Shurn v. Steele et al

Filing 5

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis (Docket No. 2 ) is GRANTED. IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $6.65 within thirty (30) days of the date o f this Order. Plaintiff is instructed to make his remittance payable to "Clerk, United States District Court," and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that the remittance is for an original proceeding. IT IS FURTHER ORDERED that plaintiff"s motion for the appointment of counsel (Docket No. 4 ) is DENIED as moot. IT IS FURTHER ORDERED that plaintiff's complaint and all of his causes of action against all defen dants are DISMISSED without prejudice. A separate order of dismissal will be entered herewith. IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in good faith. Signed by District Judge Catherine D. Perry on 1/19/17. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DARYL SHURN,
Plaintiff,
v.
TROY STEELE, et al.,
Defendants.

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No. 4:16-cv-1925-CDP

MEMORANDUM AND ORDER

This matter is before the Court upon the motion of plaintiff Daryl Shurn, an inmate at the
Eastern Reception and Diagnostic Correctional Center, to commence this action without
prepayment of the filing fee. (Docket No. 2). For the reasons stated below, the motion will be
granted and plaintiff will be assessed an initial partial filing fee of $6.65. In addition, the Court
has reviewed the complaint and will dismiss it pursuant to 28 U.S.C. § 1915(e).
28 U.S.C. § 1915(b)(1)
Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma pauperis is
required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his
prison account to pay the entire fee, the Court must assess and, when funds exist, collect an
initial partial filing fee of 20 percent of the greater of (1) the average monthly deposits in the
prisoner’s account, or (2) the average monthly balance in the prisoner’s account for the prior sixmonth period. After payment of the initial partial filing fee, the prisoner is required to make
monthly payments of 20 percent of the preceding month’s income credited to the prisoner’s
account. 28 U.S.C. § 1915(b)(2). The agency having custody of the prisoner will forward these

monthly payments to the Clerk of Court each time the amount in the prisoner’s account exceeds
$10.00, until the filing fee is fully paid. Id.
Plaintiff has submitted a certified inmate account statement showing an average monthly
balance of $33.26 during the six months immediately preceding the filing of the complaint. The
Court will therefore assess an initial partial filing fee of $6.65, which is twenty percent of
plaintiff’s average monthly balance.
Standard of Review
Title 28 U.S.C. § 1915(e)(2)(B) provides, with respect to litigants proceeding in forma
pauperis, the court “shall dismiss the case at any time” if the court determines that it is frivolous
or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief
against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i) – (iii). A
claim is frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams,
490 U.S. 319 (1989). A complaint fails to state a claim if it does not plead “enough facts to state
a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007).
To state a claim to relief, a complaint must plead more than “legal conclusions” and
“[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A plaintiff must

demonstrate a plausible claim, which is more than a “mere possibility of misconduct.” Id. at
679. “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. at 678. Determining whether a complaint states a plausible claim is a context-specific task

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that requires the reviewing court to draw upon its judicial experience and common sense. Id. at
679.
Pro se pleadings are liberally construed, and are held to a less stringent standard when
considering whether to dismiss the case for failure to state a claim. See Haines v. Kerner, 404
U.S. 519, 520 (1972); Horsey v. Asher, 741 F.2d 209, 211 n. 3 (8th Cir. 1984). Even so, a pro se
complaint must contain specific facts to support its conclusions. Kaylor v. Fields, 661 F.2d
1177, 1183 (8th Cir. 1981).
The Complaint
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, alleging violation of his Eighth
Amendment rights. Named as defendants are Warden Troy Steele, Nurse Heather Turnbolt,
Assistant Director of Nursing Todd Renshaw, Director of Nursing Dorothy Barton, Deputy
Warden Joe Hoffmeister, Corrections Officers Sandra Boylan and Cindy Miller, and Corizon.
Plaintiff has submitted his complaint in several parts. He submitted a complaint form
(Docket No. 1), a Table of Contents (Docket No. 1, Attach. 2), a Statement of Facts Part One and
a Statement of Facts Part Two (Docket No. 1, Attachs. 3 and 4), and Claims One through Eight
(Docket No. 1, Attachs. 5 – 12). Plaintiff begins each of Claims One through Eight by naming a
specific defendant, and then setting forth, in a very clear and comprehensive fashion, all of the
claims he has against that defendant. In total, the complaint spans 52 pages. Plaintiff also
attached copies of grievance paperwork, and other correspondence. (Docket No. 1, Attachs. 15
and 17).
All of plaintiff’s claims stem from a December 15, 2015 incident that occurred while
plaintiff was in a handicap-accessible shower stall using a shower bench that was affixed to the
wall. Plaintiff alleges that the bench broke free from the wall, causing plaintiff to fall, hit his

