Houston v. Corizon Health Care et al

Filing 36

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' motion for summary judgment 23 is DENIED. IT IS FURTHER ORDERED that Plaintiff's motion for reconsideration 31 is DENIED. IT IS FURTHER ORDERED that Defendant's motion for extension 34 is DENIED. Signed by District Judge John A. Ross on 4/26/2021. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DAMON JOSIAH HOUSTON
Plaintiff,

CORIZON HEALTH CARE, et al.
Defendants.

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No. 4:20-cv-00291-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion for Reconsideration, (ECF No. 31),
Defendant’s Motion for Summary Judgment, (ECF No. 23), and Defendant’s Motion for
Extension. (ECF No. 34). Plaintiff Damon Josiah Houston (“Plaintiff”), an inmate incarcerated at
the Potosi Correctional Center (“PCC”), initially brought this pro se action pursuant to 42 U.S.C.
§ 1983 against Defendants Corizon Health Care, Dr. William D. McKinney, Dr. Carl Doerhoff,
Tymber Taylor, and Dr. Thomas K. Bredeman (“Dr. Bredeman”). (ECF No. 1). The Court
ordered Plaintiff to file an amended complaint in light of deficiencies with his initial complaint.
(ECF No. 7). In Plaintiff’s amended complaint, he alleged claims of deliberate indifference to his
serious medical needs against Dr. Bredeman and Tymber Taylor in both their official and
individual capacities. Plaintiff’s amended complaint did not allege claims against any other
Defendants. This Court dismissed Plaintiff’s claims against Taylor and Plaintiff’s official
capacity claims against Dr. Bredeman. (ECF No. 9). Only Plaintiff’s individual capacity claim
against Dr. Bredeman remains.

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Plaintiff alleges Dr. Bredeman was deliberately indifferent to his serious medical needs in
violation of the Eighth Amendment because he did not order a surgical consult for his testicular
hydrocele. Dr. Bredeman moved for summary judgment on the grounds that Plaintiff did not
exhaust his administrative remedies. (ECF No. 23). Plaintiff moved the Court to appoint an
independent medical expert. The Court denied the motion and Plaintiff moved for
reconsideration. (ECF No. 31). Defendant then moved for an extension of time to file any further
dispositive motions. (ECF No. 34). For the reasons set forth below, the motions will be denied.
I.

Background 1
The grievance procedure for the Missouri Department of Corrections (“MDOC”) consists

of three steps defined in policy D5-3.2 “Offender Grievance,” effective January 1, 2015. (SUMF
at ¶ 2). First, the inmate must file an Informal Resolution Request (“IRR”) within 15 days from
the alleged incident. The complaint may be resolved by discussion or the grievance officer will
investigate and develop a proposed response. Informal resolution requests should be responded to
within 40 days of receipt. Id. at ¶ 4.
Second, if the inmate’s grievance is not resolved at the informal level, he or she may
proceed to the second step and file a formal grievance. A formal grievance must be filed within
seven days after the offender receives the response on the informal resolution request form. If the
offender fails to respond, the complaint is deemed abandoned. Id. at ¶ 6. The grievance officer
should respond to offender grievances within 40 days of receipt. Id. at ¶ 4. Third, if the grievance
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The facts are taken from Defendant’s Statement of Uncontroverted Material Facts, (“SUMF”,
ECF No. 25), unless otherwise noted. Although Plaintiff did not file a response to Defendant’s
SUMF, in his Motion in Response to Defendant’s Motion for Summary Judgment, (ECF No. 28),
he contends that he did exhaust his administrative requirements by filing and exhausting PCC-19999. In support of this contention, Plaintiff attached grievance PCC-19-999. Plaintiff’s response is
consistent with Defendant’s SUMF.

