Barnett v. Missouri Department of Corrections et al

Filing 28

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment is hereby GRANTED. [ECF No. 24]. Signed by District Judge E. Richard Webber on May 12, 2016. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

TRAVIS BARNETT,
Plaintiff,
vs.
MISSOURI DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

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Case No. 4:14CV01474 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Defendants’ Motion for Summary Judgment
pursuant to Federal Rule of Civil Procedure 56(c). [ECF No. 24].
I. BACKGROUND
Plaintiff is currently incarcerated at the South Central Correctional Center (SCCC) in
Licking, MO, and was previously incarcerated at the Farmington Correctional Center (FCC) in
Farmington, MO when this suit was filed. SCCC and FCCC are penitentiaries within the Missouri
Department of Corrections, SCCC is in the Western District of Missouri and FCCC is in the
eastern District of Missouri. Plaintiff alleges while he was in custody at FCC, Defendants
disregarded his serious objective medical needs in violation of the Eighth Amendment, Defendants
violated the Americans with Disabilities Act, and Defendants retaliated against him for requesting
accommodations under the Americans with Disabilities Act (ADA). [ECF No. 1]. Plaintiff’s
Eighth Amendment claim asserts Defendants in their individual capacities violated his Eighth
Amendment rights by showing deliberate indifference to his serious medical need of severe
hearing loss. His ADA claim asserts he was discriminated against for his conduct violations

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received because of his inability to respond to alarms and commands he cannot hear. Plaintiff’s
retaliation claim alleges when he requested ADA accommodations, and Defendants retaliated
against him for placing him in administrative segregation.
Throughout all relevant times of this suit, the following Defendants have been employed at
FCC: Tom Villmer as the warden, Whitney Tucker, as a case manager, Marquitte Shannon as a
case manager, Devin Helms as a correctional officer, and Sheldon Hinkle as a correctional officer.
[ECF No. 25-1 at ¶¶2-6]. 1
A. Undisputed facts for the purpose of Summary Judgment
The Court finds the following facts undisputed for the purposes of Summary Judgment, and
notes the Plaintiff did not file a response to Defendant’s Summary Judgment motion, even after the
Court issued two show cause orders instructing him to do so. FCC and MDOC have an
administrative grievance procedure for prisoners to internally grieve complaints against the MDOC
and its staff, and the first step in this procedure is to file an Informal Resolution Request (IRR).
After an IRR has been denied, a prisoner has seven working days to file a grievance concerning his
claims in this case, and if the prisoner is dissatisfied with the response to the grievance, they may
file an appeal within seven working days. If an appeal is not timely field, the appeal is considered
abandoned. [ECF No. 25-1 at ¶¶ 7-11].
Barnett filed two IRR’s in 2014 against Villmer and Shannon, and at the resolution of each
IRR, Barnett signed the IRR’s indicating the IRR was resolved by discussion and was withdrawn.
Each offender entering the institution is informed of the procedures for filing a grievance. Barnett

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An action under § 1983, may “be brought only in (1) a judicial district where any defendant resides, if all defendants
reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the
claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in
which any defendant may be found, if there is no district in which the action may otherwise be brought.” 28 U.S.C. §
1391(b). All Defendants work at FCC, and the conduct giving rise to the suit occurred at FCC. Therefore, venue still
remains proper, even though Plaintiff has been transferred to SCCC in the Western District of Missouri.

