Hankins v. Anderson et al

Filing 77

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment [Doc. No. 62] is GRANTED and Plaintiffs Motion for Summary Judgment [Doc. No. 65] is DENIED.A separate Judgment in accordance with this Opinion, Memorandum and Order is entered this same date. 62 65 Signed by District Judge Henry Edward Autrey on 3/29/19. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RONNIE HANKINS,
Plaintiff,
vs.
PHILLIP ANDERSON, et al.,
Defendants.

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) Case No: 4:16CV239 HEA
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OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion for Summary
Judgment, [Doc. No. 62] and Plaintiff’s Motion for Summary judgment, [Doc. No.
65]. The parties respectively oppose the others’ motions. For the reasons set forth
below, Defendants’ Motion is granted; Plaintiff’s Motion is denied.
Facts and Background
Defendant has, in accordance with the Court’s Local Rules, submitted a
Statement of Uncontroverted Material Facts. Plaintiff has responded to the
Motion, but has failed to support his response with specific citations to the record.
Plaintiff failed to submit a Statement of Uncontroverted Material Facts. Pursuant to
Rule 56 of the Federal Rules of Civil Procedure and Rule 7-401(E) of this Court’s
Local Rules, Defendants’ facts are deemed admitted. Local Rule 7-401(E)
provides:

Rule 7 - 4.01 Motions and Memoranda.
(E) A memorandum in support of a motion for summary judgment 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. Every
memorandum in opposition 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.

Roe v. St. Louis Univ., 746 F.3d 874, 881 (8th Cir. 2014) (“If the opposing party
does not raise objections to a movant’s statement of facts as required by Local
Rule 4.01(E), “a district court will not abuse its discretion by admitting the
movant’s facts.”); Ridpath v. Pederson, 407 F.3d 934, 936 (8th Cir. 2005) (where
plaintiff did not convert defendant’s statement of material fact, it was deemed
admitted under E.D. Mo. Local Rule 4.01(E) ); see also, Holloway v. Union Pacific
Railroad Company, Cause No. 18-1580, p. 3 (8th Cir. March 28, 2019)(per
curium)(“In light of [Plaintiff’s] failure to comply with Rule 7-4.01(E), we
conclude that the district did not abuse its discretion by admitting [Defendant’s]
statement of facts. See Roe v. St. Louis Univ., 746 F.3d 874, 881 (8th Cir. 2014)
(discussing the plaintiff’s failure to comply with Local Rule 7-4.01(E) and
concluding that “[i]f no objections have been raised in the manner required by the
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local rules, a district court will not abuse its discretion by admitting the movant’s
facts”)).
Plaintiff is currently serving a life sentence at Southeast Corrections Center,
but the events at issue took place while Plaintiff was incarcerated at the Eastern
Reception, Diagnostic, and Correctional Center. Plaintiff alleges that Defendants
deprived Plaintiff of toothpaste for a period of roughly six weeks from October 7,
2015 to November 20, 2015. He claims that this deprivation cause swelling and
infection in Plaintiff’s face and gums.
Defendant Webb was employed as a Corrections Officer II at ERDCC when
the events giving rise to this action transpired. Defendant Crews was employed as
a Corrections Case Manager I at ERDCC when the events transpired.
Plaintiff was assigned to administrative segregation as a new arrival to
ERDCC in October of 2015. Plaintiff had no toothpaste on October 7, 2015, as he
was separated from his property being held in the property room and was not given
any state issued toothpaste.
Offenders typically get toothpaste from the canteen. ERDCC policy requires
offenders to purchase hygiene items from the canteen unless they have (1)
insufficient funds to do so (2) because they spent their “entire monthly wage on
needed legal postage or legal supplies.” Toothpaste was available for purchase
from the prison canteen at the price of $1.78. The State gave Plaintiff a monthly
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allowance of $7.50 to purchase items of his choice from the prison canteen.
Plaintiff receives additional canteen funds from his family.
Plaintiff was aware that he could purchase toothpaste from the canteen. On
September 28, 2015, Plaintiff went to the prison canteen with $22.29 in his
account. Plaintiff purchased cheese spread, cappuccino, hot cocoa, coffee, ramen,
peanut butter, jelly, crackers, and chips. He did not purchase toothpaste. Plaintiff
left the prison canteen that day with $5.76 in his account.
On October 22, 2015, Plaintiff went to the prison canteen with $8.76 in his
account. Plaintiff purchased a legal pad, two pens, and five envelopes, but did not
purchase toothpaste. Plaintiff left the prison canteen with $7.09 in his account.
On November 18, 2015, Plaintiff chose to purchase toothpaste from the
canteen for $1.78.
On October 8, 2015, Plaintiff wrote a kite to Crews requesting various items
from the property room including paper, envelopes, a pen, and his reading glasses.
Crews brought Plaintiff “folders of materials,” but Plaintiff alleges those were the
wrong materials. Plaintiff also alleges that his October 8, 2015 kite requested that
Crews bring him toothpaste. Crews acknowledged receipt of Plaintiff’s October 8,
2015 kite but asserted that the kite did not request toothpaste; it merely stated “P.S.
I don’t have any toothpaste or toilet paper.”

