Burke v. St. Louis City Jails et al

Filing 129

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment (ECF No. 111 ) is GRANTED. An appropriate Judgment is filed herewith. Signed by District Judge Ronnie L. White on September 12, 2017. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CALVIN BURKE,
Plaintiff,
v.
DALE GLASS, et al. ,
Defendants.

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No. 4:14-CV-2107 RLW

MEMORANDUM AND ORDER
This matter is before the court on Defendants' Motion for Summary Judgment (ECF No.
111). This matter is fully briefed and ready for disposition.

BACKGROUND
Burke' s lawsuit arises from his confinement at the Medium Security Institution ("MSI"),
also known as the "Workhouse." Burke brings claims against Defendants in their individual
capacities pursuant to 42 U.S.C. §1983 and 42 U.S.C. §2000cc. Plaintiffs Second Amended
Complaint contains eight separate counts: Count I "42 U.S.C. § 1983" ; Count II "First
Amendment Violations" ; Count III "Fourth Amendment Violations," i.e., the strip search policy
at MSI was unconstitutional; Count IV "Due Process Violation of the Fifth Amendment" ; Count
V "Deliberate Indifference to Safety and Health" ; Count VI "Custom and Usage" ; Count VII
"Violation of Equal Protection and Due Process Under the Fourteenth Amendment," and Count
VIII "42 USC §1983 " .

Burke was incarcerated at MSI from November 6, 2014 through September 14, 2015.
(Defendants ' Statement ofUncontroverted Material Facts ("DSUMF"), ECF No. 111-1). 1 Burke
alleges that the accommodations at MSI were unsatisfactory because MSI was unsanitary and the
heating system malfunctioned. Burke also complains about the quality of the food service at
MSI because it did not conform to applicable and nutritional and caloric standards, and
defendants interfered with his access to kosher meals. Burke alleges that inmates at MSI were
encouraged to engage in "gladiator style battles." Burke alleges that Defendants' strip search
policy is unconstitutional because he was searched in the presence of "homosexuals, sexual
predators, and known sex offenders," without privacy partitions, and that the searches occurred
on a floor made wet from leaking toilets and urinals.
The undisputed material facts, however, demonstrate that Burke' s claims are unfounded.
During Burke' s incarceration, the boiler system would occasionally fail, but was always repaired
within an hour. (DSUMF, if2). Inmates were not without heat or hot water for any significant
amount of time. (DSUMF, if3). While the plumbing fixtures (sinks, toilets, urinals) at MSI
occasionally leaked or clogged, these problems were always promptly repaired. (DSUMF, if4).
The St. Louis City Division of Corrections has an established policy 3.3.3, Inmate
Grievances, which requires that inmates first submit an Informal Resolution Request form, or
"IRR." (DSUMF, ifif6-7). The Policy further provides that certain issues are "non-grievable,"
i.e., cannot be addressed within the inmate grievance system; these include policies and
procedures of the Division of Corrections, conditions not affecting the inmate personally, and
frivolous or repetitive complaints. (DSUMF, if8). If the inmate is dissatisfied with the outcome

1

The Court previously held that all facts alleged in Defendant's Motion for Summary Judgment
are deemed admitted. (ECF No. 128).

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of the IRR process, he is provided with a grievance form and may submit that form within five
business days. (DSUMF, if9).
Defendants Weber and Fields consistently responded to Burke's complaints and requests
submitted via IRR through the grievance system. (DSUMF, iflO). Burke was denied grievance
forms for non-grievable issues only in accordance with the grievance policy. (DSUMF, if 11).
During his incarceration at MSI, Burke abused the grievance system by repeatedly filing
frivolous and repetitive grievances and by sending a folded, full food tray to Weber. (DSUMF,
if l 2).

On December 17, 2014, Burke was approved to receive kosher meals. (DSUMF, if13).
This authorization was revoked on February 17, 2015. (DSUMF, if14). Prior to March 2015 ,
Burke was re-approved for kosher meals. (DSUMF, if15). Burke received kosher-certified
meals for the remainder of his confinement at MSI. (DSUMF, ifl6). Defendants Fields and
Edwards were not responsible for approval of special diet requests; rather, the Corizon doctors or
the chaplain were responsible for approving such requests. (DSUMF, if40).
At MSI, strip searches must be conducted "to locate and seize contraband in order to
ensure the safety and security of the facility, the Correctional Officers, and the inmates. There is
no effective alternative to the strip search policy." (DSUMF, if21). Privacy partitions or screens
are not provided for inmates during strip searches "to ensure the safety and security of the
Correctional Officers conducting the searches." (DSUMF, if22). During the strip searches
"inmates were never made to stand in human waste." (DSUMF, if23).
During his incarceration, Burke received adequate nutrition and medical care. (DSUMF,
if25). Problems with the boilers and plumbing were repaired within a reasonable amount of time

