Henderson v. Listenberger et al

Filing 53

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Defendant St. Louis County, Missouris Motion for Summary Judgment (Doc. 41 ) and Defendant Paul Listenbergers Motion for Summary Judgment (Doc. 44 ) are GRANTED and this case is DISMISSED with prej udice. A separate judgment will accompany this Order. IT IS FURTHER ORDERED that, in light of the Courts decision to grant Defendants Motions for Summary Judgment, the remaining pending Motions (Docs. 37 , 38 ) are DENIED, as moot. Signed by Magistrate Judge Noelle C. Collins on 06/27/2016. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
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LARRY L. HENDERSON,
Plaintiff,
v.
PAUL LISTENBERGER, and
ST. LOUIS COUNTY, MISSOURI,
Defendants.

No.

4:15-cv-00480-NCC

MEMORANDUM AND ORDER
This matter is before the Court on Defendant St. Louis County, Missouri’s Motion for
Summary Judgment (Doc. 41) and Defendant Paul Listenberger’s Motion for Summary
Judgment (Doc. 44). Plaintiff has not responded and the time for doing so has expired.1
Accordingly, the Motions are ready for disposition. The parties have consented to the jurisdiction
of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. 636(c)(1) (Doc. 24).
For the following reasons, Defendants’ Motions for Summary Judgment will be GRANTED and
this case will be DISMISSED with prejudice.
I. Background
On March 16, 2015, pro se Plaintiff Larry L. Henderson (“Henderson”) filed this action

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Defendants filed their Motions for Summary Judgement on January 12, 2016. Plaintiff’s
responses were due on or before February 3, 2016. See Local Rule 4.01. On March 15, 2016, the
Court entered a show cause order, giving Plaintiff until March 28, 2016, to respond to
Defendants’ pending Motions. In the Order, Plaintiff was warned that failure to respond would
result in the Court ruling on Defendants’ unopposed motions. On March 28, 2016, Plaintiff
emailed the Clerk of Court and requested that the Court file the email as his official motion for
enlargement of time. In an order dated April 15, 2016, the Court indicated it would not file
Plaintiff’s email on the record because email correspondence with the Court is not permitted by
local rule and warned that the pending Motions were under review by the Court and no further

pursuant to 42 U.S.C. § 1983 alleging deliberate indifference of his serious medical condition
and deprivation of food. Specifically, Henderson alleges that he requires a gluten-free diet
because he has celiac disease.2 Henderson states that he also suffers from diabetes. Defendant
Paul Listenberger (“Listenberger”) is the food service manager at the Saint Louis County Justice
Center, where Henderson was incarcerated. Henderson alleges that despite his medical
restrictions, Listenberger continued to serve him food containing gluten that caused him severe
gastrointestinal distress and difficulty maintaining a stable blood sugar. Henderson also alleges
that Defendant St. Louis County (“the County”) is liable because the County failed to implement
a policy relating to the proper nutrition and food management of inmates who suffer from celiac
disease, like Henderson, who should only be fed food that is labeled and certified as gluten-free.
Henderson argues that there should be a policy about food-handling so that cross-contamination
does not occur. Henderson requests a “standing order to provide only certified food item[s] by
the manufacturer a ‘gluten-free’ item” and money damages in the amount of $2.5 million
dollars.3 The undisputed facts are as follows.4

briefing would be accepted without good cause shown.
2
“Celiac disease is an immune reaction to eating gluten, a protein found in wheat, barley and
rye.” Mayo Clinic, Celiac Disease, http://www.mayoclinic.org/diseases-conditions/celiacdisease/basics/definition/con-20030410 (last visited June 2, 2016).
3
Henderson previously filed these claims before this Court in Henderson v. U.S. Marshals
Service, et al., Case No. 4:15-cv-399-HEA (E.D. Mo.). That case was dismissed without
prejudice on initial section 1915 review because Henderson did not allege that he had been given
any food containing wheat, barley, or rye nor did he allege that he suffered any injuries or ill
results from the food he was provided. Memorandum and Order at 2, Henderson v. U.S.
Marshals Service, et al., Case No. 4:15-cv-399-HEA (E.D. Mo. Mar. 5, 2015).
4
The facts are taken from the County’s Statement of Uncontroverted Material Facts (Doc. 43)
and Listenberger’s Statement of Uncontroverted Material Facts (Doc. 45). Plaintiff did not
respond to either the County’s or Listenberger’s Statements of Uncontroverted Material Facts.
Local Rule 4.01(E) provides with respect to summary judgment motions:
A memorandum in support of a motion for summary judgment shall have attached a
2