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Plaintiff wrote a second kite to Crews requesting toothpaste on October 29,
2015. Plaintiff received an unsigned response to his kite indicating that
Corrections Case Officers “do not supply toothpaste” and that Plaintiff must
purchase toothpaste from the canteen.
From October 29, 2015 to November 5, 2015, Plaintiff had a sign in his cell
window regarding his request for state-issued toothpaste. At some point during that
week Plaintiff asked Defendant Webb for toothpaste.
Neither Defendant Crews nor Defendant Webb provided toothpaste to
Plaintiff.
Plaintiff attended numerous medical appointments, including a doctor
appointment, and a dentist appointment during the period of alleged toothpaste
deprivation.
During his November 4, 2015 dentist appointment, Plaintiff received an
impression for dentures. Plaintiff alleges to have drawn attention to his swollen
gums during this denture fitting. Plaintiff was not diagnosed with or treated for
gum infection, gum swelling, or any other gum condition during the period of
alleged toothpaste depravation.
On November 25, 2015, Plaintiff filed an IRR alleging that Plaintiff sent a
kite to Crews on October 8, 2015 but never received a response. Plaintiff’s
November 25, 2015 IRR was denied by prison staff.
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On February 8, 2016, Plaintiff filed a grievance which was also denied by
prison staff. On April 18, 2016, Plaintiff filed an appeal which was also denied by
prison staff.
Subsequent to the denial of Plaintiff’s appeal, Plaintiff filed this law suit.
Summary Judgment Standard
The Eighth Circuit has articulated the appropriate standard for consideration
of motions for summary judgment, as follows:
Summary judgment is proper if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of
law. The movant bears the initial responsibility of informing the district
court of the basis for its motion, and must identify those portions of the
record which it believes demonstrate the absence of a genuine issue of
material fact. If the movant does so, the nonmovant must respond by
submitting evidentiary materials that set out specific facts showing that there
is a genuine issue for trial. On a motion for summary judgment, facts must
be viewed in the light most favorable to the nonmoving party only if there is
a genuine dispute as to those facts. Credibility determinations, the weighing
of the evidence and the drawing of legitimate inferences from the facts are
jury functions, not those of a judge. The nonmovant must do more than
simply show that there is some metaphysical doubt as to the material facts,
and must come forward with specific facts showing that there is a genuine
issue for trial. Where the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no genuine issue for
trial.
Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir.2011)(en banc)
(internal citations and quotation marks omitted). “Although the burden of
demonstrating the absence of any genuine issue of material fact rests on the
movant, a nonmovant may not rest upon mere denials or allegations, but must
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instead set forth specific facts sufficient to raise a genuine issue for trial.” Wingate
v. Gage Cnty. Sch. Dist., No. 34, 528 F.3d 1074, 1078–79 (8th Cir.2008)(cited case
omitted).
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 as a matter of law.” Fed. R. Civ. P.
56(c); Celotex Corp. v. Citrate, 477 U.S. 317, 322 (1986); Torgerson, 643 F.3d at
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.
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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)).
Discussion
Plaintiff alleges the remaining defendants, Webb and Crews, were
deliberately indifferent to his serious medical needs.
“It is well established that the Eighth Amendment prohibition on cruel and
unusual punishment extends to protect prisoners from deliberate indifference to
serious medical needs.” Gregoire v. Class, 236 F.3d 413, 417 (8th Cir.2000)
(citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)); see also Gordon ex rel.
Gordon v. Frank, 454 F.3d 858, 862 (8th Cir. 2006) (“Deliberate indifference to a
prisoner’s serious medical needs is cruel and unusual punishment in violation of
the Eighth Amendment.”). “Deliberate indifference has both an objective and a
subjective component.” Butler v. Fletcher, 465 F.3d 340, 345 (8th Cir.2006). The
objective component requires the plaintiff to show he was suffering from an
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objectively serious medical need. E.g., Grayson v. Ross, 454 F.3d 802, 808 (8th
Cir.2006); Moore v. Jackson, 123 F.3d 1082, 1086 (8th Cir.1997) (per curiam).
The subjective component requires the plaintiff to show the defendant actually
knew of, but disregarded, that need. E.g., Krout v. Goemmer, 583 F.3d 557, 568
(8th Cir.2009); Grayson, 454 F.3d at 808-09. The plaintiff “must show more than
negligence, more even than gross negligence, and mere disagreement with
treatment decisions does not give rise to the level of a constitutional violation.
Deliberate indifference is akin to criminal recklessness, which demands more than
negligent misconduct.” Popoalii v. Corr. Med. Servs., 512 F.3d 488, 499 (8th Cir.
2008) (internal quotation marks and citations omitted); Schaub v. VonWald, 638
F.3d 905, 915 (8th Cir. 2011); Gordon ex rel. Gordon v. Frank, 454 F.3d 858, 862
(8th Cir. 2006) (“The subjective inquiry must show a mental state akin to criminal
recklessness: disregarding a known risk to the inmate’s health.”). This is an
“onerous standard,” Thompson v. King, 730 F.3d 742, 747 (8th Cir.2013),
requiring a prisoner to “clear a substantial evidentiary threshold,” Nelson v.
Shuffman, 603 F.3d 439, 449 (8th Cir.2010). Moreover, because “[l]iability for
damages for a federal constitutional tort is personal, ... each defendant’s conduct
must be independently assessed.” Heartland Acad. Cmty. Church v. Waddle, 595
F.3d 798, 805–06 (8th Cir. 2010).

