Witte v. Culton et al

Filing 56

MEMORANDUM AND ORDER: IT IS FURTHER ORDERED that, in their individual capacities only, defendants Kevin Culton, Tammy Bordeau, Charles Conrad, and Kevin Weber, shall file an answer or other responsive pleading directed to plaintiff's second a mended complaint's Eighth Amendment claims. IT IS FURTHER ORDERED that the Clerk of Court shall docket this case as Justin Edward Witte v. Kevin Culton, Willy Forbes, William D. McKinney, Tammy Bordeau, Kevin Weber, Charles Conrad, Unknown Clubb , Lisa Spain, and Jason Lee. IT IS FURTHER ORDERED that pending Motion for Summary Judgment [ECF No. 42 ] relating to the First Amended Complaint is DENIED, as moot. Motion for Extension of Time [ECF No. 55 ] is DENIED, as moot. An order directing the dismissal of specific claims and defendants will be filed separately. Signed by Honorable E. Richard Webber on July 13, 2012. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JUSTIN EDWARD WITTE,
Plaintiff,
v.
KEVIN CULTON, et al.,
Defendants.

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No. 4:11CV02036 ERW

MEMORANDUM AND ORDER
This matter is before the Court upon review of plaintiff’s second amended
complaint [ECF No. 52].
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may dismiss a pleading filed
in forma pauperis if the action is frivolous, malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief against a defendant who is immune from
such relief. An action is frivolous if “it lacks an arguable basis in either law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action fails to state a claim upon
which relief can be granted if it does not plead “enough facts to state a claim to relief
that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007).

In reviewing a pro se pleading under § 1915(e)(2)(B), the Court must give the
pleading the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520
(1972). The Court must also weigh all factual allegations in favor of the plaintiff,
unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32-33
(1992).
To determine whether an action fails to state a claim upon which relief can be
granted, the Court must engage in a two-step inquiry. First, the Court must identify the
allegations in the complaint that are not entitled to the assumption of truth. Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009). These include “legal conclusions” and
“[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements.” Id. at 1949. Second, the Court must determine whether the
complaint states a plausible claim for relief. Id. at 1950-51. This is a “context-specific
task that requires the reviewing court to draw on its judicial experience and common
sense.” Id. at 1950. The plaintiff is required to plead facts that show more than the
“mere possibility of misconduct.” Id. The Court must review the factual allegations
in the complaint “to determine if they plausibly suggest an entitlement to relief.” Id.
at 1951. When faced with alternative explanations for the alleged misconduct, the
Court may exercise its judgment in determining whether plaintiff’s conclusion is the

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most plausible or whether it is more likely that no misconduct occurred. Id. at 1950,
51-52.
The Second Amended Complaint
Plaintiff, an inmate at the Crossroads Correctional Center, seeks monetary relief
in this action for the violation of his constitutional rights under 42 U.S.C. § 1983.1
Plaintiff’s allegations arise out his incarceration at the Potosi Correctional Center.
Named as defendants in the amended complaint are Kevin Culton (Correctional
Officer), Willy Forbes (Sergeant), William D. McKinney (Doctor), Tammy Bordeau
(Health Care Coordinator), Kevin Weber (Correctional Officer), Charles Conrad
(Correctional Officer), Unknown Clubb (Correctional Officer), Lisa Spain (Director of
Nursing), and Jason Lee (Correctional Officer). Plaintiff claims that defendants
violated his constitutional rights, as more fully set forth below, and he is suing them in
their individual and official capacities.

1

On page 13 of the amended complaint [ECF No. 52, page 14 of 15], plaintiff
summarily states that defendants violated “State law 217.374.” The Court is unable to
find such a Missouri statute. Furthermore, even affording the allegations a liberal
construction, the Court is unable to ascertain what plaintiff is attempting to allege by
referencing “State law 217.374.”
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Discussion
A. Eighth Amendment Claims against Defendants Kevin Culton, Tammy
Bordeau, Charles Conrad, and Kevin Weber
Plaintiff alleges that (1) on August 26, 2009, he sustained serious physical
injuries after defendant Kevin Culton assaulted him several times, without provocation;
(2) immediately after the assault, defendant Tammy Bordeau refused to afford plaintiff
medical treatment, despite the fact that “[i]t was visible that [plaintiff] was in pain and
could not sit up straight [or] walk properly without being in great pain”; and (3)
defendants Charles Conrad and Kevin Weber also refused to afford plaintiff medical
treatment, simply because plaintiff was unable to stand or walk to his cell door for
“sick call.”