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and insect extermination was regularly conducted. (DSUMF, if26). Burke suffered no
significant harm to his health while incarcerated at MSI. (DSUMF, if27).
Burke was kept in administrative segregation for 34 days, from December 17, 2014 until
January 20, 2015 . (DSUMF, if29). Before being confined to Administrative Segregation, Burke
received a pre-deprivation hearing. (DSUMF, if28). The disciplinary reports against Burke were
substantiated and Burke' s punishment was determined after his hearing. (DSUMF, if30).
Burke maintained his approximate weight during his incarceration. (DSUMF, if31).
Burke did not suffer any exacerbation of vision problems during his confinement. (DSUMF,
if32). Burke suffered no significant harm as a result of a result of the cleanliness or temperature
at MSI, the condition of the sinks, toilets, and urinals, and the light and noise, presence of
insects, etc. (DSUMF, if33). Burke never sought medical attention related to other inmates
smoking near him. (DSUMF, if34). In fact, Burke was a drug and tobacco user at the time of his
confinement at MSI. (DSUMF, if35).
At MSI, whether an inmate receives out-of-cell exercise is dictated by the administrative
segregation and recreation policies. (DSUMF, if36). Correctional officers working in the
administrative segregation area have the discretion to deny out-of-cell exercise for inmates
exhibiting disruptive behavior. (DSUMF, if37).

DISCUSSION
I.

MOTION FOR SUMMARY JUDGMENT

A. Standard of Review
The Court may grant a motion for summary judgment if "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to judgment

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as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Citrate, 477 U.S. 317, 322 (1986);
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). The substantive law
determines which facts are critical and which are irrelevant. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). Only disputes over facts that might affect the outcome will properly
preclude summary judgment. Id. Summary judgment is not proper if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party. Id.
A moving party always bears the burden of informing the Court of the basis of its motion.
Celotex Corp., 477 U.S. at 323. Once the moving party discharges this burden, the nonmoving
party must set forth specific facts demonstrating that there is a dispute as to a genuine issue of
material fact, not the "mere existence of some alleged factual dispute." Fed. R. Civ. P. 56(e);
Anderson, 477 U.S. at 248. The nonmoving party may not rest upon mere allegations or denials
of his pleading. Id.
In passing on a motion for summary judgment, the Court must view the facts in the light
most favorable to the nonmoving party, and all justifiable inferences are to be drawn in his favor.
Celotex Corp., 477 U.S. at 331. The Court's function is not to weigh the evidence but to
determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. '"Credibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge."' Torgerson, 643 F .3d at 1042 (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
B. Count I: 42 U.S.C. §1983

Count I alleges that Burke's constitutional rights were violated by Defendants. "The two
requisites for a § 1983 cause of action are: (1) an allegation that the conduct complained of
subjected the complainant to a deprivation of rights, privileges, or immunities secured by the

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Constitution and laws of the United States, and (2) an allegation that the conduct complained of
was done or caused to have been done by a person acting under the color of law." Jennings v.
Davis, 476 F.2d 1271, 1275 (8th Cir. 1973) (citing Basista v. Weir, 340 F.2d 74, 79 (3rd Cir.
1965)). Defendants claim that Burke's claim fails as a matter of law and Defendants are entitled
to qualified immunity.
a. Respondeat Superior Liability for §1983 Claims
The Court enters judgment in favor of Defendants Gray, Glass, Edwards, Harry, Fields,
Diggs, Earvin, and Rea ("Supervisor Defendants") because their roles in Plaintiffs claims were
supervisory and there is no respondeat superior liability for § 1983 claims. See Ellis v. Norris,
179 F .3d 1078, 1079 (8th Cir.1999) (§ 1983 complaint must allege facts supporting any
individual defendant's personal involvement in or responsibility for alleged constitutional
violations); Brown v. Arkansas Dep't of Human Servs., 452 F. App'x 690, 692-93 (8th Cir. 2011)
(same). "Because vicarious liability is inapplicable to ... § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official's own individual actions, has violated
the Constitution." Ashcroft v. Iqbal, 556 U.S . 662, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868
(2009). Thus, "each Government official, his or her title notwithstanding, is only liable for his or
her own misconduct." Id. at 1949.
Burke has not alleged that the Supervisor Defendants ordered, directed, or even suggested
that any correctional officers violate Burke's constitutional rights. Parrish v. Ball, 594 F.3d 993,
1002 (8th Cir. 2010). Even Burke's claims that he reported violations and sent grievances to
these defendants do not establish liability for purposes of §1983. In fact, during discovery,
Burke was asked about Defendants' personal conduct with regards to Burke's claims. (ECF No.
111-4, ~15). In response, Burke identifies conversation and letters provided to these officers, but

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does not identify any particular actions performed by them that violated Burke's constitutional
rights. (ECF No. 111-5,

~5).