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is not resolved at the formal level, the inmate must file an appeal within seven calendar days. An
appeal response is provided within 100 days of receipt. Id. at ¶ 7. If the inmate does not receive a
response within the time limit at any stage of the process, the inmate may move to the next stage
of the process by notifying the grievance officer. A grievance is not considered exhausted until the
inmate completes all three steps of the grievance procedure. Id. at ¶ 9.
Plaintiff submitted the following grievances at PCC between April 1, 2019 and September
11, 2020: PCC-19-617, PCC-19-999, 2 PCC-20-326, PCC-20-344, PCC-20-399 received June 4,
2020, and PCC-20-399 received September 4, 2020. 3 Id. at ¶¶ 11-16. Plaintiff initiated PCC-19617 on June 17, 2019. In that grievance, Plaintiff complained that he did not receive a surgical
consult for his right testicular hydrocele. Id. at ¶ 11. No response was issued to the IRR; the officer
assigned to handle the case lost the grievance. (ECF No. 25-4 at 18). Pursuant to the MDOC policy,
Plaintiff had a seven-day window in which he could file a formal grievance—between July 27,
2019 and August 3, 2019. Plaintiff did not do so and PCC-19-617 was deemed abandoned. (SUMF
at ¶ 11).
Plaintiff submitted IRR PCC-19-999 on October 28, 2019. He complained that IRR PCC19-617 was not properly documented. Moreover, he requested “That I be allowed to go to the next
stage now and/or get the treatment I need for my Hydrocele approved.” (ECF No. 28-1 at 5). On
November 21, 2019, a response was issued, noting that Plaintiff was provided with the opportunity
to file a second IRR about his testicular hydrocele and refused to accept it. Plaintiff filed a formal

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Dr. Bredeman occasionally refers to “PCC-19-199” as the grievance in which Plaintiff
complained “that IRR PCC-19-617 had not been documented properly.” (ECF No. 24 at 6). There
is no record of Plaintiff making a grievance numbered PCC-19-199. Instead, Plaintiff complains
that IRR PCC-19-617 was not properly documented in grievance PCC-19-999. Accordingly, the
Court will construe Dr. Bredeman’s references to PCC-19-199 as references to PCC-19-999.
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Two of Plaintiff’s grievances are numbered “PCC-20-399.” For clarity, the Court will refer to
the grievances as PCC-20-399 received June 4, 2020 and PCC 20-399 received September 4, 2020.
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grievance on November 25, 2019, which was denied on November 27, 2019. On December 5,
2019, Plaintiff filed a grievance appeal, which was denied, thereby completing the three-step
grievance process. (SUMF at ¶ 12). In a memorandum related to PCC-19-999, a grievance officer
wrote:
I informed Offender Houston that IRR PCC19-617 was submitted to Case Manager
Eddleman. Mrs. Eddleman has resigned after he turned it in, prior to me becoming
the Case Manager over Housing Unit 5. The IRR was lost and there were no copies
of it. I offered for him to file another IRR and he refused to. When I gave him a
Grievance Form all he put on it was “Review my IRR that I run in back on 6-1319.” I cannot process an IRR that I do not have any information on.
(ECF No. 25-4 at 18).
Plaintiff filed this complaint on February 20, 2020, after which he filed two more IRRs
related to his hydrocele: IRR PCC-20-399 received June 4, 2020 and IRR PCC-20-399 received
September 4, 2020. Plaintiff’s remaining grievances relate to the mail room staff.
II.

Motion to Reconsider
Plaintiff moved the Court to reconsider its denial of his motion to appoint a medical