The Court finds that plaintiff’s Eighth Amendment claims against

defendants Kevin Culton, Tammy Bordeau, Charles Conrad, and Kevin Weber in their
individual capacities survive frivolity review and will not be dismissed at this time.
The Court will order said defendants to respond to these claims in their individual
capacities.
Naming a government official in his or her official capacity is the equivalent of
naming the government entity that employs the official, in this case the State of
Missouri. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).
“[N]either a State nor its officials acting in their official capacity are ‘persons’ under

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§ 1983.” Id. As a result, the complaint is legally frivolous and fails to state a claim
upon which relief can be granted as to defendants Kevin Culton, Tammy Bordeau,
Charles Conrad, and Kevin Weber in their official capacities, and the Court will order
that all said claims be dismissed without prejudice.
B. Claims against Defendant Willy Forbes
Plaintiff alleges that, after Kevin Culton assaulted him, he spoke to defendant
Willy Forbes and told him what had happened, but Forbes “laughed calling [plaintiff]
a liar,” and neglected to follow D.O.C. policy by making a report or taking pictures of
plaintiff’s injuries.
The complaint will be dismissed against Willy Forbes, because plaintiff’s
allegations do not rise to the level of a constitutional violation and are legally frivolous.
See Daniels v. Williams, 474 U.S. 327, 328 (1986)(mere negligence does not rise to
the level of a constitutional violation); Estelle v. Gamble, 429 U.S. 97, 106 (1976)
(mere negligence is not cognizable as Eighth Amendment violation); Morton v. Becker,
793 F.2d 185, 188 n.3 (8th Cir. 1986)(Fourteenth Amendment Due Process Clause is
not implicated by state official’s negligent act causing unintended loss of or injury to
life, liberty, or property).

Moreover, Forbes’ alleged failure to follow prison

regulations by taking photographs of plaintiff’s injuries does not amount to a § 1983
claim. See Bagley v. Rogerson, 5 F.3d 325 (8th Cir. 1993) (allegation of state law
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violation, statutory or decisional, does not, in itself, state claim under federal
Constitution or § 1983).
C. Claims against Defendant William McKinney
Plaintiff alleges that he was first taken to see Dr. William McKinney on
December 14, 2009. Dr. McKinney “saw [plaintiff] and said, ‘I can’t do anything for
you, you’ll be okay.” Plaintiff states that Dr. McKinney “nullified [his] aches and pains
to arthritis” and prescribed him “Meloxicam.” Plaintiff saw Dr. McKinney again on
February 14 and June 14, 2010, and “nothing was done.” One month later, on or
about July 20, 2010, plaintiff was taken to see Dr. McKinney because his right leg was
completely numb. Dr. McKinney ordered an M.R.I., which showed a “massive
herniated disc or crushed cartilage in [plaintiff’s] lower back.”
On August 9, 2010, plaintiff saw Dr. John Spears, who is not a defendant in this
action. Dr. Spears told plaintiff he would probably have permanent nerve damage, and
he recommended immediate surgery. Dr. Spears performed surgery on August 25,
2010. He told plaintiff he would be able to stand and walk again, but his back would
never be the same, and he would have to be careful. Plaintiff states that he cannot lift
anything over ten pounds, and he can pinch a nerve in his back by turning, sitting, or
rolling over in bed.