As a result, the Court grants summary judgment in Defendants'

favor because Burke has not articulated Supervisory Defendants' direct involvement in any
alleged violations of Burke' s constitutional rights.

b. Qualified Immunity

"In a § 1983 action, state actors may be entitled to qualified immunity." McRaven v.

Sanders, 577 F.3d 974, 980 (8th Cir. 2009)( quoting Riehm v. Engelking, 538 F.3d 952, 962 (8th
Cir. 2008)); Smith v. Kansas City, Missouri Police Dep't, 586 F.3d 576, 579 (8th Cir. 2009).
Qualified immunity is '" immunity from suit rather than a mere defense to liability."' Hunter v.

Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (quoting Mitchell, 472 U.S. at
526, 105 S.Ct. 2806) (emphasis in original); Robbins v. Becker, 715 F.3d 691, 693 (8th Cir.
2013). "Qualified immunity shields government actors from suit unless their conduct violates
clearly established constitutional or statutory rights that a reasonable person would have known."

Smith, 586 F.3d at 580 (citing Henderson v. Munn, 439 F.3d 497, 501 (8th Cir. 2006), Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). "To overcome the
defense of qualified immunity, a plaintiff must show: (1) the facts, viewed in the light most
favorable to the plaintiff, demonstrate the deprivation of a constitutional or statutory right; and
(2) the right was clearly established at the time of the deprivation." Howard v. Kansas City

Police Dep't. , 570 F.3d 984, 988 (8th Cir. 2009). This court may first address either prong. Id.
(citing Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009)).
Burke has alleged violations of his First, Fourth, Fifth, and Fourteenth Amendment
rights. Burke has not provided any evidence that his clearly established constitutional rights

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were violated, as evidenced in the sections below. Therefore, the Court holds that all Defendants
are entitled to qualified immunity.

C. Count II: First Amendment Retaliation Violations

In Count II, Burke claims that Defendants violated his First Amendment rights because 1)
the grievance system was ineffective or he was denied access to it; 2) defendants threatened him
with rape to deter him from filing grievances; and 3) defendants retaliated against him because of
his religion and Kosher diet preference.

1. Access to the Grievance Process

The St. Louis City Division of Corrections has established a policy, 3.3.3 Inmate
Grievances (ECF No. 111-6). This policy requires that inmates submit an IRR. The policy
provides that certain issues are "non-grievable," i. e., cannot be addressed within the inmate
grievance system. Such non-grievable issues include policies and procedures of the Division of
Corrections, conditions not affecting the inmate personally, and frivolous or repetitive
complaints. If the inmate is dissatisfied with the outcome of the IRR process, he is provided
with a grievance form and may submit that form within five business days.
Burke has provided no evidence that he was improperly denied access to the grievance
system. Rather, the evidence shows that Defendants Weber and Fields consistently responded to
Burke' s complaints and requests. Burke was denied grievance forms for non-grievable issues
(such as the strip search policy), in accordance with the grievance policy. However, the denial of
the grievance forms under such conditions is not an unconstitutional denial of access to the
grievance process. Moreover, during his incarceration at MSI, the evidence demonstrates that

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Burke abused the grievance system by repeatedly submitting frivolous and repetitive grievances
and by sending a folded, full food try to Weber. As a result, the Court holds that Burke cannot
establish that he was unconstitutionally denied access to the grievance process.

2. Retaliation against Burke

In order to demonstrate retaliation in violation of the First Amendment under 42 U.S.C. §
1983, Burke must "show (1) he engaged in a protected activity, (2) the government official took
adverse action against him that would chill a person of ordinary firmness from continuing in the
activity, and (3) the adverse action was motivated at least in part by the exercise of the protected
activity." Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004) (citing Naucke v. City of Park
Hills, 284 F.3d 923, 927-28 (8th Cir. 2002)); Spencer v. Jackson Cty. Mo., 738 F.3d 907, 911

