding the Crew work.
On July 22, 2014, the Warden’s office denied Plaintiff’s Offender Grievance, because an

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investigation showed Plaintiff was told to work within those restrictions, and was told he could
clean tables and benches. On August 23, 2014, prison authorities denied Plaintiff’s appeal of the
Offender’s Grievance.
In December 2014, Plaintiff requested a cell move. Defendant Wood moved Plaintiff
from a cell in 4 House to a cell in 5 House containing two offenders who smoke, which allegedly
bothered Plaintiff’s allergies. On December 11, 2014, Plaintiff filed an Offender Grievance
Appeal, marked “Reprisal,” regarding the cell move. In January 2015, the Reprisal Offender
Grievance Appeal was denied because no evidence of reprisal was found. The appeal was
returned to Plaintiff and a normal grievance process was suggested to Plaintiff, according to
MDOC Offender Grievance Procedure. A normal grievance process begins by filing an IRR but
Plaintiff did not file any IRR regarding a retaliatory cell move.
In February 2015, Defendant Crum, a sergeant currently in charge of Plaintiff’s housing
unit, assigned Plaintiff to clean showers which required Plaintiff to climb stairs. On February 13,
2015, Plaintiff filed an IRR stating the shower cleaning work violates his medical work
restrictions. The IRR was denied on the basis his job duties were within his medical restrictions.
On March 5, 2015, Plaintiff filed an Offender Grievance regarding the shower cleaning. On
March 9, 2015, Hurley informed Plaintiff, Crum was aware of his medical restrictions in his
Warden’s response to Plaintiff’s Offender Grievance. On March 27, 2015, Plaintiff filed an
Offender Grievance Appeal regarding cleaning the showers on the second floor. On May 27,
2015, prison officials denied the appeal.
In May 2015, Crum assigned Plaintiff to front yard mow crew. Plaintiff did not push a
lawn mower. Plaintiff did not file an IRR grieving an assignment to push a reel lawnmower.

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B.

Procedural History

Plaintiff filed his initial complaint on July 3, 2014, in case number 2:14CV00073.
Plaintiff asserted Defendants deprived him of his constitutional rights to be secure in his person
and free from the imposition of cruel and unusual punishment. Plaintiff also asserted Defendants
deprived him of his constitutional right to adequate medical treatment for known risks to his
health. On September 2, 2015, this Court granted, in part and denied, in part Defendants’ motion
to dismiss. Plaintiff’s claims against Defendant Timothy Truelove were dismissed without
prejudice.
On February 3, 2016, Plaintiff filed his second amended complaint, in case number
2:14CV00073, alleging his work on the Crew violated his medical restrictions. This Court on
December 6, 2016, granted a motion for summary judgment against Plaintiff and for Defendant
Hurley, Chenoweth, Wombles, Speagle, Wood, and Crum without prejudice, concluding Plaintiff
had failed to exhaust his administrative remedies before filing suit.
This case was filed on February 10, 2017, asserting two counts against Defendants
Hurley, Chenoweth, Wombles, Speagle, Wood, and Crum. This matter before the Court is for
Defendants’ motion for Summary Judgment and Plaintiff’s Motion to Compel Defendants to
Produce Documents.

II.

STANDARD
A court shall grant a motion for summary judgment only if the moving party shows

“there is no genuine dispute as to any material fact and that the movant is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
By definition, material facts “might affect the outcome of the suit under the governing law,” and
a genuine dispute of material fact is one “such that a reasonable jury could return a verdict for
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the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the nonmoving party has failed to “make a showing sufficient to establish the existence of an element
essential to that party’s case, . . . there can be ‘no genuine issue as to any material fact,’ since a
complete failure of proof concerning an essential element of the non-moving party’s case
necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322-23.
The moving party bears the initial burden of proof in establishing “the non-existence of
any genuine issue of fact that is material to a judgment in his favor.” City of Mt. Pleasant, Iowa
v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). The moving party must show
that “there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S.
at 325. If the moving party meets this initial burden, the non-moving party must then set forth
affirmative evidence and specific facts that demonstrate a genuine dispute on that issue.
Anderson, 477 U.S. at 250. When the burden shifts, the non-moving party may not rest on the
allegations in its pleadings, but, by affidavit and other evidence, must set forth specific facts
showing a genuine dispute of material fact exists. Fed. R. Civ. P. 56(c)(1); Stone Motor Co. v.
Gen. Motors Corp., 293 F.3d 456, 465 (8th Cir. 2002). To meet its burden and survive summary
judgment, the non-moving party must “do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). Instead, the non-moving party must demonstrate sufficient favorable
evidence that could enable a jury to return a verdict for it. Anderson, 477 U.S. at 249. “If the
non-moving party fails to produce such evidence, summary judgment is proper.” Olson v.
Pennzoil Co., 943 F.2d 881, 883 (8th Cir. 1991).
In ruling on a motion for summary judgment, the Court may not “weigh the evidence in
the summary judgment record, decide credibility questions, or determine the truth of any factual

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issue.” Kampouris v. St. Louis Symphony Soc., 210 F.3d 845, 847 (8th Cir. 2000). The Court
instead “perform[s] only a gatekeeper function of determining whether there is evidence in the
summary judgment record generating a genuine issue of material fact for trial on each essential
element of a claim.” Id. The Court must view the facts and all reasonable inferences in the light
most favorable to the nonmoving party. Reed v. City of St. Charles, 561 F.3d 788, 790 (8th Cir.
2009).
III.