Larry Henderson, a Federal inmate, was housed in St. Louis County Jail from July 22,
2014 to May 4, 2015 (Ex. W). When Henderson entered the Jail in 2014, he reported a history of
celiac disease to Corrections Medicine staff (Id.). Corrections Medicine staff never received or
obtained any medical records, such as reports, tests or biopsies to support this diagnosis (Id.). As
a precaution, Corrections Medicine staff ordered a gluten free diet for Henderson on July 22,
2014 and nursing staff entered the requirement in the Integrated Jail Management System (IJMS)
(Id.). Henderson also has a history of diabetes and reported allergies to eggs and to seafood (Id.).
Herbert Bernsen (“Bernsen”) is the Director of the St. Louis County Department of
Justice Services (“DJS”), which operates the St. Louis County Jail (Affidavit of Herbert Bernsen
(“Bernsen Aff.”) ¶ 2, Docs. 42-41, 46-1). As Director of the St. Louis County Department of
Justice Services, Bernsen’s duties are to supervise and manage the operation of the St. Louis
County Jail and to implement and enforce DJS policies and procedures (Ex. B, Bernsen Aff. ¶ 7).
DJS has a policy and procedure manual which covers the operation of all aspects of the St. Louis

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. Every memorandum in opposition shall include a statement of
material facts as to which the party contends a genuine dispute 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.
E.D. Mo. L.R. 4.01(E). As a result of Plaintiff's failure to submit any response, Plaintiff has not
met the requirements of Local Rule 4.01(E), and is deemed to have admitted all facts in
Defendants' Statements of Uncontroverted Facts. Turner v. Shinseki, 2010 WL 2555114, at *2
(E.D. Mo. June 22, 2010) (citing Deichmann v. Boeing Co., 36 F.Supp.2d 1166, 1168 (E.D. Mo.
1999)). However, Plaintiff's failure to respond properly to Defendants' Motions for Summary
Judgment does not mean summary judgment should be automatically granted in favor of the
Defendants. Even if the facts as alleged by the Defendants are not in dispute, those facts still
must establish they are entitled to judgment as a matter of law. Cross v. MHM Corr. Servs., Inc.,
3

County Jail (Ex. A). Every inmate entering the Jail receives a copy of the DJS Inmate Handbook
which provides information on housing rules, inmate rights and privileges, inmate discipline,
meals and healthcare, among others (Id.; Ex. NN). Especially relevant to this case are DJS
Policies 1003 and 1002.
DJS Policy 1003 is the policy concerning special inmate diets and states that special
diets, including religious diets and medical diets, are provided to inmates (Ex. C). A medical diet
is a special diet provided to a jail inmate based on his or her medical needs (Id.). DJS Policy
1003 states that a medical diet for an inmate must be approved by a physician or dentist (Id.).
Under DJS policy, a gluten free diet is a medical diet because an inmate may have a gluten
allergy or be gluten intolerant (Affidavit of Paul Listenberger (“Listenberger Aff.”) ¶13, Docs.
42-42, 46-2). DJS Policy 1002 concerns inmate meals and states that inmates will be provided
three meals a day which are nutritionally adequate (Ex. D). Policy 1002 also requires that DJS
menus be reviewed each year by the Department of Health for nutritional adequacy (Id.).
The kitchen has a procedure for preparing gluten free meals (Ex. T). Gluten free food
preparation is done separately from other food preparation to prevent cross-contamination (Ex.
T, Listenberger Aff. ¶¶ 40-41). The gluten free food for each week is prepared only in the special
diet section of the kitchen (Ex. T, Listenberger Aff. ¶ 40). Gluten free food is cooked and
prepared only on Monday prior to any flour being used or any baking being done (Ex. T,
Listenberger Aff. ¶ 43). Before the gluten free food is prepared, the preparation table, all utensils,
cookware and the slicing machine are sanitized with a sanitizing solution (Ex. T, Listenberger
Aff. ¶ 44). After the food is cooked, it is portioned, wrapped in plastic wrap or covered, dated
and marked as gluten-free (Ex. T, Listenberger Aff. ¶ 40). It is then refrigerated or frozen (Ex. T,