(8th Cir. 2013). The retaliatory conduct itself need not be a constitutional violation; the violation
is acting in retaliation for "the exercise of a constitutionally protected right." Cody v. Weber, 256
F.3d 764, 771 (8th Cir.2001) (citing Madewell v. Roberts, 909 F.2d 1203, 1206-07 (8th
Cir.1990)); Spencer, 738 F.3d at 911.
Burke alleges that Defendants retaliated against him because of his use of the grievance
process, his religion, and in retaliation for his complaints that Rucker threatened to have him
raped.
The Court holds that Burke's allegations against Defendants are not supported by the
evidence. First, the Court holds that there is no evidence of any adverse action against Burke.
Likewise, there is no evidence that any actions of Defendants were motivated by any intent to
chill his attempts to engage in any protected activity. As previously discussed, the evidence

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before the Court is that he was allowed to use the gnevance system and that Defe11dants
responded to and addressed his complaints.
Further, Burke' s claims of religious retaliation are not supported by the evidence. On
December 17, 2014, Burke was approved by Dr. Mallard (employee of Corizon, a third-party
contractor for medical services at MSI) to receive kosher meals in accordance with Division of
Corrections policies. Burke' s authorization to receive kosher meals was revoked on February
17, 2015 by Dr. Mallard because Burke requested diets other than kosher and refused to eat
kosher meals.

Thereafter, Burke was re-approved for kosher meals, and he continued

complaining about them as of late March 2015 . Exhibits filed with Burke' s Complaint also
indicate that he was receiving kosher-certified meals. In any event, Burke has provided no
evidence that he followed the proper procedure to request kosher meals after Dr. Mallard
revoked his authorization. See ECF No. 111-13, City 0168-§VII(C)(2) ("Inmates requesting
special diets for religious purposes must complete a Special Diet Request Form with the unit
caseworker. The unit caseworker will forward the request to the Division Chaplain.").
The Court also holds that the undisputed evidence shows that none of the named
Defendants were responsible for approving or disapproving requests for kosher diets.

Dr.

Mallard and Reverend Barr were the only people who could approve religious diets. Defendants,
in their individual capacities, cannot be held liable for the actions of other people. Similarly,
Burke' s claim that Fields and Edwards allowed and A'viand employee to prepare "phony"
kosher meals "for the purpose of retaliation for the exercise of plaintiffs religion," lacks any
evidentiary support. Again, Burke cannot make Defendants liable for the actions of other
individuals.

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The Court further holds that Burke has provided no evidence that Rucker made any rape
threats to Burke or forced him to stand while eating. Defendant Rucker denies those accusations,
and Burke has not identified any witnesses to this alleged threat. Burke cannot produce any
evidence that any defendant was motivated by a retaliatory motive. Therefore, the Court holds
that Burke cannot carry his heavy evidentiary burden to establish that Rucker threatened him as a
matter of law. See Turner v. Mull, 997 F. Supp. 2d 985, 996 (E.D. Mo. 2014), affd, 784 F.3d
485 (8th Cir. 2015) ("Plaintiffs conclusory allegations that Thebeau ordered the cell search and
the search was prompted by Thebeau's retaliatory intent are insufficient to support his retaliation
claim under§ 1983").
Burke also asserts retaliation claims against Defendants Fields and Adeoye, claiming that
they retaliated against him with a "bogus disciplinary report and predetermined punishment" of
administrative segregation. The Court holds that Burke' s mere conclusory statements and legal
conclusions that this was done "as a vehicle to retaliate against plaintiff for engaging in protected
conduct of filing of grievances" do not give rise to a cause of action. Burke has not alleged any
facts and can produce no evidence to support his assertion that his confinement to administrative
segregation was motivated by his filing of grievances. See Turner, 997 F. Supp. 2d at 996;
Niewind v. Smith, No. 14-CV-4744 (DWF/HB), 2016 WL 3960356, at *6 (D. Minn. May 24,

2016), report and recommendation adopted,_ No. 14-4744 (DWF/HB), 2016 WL 3962852 (D.
Minn. July 20, 2016) (granting summary judgment in favor of Defendants where there was no
evidence to support the plaintiffs allegations that he was threatened and disciplined for writing a
threatening kite).
The Court holds that the evidence is that Burke' s disciplinary reports were generated by
correctional officers who are not Defendants in this lawsuit and there is no evidence that the
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allegations in the reports were unsubstantiated or false .