MOTION FOR SUMMARY JUDGMENT
Plaintiff, in both Count I and Count II, asserts claims under 42 U.S.C. § 1983, claiming

Defendants violated Plaintiff’s constitutional rights under the Eighth Amendment. Defendants
assert Plaintiff’s § 1983 claims against them fail because he did not exhaust his administrative
remedies before filing suit and Defendants are entitled to summary judgment.
A. Plaintiff failed to exhaust his administrative remedies with respect to three of his
claims.
An inmate’s § 1983 claim with respect to prison conditions may only proceed if the
inmate has first exhausted all of his available intra-prison administrative remedies under the
Prison Litigation Reform Act (“PLRA”). 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 211
(2007); Leach v. Moore, 240 Fed. Appx. 732, 733 (8th Cir. 2007) (per curiam). The “failure to
exhaust is an affirmative defense under the PLRA” Jones, 549 U.S. at 216. Further, “inmates are
not required to specially plead or demonstrate exhaustion in their complaints” Id. Instead, “the
defendant has the burden to plead and to prove” a failure to exhaust. Nerness v. Johnson, 401
F.3d 874, 876 (8th Cir. 2005) (per curiam) (citation omitted). Therefore, Defendants bear the
burden to plead and to prove Plaintiff did not follow all of the steps in the MDOC grievance

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procedure before he filed suit in this Court on February 10, 2017. See Johnson v. Jones, 340 F.3d
624,627 (8th Cir. 2015).
If an inmate has filed some grievance documents but has not followed all policies of the
prison’s administrative grievance process, the court must dismiss the inmate’s claim. Woodford
v. Ngo, 548 U.S. 81, 95 (2006). In order for a Missouri prisoner to satisfy this exhaustion
requirement, he must avail himself of the administrative grievance process established by the
MDOC:
To initiate this process, an inmate must file an Informal Resolution Request
(“IRR”) within fifteen days of the date of the incident giving rise to the IRR. If
the inmate is dissatisfied with the response to his IRR, he can file an Offender
Grievance within seven working days of receiving the response. If the inmate is
dissatisfied with the response to his Grievance, he can file a Grievance Appeal
within seven days of receiving that response. The failure to file timely appeal will
result in the appeal being considered abandoned. Only after the inmate receives a
response to his Appeal is the administrative grievance procedure exhausted
(emphasis added).
Wewerka v. Roper, No. 4:09CV1973 CDP, 2010 WL 4628093, at *2 (E.D. Mo. Nov. 8, 2010)
(emphasis added); see also Taylor v. Phillips, No. 1:11-CV-173 SNLJ, 2014 WL 4261099, at *4
(E.D. Mo. Aug. 28, 2014); Perry v. Figge, No.4:13CV1883 RWS, 2014 WL 2818666, at *5
(E.D. Mo. June 23, 2014); Adams v. Campbell, No. 2:12CV24 HEA, 2013 WL 991615, at *1
(E.D. Mo. Mar. 13, 2013) aff’d, 594 F. Appx. 326 (8th Cir. 2015); Witte v. Culton,
No.4:11CV02036 ERW, 2013 WL 639309, at *4 (E.D. Mo. Feb. 21, 2013); Dykes v. Murphy,
No. 4:09CV1062 HEA, 2010 WL 2287496, at *4 (E.D. Mo. Jun. 3, 2010); Hahn v. Armstrong,
No. 1:08CV0169 LMB, 2010 WL 575748, at *3 (E.D. Mo. Feb. 11, 2010).
Plaintiff has alleged four incidents violated his constitutional rights: (1) the Crew work;
(2) the cell move; (3) the shower cleaning; and (4) the reel lawn mower assignment. For
Plaintiff’s Crew work incident, he received the decision of his Offender’s Grievance Appeal on