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did not file any other IRR’s and did not pursue any IRR’s to the grievance stage [ECF No. 25-1 ¶¶
12-19].
Barnett alleges he has a hearing impairment which prevents him from hearing his alarm
clock, and thus has received conduct violations for sleeping through the morning count of inmates.
Barnett never informed FCC personnel of his hearing impairment upon his arrival to FCC. Barnett
has never been diagnosed by a medical professional with hearing loss, despite testing before and
during his incarceration. Barnett has slept through several inmate counts throughout the day, and
generally sleeps throughout the day, claiming there is nothing else to do. He denies his medications
make him tired. [ECF No. 25-1 ¶¶ 20-28].
Barnett feels like a vibrating alarm clock would accommodate his hearing issues, and
alleges the doctors and nurses at Corizon have denied his request for a vibrating alarm clock. All
Defendants do not work for Corizon, the medical service provider for FCC. All Defendants are not
doctors or nurses, and all are employed by MDOC. Further, each Defendant never denied his
request for a vibrating alarm clock. [ECF No. 25-1 ¶¶ 29-34].
Barnett acknowledges he has never received a false conduct violation for any action by
him, nor has he received a conduct violation for something he did not do. He acknowledges the
only time he has ever been denied privileges was when he was issued a conduct violation or sent to
administrative segregation. Barnett fails to show any connection between Warden Villmer and any
denial of IRR’s or other work requested by Barnett. Barnett believes Warden Villmer retaliated
against him because his family called while Barnett was in administrative segregation. [ECF No.
25-1 ¶¶ 35-41, 48-52].
Finally, Barnett, in his deposition, testified he was being retaliated against because of his
relationship with George Biddy, an inmate who has convinced Barnett he is his father. Biddy has

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recently been transferred to another facility, and Barnett believes Defendants have retaliated
against him for his relationship with Biddy. [ECF No. 25-1 ¶¶ 42-47, 53-54].
II. STANDARD OF REVIEW
Summary Judgment is proper only if there exists “no genuine issue as to any material fact”
and the moving party is entitled to judgment as a matter of law. Fed. R. of Civ. Proc. 56(c); Bores
v. Domino’s Pizza, LLC, 530 F3d 671, 674 (8th Cir. 2008). The burden of proof is on the party
moving for summary judgment, and all facts and reasonable inferences are to be viewed in the
light most-favorable to the non-moving party. Duluth, Winnipeg and Pacific Ry. Co. v. City of Orr,
529 F.3d 794, 797 (8th Cir. 2008). “Although the moving party has the burden of demonstrating the
absence of genuine issues of material fact, ‘the nonmoving party may not rest upon mere denials or
allegations, but must instead set forth specific facts sufficient to raise a genuine issue for trial.’”
Burchett v. Target Corp., 340 F.3d 510, 516 (8th Cir. 2003) quoting Rose-Maston v. NME Hosps.,
Inc., 133 F.3d 1104, 1107 (8th Cir.1998).
Material facts are determined by substantive law, and factual disputes which are irrelevant
or collateral do not preclude Summary Judgement. Anderson v. Liberty Lobby, Inc. 477 U.S. 242,
248 (1986). A dispute is a genuine issue, where the evidence is such a reasonable jury could return
a verdict for the nonmoving party. Id. at 248.
The Court may grant summary judgment if the motion and supporting materials, show the
movant is entitled to relief, where the opposing party fails to properly address the moving party’s
assertion of fact. Fed. R. of Civ. Proc. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, (1986)
(finding “Rule 56(e) permits a proper summary judgment motion to be opposed by any of the
kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves”).
III. DISCUSSION

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Defendants move for Summary Judgment on all claims, arguing Plaintiff has failed to
exhaust his administrative remedies; the 8th amendment individual capacity claims fail because
Barnett cannot show Defendants were deliberately indifferent to Plaintiff’s objective serious
medical needs; the retaliation claim fails because Plaintiff cannot meet the elements of a claim of
retaliation; and finally, Plaintiff’s Americans with Disability Act claim fails, because he is not a
qualified individual and he was never denied any privileges. [ECF No. 25]
A. Failure to Exhaust Administrative Remedies
Defendants argue the Plaintiff has failed to exhaust his administrative remedies, and
therefore Summary Judgment is appropriate pursuant to §1997(e)(a) of Prison Litigation Reform
Act (“PLRA”). 42 U.S.C. §1997(e)(a). The PLRA states, in pertinent part,: “no 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.” 42 U.S.C. §1997(e)(a). “There is no question that
exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.”
Jones v. Bock, 549 U.S. 199, 211 (2007) (citing Porter v. Nussle, 534 U.S. 516, 524 (2002)).
“Failure to exhaust administrative remedies is an affirmative defense that, when pled and proven,
‘requires immediate dismissal of all claims brought by inmates with respect to prison conditions ...
under 42 U.S.C. § 1983.’” Hahn v. Armstrong, 407 F. App'x 77, 78 (8th Cir. 2011) (quoting
Gibson v. Weber, 431 F.3d 339, 341 (8th Cir.2005)).
The PLRA makes it clear, the exhaustion of administrative remedies is mandatory. The
plaintiff has filed two IRR’s through the prisons administrative procedure, however on both IRR’s
he indicated the issue was resolved by discussion or withdrawn by him, and neither involved issues
related to his claim in this case. [ECF No. 25-9]. Further, Plaintiff’s never filed a formal grievance,