Rather, Burke admitted that he

"intentionally disobeyed an officer' s order during the strip search process" which resulted in one
of the disciplinary reports.
Therefore, the Court holds that Burke' s conclusory statements are insufficient and his
retaliation claim fails. Burke cannot establish any adverse actions of Defendants were the result
of Burke' s protected activity. Because Burke cannot produce any evidence to support his claims
that Defendants violated Burke' s rights under the First Amendment, the Court grants summary
judgment to Defendants.
D. Count III: Fourth Amendment Violations

Burke alleges a violation of the unreasonable searches clause of the Fourth Amendment,
claiming that strip searches at MSI were conducted within view of other inmates and an
unsanitary manner.
"Generally speaking, ' [t]he Fourth Amendment does not require officers to use the least
intrusive or less intrusive means to effectuate a search but instead permits a range of objectively
reasonable conduct. "' Story v. Foote, 782 F .3d 968, 972 (8th Cir. 2015) (quoting Richmond v.
City of Brooklyn Ctr. , 490 F.3d 1002, 1009 (8th Cir. 2007)). In Franklin, however, the Supreme

Court held reasonable a practice of conducting visual body-cavity searches within view of five
inmates, at least where the record did not support a finding that a less public means of searching
was consistent with institutional security. Franklin v. Lockhart, 883 F.2d 654, 656-57 (8th Cir.
1989). The Ninth Circuit similarly upheld body-cavity searches conducted in a "sally port" area
that was visible to other inmates and to female officers working in a "control bubble," at least

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where there were no ready alternatives that would enhance privacy without comprom1smg
security or increasing cost. Michenfelder v. Sumner, 860 F.2d 328, 333 (9th Cir.1988).
The Court holds that the strip searches at MSI are conducted in a reasonable manner for
legitimate security purposes. Defendants have averred, and Burke has not been able to dispute,
that "[t]he primary goal of the strip search policy is to locate and seize contraband in order to
ensure the safety and security of the facility, the Correctional Offices, and the inmates. There is
no alternative to the strip search policy." (ECF No. 111-15, i/22). Defendants stated that privacy
"[p]artitions are not provided [during strip searches] to ensure the safety and security of the
Correctional Officers conducting the searches." (ECF No. 111-15, i/21). Burke has not alleged
"that a more private, yet equally secure and cost-effective means of conducting the body-cavity
inspection was readily available to the officers." Story, 782 F.3d at 972. "The Supreme Court,
moreover, has not clearly established that the presence of other inmates renders a body-cavity
search unreasonable." Story, 782 F.3d at 972. Therefore, the Court holds that Burke's rights
were not violated by routine strip searches in front of other inmates, also being searched. Burke
has failed to allege any harm suffered as a result of the strip searches, that they were conducted
in an unsanitary manner, or that any abusive or inappropriate tactics were utilized during the
search.

The Court holds that the strip searches were not unreasonable under the Fourth

Amendment and grants summary judgment in favor of Defendants
E. Count IV: Due Process Violation of the Fifth Amendment

Burke attempts to bring a Fifth Amendment claim against Defendants, who are
employees of the City of St. Louis, not the Federal Government. Burke's claim fails as a matter
of law because a state actor cannot be liable for a Fifth Amendment violation. See Barnes v. City
of Omaha, 574 F.3d 1003, 1006, n.2 (8th Cir. 2009)("The Fifth Amendment's Due Process

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Clause applies only to the federal government or federal actions, and the Plaintiffs have not
alleged that the federal government or a federal action deprived them of property."); See
Dusenbery v. United States, 534 U.S. 161 , 167, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002) ("The
Due Process Clause of the Fifth Amendment prohibits the United States, as the Due Process
Clause of the Fourteenth Amendment prohibits the States, from depriving any person of property
without 'due process of law. "'); Junior Chamber of Commerce of Kansas City, Mo. v. Mo. State
Junior Chamber of Commerce, 508 F.2d 1031 , 1033 (8th Cir.1975) (recognizing that a "federal
action" is necessary "before there is any deprivation of due process in violation of the fifth
amendment"); Riley v. Camp, 130 F.3d 958, 972, n.19 (11th Cir. 1997) ("The Fifth Amendment
obviously does not apply here-the acts complained of were committed by state rather than federal
officials."); Wrinkles v. Davis, 311 F. Supp. 2d 735 , 738 (N.D. Ind. 2004) ("The Fifth
Amendment's due process clause applies only to acts of the federal government and does not
limit actions of state officials."). Therefore, the Court grants summary judgment in favor of
Defendants on Count IV.

F. Count V: Deliberate Indifference to Safety and Health
The Court holds that Burke has not identified how Defendants were deliberately
indifferent to any substantial risk to his health or safety. " [A] prison official cannot be found
liable under the Eighth Amendment for denying an inmate humane conditions of confinement
unless the official knows of and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S.
825, 837, 114 S. Ct. 1970, 1979, 128 L. Ed. 2d 811 (1994); Saylor v. Nebraska, 812 F.3d 637,
644 (8th Cir. 2016) (prison official must know "of and disregards a serious medical need or a
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substantial risk to an inmate ' s health or safety") (internal quotation omitted).

