Owen v. Lisenbe et al

Filing 68

OPINION,MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment, [Doc. No. 66] is GRANTED. A separate judgment in accordance with this Opinion, Memorandum and Order is entered this same date. Signed by District Judge Henry Edward Autrey on March 20, 2020. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RONNIE LEE OWEN,

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Plaintiff,
v.
LT MATT SHULTS,
Defendant.

No. 4:17CV1547 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion for Summary
Judgment, [Doc. No. 66]. Plaintiff has not responded to the motion. For the
reasons set forth below, the motion is granted.
Facts and Background
Plaintiff brought this action seeking damages for alleged violations of his
constitutional rights while he was confined at the Phelps County jail. Plaintiff
claims he was deprived of essential food, sanitation, recreational facilities and has
suffered emotional distress, stress, and illness.
The Court has previously dismissed Plaintiff’s claims against all defendants
except Defendant Shults. Defendant Shults now moves for summary judgement.
Summary Judgment Standard
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“Summary judgment is proper where the evidence, when viewed in a light
most favorable to the non-moving party, indicates that no genuine issue of material
fact exists and that the moving party is entitled to judgment as a matter of
law.” Davison v. City of Minneapolis, Minn., 490 F.3d 648, 654 (8th Cir.
2007); see Fed. R. Civ. P. 56(a). Summary judgment is not appropriate if there
are factual disputes that may affect the outcome of the case under the applicable
substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An
issue of material fact is genuine if the evidence would allow a reasonable jury to
return a verdict for the non-moving party. Id. “The basic inquiry is whether it is
so one-sided that one party must prevail as a matter of law.” Diesel Machinery,
Inc. v. B.R. Lee Industries, Inc., 418 F.3d 820, 832 (8th Cir. 2005) (internal
quotation marks and citation omitted). The moving party has the initial burden of
demonstrating the absence of a genuine issue of material fact. Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (citation omitted). Once the
moving party has met its burden, “[t]he 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.” Id.
(internal quotation marks and citation omitted)

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To survive a motion for summary judgment, the “nonmoving party must
‘substantiate his allegations with sufficient probative evidence [that] would permit
a finding in [his] favor based on more than mere speculation, conjecture, or
fantasy.’” Putman v. Unity Health System, 348 F.3d 732, 733-34 (8th Cir. 2003)
(quoting Wilson v. Int'l Bus. Machs. Corp., 62 F.3d 237, 241 (8th Cir. 1995)). The
nonmoving party may not merely point to unsupported self-serving allegations, but
must substantiate allegations with sufficient probative evidence that would permit
a finding in his or her favor. Wilson, 62 F.3d 237, 241 (8th Cir. 1995). “The
mere existence of a scintilla of evidence in support of the [nonmoving party's]
position will be insufficient; there must be evidence on which the jury could
reasonably find for the [nonmovant].” Anderson, 477 U.S. 242 at 252; Davidson
& Associates v. Jung, 422 F.3d 630, 638 (8th Cir. 2005). Summary Judgment will
be granted when, viewing the evidence in the light most favorable to the
nonmoving party and giving the nonmoving party the benefit of all reasonable
inferences, there are no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. Samuels v. Kansas City Mo. Sch.
Dist., 437 F.3d 797, 801 (8th Cir. 2006). “Mere allegations, unsupported by
specific facts or evidence beyond the nonmoving party's own conclusions, are
insufficient to withstand a motion for summary judgment.” Thomas v.
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Corwin, 483 F.3d 516, 526-7(8th Cir. 2007). “Simply referencing the complaint,
or alleging that a fact is otherwise, is insufficient to show there is a genuine issue
for trial.” Kountze ex rel. Hitchcock Foundation v. Gaines, 2008 WL 2609197 at
*3 (8th Cir. 2008).
Undisputed Record and Discussion
Defendant has, in accordance with the Court’s Local Rules, submitted a
Statement of Uncontroverted Material Facts. Plaintiff has failed to file any
response to the motion.
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.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure and Rule 7401(E) of this Court’s Local Rules, Defendant’s facts may be deemed admitted.

