Endicott et al v. Allen et al

Filing 36

MEMORANDUM AND ORDER: IT IS HERBY ORDERED that defendants Larry Allen, Troy Bartley, Frank Campbell, Travis Case, Alan Earls, Sandra Everhart, Catherine Flock, Chantay Godert, Richard Griggs, James Hurley, William Jones, Gil Long, Murray Philli ps, Anne Precythe, Melvina Richardson, Ronald White, and Debra Williams' motion to dismiss is GRANTED in part and DENIED in part. The motion is GRANTED on the grounds of Eleventh Amendment immunity to the extent that the state official defend ants are named in their official capacities for liability for monetary damages, and DENIED without prejudice in all other respects. [ECF No. 30 ] IT IS FURTHER ORDERED that plaintiff's motion to appoint counsel is DENIED without prejudice. [ ECF No. 31 ] IT IS FURTHER ORDERED that plaintiff's motion for a preliminary injunction is DENIED. [ECF No. 33 ] IT IS FURTHER ORDERED that plaintiff's motion for a hearing is DENIED as moot. [ECF No. 34 ] An Order of Partial Dismissal will accompany this Memorandum and Order. Signed by Magistrate Judge David D. Noce on 2/7/2019. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
FRANKLIN G. ENDICOTT,

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Plaintiff,
v.
LARRY ALLEN, et al.,
Defendants.

No. 2:17-CV-29-DDN

MEMORANDUM AND ORDER
This matter is before the Court on the following motions: (1) defendants’ motion to
dismiss plaintiff’s second amended complaint for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6); 1 (2) plaintiff’s motion for a preliminary injunction; and (3) plaintiff’s
motion to appoint counsel. Defendants’ motion to dismiss is fully briefed and ready for decision.
Defendants have not responded to plaintiff’s motions, however, and the time for doing so has
passed. For the following reasons, the Court will deny defendants’ motion to dismiss and
plaintiff’s motion for a preliminary injunction. The Court will deny without prejudice plaintiff’s
motion for appointment of counsel.
I.

Background

Plaintiff, formerly an inmate at Northeast Correctional Center (“NECC”), brings this
action against seventeen prison officials and food services staff at NECC seeking monetary,
declaratory, and injunctive relief pursuant to the Religious Land Use and Institutionalized
1

For the standard of review, defendants cite to Federal Rule 12(b)(1) for a motion to dismiss for
lack of jurisdiction and Federal Rule 12(b)(6) for a motion to dismiss for failure to state a claim.
In their conclusion, however, defendants only cite to Federal Rule 12(b)(6). The Court finds that
defendants motion is properly brought as a motion to dismiss for failure to state a claim, not a
motion to dismiss for lack of jurisdiction. The Court will construe the motion as brought under
Federal Rule 12(b)(6).

Persons Act (“RLUIPA”) and under 42 U.S.C. § 1983. Plaintiff alleges, among other things, that
NECC failed to provide him with ritual kosher foods in violation of Jewish dietary laws on the
Sabbath, High Holy Days, and Passover. He also alleges NECC failed to provide him with a
Torah, Judaism prayer books, and dietary practice materials. Defendants have moved to dismiss
plaintiff’s complaint for failure to exhaust administrative remedies, Eleventh Amendment
immunity, failure to allege physical injury, and failure to allege a constitutional violation.
II. Legal Standard
The purpose of a motion to dismiss for failure to state a claim is to test the legal
sufficiency of the complaint. To survive a motion to dismiss pursuant to Rule 12(b)(6) for
failure to state a claim upon which relief can be granted, “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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim for relief “must include sufficient factual information to provide the ‘grounds’
on which the claim rests, and to raise a right to relief above a speculative level.” Schaaf v.
Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008) (citing Twombly, 550 U.S. at 555
& n.3). This obligation requires a plaintiff to plead “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
When considering a motion to dismiss, the Court accepts as true all of the factual
allegations contained in the complaint, even if it appears that “actual proof of those facts is
improbable,” id. at 556, and reviews the complaint to determine whether its allegations show that
the pleader is entitled to relief. Id. at 555–56; Fed. R. Civ. P. 8(a)(2). The principle that a court
must accept as true all of the allegations contained in a complaint does not apply to legal
conclusions, however. Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of

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action, supported by mere conclusory statements, do not suffice”). In addition, all reasonable
inferences from the complaint must be drawn in favor of the nonmoving party. Young v. City of
St. Charles, Mo., 244 F.3d 623, 627 (8th Cir. 2001).
III. Discussion
A.