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head, and injure his lower back, tail bone, neck and hips. Plaintiff alleges that he also suffers
from multiple chronic health problems.
The morning after the accident, December 16, 2015, plaintiff went to the medical
department and was seen by Turnbolt, a nurse, who sent plaintiff to have x-rays performed. On
December 18, 2016, plaintiff returned to the medical department and was seen for complaints of
severe pain, and given a work excuse. Plaintiff acknowledges that he was given pain medication,
but complains that it “leaves him with no knowledge on how sever [sic] the damages to his body
has become.” (Docket No. 1, Attach. 3 at 8). Plaintiff repeatedly states that he should have
initially received x-rays of additional parts of his body, should have been sent to see a specialist,
and should have received an MRI and a CT Scan. He also complains that he was not assigned a
wheelchair until three months after the incident.
Plaintiff alleges that he filed Informal Resolution Requests (“IRRs”) stemming from the
fall and his subsequent medical treatment.

In his Statement of Facts Part One, plaintiff

acknowledges that, in response to one IRR, he was told that no acute issues were identified on xray. In his Statement of Facts Part Two, plaintiff quotes Hoffmeister’s response to a grievance as
follows:

“I found that although, the Handicap Shower Bench breaking while you were

showering is an unfortunate event, your medical needs were addressed by Medical and ERDCC
15-2333 is currently addressing any other Medical requests regarding this event in the Grievance
Appeals stage.” (Docket No. 1, Attach. 4 at 6). Plaintiff alleges that Hoffmeister further advised
that the shower bench in question had been repaired, and that consequential and punitive
damages would not be offered to him.

(Id. at 7).

Plaintiff discusses at great length the

grievances he filed and the manner in which they were handled, but never states that he was
completely precluded from filing any sort of grievance.

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Plaintiff attached a document entitled “Plaintiffs Claim for Damages.” ((Docket No. 1,
Attach. 14). Therein, plaintiff specifies that he intends to sue each defendant in his or her
individual capacity. Plaintiff seeks an award of $50,000.00 each against Turnbolt, Renshaw,
Barton, Boylan, and Hoffmeister, and he seeks an award of $100,000.00 each against Corizon,
Miller, and Steele.
Discussion
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which was designed to provide
a “broad remedy for violations of federally protected civil rights.” Monell v. Department of
Social Services, 436 U.S. 658, 685 (1978). Section 1983 provides no substantive rights; it
merely provides a remedy for violations of all “rights, privileges, or immunities secured by the
Constitution and laws [of the United States].” 42 U.S.C. § 1983; see also Albright v. Oliver, 510
U.S. 266, 271 (1994) (42 U.S.C. § 1983 “merely provides a method for vindicating federal rights
elsewhere conferred”). To state a claim under 42 U.S.C. § 1983, a plaintiff must establish: (1)
the violation of a right secured by the Constitution or laws of the United States, and (2) that the
alleged deprivation of that right was committed by a person acting under color of state law. West
v. Atkins, 487 U.S. 42, 48 (1988).
In Claims One through Eight, plaintiff alleges that defendants were deliberately
indifferent to his serious medical needs, in violation of his Eighth Amendment rights. An Eighth
Amendment claim that a prison official was deliberately indifferent to an inmate’s serious
medical need involves both an objective and a subjective component. Coleman v. Rahija, 114
F.3d 778, 784 (8th Cir. 1997) (citing Estelle v. Gamble, 429 U.S. 97, 105 (1976) and Farmer v.
Brennan, 511 U.S. 825, 837 (1994)). The plaintiff must demonstrate that he suffered from an
objectively serious medical need, and that the “prison officials actually knew of but deliberately

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disregarded” that need. Popoalii v. Correctional Medical Services, 512 F.3d 488, 499 (8th Cir.
2008). “Because society does not expect that prisoners will have unqualified access to health
care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if
those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992). “[T]he failure to treat a
medical condition does not constitute punishment within the meaning of the Eighth Amendment
unless prison officials knew that the condition created an excessive risk to the inmate’s health
and then failed to act on that knowledge.” Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996).
Allegations amounting to only medical malpractice do not state a claim of constitutional
magnitude; deliberate indifference is akin to criminal recklessness, which demands more than
negligent misconduct. Popoalii, 512 F.3d at 499 (citation omitted). The prisoner “must show
more than negligence, more even than gross negligence, and mere disagreement with treatment
decisions does not rise to the level of a constitutional violation.”