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The material facts, therefore, are as follows.
Plaintiff was booked into the Phelps County Jail on March 9, 2017.
The highest number of individuals confined in Pod E of the Phelps County
Jail for March 9, 2017 through December 4, 2017 was 44. The highest total
number of individuals confined in the Phelps County Jail for March 9, 2017
through December 4, 2017 was 234.
Plaintiff filed 84 grievances via the Keefe Offender Communication Center
between March 18, 2017 and November 11, 2017. None of Plaintiff’s grievances
mention having to wait for a toilet, soiling himself, being unable to eat because of
spilled food, increased violence among himself and other inmates, or being
deprived of recreational facilities. Plaintiff never made a grievance on the Keefe
Offender Communication Center related to overcrowding. Plaintiff did not go
without food due to overcrowding.
Plaintiff stated that the jail was unsanitary because the upstairs toilet would
overflow.
On May 24, 2017, Owen filed a grievance alleging that he did not receive
cookies in his dinner sack and requesting punitive damages because he did not
receive cookies: “PLEASE REMIN [sic] THE COOKIES I AM ENTITLED TO.

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FOR THE DELAY I SHOULD GET SOMETHING FOR THE PUNIYIVE [sic]
for punitive damages.” Sgt. Dowdy responded.
On July 7, 2017, Plaintiff filed a grievance alleging that he did not receive
Tylenol zpac and eardrops, to which Nurse Kelly replied that his medications had
been ordered as they were not stocked in the facility.
On July 2, 2017, Plaintiff filed a grievance alleging that he only received
nine chips in his bag, instead of 15-20: “once again i [sic] must complain about the
chips, there are supposed to be 15 to 20 in the bag, tonight there were only nine in
my bag.” Cpl. Alexander responded he should receive about 7 to 8 chips according
to the menu.
On June 22, 2017, Plaintiff filed a grievance stating that his bag of chips
only had five chips, the night prior his bag had seven, and the night before that his
bag had eight chips. Dietary Specialist Gruber responded that he would address
this issue.
Plaintiff had diarrhea once, resulting in him soiling himself, and that was the
only time during his confinement that that occurred.
Plaintiff was able to shower at any time during the day.
Plaintiff was able to walk around E pod, walk laps, and walk the steps.

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Plaintiff does not believe any undercooking or overcooking of food was
done with specific intent, but rather because staff was in a hurry.
Discussion
“Under the Fourteenth Amendment, pretrial detainees are entitled to ‘at least
as great’ protection as that afforded convicted prisoners under the Eighth
Amendment.” Owens v. Scott County Jail, 328 F.3d 1026 (8th Cir. 2003) (quoting
City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)). “[I]nmates are
entitled to reasonably adequate sanitation, personal hygiene, and laundry
privileges, particularly over a lengthy course of time.” Howard v. Adkison, 887
F.2d 134, 137 (8th Cir. 1989).
Conditions which “deprive inmates of the minimal civilized measure of
life’s necessities,” may be considered cruel and unusual, and therefore,
unconstitutional. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
In determining when pretrial detention is considered unconstitutionally
punitive, the courts apply the Eighth Amendment deliberate indifference standard.
Whitnack v. Douglas County, 16 F.3d 954, 957 (8th Cir. 1994). “Conditions of
confinement, however, constitute cruel and unusual punishment ‘only when they
have a mutually enforcing effect that produces the deprivation of a single,