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August 23, 2014, before he filed suit on February 10, 2017. Thus, Plaintiff exhausted his
administrative remedies for the Crew work incident, and he did so before the time of filing suit.
Accordingly, Plaintiff met the exhaustion requirement under the PLRA, and his claims against
Defendants for the Crew work incident will be further examined. See Human v. Hurley, No.
2:14CV00073 ERW, 2016 WL 7100561, at *5 (E.D. Mo. Dec. 6, 2016).
However, Plaintiff’s § 1983 claims based on the other three incidents fail, because the
incidents were not properly grieved before filing suit in this Court. The cell move incident fails
because Plaintiff‘s “Reprisal Grievance Appeal” was denied and he did not subsequently follow
the normal grievance process. The shower cleaning incident fails because the use of Plaintiff’s
cane was not raised in his IRR, and was only later raised in the process, in which the expanded
grounds were not further addressed by the prison staff. The reel lawn mower incident fails
because Plaintiff did not file any IRR to grieve the complaint.
B. Plaintiff has not shown Defendants violated his right to be free from deliberate
indifference to serious medical needs.
The Eighth Amendment’s proscription against cruel and unusual punishment protects
prisoners from deliberate indifference to serious medical needs. Jones v. Minn. Dept. of Corrs.,
512 F.3d 478, 482 (8th Cir.2008). “Deliberate indifference includes something more than
negligence but less than actual intent to harm; it requires proof of a reckless disregard of [a]
known risk.” Crow v. Montgomery, 403 F.3d 598, 602 (8th Cir.2005). “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.” Roe v. Crawford, 514 F.3d 789, 798 (8th Cir.
2008) (quoting Hartsfield v. Colburn, 491 F.3d 394, 396–97 (8th Cir.2007)). A medical need is

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“objectively serious” if it has either been diagnosed by a physician as requiring treatment or it is
so obvious that even a “layperson would easily recognize the necessity for a doctor’s attention.”
Jones, 512 F.3d at 481 (quoting Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir.1997)). To
establish a constitutional violation, a plaintiff must prove more than gross negligence. Id. at 482.
Rather, “a plaintiff must demonstrate the [defendant] actually knew of the risk and deliberately
disregarded it.” Vaughn v. Greene Cnty., Ark., 438 F.3d 845, 850 (8th Cir. 2006).
Defendants Chenoweth,Wombles, Speagle, and Wood maintain they are entitled to
judgment as a matter of law because Plaintiff’s Crew work did not exceed his medical
restrictions. Indeed, Plaintiff admits he could do other work on the Crew without violating his
medical restrictions. Further, there is no dispute plaintiff saw medical staff multiple times to
review and adjust his medical restrictions. After Plaintiff complained scrubbing sidewalks had
caused him medical problems, Wombles and Chenoweth directed Plaintiff to check in at the Aside yard until he could receive medical restrictions. Between April 3 and June 9, 2014, Plaintiff
consulted medical staff at least ten times in which he received multiple types of restrictions.
Plaintiff did not receive a “no work” restriction and therefore had to continue to work. Plaintiff
was further provided an IRR to grieve his complaint and a job change request form by Speagle.
Wood signed the job change request form. Defendants allowed for assessment for Plaintiff’s
medical restrictions, allowed him to grieve his complaints, and relied on the medical staff’s
assessment of the restrictions.
Viewing the record in the light most favorable to Plaintiff, the Court concludes there is no
evidence Defendants Chenoweth,Wombles, Speagle, and Wood acted with deliberate
indifference to Plaintiff’s medical restrictions on his Crew work claim. Rather, the record
indicates Defendants tried to accommodate Plaintiff’s medical needs and abate the risk of harm

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to Plaintiff. Thus, Plaintiff’s assertions against these Defendants fail to amount to a violation of
the Eighth Amendment.
Regarding Defendant Hurley, Plaintiff alleges he acted with deliberate indifference by
failing to respond to Plaintiff’s letter requesting he be re-assigned to work within his medical
restrictions and by instructing the other Defendants to ignore Plaintiff’s restrictions and continue
to force Plaintiff to work in violation of them. However, in his letter addressing his medical
restrictions, Plaintiff did not actually include a request to change his work assignment. Rather,
Plaintiff merely stated he would be filing a grievance on the issue. When that grievance was
filed, the complaint was investigated and the work duties assigned were within the medical
restrictions. This Court will find Hurley is not personally liable for alleged medical staff’s
treatment violations. See Meloy v. Bachmeier, 302 F.3d 845, 849 (8th Cir. 2002). Further, there
is no evidence Hurley attempted to interfere with Plaintiff’s access to medical care, and Plaintiff
cannot assert an adequate claim of deliberate indifference to Plaintiff’s medical needs simply
because Plaintiff was required to work on the Crew. Additionally, in his deposition, Plaintiff
testified he only assumed Hurley told the other Defendants to ignore his medical restrictions, not
that he knows he did. Thus, viewing the record in the light most favorable to Plaintiff, the Court
concludes there is no evidence Hurley acted with deliberate indifference to Plaintiff’s medical
restrictions.
IV.

MOTION TO COMPEL
Plaintiff also has a pending Motion to Compel asking this Court compel Defendants “to

produce those documents which Plaintiff requested pursuant to Fed. Rule 34.” Because this
Court is granting Defendants’ Motion for Summary Judgment, Plaintiff’s Motion to Compel [26]
is moot. Therefore, it will be denied.

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Accordingly,
IT IS HEREBY ORDERED the Defendants’ Motion for Summary Judgment [30] is
GRANTED. Plaintiff’s Crew Work claim is dismissed with PREJUDICE.
All other claims are dismissed without prejudice.
IT IS FURTHER ORDERED the Plaintiff’s Motion to Compel [26] is DENIED as
moot.
Dated this 28th Day of March, 2018.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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