Defendants’ Motion to Dismiss

Defendants move to dismiss plaintiff’s second amended complaint under Federal Rule
12(b)(6), alleging plaintiff failed to exhaust his administrative remedies, they are entitled to
Eleventh Amendment immunity, plaintiff has not alleged physical injury, and plaintiff has not
alleged a constitutional violation.
1.

Plaintiff’s Alleged Failure to Exhaust

Defendants state the Court should dismiss plaintiff’s second amended complaint for
failure to state a claim because he did not exhaust his administrative remedies through the prison
grievance procedure before filing. The exhaustion provision of the PLRA states:
No action shall be brought with respect to prison conditions under [42 U.S.C. §
1983], or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are
exhausted.
42 U.S.C. § 1997e(a).
To properly exhaust his administrative remedies, plaintiff must have “complete[d] the
administrative review process in accordance with the applicable procedural rules.” Woodford v.
Ngo, 548 U.S. 81, 88 (2006). It is ERDCC’s grievance procedures that define the boundaries of
proper exhaustion. See Jones v. Bock, 549 U.S. 199, 218 (2007). Although exhaustion is
required prior to bringing a case under § 1983, exhaustion is not a pleading requirement. A
prisoner does not have to plead and prove exhaustion in his complaint. Id. at 216 (“We conclude

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that failure to exhaust is an affirmative defense under the PLRA, and that inmates are not
required to specially plead or demonstrate exhaustion in their complaints.”).
Defendants submit as exhibits to their motion to dismiss three of plaintiff’s grievance
files: (1) NECC 17-1720 (filed Dec. 1, 2017); (2) NECC 17-1821 (filed Dec. 28, 2017); and (3)
NECC 16-1571 (filed Nov. 15, 2016). These are three of twenty-six grievances plaintiff has
filed at NECC since 2014. See ECF No. 30-4. Based on these grievances, two of which were
filed after plaintiff filed his second amended complaint, defendants argue plaintiff failed to
exhaust his administrative remedies and his action should be dismissed. Plaintiff responds that
the issues are ongoing, and that he “will be requesting the right to file a ‘Supplemental Amended
Complaint’ to add those pleadings and additional defendants named in both grievances.” 2
Defendants’ argument relies exclusively upon documents that are outside the pleadings;
however, they have not moved in the alternative for summary judgment. Pursuant to Rule 12(d)
of the Federal Rules of Civil Procedure, the court has discretion to consider such materials in a
Rule 12(b)(6) motion to dismiss and convert the motion to one for summary judgment.
Here, however, defendants’ exhibit C, grievance NECC 16-1571, does not support their
argument that plaintiff failed to exhaust the grievance procedure before filing suit.

The

grievance is dated December 8, 2016, five months prior to plaintiff’s filing of this suit, and
complains that MODOC and NECC refuse to provide plaintiff with Kosher food items during
High Holy Days, Sabbath, and Passover. See ECF No. 30-3 at 5. This grievance seems to
exhaust many of plaintiff’s claims in his second amended complaint. Defendants state that the
grievance was not filed within fifteen days of the date of the alleged incident, but provide no

2

Plaintiff’s response to defendants’ motion to dismiss is missing pages 2 through 4. See ECF
No. 32. Based on review of the response, it is these pages 2 through 4 that respond to
defendants’ arguments regarding exhaustion.
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support for this statement. The grievance complains of ongoing issues with his food service and
the canteen, and does not cite to a particular instance or particular date on which a fifteen-day
period would start.
Plaintiff’s response is similarly insufficient, as it is missing pages 2 through 4 which
would address defendants’ arguments regarding exhaustion of his claims. In light of the failure
of defendants’ briefing, and in light of plaintiff’s incarceration and pro se status, as well as the
lack of any discovery to date, the court declines to convert defendants’ motion to dismiss to one
for summary judgment. See Dowdy v. Hercules, 2010 WL 169624 at *4 (E.D. N.Y. 2010)
(refusing to convert Rule 12(b)(6) motion to a motion for summary judgment where plaintiff was
a pro se prisoner and had not yet had an opportunity to conduct discovery); see also Perez v.
Hawk, 302 F. Supp. 2d 9, 16 (E.D. N.Y. 2004) (same; where plaintiff was pro se prisoner
asserting a Bivens claim for inadequate medical care). The Court will instead exclude the
grievances from consideration.
Given that defendants’ exhaustion argument relies solely upon plaintiff’s three NECC
grievance files, which have now been excluded from consideration, the Court finds no evidence
to test the legal sufficiency of the complaint. As a result, defendants have not met their burden to
establish that plaintiff’s complaint does not “contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Iqbal, 556 at 678. Defendants’ motion to
dismiss under Rule 12(b)(6) for failure to exhaust will therefore be denied without prejudice.
2.