[9]

The evidence before the Court demonstrates that Plaintiff has failed to
present evidence of a serious medical need. To show that he suffered from an
objectively serious medical need Plaintiff must show he “has been diagnosed by a
physician as requiring treatment” or has an injury “that is so obvious that even a
layperson would easily recognize the necessity for a doctor's attention.” Schaub v.
VonWald, 638 F.3d 905, 914 (8th Cir. 2011) (citation omitted).
Plaintiff claims that his gums were swollen and infected, however, the
uncontroverted evidence establishes that Plaintiff was seen by a dentist during the
relevant time period for denture fittings. At no time during the relevant time
period did a dentist or doctor diagnose Plaintiff’s gums as swollen and/or infected.
Likewise, there is no evidence in the record to establish that Plaintiff’s
condition was so obvious that even a layperson would easily recognize the
necessity for medical/dental attention. Plaintiff’s support for his claim that his
gums were swollen and infected are his own self-serving conclusory statements so
stating. Such statements, without evidentiary support, are insufficient.
Furthermore, even assuming Plaintiff could establish a serious medical need
which would require toothpaste, Plaintiff has failed to present evidence supporting
the subjective prong of the deliberate indifference standard. Plaintiff argues that he
asked for state issued toothpaste. Plaintiff was advised that toothpaste must be
purchased in the canteen as funds were available in Plaintiff’s account. Nowhere
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in the record before the Court is there any evidence that these Defendants were
aware of a serious medical need. Plaintiff’s first alleged report of swollen and
infected gums to Defendant Crews was on October 20, 2015. Plaintiff saw a
dentist on November 4, 2015, who did not diagnose swollen and infected gums.
Plaintiff has not provided any evidence to support a finding that Defendants failed
to provide for treatment for Plaintiff, interfered with his treatment, or allowed
prison doctors’ constitutional violations. Rather, all records indicate that
Defendants were not involved in any medical decisions, that Plaintiff was provided
dental treatment, and that Defendants advised Plaintiff should purchase toothpaste
with his available funds since the prison did not provide toothpaste if funds were
available to him and were not needed to purchase legal supplies.
Conclusion
Based upon the foregoing analysis, Defendants are entitled to judgment as a
matter of law pursuant to Rule 56 of the Federal Rules of Civil Procedure. The
undisputed material facts establish that Defendants have not been deliberately
indifferent to Plaintiff’s serious medical needs. As such, Defendants’ Motion for
Summary Judgment will be granted.
Accordingly,

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IT IS HEREBY ORDERED that Defendants’ Motion for Summary
Judgment [Doc. No. 62] is GRANTED and Plaintiff’s Motion for Summary
Judgment [Doc. No. 65] is DENIED.
A separate Judgment in accordance with this Opinion, Memorandum and
Order is entered this same date.
Dated this 29th day of March, 2019.

___________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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