Hardy v. Correctional Medical Services et al

Filing 53

OPINION,MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants Long, Van Troba (James), Shackelford, and Chandler's Motion for Summary Judgment, [Doc. No. 37 ], is granted.IT IS FURTHER ORDERED that Plaintiff's Motions for Summary Judgment, [Doc. No.s 40 and 48 ], are denied. A separate judgment in accordance with this Opinion, Memorandum andOrder is entered this same date. Signed by District Judge Henry E. Autrey on 01/13/2014. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TONY HARDY,
Plaintiff,
vs.
CMS, et al.,
Defendants.

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No. 4:12CV1 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants Long, Van Troba (James),
Shackelford, and Chandler’s Motion for Summary Judgment, [Doc. No. 37],
Plaintiff’s Motions for Summary Judgment, [Doc. No.’s 40 and 48]. Plaintiff has
failed to Respond to Defendants’ Motion. For the reasons set forth below,
Defendant’s Motion is granted. Plaintiff’s Motions are denied.
Facts and Background
Plaintiff brought this action pursuant to 42 U.S.C. § 1983 alleging that his
constitutional rights had been violated by Defendants during Plaintiff’s
incarceration in the Missouri Department of Correction at the Eastern Reception
and Diagnostic Center.
According to Plaintiff, he submitted nine medical service requests to
Defendant Van Troba to be seen by dental, but she did not stamp each medical

