Elston v. Collins et al

Filing 9

MEMORANDUM AND ORDER: : IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis is GRANTED. [ECF No. 2 ] IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $33.05 within twenty-one (21) days of the date of this Order. Plaintiff is instructed to make his remittance payable to "Clerk, United States District Court," and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that the remittance i s for an original proceeding. 1 IT IS FURTHER ORDERED that the Clerk of Court shall issue process or cause process to issue upon the complaint, pursuant to the service agreement the Court maintains with the Missouri Attorney General's Office, a s to Unknown Pollard (Correctional Officer II, MCC) and Unknown Zukerini (Correctional Officer I, MCC) in their individual and official capacities. IT IS FURTHER ORDERED that defendants Carri Collins, Lisa Pogue, Unknown Captain, and Dr. Ruanne Sta mps are DISMISSED without prejudice. See 28 U.S.C. § 1915(e). IT IS FURTHER ORDERED that plaintiffs claims brought under the Missouri Human Rights Act are DISMISSED without prejudice. IT IS FURTHER ORDERED that plaintiffs motion for appointment of counsel is DENIED without prejudice. [ECF No. 8 ]. Signed by District Judge Ronnie L. White on 07/19/2018. (KCB)

UNITED ST ATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

JAMES ELSTON,

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Plaintiff,
v.
CARRI COLLINS, et al.,
Defendants.

No. 2:18-CV-19 RLW

MEMORANDUM AND ORDER

Plaintiff, a prisoner, seeks leave to proceed in forma pauperis in this civil action under 42
U.S.C. § 1983. Having reviewed plaintiff's financial information, the Court assesses a partial
initial filing fee of $33.05, which is twenty percent of his average monthly deposit. See 28
U.S.C. § 1915(b). Furthermore, after reviewing the complaint, the Court will partially dismiss
the complaint and will order the Clerk to issue process or cause process to be issued on the nonfrivolous portions of the complaint.
Legal Standard on Initial 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 Complaint
Plaintiff, an inmate at Moberly Correctional Center ("MCC"), brings this civil rights
action under 42 U.S.C. § 1983, Title II of the Americans with Disabilities Act ("ADA"), the
Rehabilitation Act ("RA"), and the Missouri Human Rights Act ("MHRA"), alleging defendants
violated his rights by failing to accommodate his disability and by inflicting cruel and unusual
punishment upon him. Named as defendants are Carrie Collins (ADA District Coordinator,
Missouri Department of Corrections ("MDOC")); Lisa Pogue (Assistant Deputy Warden, MCC
and ADA Site Coordinator); Unknown Pollard (Correctional Officer II, MCC); Unknown
Zukerini (Correctional Officer I, MCC); Unknown Captain (MCC); and Dr. Ruanne Stamps
(Medical Director, MCC).
Plaintiff states the he has been disabled since he was eighteen months old due to the
accidental ingestion of caustic chemicals. As a result, he has lifelong damage to his mouth,
throat, and esophageal tract. Because of the restriction of plaintiffs esophagus, loss of teeth, and
scar tissue on his mouth, plaintiff requires a much longer time than an able-bodied person to
masticate his food. He has a doctor's order at MCC that states he should have thirty minutes to
eat at each meal, otherwise he cannot obtain the necessary nutrition and is at risk of choking.
Plaintiff states the custody staff in the dining facility at MCC have refused to honor this
doctor's order, and make him throw away any food that he cannot eat within fifteen minutes, or

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less, on some occasions. Plaintiff states that he has lost thirty pounds since his incarceration.
Specifically, plaintiff states that on October 16, 2017, January 28, 2018, and February 13, 2018,
Correctional Officers Pollard and Zukerini and an unknown captain, denied plaintiff the right to
eat, even after being shown his lay-in for reasonable accommodation.
For relief, plaintiff seeks an injunction ordering MDOC staff to abide by the ADA and
$40 million in damages.
Discussion

Eighth Amendment Allegations
"[D]eliberate indifference to serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain proscribed by the Eighth Amendment." Estelle v.

Gamble, 429 U.S. 97, 104 (1976) (quotations and citation omitted). "This is true whether the
indifference is manifested by prison doctors in their response to the prisoner's needs or by prison
guards in intentionally denying or delaying access to medical care or intentionally interfering
with the treatment once prescribed." Id. at 104-05. Plaintiffs claims of violations of the Eighth
Amendment against defendants Unknown Pollard and Unknown Zukerini survive initial review.
Plaintiff has alleged a serious medical need, namely that his restricted esophageal tract and scar
tissue require him to have extra time to chew and swallow his food, otherwise he becomes
malnourished and is at risk of choking.

Plaintiff alleges these correctional officers are

deliberately disregarding that serious medical need by not allowing plaintiff enough time to eat.
The Court will issue process on defendants Pollard and Zukerini.
Because the Court finds the allegations against defendants Carri Collins, Lisa Pogue, and
Dr. Ruanne Stamps sound in respondeat superior, the Court will not issue process on these
defendants. See Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (liability under §

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1983 requires causal link to, and direct responsibility for, the alleged deprivation of rights);

Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not cognizable under § 1983
where plaintiff fails to allege defendant was personally involved in or directly responsible for
incidents that injured plaintiff).
Finally, the Court will not order process to issue upon Unknown Captain, as he cannot be
identified. If later discovery identifies this captain, plaintiff may seek leave of Court to amend
his complaint and add this individual.