No. 4:11CV1544 TIA, 2014 WL 5385113, at *3 (E.D. Mo. Oct. 10, 2014).
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Listenberger Aff. ¶ 45). Meals are taken from the kitchen by elevator to the housing floors at the
Jail, where the trays are distributed to inmates by other inmates (Listenberger Aff. ¶ 17).
DJS employs special diet cooks to prepare special meals including gluten free meals
(Listenberger Aff. ¶ 39). The DJS special diet cooks are Theresa Roberson (“Roberson”) and
Tameka Davis (“Davis”) (Id. ¶22). They have completed 140 and 115 hours of continuing
education, respectively, since January 31, 2010 (Exs. G, H). Their training has included food
service training and facility safety and sanitation (Exs. G, H). Roberson and Davis are trained on
the procedures for cooking gluten free food and preparing daily meals from this type of food
(Listenberger Aff. ¶ 39).
Listenberger has been employed by St. Louis County, Missouri as the food service
manager at DJS since 2013 (Id. ¶¶ 2-3). Listenberger became aware that Henderson was
approved for a gluten free diet on or about July 28, 2014 after it was approved by medical staff
and entered in IJMS (Ex. W, Listenberger Aff. ¶ 18). Listenberger created a gluten free menu
based on his knowledge (Listenberger Aff. ¶ 23). Listenberger contacted dietician Karen Peters
(“Peters”), who works at the St. Louis County Department of Public Health, and asked her to
review the gluten free menu (Ex. U, Listenberger Aff. ¶ 25).
Peters is licensed with the State of Missouri and is registered with the Commission on
Dietetic Registration (Affidavit of Karen Peters (“Peters Aff.”) ¶ 4, Docs. 42-44, 46-4). Peters is
familiar with celiac disease and is qualified to develop gluten free menus for people who have
celiac disease or who are gluten intolerant (Id. at ¶¶ 9, 13). Peters developed a 2,500 calorie a
day, gluten free menu for Mr. Henderson (Id. at ¶ 25-26). Peters approved a gluten free menu on
August 4, 2014 (Ex. U, Peters Aff. ¶ 28). The gluten free menu was also reviewed and approved
by Peters’ supervisor, Lynn Sojka (Ex. EE, Peters Aff. ¶ 44, Affidavit of Lynn Sojka ¶¶ 2, 215