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identifiable human need such as food, warmth, or exercise.’ ” Id., (quoting Wilson
v. Seiter, 501 U.S. 294, 304 (1991)).
“Although the Eighth Amendment’s prohibition of cruel and unusual
punishment bars more than physical torture, ‘discomfort compelled by conditions
of confinement, without more, does not violate the amendment.’ ” Martin v. Byrd,
No. 4:07cv01184SWW, 2008 WL 686936 * 4 (E.D. Ark. 2008) (quoting Smith v.
Coughlin, 748 F.2d 783, 787 (2d Cir. 1984) (other citations omitted.))
The Eighth Amendment prohibition of cruel and unusual punishment
prohibits deliberate indifference to the serious medical needs of prisoners. Luckert
v. Dodge County, 684 F.3d 808, 817 (8th Cir. 2012). The Eighth Circuit analyzes
both a pretrial detainee's and a convicted inmate's claim of inadequate medical care
under the deliberate indifference standard. See Butler v. Fletcher, 465 F.3d 340,
344 (8th Cir. 2006). To prevail on his Eighth Amendment claim, Plaintiff must
prove Defendants acted with deliberate indifference to his serious medical needs.
Estelle v. Gamble, 429 U.S. 97, 106 (1976).
The deliberate indifference standard includes “both an objective and a
subjective component: ‘The [Plaintiff] must demonstrate (1) that [he] suffered
[from] objectively serious medical needs and (2) that the prison officials actually
knew of but deliberately disregarded those needs.’ ” Jolly v. Knudsen, 205 F.3d
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1094, 1096 (8th Cir. 2000) (quoting Dulany v. Carnahan, 132 F.3d 1234, 1239
(8th Cir. 1997)). In order to show 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) (internal quotations and citations omitted).
In order for a prisoner to establish the subjective prong of deliberate
indifference, “the prisoner 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.
Correctional Med. Servs, 512 F.3d 488, 499 (8th Cir. 2008) (internal quotation
marks and citations omitted).
When a delay in medical treatment is the alleged constitutional deprivation,
the objective seriousness of the deprivation must also be measured by reference to
the effect of delay in treatment. As a result, to succeed on a delay in medical
treatment claim, the plaintiff “must place verifying medical evidence in the records
to establish the detrimental effect of delay in medical treatment.” Laughlin v.
Schriro, 430 F.3d 927, 929 (8th Cir. 2005) (quotation marks omitted) (quoting
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Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir. 1997)). On summary judgment,
a plaintiff must offer evidence a delay in treatment had a detrimental effect. In the
absence of such evidence, a plaintiff “fail[s] to raise a genuine issue of fact on an
essential element of his claim.” Id.
“[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). In Dulany v.
Carnahan, 132 F.3d 1234 (8th Cir. 1997), the Eighth Circuit said:
As long as this threshold is not crossed, inmates have no constitutional right
to receive a particular or requested course of treatment, and prison doctors remain
free to exercise their independent medical judgment. Deliberate indifference may
be demonstrated by prison guards who intentionally deny or delay access to
medical care or intentionally interfere with prescribed treatment, or by prison
doctors who fail to respond to prisoner's serious medical needs. See Estelle v.
Gamble, 429 U.S. 97, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976).
In his Complaint, Plaintiff claims the facility was overcrowded, which led to
deprivation of food, exercise, sanitary conditions, lack of adequate restroom and
shower facilities, recreation areas and time, lack of storage areas, was deprived
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recreation, sufficient storage, and has had heightened stress. Plaintiff did not allege
anything more than discomfort caused by these conditions and did not specify the
length of time involved or what actions the individual Defendants took to deprive
him of his rights.
The uncontroverted facts establish that all of Plaintiff’s grievances were
addressed as they were filed, the facility was not overcrowded, he was given
adequate shower time, recreation, and food.
Likewise, the uncontroverted facts establish that Plaintiff cannot show
Defendant Shults knew of and disregarded, or was deliberately indifferent to,
Plaintiff’s health and safety.
For the reasons stated above,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary
Judgment, [Doc. No. 66] is GRANTED.
A separate judgment in accordance with this Opinion, Memorandum and
Order is entered this same date.
Dated this 20th day of March, 2020.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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