service request with a date received, did not schedule Plaintiff for sick call within
three working days, and ignored each of his medical service requests.
Plaintiff further claims that he spoke with Defendant Shackelford about the
alleged problems, but nothing was done. Plaintiff claims Defendant Shackelford
was responsible for overseeing Defendant Van Troba, and to ensure she was date
stamping all submitted medical service requests and have sick call on a regular
basis.
Plaintiff claims Defendant Long was deliberately indifferent to his urgent
medical needs because she neglected to refer Plaintiff back to see Dr. Bessey for
continued numbness and pain in his right jaw or do anything to address his pain
and numbness.
With respect to Defendant Chandler, Plaintiff alleges that she was well
aware of all of his problems but failed to do anything to remedy the problems. He
further claims Defendant Chandler failed to follow Correctional Medical Services’
(CMS) policy and procedure. Plaintiff alleges Defendant Chandler should have
referred him back to Dr. Bessey or another oral surgeon so he can receive an MRI
or CT scan to find out if a screw or screws are against the nerves in Plaintiff’s
right jaw.
Discussion
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Standard of Review
The standard for summary judgment is well settled. In determining whether
summary judgment should issue, the Court must view the facts and inferences
from the facts in the light most favorable to the nonmoving party. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); “Summary
judgment is appropriate when the record, viewed in the light most favorable to the
non-moving party, demonstrates that there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law.” Myers v. Lutsen
Mtns. Corp., 587 F.3d 891, 893 (8th Cir.2009). If a nonmoving party has failed to
establish the existence of an element of that party's claim, summary judgment is
appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)” Cole v.
Homier Distributing Co., Inc., 2010 WL 1171741, 6 (8th Cir. 2010). The moving
party has the burden to establish both the absence of a genuine issue of material
fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex, 477 U.S. at
322; Enterprise Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996). Once the
moving party has met this burden, the nonmoving party may not rest on the
allegations in his pleadings but by affidavit or other evidence must set forth
specific facts showing that a genuine issue of material fact exists. Fed.R.Civ.P.
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56(e); Anderson 477 U.S. at 256; Littrell , 459 F.3d at 921. “The party opposing
summary judgment may not rest on the allegations in its pleadings; it must ‘set
forth specific facts showing that there is a genuine issue for trial.’” United of
Omaha Life Ins. Co. v. Honea, 458 F.3d 788, 791 (8th Cir.2006) (quoting
Fed.R.Civ.P. 56(e)); “‘Only disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry of summary
judgment.’ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).” Hitt v.
Harsco Corp., 356 F.3d 920, 923 (8th Cir. 2004). An issue of fact is genuine
when “a reasonable jury could return a verdict for the nonmoving party” on the
question. Anderson, 477 U.S. at 248; Woods, 409 F.3d at 990. To survive a
motion for summary judgment, the “nonmoving party must ‘substantiate his
allegations with sufficient probative evidence [that] would permit a finding in [his]
favor based on more than mere speculation, conjecture, or fantasy.’ Wilson v. Int’l
Bus. Machs. Corp., 62 F.3d 237, 241 (8th Cir. 1995)(quotation omitted).” Putman
v. Unity Health System, 348 F.3d 732, 733-34 (8th Cir. 2003). A plaintiff may not
merely point to unsupported self-serving allegations, but must substantiate
allegations with sufficient probative evidence that would permit a finding in the
plaintiff's favor. Wilson v. Int’l Bus. Mach. Corp., 62 F.3d 237, 241 (8th
Cir.1995); Smith v. International Paper Co., 523 F.3d 845, 848 (8th Cir. 2008).
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“The mere existence of a scintilla of evidence in support of the plaintiff’s position
will be insufficient; there must be evidence on which the jury could reasonably
find for the plaintiff.” Anderson, 477 U.S. 242 at 252; Davidson & Associates v.
Jung 422 F.3d 630, 638 (8th Cir. 2005); Smith, 523 F.3d at 848.
Summary Judgment will be granted when, viewing the evidence in the light
most favorable to the nonmoving party and giving the nonmoving party the benefit
of all reasonable inferences, there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law. Samuels v. Kansas City
Mo. Sch. Dist., 437 F.3d 797, 801 (8th Cir. 2006). “Mere allegations, unsupported
by specific facts or evidence beyond the nonmoving party’s own conclusions, are
insufficient to withstand a motion for summary judgment.” Thomas v. Corwin,
483 F.3d 516, 526-7(8th Cir. 2007). “Simply referencing the complaint, or
alleging that a fact is otherwise, is insufficient to show there is a genuine issue for
trial.” Kountze ex rel. Hitchcock Foundation v. Gaines, 536 F.3d 813, 817 (8th
Cir. 2008). While the moving party bears “the initial burden of informing the
district court of the basis for its motion, and identifying those portions of the
pleadings,” the discovery, disclosure materials and affidavits “which it believes
demonstrate the absence of a genuine issue of material fact,” Celotex, 477 U.S. at
323 it is incumbent on the party with the burden of proof at trial to present
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sufficient evidence to establish the elements essential to its claims. See Celotex,
477 U.S. at 322-23. Thus, Plaintiff, even though the non-moving party for
summary-judgment purposes, “must still ‘present[ ] evidence sufficiently
supporting the disputed material facts [such] that a reasonable jury could return a
verdict in [its] favor.’ ” Pope v. ESA Servs., Inc., 406 F.3d 1001, 1003-04 (8th
Cir.2005) (quoting Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir.1992)).
Glorvigen v. Cirrus Design Corp., 581 F.3d 737, 742 -743 (8th Cir. 2009).
Plaintiff’s Motions for Summary Judgment
Pursuant to Rule 56(c)(1)(A) of the Federal Rules of Civil Procedure,
A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by . . . citing to particular parts of materials in
the record, including depositions, documents, electronically stored
information, affidavits or declarations (including those made for
purposes of the motion only), admissions, interrogatory answers, or
other materials.”
Plaintiff’s Motion fails to cite specific references to those parts of the record
upon which he relies. Plaintiff has not made any sufficient references to the record
so as to allow Defendant to challenge the allegations alleged against them.
Moreover, in accordance with Rule 56(c)(4), affidavits may be submitted in
support of a motion for summary judgment. However, “[a]n affidavit or
declaration used to support or oppose a motion must be made on personal

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knowledge, set out facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters asserted.”
As Defendants correctly argue, Plaintiff has submitted the affidavit of
Christopher Cross for the purpose of showing the indifference CMS and
Defendant Chandler have toward another inmate and also to show the conduct of
CMS and Defendant Chandler. The affidavit, however does not substantiate the
facts alleged by Plaintiff in his Amended Complaint, nor does it serve to establish
the claims in Plaintiff’s Motion for Summary Judgment. The affidavit, therefore,
does not satisfy the requirements of Rule 56(c)(4).
Likewise, Plaintiff’s Motion fails to satisfy the Court’s Local Rules:
unless otherwise directed by the Court, the moving party shall file
with each motion a memorandum in support of the motion, including
any relevant argument and citations to any authorities on which the
party relies.
Local Rule 7-4.01(A).
Further Local Rule 7 – 4.01(E) provides that, with respect to motions for
summary judgment, the memorandum in support shall “have attached a statement
of uncontroverted material facts, set forth in a separately numbered paragraph for
each fact, indicating whether each fact is established by the record, and, if so, the
appropriate citations.” Plaintiff has not filed a memorandum in support of his