24). Because use of the terms “gluten free,” “free of gluten,” “no gluten,” and “without gluten”
are voluntary claims by food manufacturers who may elect to use these terms in the labeling of
foods, Peters instructed Listenberger that all ingredient labels should be checked for gluten and
assisted Listenberger in doing this (Ex. U, Peters Aff. ¶ 29). See also C.F.R. § 1001.91.
Listenberger sent Peters ingredient labels of food used in the Jail’s kitchen and recipes used in
the kitchen and she analyzed them (Peters Aff. ¶¶ 30-31).
Peters revised the menu on multiple occasions as “diabetic,” “no egg,” and “no
vegetables” restrictions were added to the menu (Ex. V, Peters Aff. ¶¶ 45-47, 51-52). In doing
so, Peters performed a nutritional analysis of the menu, including determining values for
micronutrients, vitamins, minerals and amino acids (Ex. V, Peters Aff. ¶ 47). To do this analysis,
she used Nutritionist Pro, a well-known software program used by dieticians (Ex. V, Peters Aff.
¶ 48). She also reviewed the Academy of Nutrition and Dietetics, the industry standard for the
field of dietetics (Peters Aff. ¶¶ 42, 54). Following this analysis, on August 27, 2014, Peters
determined that the no gluten, no egg, diabetic menu was nutritionally adequate (Ex. V, Peters
Aff. ¶ 49). In November 2014, by Federal Court Order, Henderson’s menu was further restricted
to exclude vegetables (Ex. KK). A revised menu was also approved by Peters (Ex. CC).
Soon after arriving, Mr. Henderson filed grievances about the turkey bologna not being
certified gluten free (Listenberger Aff. ¶ 31). Following an investigation into his grievances, Mr.
Henderson’s appeals of these grievances were denied but only after Listenberger contacted the
manufacturer to confirm that gluten was not contained in the bologna (Exs. FF, LL, MM). After
the menus were put in place, Henderson complained to jail staff that his meals were not certified
as gluten free (Listenberger Aff. ¶ 75). He also complained that the food trays he received
contained items with gluten and that his food was cold or that his tray had “questionable items”
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on it (Id. ¶ 76). Listenberger became aware that food trays containing gluten had been delivered
to Henderson and that some of his trays contained gluten food items from other trays (Id. ¶ 78).
In response, Listenberger instructed kitchen staff to mark all of Henderson’s trays with “L.H.”
and “gluten free” (Id. ¶ 88). Listenberger also instructed the lieutenants at unit control to allow
Henderson to pick up his own food tray at unit control and, if Henderson complained, directed
the lieutenants to call him directly (Id. ¶¶ 89, 90). Listenberger also began inspecting the trays
prior to breakfast and lunch to make sure there was nothing wrong with them (Id. ¶ 93).
Listenberger ensured a new tray was prepared for Henderson if he complained unless
Listenberger had previously inspected it and nothing was wrong with it (Id. ¶ 95).
While Henderson was housed in the Saint Louis County Jail, he received treatment from
Dr. Fred Rottnek, M.D. (“Rottnek”), the Medical Director of Saint Louis County Department of
Public Corrections Medicine (Affidavit of Fred Rottnek (“Rottnek Aff.”) ¶ 2, Docs. 42-45, 46-5).
Rottnek saw Henderson six times as a patient at the Jail beginning in 2010, including on
December 23, 2014 during his most recent confinement at the Jail (Id. ¶ 8). Rottnek reviewed
Henderson’s medical records for 2014 and 2015 (Id. ¶ 10). During the time that Rottnek treated
Henderson, he presented as a healthy individual (Id. ¶ 27). Henderson was also seen by the
Corrections Medicine staff of nurses, the clinical pharmacist, the physician assistant and the
psychologist (Id. ¶ 9). Henderson’s medical records show that he made subjective claims of
abdominal and gastrointestinal pain, diarrhea and constipation (Ex. Y). Henderson was instructed
to report these symptoms at a time when staff was present so they could be witnessed by medical
staff and charted (Id.). These claims were never substantiated by objective observations of
medical staff, but nursing staff still provided Henderson Maalox, Tums and Pepto-Bismol
because of his subjective complaints (Id.). Henderson’s medical records show that he stated to
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medical staff that he skipped meals because he did not believe they were gluten free (Id. ¶32).
Henderson’s medical records do not show any objective evidence that his celiac disease
worsened while he was at the Jail (Id. ¶ 41). During his confinement at the Jail, Henderson’s
diabetes was successfully managed by the medical staff, despite his frequent refusal to take
insulin, to allow nurses to check his blood sugar, or to follow a proper diabetic diet (Exs. X, BB).
On January 12, 2016, Defendants filed Motions for Summary Judgment asserting that the
claims against them should be dismissed with prejudice (Docs. 41, 44). In his Motion for
Summary Judgment, Listenberger first asserts that Plaintiff’s claim for injunctive relief cannot be
granted because he is no longer at DJS. Listenberger then argues that Henderson failed to
establish an Eighth Amendment claim because (1) he has not provided medical records in
support of his celiac condition; (2) the Jail staff provided Henderson with a gluten free diet
despite a lack of medical records; (3) the mistakes made in feeding Henderson were quickly
remedied and do not amount to constitutional violations; (4) Defendants provided Henderson
with nutritionally adequate food; and (5) Henderson failed to show any injury as a result of his
claims. Finally, Listenberger asserts that he is entitled to qualified immunity because Henderson
failed to establish that Listenberger violated Henderson’s constitutional rights and Listenberger’s
actions were objectively reasonable in light of what he knew. In its Motion for Summary
Judgment, the County argues that Henderson failed to establish municipal liability under Section
1983 because the County has a policy for medical diets which include gluten free diets.
II. Summary Judgment Standard
Summary judgment is appropriate when no genuine issue of material fact exists in the
case and the movant is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477
U.S. 317, 322–23 (1986). The initial burden is placed on the moving party. City of Mt. Pleasant,
8

Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). If the record
demonstrates that no genuine issue of fact is in dispute, the burden then shifts to the non-moving
party, who must set forth affirmative evidence and specific facts showing a genuine dispute on
that issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Plaintiff's pro se status does not excuse him from responding to Defendants' motions with
specific factual support for his claims to avoid summary judgment, Beck v. Skon, 253 F.3d 330,
333 (8th Cir. 2001), or from complying with local rules, see Schooley v. Kennedy, 712 F.2d 372,
373 (8th Cir. 1983). See also Carman v. Treat, 7 F.3d 1379, 1381 (8th Cir.1993) (failing to allow
pro se prisoner to disregard Federal Rules of Civil Procedure). See Fed. R. Civ. P. 56(e) (“[An]
adverse party may not rest upon the mere allegations or denials of ... [his] pleading, but ...
[must], by affidavits or as otherwise provided in this rule, ... set forth specific facts showing that
there is a genuine issue for trial.”); Anderson, 477 U.S. at 249–52 (explaining that nonmovant
must offer controverting affidavits or evidence from which a reasonable jury could return a
verdict in his favor).
In determining whether summary judgment is appropriate in a particular case, 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. Benford v. Correctional Medical Services, 2012 WL
3871948, at *4 (E.D. Mo. Sept. 6, 2012) (citing 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.
Id. (citing 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.”
Id. (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)).

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III. Analysis
A. Injunctive Relief
As a preliminary matter, Henderson’s request for injunctive relief must be denied because
he is no longer housed at the Saint Louis County Jail. Henderson is confined at Butner Low
Federal Correctional Institution5 where he is serving a federal sentence. Gladson v. Iowa Dep't of
Corr., 551 F.3d 825, 835 (8th Cir. 2009) (inmate's claims for injunctive and declaratory relief
become moot when inmate is transferred and is no longer subject to policy at issue). Therefore,
his claim for injunctive relief is moot.
B. Alleged Eighth Amendment Violations
Henderson asserts Eighth Amendment violations; he says Defendants were deliberately
indifferent and did not treat his celiac disease, denied him access to a proper and nutritious diet,
and refused to accommodate him regarding his food allergy. Although Henderson has not
explained whether he is pursuing a deliberate indifference claim as it relates to his medical
treatment or, alternatively, a cruel and unusual punishment claim as it relates to the food he
received, in an abundance of caution, the Court will address both issues because the Eighth
Amendment requires prisoners to receive adequate medical care as well as “food that is adequate
to maintain health.” Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); LeMaire v. Maass, 12 F.3d
1444, 1456 (9th Cir. 1993) (citing Cunningham v. Jones, 567 F.2d 653, 659-60 (6th Cir. 1977)).
1. Adequate Medical Care
“The Eighth Amendment forbids prison officials from ‘unnecessarily and wantonly
inflicting pain’ on an inmate by acting with ‘deliberate indifference’ toward the inmate's serious