Id. (quoting Estate of

Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995)).
As noted above, this Court has a duty to dismiss this case at any time if it determines
that it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks
monetary relief against a defendant who is immune. 28 U.S.C. § 1915(e)(2). The Court now
turns to the allegations in Claims One through Eight of the complaint.
Claim One – Nurse Heather Turnbolt
In Claim One, plaintiff alleges that he was seen by Turnbolt when he went to the medical
department the morning after he fell. Plaintiff alleges that Turnbolt told him that she could not
provide medical treatment and that there was no doctor or nurse practitioner currently available,
but that she would send plaintiff to have x-rays performed. Plaintiff alleges that Turnbolt failed
to initially order x-rays of every part of his body he claimed was injured, and also alleges that

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she should have ordered an MRI and CT Scan. Plaintiff also alleges that Turnbolt told him she
lacked the authority to issue him a wheelchair or give him a work excuse.
Plaintiff’s claims against Turnbolt fail to rise to the level necessary to establish a prima
facie claim that is actionable under the Eighth Amendment. Turnbolt did not deliberately
disregard plaintiff’s medical need; she told him that there was not a doctor or nurse practitioner
available, and then took action to help plaintiff by sending him to have x-rays performed.
Plaintiff’s claim that Turnbolt failed to order all of the correct x-rays at most states a claim for
medical malpractice, which is not actionable under the Eighth Amendment. See Popoalii, 512
F.3d at 499 (medical malpractice is not actionable under the Eighth Amendment). Plaintiff’s
claim that Turnbolt should have ordered additional or alternate testing evidences merely a
disagreement with Turnbolt’s medical treatment decision, which also fails to state a claim under
the Eighth Amendment. See Id. Plaintiff’s claims against Turnbolt will be dismissed.
Claims Two, Three and Six – Todd Renshaw, Kathy Barton, and Joe Hoffmeister
In Claim Two, plaintiff alleges that Todd Renshaw, assistant director of nursing, violated
his Eighth Amendment rights when he denied plaintiff’s grievance, stating that plaintiff had been
evaluated and given a medical lay-in, had been given x-rays which revealed no acute issues, had
seen a nurse practitioner for follow up care, and that he could file a request for medical treatment
if he felt he needed more treatment. In Claim Three, plaintiff alleges that Kathy Barton, director
of nursing, violated his Eighth Amendment rights when she did not overturn Renshaw’s decision
on plaintiff’s grievance.

Plaintiff theorizes that Barton could have concluded, based upon

plaintiff’s medical records, that he should have an MRI and be seen by a specialist. Plaintiff also
alleges that Barton should have sent his grievance to be reviewed by another institution’s
medical department.

In Claim Six, plaintiff alleges that Deputy Warden Joe Hoffmeister

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violated his Eighth Amendment rights when he determined that plaintiff’s grievance was
duplicative of an earlier grievance, and by stating that although the fall in the shower was
unfortunate, plaintiff was receiving medical treatment and the shower bench had been repaired.
Plaintiff writes: “This claim is based on the Facts that Deputy Warden Joe Hoffmeister
responded to Plaintiffs Grievance Appeal, as Acting Superintendent.” (Docket No. 1, Attach. 10,
at 1). Plaintiff does not allege that he was ever completely precluded from filing a grievance.
All of plaintiff’s allegations in Claims Two, Three, and Six are related to the manner in
which his grievances were handled, and the fact that they were not resolved in favor of granting
his request to see a specialist, have an MRI, and have a CT Scan. Plaintiff has not set forth any
facts indicating that Renshaw, Barton or Hoffmeister were directly involved in or personally
responsible for the decision to not send him to a specialist or give him an MRI or a CT Scan.
Rather, he seeks to hold these individuals liable for their failure to resolve his grievances in his
favor. Inmates do not have a constitutionally protected right to the prison grievance process. See
Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (inmate’s allegation that defendant’s denial
of his grievances failed to state a substantive constitutional claim); see also Flick v. Alba, 932
F.2d 728, 729 (8th Cir. 1991). Also, as discussed above, plaintiff’s complaints that he was not
permitted to see a specialist, have an MRI, and/or have a CT Scan amount to nothing more than
his disagreement about the treatment decisions made by his treatment providers.