Rather, the

evidence before the Court is that Burke was not exposed to any substantial risks to his health or
safety while at MSI. Burke received adequate nutrition and medical treatment. Any problems
with the heating and plumbing systems were repaired within a reasonable amount of time. Insect
extermination services were regularly conducted. Burke has presented no evidence that he
suffered any significant harm to his health while incarcerated at MSI. The Court holds that the
symptoms that Burke complains of in his pleadings (e.g., interrupted sleep, aches and pains,
mosquito bites, constipation, and commons colds) are not serious risks to his health and do not
constitute a constitutional violation as a matter of law.

G. Count VI: Custom and Usage

Burke purports to state a claim for custom and usage. However this is not a cause of
action. See Tr. v. Higginbotham , No. 4:09CV591 AGF, 2009 WL 1650031 , at *2 (E.D. Mo.
June 12, 2009) ("Plaintiffs claim that he is suing St. Louis County ' on the theory of custom and
usage' is conclusory and fails to state any facts").

Nevertheless, assuming the Burke is

attempting to state a Monell claim, then that cause of action also fails . See Monell v. Dep't of

Soc. Servs. of City of New York, 436 U.S . 658, 694, 98 S. Ct. 2018, 2037- 38, 56 L. Ed. 2d 611
(1978) ("a local government may not be sued under § 1983 for an injury inflicted solely by its
employees or agents. Instead, it is when execution of a government's policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly be said to represent official
policy, inflicts the injury that the government as an entity is responsible under § 1983").
Because none of the Defendants in this case are municipal entities, Monell is inapplicable and the
Court grants summary judgment in favor of Defendants.

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H. Count VII: Violation of Equal Protection and Due Process Under the Fourteenth
Amendment

In Count VII of his Complaint, Burke alleges violations of his due process rights under
the Fourteenth Amendment. Burke alleges, "Plaintiff is being denied equal protection and due
process of law as more fully described in the above paragraphs." (Ex. N,

~154) .

Although

Burke fails to specifically articulate how his Fourteenth Amendment rights were violated, the
Court construes Burke' s Complaint liberally and addresses Burke' s possible claims.

1. Burke's Substantive Due Process Rights

The Fourteenth Amendment guarantees "[s]ubstantive due process[, which] prevents the
government from engaging in conduct that shocks the conscience or interferes with rights
implicit in the concept of ordered liberty." Weiler v. Purkett, 137 F.3d 1047, 1051 (8th Cir.1998)
(en bane); Moran v. Clarke, 296 F.3d 638, 643 (8th Cir. 2002). To that end, the Fourteenth
Amendment prohibits "conduct that is so outrageous that it shocks the conscience or otherwise
offends 'judicial notions of fairness, [or is] offensive to human dignity. ' " Id. (quoting Weimer v.
Amen, 870 F.2d 1400, 1405 (8th Cir.1989)) (alteration in original).

Burke "must first

demonstrate that he was deprived of life, liberty or property by government action." Phillips v.
Norris, 320 F.3d 844, 846 (8th Cir. 2003)(citing Singleton v. Cecil, 155 F.3d 983 , 987 (8th

Cir.1998); Beverati v. Smith, 120 F.3d 500, 502 (4th Cir.1997)).
Construing his Complaint liberally, Burke attempts to allege that he was deprived of a
liberty interest when he was confined to administrative segregation for 34 days. The Eighth
Circuit has "consistently held that a demotion to segregation, even without cause, is not itself an
atypical and significant hardship." Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003). "Thus,
in order for [Burke] to assert a liberty interest, he must show some difference between his new

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conditions in segregation and the conditions in the general population which amounts to an
atypical and significant hardship." Phillips, 320 F.3d at 847. Plaintiff was kept in administrative
segregation for 34 days, from December 17, 2014 through January 20, 2015. This brief period of
Administrative Segregation does not implicate Burke' s liberty rights. Likewise, Burke cannot
produce any evidence to substantiate his allegations that Defendants Adeoye or Fields charged
him with "bogus disciplinary reports and predetermined punishment". (ECF No. 111-16, ifl 13).
Instead the Court holds that the evidence is that the disciplinary reports were substantiated and
his punishment was determined after his hearing. (ECF No. 111-14). The Court holds that
Defendants were acting within their constitutional limits when they placed Burke in
administrative segregation.
The Court also could construe Burke' s complaints about the conditions at MSI as stating
violations of his Fourteenth Amendment rights:
The Eighth Amendment to the United States Constitution prohibits "cruel and
unusual punishments." U.S. Const. amend. VIII. " [T]he treatment a prisoner
receives in prison and the conditions under which he is confined are subject to
scrutiny under the Eighth Amendment." Helling v. McKinney, 509 U.S. 25, 31 ,
113 S.Ct. 2475 , 125 L.Ed.2d 22 (1993). These conditions include measures taken
to guarantee the safety of inmates. See Farmer v. Brennan, 511 U.S. 825, 832-33 ,
114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Because Kahle was a pretrial detainee at
the time of the alleged violation, her § 1983 claim is not analyzed under the
Eighth Amendment, but instead under the Fourteenth Amendment's Due Process
Clause. See Owens v. Scott County Jail, 328 F.3d 1026, 1027 (8th Cir.2003). This
makes little difference as a practical matter, though: Pretrial detainees are entitled
to the same protection under the Fourteenth Amendment as imprisoned convicts
receive under the Eighth Amendment. See Butler v. Fletcher, 465 F.3d 340, 345
(8th Cir.2006).