5

Find an inmate, Federal Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited
June 3, 2016).
10

medical needs.” Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004). The
“deliberate indifference” standard applies to a prisoner's challenge to medical treatment. Wilson
v. Seiter, 501 U.S. 294, 303 (1991). Deliberate indifference has both subjective and objective
components. A plaintiff must show (1) that he suffered from an objectively serious medical need
and (2) that the prison officials actually knew of, but deliberately disregarded, that need. Jolly v.
Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000). To be objectively serious, the medical need must
be “one that has been diagnosed by a physician as requiring treatment, or one that is so obvious
that even a layperson would easily recognize the necessity for a doctor's attention.” Johnson v.
Busby, 953 F.2d 349, 351 (8th Cir. 1991). Negligence or medical malpractice does not constitute
a constitutional violation. Estelle, 429 U.S. at 106. “In order to demonstrate that a defendant
actually knew of, but deliberately disregarded, a serious medical need, the plaintiff must
establish a mental state akin to criminal recklessness: disregarding a known risk to the inmate’s
health.” Allard v. Baldwin, No. 14-1087, 2015 WL 921006, at *3 (8th Cir. Mar. 5, 2015)
(internal quotation omitted) (quoting Vaughn v. Gray, 557 F.3d 904, 908 (8th Cir. 2009)).
Viewing the evidence in the light most favorable to Henderson, the treatment provided
was not criminally reckless and therefore does not rise to the level of deliberate indifference.
First, Henderson failed to establish an objectively serious medical need. DJS medical records do
not indicate that Henderson suffers from celiac disease and Henderson did not provide the Court
with any medical records supporting his diagnosis. Kayser v. Caspari, 16 F.3d 280, 281 (8th
Cir.1994); see also Aswegan v. Henry, 49 F.3d 461, 465 (8th Cir.1995) (prisoner's bare assertion
of a serious medical condition is insufficient without medical evidence verifying that the
condition exists). Second, despite not having any medical evidence in support of Henderson’s
allegations of celiac disease, Defendants treated Henderson as if he had the medical condition
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and in accordance with DJS policy. Corrections Medicine staff ordered Henderson a gluten free
diet. Accordingly, Listenberger, as the food service manager, worked with Peters, a registered
dietician, to formulate proper dietary menus as Henderson’s dietary needs evolved during his
time at the Saint Louis County Jail. Special dietary cooks prepared the meals, and the meals were
delivered to Henderson. When Henderson filed a grievance or otherwise complained,
Listenberger reviewed the meals and acted to correct any mistakes. Corrective action included
allowing Henderson to pick up his own tray and instructing unit managers to get him a new one
if he had complaints. Furthermore, although his symptoms of abdominal and gastrointestinal
pain, diarrhea and constipation were never corroborated, Corrections Medicine staff provided
Henderson with Maalox, Tums and Pepto-Bismol. Therefore, Henderson’s claim of deliberate
indifference to his celiac disease is not supported by the record and is denied.
2. Adequate Food
The Eighth Amendment also requires that prisoners “receive food that is adequate to
maintain health.” LeMaire, 12 F.3d at 1456. See also Farmer v. Brennan, 511 U.S. 825, 832
(1994) (internal quotations omitted) (“The [Eighth] Amendment also imposes duties on these
officials, who must provide humane conditions of confinement; prison officials must ensure that
inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable
measures to guarantee the safety of the inmates.”). The repeated and unjustified failure of prison
officials to provide adequate sustenance can be a serious deprivation amounting to cruel and
unusual punishment. Foster v. Runnels, 554 F.3d 807, 814 (9th Cir. 2009) (denying summary
judgment to guard who repeatedly refused to deliver meals to inmate). The risk that an inmate
might suffer harm as a result of the repeated denial of meals “is obvious.” Id. However, mere
dissatisfaction with the variety, portion size or savor of his prison diet is not sufficient to state a
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claim. See Hamm v. DeKalb Cnty., 774 F.2d 1567, 1575 (11th Cir. 1985) (stating foreign objects
or cold and unpleasant food is insufficient to state an Eighth Amendment claim).
Viewing the evidence in the light most favorable to Henderson, the Court finds that
Defendants provided Henderson with a proper and nutritious diet. Again, following DJS policy,
Listenberger worked with Peters to formulate appropriate menus as Henderson’s dietary needs
evolved. Peters performed a nutritional analysis of the menus using Nutritionist Pro, a wellknown software program used by dieticians. She also reviewed the Academy of Nutrition and
Dietetics, the industry standard for the field of dietetics. Further, Peters’ supervisor, Sojka,
approved the menus. Accordingly, the Court finds Defendants met their affirmative duty to
provide Henderson with nutritionally adequate food. Cf. Day v. Norris, 219 F. App'x 608, 610
(8th Cir. 2007) (finding dismissal premature where petitioner was provided “meals which did not
meet the standards of a 2,000-calorie diet plan; the food portions were small and the quality of
food was nutritionally inferior; milk was served only at certain units; only four (4) ounces of fruit
juice was served and the vegetables were ‘often rotten’ and ‘sometimes’ contained dirt or other
foreign objects; he was served powdered eggs which made him sick; and food service workers
did not always wash their hands before food preparation, sometimes dripped sweat or
purposefully placed other body fluids in the food, and were not adequately tested for
communicable diseases”). While Henderson disagrees that the gluten free diet provided to him
was adequate and he would have preferred a “certified” gluten free diet, his dissatisfaction does
not rise to the level of a constitutional violation. Divers v. Dep't of Corr., 921 F.2d 191, 194 (8th
Cir. 1990) (“Control of the diet is within the discretion of prison authorities, presuming it is
adequate.”). Therefore, Henderson’s claim for failure to provide adequate food is denied.