Such

allegations do not state a claim of constitutional significance. See Popoalii, 512 F.3d at 499
(medical malpractice and disagreement with treatment decisions are not actionable under the
Eighth Amendment).

Plaintiff’s allegations in Claims Two, Three and Six against Renshaw,

Barton and Hoffmeister will therefore be dismissed.

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Claim Four – Corizon
In Claim Four, plaintiff sues Corizon for violation of his Eighth Amendment rights,
alleging that he was denied “adequate medical treatment” because his requests to see a specialist
and have an MRI were denied. (Docket No. 1, Attach. 8). Plaintiff alleges that Corizon’s
policies and procedures did not allow medical staff to approve his requests because they require
every procedure to be approved by Corizon’s main office.

Plaintiff states that the facts

supporting his claim are based upon responses he received to his IRRs and grievances that stated
that his complaint and his medical records had been reviewed. Plaintiff alleges that Corizon’s
failure to grant his request to have an MRI shows deliberate indifference.
To state a claim against Corizon, plaintiff must allege that a policy or custom of Corizon
was responsible for a constitutional violation. Crumpley–Patterson v. Trinity Lutheran Hosp.,
388 F.3d 588, 590 (8th Cir. 2004) (citing Monell v. Department of Social Services of City of New
York, 436 U.S. 658, 690 (1978)). As discussed above, plaintiff’s allegations that he was not
permitted to see a specialist or have an MRI or CT Scan amount to nothing more than his
disagreement with the treatment decisions that were made. Such allegations fail to implicate a
federal constitutional or statutory right. See Popoalii, 512 F.3d at 499. Because plaintiff’s
allegations regarding the health care decisions that were made fall short of alleging a
constitutional violation, there can be no claim against Corizon for any policies and procedures
leading to those decisions.

Finally, plaintiff’s allegations that Corizon’s “policies and

procedures” were the reason for the denial of his requests to see a specialist and to have an MRI
and CT Scan are merely conclusory. To state a claim for relief, a complaint must plead more
than “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere

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conclusory statements.” Iqbal, 556 U.S. at 678. Plaintiff’s allegations against Corizon will be
dismissed.
Claim Five – Sandra Boylan
In Claim Five, plaintiff alleges that corrections officer Sandra Boylan violated his Eighth
Amendment rights when she failed to follow the policies of the Missouri Department of
Corrections when she failed to file an incident report after plaintiff fell in the shower. These
allegations fail to state a claim of constitutional magnitude. It is well established that there is no
federal constitutional liberty interest in having state officers follow state law or having prison
officials follow prison regulations. Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003) (citing
Kennedy v. Blankenship, 100 F.3d 640, 643 (8th Cir. 1996)); see also Gardner v. Howard, 109
F.3d 427, 430 (8th Cir. 1997) (failure to follow prison policy is not basis for § 1983 liability).
Plaintiff also alleges that Boylan violated his Eighth Amendment rights when she did not
send him to the medical department immediately after he fell. However, in his statements of
fact, he acknowledges that he was seen in the medical department the following morning, and
that he continued to receive follow up medical care and was given pain medication. Plaintiff
does not allege that the brief delay in treatment was responsible for aggravating his condition.
“The Constitution does not require jailers to handle every medical complaint as quickly as each
inmate might wish.” Jenkins v. County of Hennepin, Minn., 557 F.3d 628, 632 (8th Cir. 2009)
(citing Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006)). A delay as brief and as nondetrimental as plaintiff alleges does not state a claim for deliberate indifference to his serious
medical needs. See Johnson, 452 F.3d at 973 (concluding that a one-month delay in treating a
fractured finger did not rise to a constitutional violation); Givens v. Jones, 900 F.2d 1229, 1233
(8th Cir. 1990) (finding that a prisoner’s claim for delay of one month between complaint of leg