Kahle v. Leonard, 477 F.3d 544, 550 (8th Cir. 2007). Therefore, the Court evaluates Burke' s
Fourteenth Amendment claims for unconstitutional prison conditions under same test for Eighth
Amendment claims for cruel and unusual punishment.

The Constitution "does not mandate

comfortable prisons," Rhodes v. Chapman, 452 U.S. 337, 349 (1981), and only those

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deprivations denying "the minimal civilized measure of life's necessities," id., at 347, are
sufficiently grave to form the basis of an Eighth Amendment violation. Wilson v. Seiter, 501 U.S.
294, 298 (1991). The Court finds no evidence that Burke was denied the minimal civilized
measures of life ' s necessities or that Burke experienced any substantial risks of harm. Burke has
presented no evidence that the conditions at MSI were constitutionally inadequate.
In addition, Burke makes the argument that the food provided was constitutionally
inadequate. "One constitutional protection retained by the prisoner is the right to an adequate
diet." Burgin v. Nix, 899 F.2d 733 , 734 (8th Cir. 1990) (citing Campbell v. Cauthron, 623 F.2d
503 , 505 (8th Cir. 1980)). "Because control of the administrative details of a prison remains
exclusively in the hands of prison officials, . . . control of the diet is within their discretion,
assuming it is adequate." Burgin, 899 F.2d at 734 (citing Goff v. Menke, 672 F.2d 702, 705 (8th
Cir. 1982)). The Court finds no evidence that MSI provided constitutionally inadequate meals to
Burke. Although Burke has alleged he lost weight while incarcerated, his medical records show
that he maintained his approximate weight. See ECF No. 111-10. Burke' s weight ranged from
176 to 185 pounds from November 2014 through February 2015. Id. Burke cites to no evidence
that inadequate nutrition caused him any vision problems. Id. ; see Berry v. Brady, 192 F.3d 504,
508 (5th Cir. 1999) ("Berry has not alleged any specific physical harm, other than hunger pains.
Neither has Berry claimed that he lost weight or suffered other adverse physical effects or was
denied a nutritionally and calorically adequate diet, nor has he alleged having his health put at
risk. Therefore, his allegations do not rise to the level of an Eighth Amendment violation."). The
Court holds that occasional vomiting or constipation cannot constitute a "substantial risk of
harm" as a matter of law.

Moreover, Burke has not demonstrated that Defendants were

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responsible for the preparation of Burke' s food. Therefore, Burke' s claims regarding supposedly
inadequate food fail as a matter of law.
The Court also holds that the conditions in the dorms and cells at MSI were
constitutional. Burke complains about malfunctioning of the heating and cooling equipment,
constant lighting, excessive noise, and exposure to raw sewage due to leaking toilets and urinals.
However, none of these described issues rise to the level of a constitutional deprivation. See

Wilson v. Seiter, 501 U.S. 294, 300, 111 S. Ct. 2321 , 2325 , 115 L. Ed. 2d 271 (1991) ("if a
prison boiler malfunctions accidentally during a cold winter, an inmate would have no basis for
an Eighth Amendment claim, even if he suffers objectively significant harm"); Hutchings v.

Corum , 501 F. Supp. 1276, 1292 (W.D. Mo. 1980) ("the problem of the spillage of sewage-laden
water during performance of the frequent repairs on the plumbing system and the resulting
leakage of such material into the cells below does present an issue of constitutional
proportions"); Hutchings , 501 F. Supp. at 1293 ("Although the lights are left on all night and
there is a high noise level at night, these are not per se unconstitutional conditions."); O'Leary v.