Eleventh Amendment Immunity

The Eleventh Amendment prohibits actions against state officials acting in their official
capacities from liability for monetary damages. See Will v. Michigan Dept. of State Police, 491
U.S. 58, 71 n.10 (1989). It does not, however, “bar actions against state officers in their official

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capacities if the plaintiffs seek only a declaratory judgment or injunctive relief.” Chaloux v.
Killeen, 886 F.2d 247, 252 (9th Cir.1989) (internal citations omitted). Nor does it bar damage
actions against state officials in their personal capacities. See Hafer v. Melo, 502 U.S. 21, 31
(1991). The Eleventh Amendment prohibits only damage actions against the “official’s office,”
actions that are in reality suits against the state itself—rather than against its individual officials.
See id. at 26.
Plaintiff brings all his claims against defendants in their individual and official capacities.
See 2d Am. Compl. at 1. To the extent he seeks declaratory and injunctive relief, defendants are
properly named in their official capacities. Furthermore, plaintiff’s claims for injunctive relief
brought under RLUIPA are properly brought against defendants in their official capacities. See
ECF No. 16 at n.3. The Court will grant defendants’ motion to dismiss on the grounds of
Eleventh Amendment immunity only to the extent that the state officials are named in their
official capacities for liability for monetary damages, and deny it in all other respects.
3.

Failure to Allege Physical Injury

The PLRA provides, “No Federal civil action may be brought by a prisoner confined in a
jail, prison, or other correctional facility, for mental or emotional injury suffered while in
custody without a prior showing of physical injury or the commission of a sexual act.” 42
U.S.C. § 1997e(e). The Eighth Circuit has concluded prisoners may maintain actions for alleged
First Amendment violations without claiming a physical injury. In these First Amendment cases,
compensatory damages are not available, and relief is limited to nominal damages, punitive
damages, and injunctive and declaratory relief. See Royal v. Kautzky, 375 F.3d 720, 723 (8th
Cir. 2004).

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Plaintiff’s second amended complaint clearly states claims against defendants for
violations of his First Amendment rights. Plaintiff alleges NECC food service defendants have
violated his constitutional rights by providing meals that do not meet the strict Jewish dietary
laws, and he is not provided with the specific ritual food items to abide by Jewish dietary laws on
the Sabbath, High Holy Days, and Passover. Additionally, he states First Amendment retaliation
claims against defendant canteen managers Gil Long and Travis Case. See 2d Am. Compl. at
22-35. Plaintiff may maintain his action for alleged First Amendment violations without alleging
physical injury. The Court will deny defendants’ motion to dismiss on this ground.
4.

Failure to Allege Constitutional Violation

Finally, defendants state that “plaintiff has neither established a past violation of any
constitutional right, nor a real and imminent threat of such violation” and therefore the Court
should dismiss his claims for injunctive relief.

As the Court discussed in its Opinion,

Memorandum and Order on initial review under 28 U.S.C. § 1915(e), plaintiff has stated
plausible claims for constitutional violations against defendants. See ECF No. 16 at 1-10.
Viewing all allegations in the light most favorable to plaintiff, as the Court must at this stage in
the litigation, the Court finds again that plaintiff has stated plausible claims of constitutional
violations against defendants. See id. The Court will deny defendants’ motion to dismiss on this
ground.
B.