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Motion for Summary Judgment, and has not attached a statement of
uncontroverted material facts. Plaintiff’s Motions utterly fail to provide
Defendants and the Court with any evidence to establish he is entitled to judgment
as a matter of law. Plaintiff’s Motions for Summary Judgment will be denied.
Defendants’ Motion for Summary Judgment
Pursuant to the Court’s Local Rule 7-4.01(E),
Every memorandum in opposition [to a motion for summary
judgment] shall include a statement of material facts as to which the
party contends a genuine issue exists. Those matters in dispute shall
be set forth with specific references to portions of the record, where
available, upon which the opposing party relies. The opposing party
also shall note for all disputed facts the paragraph number from
movant’s listing of facts. All matters set forth in the statement of the
movant shall be deemed admitted for purposes of summary judgment
unless specifically controverted by the opposing party.
Because Plaintiff did not file an opposition to the Motion for Summary
Judgment, the following facts are deemed admitted for the purposes of
Defendants’ Motion for Summary Judgment.
Plaintiff has only filed two separate Grievances while incarcerated at
ERDCC. One is ERDCC 11-648, which related to being referred to an oral
surgeon to have his plates and screws in his jaw removed. The other Grievance,
ERDCC 12-1323, had nothing to do with the allegations in this lawsuit.
In order for an offender to complete the administrative remedies available,
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there must be an Informal Resolution Request (IRR), Informal Resolution Request
Response, Grievance, Grievance Response, Grievance Appeal and Grievance
Appeal Response. Further, Plaintiff failed to file his Grievance ERDCC 11-648
within 7 calendar days of his IRR response, which means that this particular
grievance of Plaintiff’s was considered abandoned.
Plaintiff failed to file his Grievance Appeal for ERDCC 11-648 within 7
calendar days of his Grievance Response and also failed to sign his Grievance
Response, which is all considered an abandonment of this Grievance. Plaintiff
never filed an IRR, Grievance, or Grievance Appeal with regard to the specific
allegations mentioned in Plaintiff’s Complaint with regards to the conduct of
Defendants Chandler, Shackleford, or Van Troba, as alleged in Plaintiff’s
Complaint.
Plaintiff has failed to meet his burden that he has exhausted all of his
available administrative remedies before filing suit against these Defendants.
Title 42 U.S.C. § 1997e(a) provides that “[n]o action shall be brought with
respect to prison conditions under section 1983 of this title, 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.” Exhaustion of all
administrative remedies as set forth by the Missouri Department of Corrections
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Offender Grievance Procedures must be completed prior to a prisoner filing suit.
See Johnson v. Jones, 340 F.3d 624, 628 (8th Cir.2003) (dismissal is required
under section 1997e(a) if an inmate has failed to exhaust all available
administrative remedies prior to filing suit). When multiple prison conditions
claims have can be joined, the plain language of section 1997e(a) requires that all
available prison grievance remedies must be exhausted as to all claims on which a
prisoner is seeking relief. Graves v. Norris, 218 F.3d 884, 885 (8th Cir.2000) (per
curiam). Exhaustion of all administrative remedies means that a prisoner must use
all steps that the Department of Corrections requires and must follow such steps
properly. Woodford v. Ngo, 548 U.S. 81 (2006) (section 1997e(a) requires proper
exhaustion of administrative remedies). A prisoner must complete the
administrative review process in accordance with applicable procedural rules,
including deadlines, as a precondition to bringing suit in federal court. Id.
Here, Plaintiff did not complete the administrative process as detailed
above. He has failed to exhaust his administrative remedies, and as such,
Defendants are entitled to judgment as a matter of law.
Accordingly,
IT IS HEREBY ORDERED that Defendants Long, Van Troba (James),
Shackelford, and Chandler’s Motion for Summary Judgment, [Doc. No. 37], is
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granted.
IT IS FURTHER ORDERED that Plaintiff’s Motions for Summary
Judgment, [Doc. No.’s 40 and 48], are denied.
A separate judgment in accordance with this Opinion, Memorandum and
Order is entered this same date.
Dated this 13th day of January, 2014.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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