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C. Qualified Immunity Defense
Listenberger also raises the affirmative defense of qualified immunity. Qualified
immunity shields public officials “from liability in a § 1983 action unless the official's conduct
violates a clearly established constitutional or statutory right of which a reasonable person would
have known.” Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th Cir. 2009). To overcome a
defendant's qualified immunity claim, the plaintiff must show that: “(1) the facts, viewed in the
light most favorable to the plaintiff, demonstrate the deprivation of a constitutional right; and (2)
the right was clearly established at the time of the deprivation.” Baribeau v. City of Minneapolis,
596 F.3d 465, 474 (8th Cir. 2010) (quotations omitted). “The law is clearly established if it gives
the defendant officials ‘fair warning’ that their conduct violated an individual's rights when the
officials acted.” Forrester v. Bass, 397 F.3d 1047, 1054 (8th Cir. 2005) (citing Hope v. Pelzer,
536 U.S. 730, 739-40 (2002)); see also Anderson v. Creighton, 483 U.S. 635, 640 (1987) (A
right is “clearly established” if “a reasonable official would understand that what he is doing
violates that right”). If a state official violates a clearly established constitutional right, he is not
entitled to qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982).
In this case, the Court has found that the facts—when viewed in the light most favorable
to Henderson—do not demonstrate the deprivation of a constitutional right. Moreover, the Court
previously denied Henderson’s request for injunctive relief. All that remains is his request for
money damages. Curtiss v. Benson, 583 F. App’x 598 (8th Cir. 2014) (“qualified immunity does
not apply to claims for equitable relief”) (quoting Grantham v. Trickery, 21 F.3d 289, 295 (8th
Cir. 1994)). Accordingly, the Court finds that Listenberger is entitled to qualified immunity on
Henderson’s claims against him.

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IV. Conclusion
IT IS HEREBY ORDERED that Defendant St. Louis County, Missouri’s Motion for
Summary Judgment (Doc. 41) and Defendant Paul Listenberger’s Motion for Summary
Judgment (Doc. 44) are GRANTED and this case is DISMISSED with prejudice. A separate
judgment will accompany this Order.
IT IS FURTHER ORDERED that, in light of the Court’s decision to grant Defendants’
Motions for Summary Judgment, the remaining pending Motions (Docs. 37, 38) are DENIED,
as moot.
Dated this 27th day of June, 2016.

/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE

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