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pain and visit with doctor was insufficient to state a constitutional claim absent allegations the
condition required immediate attention or the delay in treatment aggravated the condition).
Plaintiff’s claim against Boylan will be dismissed.
Claim Seven – Superintendent Troy Steele
In Claim Seven, plaintiff alleges that Superintendent Troy Steele violated his Eighth
Amendment right to adequate medical care, under a theory of respondeat superior. Specifically,
plaintiff alleges that Steele had a duty to “establish and administer policies for the institution
under his control, to which will make him liable for any action taken by his subordinate
employees.” (Docket No. 1, Attach. 11, at 5). Plaintiff then sets forth numerous pages of facts
concerning the denials of his requests to see a specialist and have an MRI and CT Scan, alleging
that Steele saw his grievance appeal and should have arranged for his requests to be granted.
Plaintiff’s allegations against Steele sound in respondeat superior. He does not allege
that Steele was causally linked to, or that he bore any personal responsibility for, the denial of his
requests to receive the medical care he thought he should have. “Liability under § 1983 requires
a causal link to, and direct responsibility for, the alleged deprivation of rights.” Madewell v.
Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990). To be cognizable under § 1983, a claim must
allege that the defendant was personally involved in or directly responsible for the incidents that
deprived the plaintiff of his constitutional rights. Martin v. Sargent, 780 F.2d 1334, 1338 (8th
Cir. 1985). Claims sounding in respondeat superior are not cognizable under § 1983. Boyd v.
Knox, 47 F.3d 966, 968 (8th Cir. 1995). Even if it could be said that plaintiff alleged Steele’s
personal responsibility, plaintiff’s claim would fail. As discussed above, plaintiff’s allegations
that he was not permitted to see a specialist or have an MRI or CT Scan amount to nothing more
than his disagreement with the treatment decisions that were made, allegations that fail to

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implicate a federal constitutional or statutory right. See Popoalii, 512 F.3d at 499. There is no
basis for allowing plaintiff’s claim against Steele to proceed, and it will be dismissed.
Claim Eight – Cindy Miller
Claim Eight is alleged against Cindy Miller, a corrections officer, for violation of
plaintiff’s Eighth Amendment rights. Plaintiff alleges that another inmate, Dauglas Parker, told
him that he (Parker) told Miller in November of 2015 that the handicap shower bench was
coming out of the wall, and that Miller said she would put in a work order. Plaintiff alleges that
the maintenance department never arrived to fix the bench before his fall, and concludes that the
bench was not fixed because Miller failed to put in the work order. In support of Claim Eight,
plaintiff submits Parker’s declaration. (Docket No. 1, Attach. 13).
Plaintiff’s allegations that Miller failed to prepare a work order and that such failure was
the reason the shower bench went unrepaired are conclusory at best. See Iqbal, 556 U.S. at 678
(to state a claim for relief, a complaint must plead more than “legal conclusions” and
“[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements”). Giving plaintiff’s allegations against Miller the benefit of a liberal
construction, the Court concludes that they allege nothing more than a “mere possibility of
misconduct,” and they therefore fail to demonstrate a plausible claim for relief. Id. at 679.
Plaintiff’s claim against Miller will be dismissed.
Conclusion
After carefully reading the complaint and giving plaintiff the benefit of a liberal
construction, the Court concludes that the claims plaintiff wishes to bring are neither plausible
nor viable under 42 U.S.C. § 1983. Plaintiff’s complaint was obviously very carefully and
thoughtfully prepared. He sets forth his allegations against each defendant, and the facts in

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support thereof, in a comprehensive fashion. He is very clear about the specific claims he wishes
to bring against each defendant. It is therefore apparent that the problems with the complaint
would not be cured by permitting plaintiff to file an amended pleading. Plaintiff’s complaint will
therefore be dismissed, without prejudice.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis
(Docket No. 2) is GRANTED.
IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $6.65 within
thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance payable to
“Clerk, United States District Court,” and to include upon it: (1) his name; (2) his prison
registration number; (3) the case number; and (4) that the remittance is for an original
proceeding.
IT IS FURTHER ORDERED that plaintiff’s motion for the appointment of counsel
(Docket No. 4) is DENIED as moot.
IT IS FURTHER ORDERED that plaintiff’s complaint and all of his causes of action
against all defendants are DISMISSED without prejudice. A separate order of dismissal will be
entered herewith.
IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in
good faith.
Dated this 19th day of January, 2017.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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