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which is the next step in the administrative appeal process. [ECF No. 25-2 at 9, 13-14, 18]. Failure
to file grievances and appeals of those grievances, means the claimant has not exhausted his
administrative remedies, and Defendant’s Summary Judgment motion must be granted on this
issue.
Further, the Court also notes Plaintiff has not filed a response to the Defendant’s Summary
Judgment Motion, even after the Court issued two show cause orders instructing him to do so. The
Court finds Plaintiff has failed to exhaust administrative remedies required by law, and his claims
will be denied. Notwithstanding this conclusion, the court will consider his claims on the merits.
B. Eighth Amendment Claim
Defendants next argue the Plaintiff’s Eighth Amendment claims fail because he has not
shown Defendants were deliberately indifferent to his serious medical needs. To establish
Defendants’ conduct violates the Eighth Amendment’s prohibition against cruel and unusual
punishment, a Plaintiff must establish Defendants exhibited deliberate indifference to his or her
serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976). Plaintiff must show, not only
he has a serious objective medical need, but also Defendants knew of this need and deliberately
disregarded the need. Jolly v. Knudsen, 205 F.3d. 1094, 1096 (8th Cir.2000). It must be more than
a disagreement with the course of medical treatment, but must instead be intentional maltreatment
or a refusal to provide medical care. Warren v. Fanning, 950 F.2d 1370, 1373 (8th Cir. 1991). A
“serious medical need” is one “that has been diagnosed by a physician as requiring treatment or
one that is so obvious that even a lay person would easily recognize the necessity for a doctor's
attention.” Coleman v. Rahija, 114 F.3d. 778, 784 (8th Cir.1997) quoting Camberos v. Branstad,
73 F.3d. 174, 176 (8thCir.1995).

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Plaintiff’s Eighth Amendment claim derives from his allegations he has a hearing
impairment and Defendants have failed to accommodate his impairment, thus showing deliberate
indifference to him. Plaintiff did not inform prison officials at FCC of hearing issues at the
beginning of his incarceration, and has never been diagnosed with hearing loss, despite testing.
[ECF No. 25-1 ¶¶ 21-24]. Plaintiff admits to sleeping through inmate counts throughout the day as
he claims there is nothing else to do. [ECF No. 25-1 ¶¶ 22, 26-27]. Further, Plaintiff provides no
evidence, and does not claim Defendants, have ever denied his hearing be tested or his request to
receive an alarm clock. [ECF No. 25-1 ¶¶ 33-34]. He instead has testified his request for an alarm
clock was denied by Corizon, FCC’s medical provider. [ECF No. 25-1 ¶ 30]. Plaintiff has not
shown any proof any Defendants or prison officials have shown deliberate indifference to his
medical needs, in violation of the Eighth Amendment. In light of the above findings, this claim
does not present any material issues of fact as to Defendants’ conduct, and Defendants’ request of
Summary Judgment will be granted with respect to Plaintiff’s Eighth Amendment claims.
C. Americans with Disabilities Act Claim
Plaintiff also claims Defendants violated the Americans with Disabilities Act, as they failed
to accommodate his hearing impairment. “To state a prima facie claim under the ADA, a plaintiff
must show: 1) he is a person with a disability as defined by statute; 2) he is otherwise qualified for
the benefit in question; and 3) he was excluded from the benefit due to discrimination based upon
disability.” Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999); See 42 U.S.C. § 12131. A
qualified individual with a disability is a person with a disability who, with or without reasonable
modifications to policies, meets the requirements for the receipt of services provided by a public
entity. 42 U.S.C. § 12131.