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To state a claim for unconstitutional medical mistreatment, a plaintiff must plead
facts sufficient to indicate deliberate indifference to serious medical needs. Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Camberos v. Branstad, 73 F.3d 174, 175 (8th Cir.
1995). To show deliberate indifference, a plaintiff must allege that he suffered
objectively serious medical needs and that the defendants actually knew of but
disregarded those needs. Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997).
Medical malpractice alone is not actionable under the Eighth Amendment. Smith v.
Clarke, 458 F.3d 720, 724 (8th Cir. 2006). To state 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).
Plaintiff’s allegations relative to Dr. McKinney’s treatment, or alleged lack of
treatment, do not rise to the level of deliberate indifference. Because plaintiff’s
allegations fail to state a § 1983 claim against Dr. McKinney, they will be dismissed
as legally frivolous.
D. Claims against Defendants Unknown Clubb and Jason Lee
With regard to defendants Unknown Clubb and Jason Lee, plaintiff states: “due
to the unnecessary abuse they inflicted upon the plaintiff was measure[d] towards
harassment due to the filing of the I.R.R.’s filed against C.O. Culton about injuring
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plaintiff. These were acts that were measure[d] in concert to inflict more pain and
suffering towards the plaintiff.” Plaintiff’s vague and conclusory allegations as to
defendants Clubb and Lee lack factual support and do not state a claim under § 1983,
and therefore, the Court will dismiss them as legally frivolous.
E. Claims against Defendant Lisa Spain
Plaintiff has failed to set forth in the second amended complaint any allegations
against Lisa Spain. The only mention of Spain is in plaintiff’s request for monetary
damages, where he states that Spain should be accountable for $10,000 “for actual pain
and suffering whereas it was obvious that the pain was real and [plaintiff] was in need
to be seen by a doctor. [Her] neglect to get [plaintiff] seen and for telling one and all
[he] was faking the pain.” Because plaintiff has failed to assert any allegations against
Lisa Spain, the second amended complaint is legally frivolous and will be dismissed as
to this defendant. See 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); Boyd v. Knox,
47 F.3d 966, 968 (8th Cir. 1995)(respondeat superior theory inapplicable in § 1983
suits).

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E. Conditions-of-Confinement Claim
Plaintiff alleges that upon his arrival at PCC, he noticed that his cell was “filthy,”
in violation of prison policy. He says that he stayed in this cell for one day. Plaintiff
alleges that the food port was unsanitary, the sink “gave off a high pitched whine every
time [he] turned it on,” and “there was dirt, hair and food all over the mattress [and]
floor.” Plaintiff claims that defendant Conrad “denied [him] cleaning supplies [and]
writing supplies.”
Plaintiff’s conditions-of-confinement claim will be dismissed as legally frivolous,
because it does not rise to the level of a constitutional violation, and it fails to state a
claim or cause of action under § 1983. Moreover, defendant Conrad’s alleged failure
to follow prison regulations does not amount to a § 1983 claim. See Bagley v.
Rogerson, 5 F.3d 325 (8th Cir. 1993) (allegation of state law violation, statutory or
decisional, does not, in itself, state claim under federal Constitution or § 1983).
Accordingly,
IT IS HEREBY ORDERED that the Clerk shall issue process or cause process
to issue on the second amended complaint as to Tammy L. Bordeau in her individual
capacity only.

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IT IS FURTHER ORDERED that, in their individual capacities only,
defendants Kevin Culton, Tammy Bordeau, Charles Conrad, and Kevin Weber, shall
file an answer or other responsive pleading directed to plaintiff’s second amended
complaint’s Eighth Amendment claims.
IT IS FURTHER ORDERED that the Clerk of Court shall docket this case as
Justin Edward Witte v. Kevin Culton, Willy Forbes, William D. McKinney, Tammy
Bordeau, Kevin Weber, Charles Conrad, Unknown Clubb, Lisa Spain, and Jason Lee.
IT IS FURTHER ORDERED that pending Motion for Summary Judgment
[ECF No. 42] relating to the First Amended Complaint is DENIED, as moot. Motion
for Extension of Time [ECF No. 55] is DENIED, as moot.
An order directing the dismissal of specific claims and defendants will be filed
separately.
So Ordered this 13th day of July, 2012.

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E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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