Iowa State Men's Reformatory, 79 F.3d 82, 84 (8th Cir. 1996) (quoting Farmer, 511 U.S . at 837 (
("The fact that plaintiffs suffered pain and discomfort is insufficient to prove" prison officials
were "deliberately indifferent to ' an excessive risk to inmate health or safety. "')); Smith v.

Copeland, 87 F.3d 265, 268 (8th Cir. 1996) (exposure to raw sewage for four days "amounts to a
de minimis imposition and thus does not implicate constitutional concerns"). Likewise, the
Court holds that Burke' s exposure to secondhand smoke does not constitute a constitutional
violation of his due process rights. Burke has not alleged that MSI officials refused to enforce a
smoking ban or that Burke sought any medical attention as a result of MSI officials refusing to
enforce a smoking ban. Cf Weaver v. Clarke, 45 F.3d 1253, 1256 (8th Cir. 1995) (On a motion

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to dismiss, the Eighth Circuit held "the complaint portrays the prison officials as consistently
unwilling to enforce the smoking ban in Weaver's room and repeatedly unresponsive to any of
Weaver's requests and protests. We conclude that Weaver has alleged deliberate indifference to
his existing serious medical needs and thus has alleged the violation of a constitutional right.").
In addition, Burke' s medical records indicate that he is/was a drug user and cigarette smoker,
who smoked about ten cigarettes per day. See ECF No. 111 -10. Thus, the Court holds that
Burke cannot state a plausible claim for relief based upon his inhalation of second hand smoke
for which he did not seek medical treatment and when Burke was a smoker himself.
The Court further holds that Burke' s constitutional rights were not violated by the prison
officials' alleged failure to provide out-of-cell exercise when he was in administrative
segregation. In fact, the Eighth Circuit has held that denial of exercise privileges for thirty-seven
days, while an inmate was in administrative segregation, "did not constitute an atypical and
significant hardship for [the inmate] in the context of normal prison life." Phillips v. Norris , 320
F.3d 844, 847 (8th Cir. 2003).
2. Burke's Equal Protection Claim
Burke alleges that "Defendants Fields and Edwards quickly approved other detainees
alternative diet requests on religious grounds or otherwise, before plaintiff despite many of the
approved detainees arriving and requesting their diet after plaintiff's arrival to the jail." (ECF
No. 111-16, if90). Burke seems to be alleging that similarly situated inmates were treated more
favorably than Burke because their requests were granted more quickly. In the prison context,
"[t]he heart of an equal protection claim is that similarly situated classes of inmates are treated
differently, and that this difference in treatment bears no rational relation to any legitimate penal
interest." Weiler v. Purkett, 137 F.3d 1047, 1051 (8th Cir.1998), citing Timm v. Gunter, 917 F.2d

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1093, 1103 (8th Cir.1990), cert. denied, 501 U.S. 1209, 111 S.Ct. 2807, 115 L.Ed.2d 979 (1991);
Jihad v. Fabian, No. CIV. 09-1604 SRN LIB, 2011 WL 1641885, at *20 (D. Minn. Feb. 17,
2011). The Court holds that the evidence does not support Burke' s equal protection claim.
Burke was initially approved for a vegetarian diet on December 9, 2014 (about a month after his
arrival at MSI). On December 17, 2014, Burke was approved for a kosher diet. (ECF No. 11110).

Burke has not provided any evidence that any other similarly-situated inmate had his

request approved more quickly. In addition, the Court notes that Defendants Fields and Edwards
were not responsible for approval of special diet requests. Indeed, the Corizon doctors or the
chaplain were responsible for approving such requests.

Therefore, the Court holds that

Defendants did not violate Burke' s equal protection rights as a matter oflaw.

I.

Count VIII: RLUIPA 42 U.S.C. §2000cc-1

Finally, Burke alleges a claim under the Religious Land Use and Institutionalized Persons
Act ("RLUIPA"), 42 U.S.C. §2000cc-l , et seq. "No government shall impose a substantial
burden on the religious exercise of a person residing in or confined to an institution[.]" 42 U.S.C.
§2000cc-l(a). The Court holds that Burke cannot state a claim under RLUIPA because the
RLUIP A "does not provide a cause of action against individual defendants in their individual
capacities." Stewart v. Beach, 701 F.3d 1322, 1334 (10th Cir. 2012) (citations omitted). Burke' s
claims fail as a matter of law because Defendants are all individual persons sued in their
individual capacities only. Therefore, the Court enters summary judgment in Defendants' favor
on Count VIII.

CONCLUSION

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Accordingly,
IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment (ECF No.
111) is GRANTED.
An appropriate Judgment is filed herewith.

Dated

thi~ th day of September, 2017.

~L}!£

'@NNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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