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Plaintiff admits he was never denied any privileges to which he was entitled, as he has
never received a false conduct violation. [ECF No. 25-1 ¶¶ 33-34]. Plaintiff was only been denied
privileges when he was in administrative segregation, where he was only placed in as punishment
for conduct violations he actually committed. [ECF No. 25-1 ¶ 37]. Further, Plaintiff has never
been diagnosed with a hearing disorder, and was tested for hearing loss both prior to and during his
incarceration. [ECF No. 25-1 ¶24]. Plaintiff has not shown a prima facie claim under the ADA,
because he was not denied any benefits or privileges, due to discrimination based on his disability.
Plaintiff has not made a prima facie showing of a claim under the ADA, and Defendant’s
Summary Judgment motion must be granted on this issue.
D. Retaliation Claim
Plaintiff also claims Defendants retaliated against him for requesting accommodations
under the Americans with Disabilities Act. A prisoner has a first amendment right to be free from
retaliation for using the prison’s grievance process. Nelson v. Shuffman, 603 F.3d 439, 449-450
(8th Cir. 2010). To prevail on such a claim, a prisoner must establish: “(1) that he engaged in a
protected activity; (2) that the government official took adverse action against him that would chill
a person of ordinary firmness from continuing in the activity; and (3) that the adverse action was
motivated at least in part by the exercise of the protected activity.” Santiago v. Blair, 707 F.3d 984,
991 (8th Cir. 2013) (citing Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir.2004)). The prisoner must
show the official took the action because the plaintiff engaged in protected activity, and while this
is typically a jury question, it can be resolved when there is no doubt as to the result. Revels, 382
F.3d at 876 (quoting Ricketts v. Columbia, 36 F.3d 775, 779 (8th Cir.1994)). A retaliation claim
fails if the Defendant can produce some evidence the plaintiff committed the violation, that is the
basis for the retaliation. Moore v. Plaster, 266 F.3d 928, 932 (8th Cir. 2001).

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Plaintiff acknowledges he has never received a false conduct violation. Therefore he cannot
show any official took action which would chill him from continuing in his activity, other than
conduct for actions which he would ordinarily receive discipline. [ECF No. 25-1 ¶36]. Since
Plaintiff has not been denied any rights to which he was not entitled to recieve, it cannot be said
Plaintiff engaged in a protected activity. Defendant has produced evidence, Plaintiff’s own
admission, Plaintiff committed the violations and thus Plaintiff’s retaliation claim must fail.
Further, in Plaintiff’s deposition he changed his theory of why he was being retaliated
against. Plaintiff’s petition alleges he was retaliated against for asking for accommodations on
behalf of his ADA claim, but, in Plaintiff’s deposition, and he now asserts he was retaliated against
because of his relationship with George Biddy. [ECF No. 25-1 ¶¶45, 47]. The Court finds Plaintiff
only presented a claim for retaliation on the basis of alleged retaliation after Plaintiff’s request for
accommodations was denied under the ADA. [ECF No. 9 at 4-5]. In any event, Plaintiff has
presented no authority he has any constitutional right to association with any other particular
inmate. Therefore, Plaintiff has not made a claim for retaliation, and Defendants’ Motion for
Summary Judgment on this issue must be granted.
IV. CONCLUSION
Plaintiff’s claims must fail because he has not failed to exhaust his administrative remedies.
Plaintiff’s Eighth Amendment claim is denied on the merits, as Plaintiff has presented no evidence
Defendants showed deliberate indifference to his serious medical needs. His ADA Claim is also
denied on the merits since Plaintiff has not shown he was denied any benefits or privileges due to
discrimination, based on his alleged disability. Plaintiff’s retaliation claim also must be denied on
the merits because Plaintiff has not shown he was disciplined for engaging in protected activites.

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Summary Judgment is granted in favor of Defendants, and all of his claims are dismissed with
prejudice.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment is hereby
GRANTED. [ECF No. 24].

So Ordered this 12th Day of May, 2016.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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