Plaintiff’s Motion for Preliminary Injunction

Plaintiff has filed a motion for preliminary injunction under Federal Rule 65, which
governs the issuance of injunctions and restraining orders. In considering whether to grant
preliminary injunctive relief, the Court must consider the following factors: (1) the threat of
irreparable harm to the movant; (2) the state of the balance between this harm and the injury that

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granting the injunction will inflict on other parties litigant; (3) the probability that movant will
succeed on the merits; and (4) the public interest. See Dataphase Sys., Inc. v. CL Sys., Inc., 640
F.2d 109 (8th Cir. 1981).
In the prison context, a request for injunctive relief must always be viewed with great
caution because “judicial restraint is especially called for in dealing with the complex and
intractable problems of prison administration.” Goff v. Harper, 60 F.3d 518, 520-21 (8th Cir.
1995) (citing Rogers v. Scurr, 676 F.2d 1211, 1214 (8th Cir. 1982)). For an injunction to issue
“a right must be violated,” and the court must determine whether “a cognizable danger of future
violation exists and that danger must be more than a mere possibility.” Id. Regarding the issue
of when a situation is ripe for injunctive relief, the Eighth Circuit has noted that courts “should
not get involved unless either a constitutional violation has already occurred or the threat of such
a violation is both real and immediate.” Id.
Having considered the facts as alleged by plaintiff in light of the Dataphase factors and
the Eighth Circuit’s guidance, the Court concludes that preliminary injunctive relief is not
warranted. First, the Court notes that plaintiff is no longer incarcerated at NECC, but has moved
to Farmington Correctional Center (“FCC”) in Farmington, Missouri.

See ECF No. 35.

Although he states that he is still being denied his ritual kosher food items at FCC, the specific
injunctive issues related to NECC’s staff (e.g., retaliation, canteen issues, etc.) have been mooted
through plaintiff’s transfer. Additionally, plaintiff does not allege that he is not receiving his
certified religious diet each day at FCC, only that he is not being provided ritual kosher food
items on the Sabbath, High Holy Days, and Passover. It does not appear that this is a situation
involving threat of irreparable harm.

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Additionally, defendants have argued that plaintiff has not exhausted his remedies prior
to bringing this suit. Although the Court is not able on a motion to dismiss to consider evidence
outside the record, and is therefore unable to evaluate the merits of this argument, it does appear
that defendants might succeed, at least partially, on summary judgment based on plaintiff’s
alleged failure to exhaust.

Thus, on the basis of the present record, plaintiff has not

demonstrated a likelihood of success on the merits. Finally, the Court is hesitant at this stage of
litigation to interfere in the complex and intractable problems associated with prison
administration.
C.

Plaintiff’s Motion to Appoint Counsel

Plaintiff has filed a motion to appoint counsel, which the Court will deny without
prejudice. There is no constitutional or statutory right to appointed counsel in civil cases. See
Nelson v. Redfield Lithograph Printing, 728 F.2d 1003, 1004 (8th Cir. 1984). In determining
whether to appoint counsel, the Court considers several factors, including (1) whether the
plaintiff has presented non-frivolous allegations; (2) whether the plaintiff will substantially
benefit from the appointment of counsel; (3) whether there is a need to further investigate and
present the facts related to the plaintiff's allegations; and (4) whether the factual and legal issues
presented by the action are complex. See Johnson v. Williams, 788 F.2d 1319, 1322-23 (8th Cir.
1986); Nelson, 728 F.2d at 1005.
After considering these factors, the Court finds that the facts and legal issues involved are
not so complicated that the appointment of counsel is warranted at this time.
Accordingly,
IT IS HERBY ORDERED that defendants Larry Allen, Troy Bartley, Frank Campbell,
Travis Case, Alan Earls, Sandra Everhart, Catherine Flock, Chantay Godert, Richard Griggs,

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James Hurley, William Jones, Gil Long, Murray Phillips, Anne Precythe, Melvina Richardson,
Ronald White, and Debra Williams’ motion to dismiss is GRANTED in part and DENIED in
part. The motion is GRANTED on the grounds of Eleventh Amendment immunity to the extent
that the state official defendants are named in their official capacities for liability for monetary
damages, and DENIED without prejudice in all other respects. [ECF No. 30]
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel is DENIED
without prejudice. [ECF No. 31]
IT IS FURTHER ORDERED that plaintiff’s motion for a preliminary injunction is
DENIED. [ECF No. 33]
IT IS FURTHER ORDERED that plaintiff’s motion for a hearing is DENIED as moot.
[ECF No. 34]
An Order of Partial Dismissal will accompany this Memorandum and Order.
Dated this 7th day of February, 2019.

/s/ David D. Noce
UNITED STATES MAGISTRATE JUDGE

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