ADA and RA Allegations
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) (citing Pa. Dep 't of Corr. v. Yeskey, 524 U.S. 206,
209-11 (1998)).
The RA is similar in substance to the ADA and "'cases interpreting either are applicable
and interchangeable."' Arlt v. Mo. Dep't of Corr., 229 F. Supp. 2d 938 (8th Cir. 2002) (quoting

Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998)). Rulings under the ADA apply equally to
claims under the RA, except that Eleventh Amendment immunity does not apply to plaintiffs
RA claims. Id. For purposes of initial review, the Court will consider the plaintiffs ADA and
RA claims together.
Here, plaintiff asserts that he has a disability that requires him to have thirty minutes at
meal time to properly masticate his food and that he is being discriminated against by officers'
refusal to allow him enough time to eat. Because plaintiff alleges that defendants' actions in

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depriving him of a reasonable accommodation violates his Eighth and Fourteenth Amendment
rights, plaintiffs ADA claims against the named defendants, in their official capacities, 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) (noting that
Supreme Court precedent "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)). However, plaintiffs ADA claim against defendants in their individual capacities must
be dismissed. Randolph II, 253 F.3d at 348 ("[T]he public-entity limitation [of Title II of the
ADA] precludes ADA claims against state officials in their individual capacities.") (citing

Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir. 1999)).
The Court will issue process on plaintiffs claims under the ADA and RA against
defendants Unknown Pollard and Unknown Zukerini in their official capacities.

MHRA Allegations
Plaintiff also seeks to bring his action under the Missouri Human Rights Act for
discriminatory practices in public accommodations.

See Mo. Rev. Stat. § 213.065.

As a

jurisdictional prerequisite to bringing an action under the MHRA, however, plaintiff must
"make, sign and file with the [Missouri] commission [on human rights] a verified complaint in
writing, within one hundred eighty days of the alleged act of discrimination, which shall state the
name and address of . . . the place of public accommodation alleged to have committed the
unlawful discriminatory practice and which shall set forth the particulars thereof and such other
information as may be required by the commission." Mo. Rev. Stat.§ 213.075(1).

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Because plaintiff has not timely filed a verified complaint with the Missouri human rights
commission arising out of the alleged discriminatory practices at MCC, the Court will dismiss
his MHRA claims. See Mo. Rev. Stat. § 213.075(1) ("The failure to timely file a complaint with
the commission may be raised as a complete defense ... at any time .... ").
Motion for Appointment of Counsel

Finally, plaintiff has filed a motion for appointment of counsel. The motion will be
denied without prejudice.
"A pro se litigant has no statutory or constitutional right to have counsel appointed in a
civil case." Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998). When determining whether
to appoint counsel for an indigent litigant, the Court considers relevant factors, such as the
complexity of the case, the ability of the pro se litigant to investigate the facts, the existence of
conflicting testimony, and the ability of the prose litigant to present his or her claim. Id.
After reviewing these factors, the Court finds that the appointment of counsel is not
warranted at this time.

Plaintiff has presented non-frivolous allegations in his complaint.

However, he has demonstrated, at this point, that he can adequately present his claims to the
Court. Additionally, neither the factual nor the legal issues in this case are complex. The Court
will entertain future motions for appointment of counsel as the case progresses.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis is
GRANTED. [ECF No. 2]
IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $33.05

within twenty-one (21) days of the date of this Order.

Plaintiff is instructed to make his

remittance payable to "Clerk, United States District Court," and to include upon it: (1) his name;

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(2) his prison registration number; (3) the case number; and (4) that the remittance is for an
original proceeding. 1
IT IS FURTHER ORDERED that the Clerk of Court shall issue process or cause
process to issue upon the complaint, pursuant to the service agreement the Court maintains with
the Missouri Attorney General's Office, as to Unknown Pollard (Correctional Officer II, MCC)
and Unknown Zukerini (Correctional Officer I, MCC) in their individual and official capacities.
IT IS FURTHER ORDERED that defendants Carri Collins, Lisa Pogue, Unknown
Captain, and Dr. Ruanne Stamps are DISMISSED without prejudice. See 28 U.S.C. § 1915(e).
IT IS FURTHER ORDERED that plaintiffs claims brought under the Missouri Human
Rights Act are DISMISSED without prejudice.
IT IS FURTHER ORDERED that plaintiffs motion for appointment of counsel is
DENIED without prejudice. [ECF No. 8]
An order of partial dismissal will accompany this memorandum and order.
Dated this /May of July, 2018.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

Prisoners must pay the full amount of the $350 filing fee. After payment of the initial partial
filing fee, the prisoner is required to make monthly payments of 20 percent of the preceding
month's income credited to the prisoner's account. The agency having custody of the prisoner
will deduct the payments and forward them to the Court each time the amount in the account
exceeds $10. 28 U.S.C. § 1915(b)(2).
1

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