expert. The Federal Rules of Civil Procedure do not mention motions for reconsideration.
However, the Eighth Circuit Court of Appeals has held that a motion to reconsider a non-final
order should be construed as a Rule 60(b) motion for relief from judgment or order. See
Broadway v. Norris, 193 F.3d 987, 989 (8th Cir. 1999). The Court will construe Plaintiff's
motion for reconsideration as a motion pursuant to Rule 60(b).
Rule 60(b) allows relief from an order due to:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence that, with reasonable diligence, could not have been discovered in time
to move for a new trial under Rule 59(b); (3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4)
the judgment is void; (5) the judgment has been satisfied, released or discharged;
it is based on an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or (6) any other reason that justifies relief.
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Fed. R. Civ. P. 60(b); see also Elder–Keep v. Aksamit, 460 F.3d 979, 984 (8th Cir. 2006). Relief
under Rule 60(b) is an “extraordinary remedy” that is “justified only under ‘exceptional
circumstances.’” Prudential Ins. Co. of Am. v. Natl. Park Med. Ctr., Inc., 413 F.3d 897, 903 (8th
Cir. 2005) (quoting Watkins v. Lundell, 169 F.3d 540, 544 (8th Cir. 1999)). Further, “[r]elief is
available under Rule 60(b)(6) only where exceptional circumstances have denied the moving
party a full and fair opportunity to litigate his claim and have prevented the moving party from
receiving adequate redress.” Harley v. Zoesch, 413 F.3d 866, 871 (8th Cir. 2005). The Rule
60(b)(6) catch-all provision is not a vehicle for setting forth arguments that were made or could
have been made earlier in the proceedings. See Broadway, 193 F.3d at 989–90.
Plaintiff's Rule 60(b) motion raises the same arguments as his initial motion to appoint an
expert. In both motions, Plaintiff argues the Court will benefit from the appointment because an
expert will provide an unbiased opinion on the effects of Plaintiff's medical treatment. Plaintiff's
motion does not point to a mistake, newly discovered evidence, fraud, or other reasons that could
justify reconsideration. Plaintiff is not entitled to reconsideration. 4

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Were the Court to consider Plaintiff’s motion, it would nevertheless conclude that it is
not appropriate to appoint a medical expert in this case. Plaintiff relies on Smith v. Jenkins in
support of his motion. 919 F.2d 90 (8th Cir. 1990). In Smith, the Eighth Circuit held the district
court erred in failing to appoint a medical expert because the record did not contain sufficient facts
to determine whether the plaintiff’s eighth amendment rights were violated. Id. at 93. The Eighth
Circuit was “particularly troubled by the absence of [plaintiff’s] medical records from the court
record.” Id. The plaintiff was never provided with his medical records. The district court in Smith
ruled against the plaintiff on the merits while Dr. Bredeman moves for summary judgment based
on Plaintiff’s failure to exhaust. Moreover, Plaintiff has access to at least some of his records;
Plaintiff attached several pages of his medical records to his Rule 60(b) motion. (ECF No. 31 at 79). The circumstances of this case do not justify appointing an expert pursuant to Rule 706 at this
time. United States Marshals Serv. v. Means, 741 F.2d 1053, 1059 (8th Cir. 1984) (court should
appoint an expert witness only under compelling circumstances) (subsequent history omitted).
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III.

Motion for Summary Judgment
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, 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). “In determining whether the grant of a motion for
summary judgment is appropriate in a particular case, the evidence must be viewed in the light
most favorable to the nonmoving party.” Osborn v. E.F. Hutton & Co., Inc., 853 F.2d 616, 618
(8th Cir. 1988). Self-serving, conclusory statements without support are not sufficient to defeat
summary judgment. Armour & Co., Inc. v. Inver Grove Heights, 2 F.3d 276, 279 (8th Cir. 1993).
The Prison Litigation Reform Act (“PLRA”) requires prisoners to exhaust their
administrative remedies before filing a § 1983 action: “No action shall be brought with respect to
prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined
in any jail, prison, or other correctional facility until such administrative remedies as are available
are exhausted.” 42 U.S.C. § 1997e(a). The purposes of the exhaustion requirement include
“allowing a prison to address complaints about the program it administers before being subjected
to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving
litigation that does occur by leading to the preparation of a useful record.” Jones v. Bock, 549 U.S.
199, 219 (2007). The PLRA’s exhaustion requirement is “mandatory.” Woodford v. Ngo, 548 U.S.
81, 85 (2006).

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The PLRA requires inmates to: (1) fully and properly exhaust their administrative remedies
as to each claim in the complaint; and (2) complete the exhaustion process before filing an action
in federal court. Jones, 549 U.S. at 211, 219-20, 223-24; Woodford, 548 U.S. at 93-95; Burns v.
Eaton, 752 F.3d 1136, 1141-42 (8th Cir. 2014). Importantly, “it is the prison’s requirements, and
not the PLRA, that define the boundaries of proper exhaustion.” Jones, 549 U.S. at 218; see also
Woodford, 548 U.S. at 90 (explaining that administrative exhaustion “means using all steps that
the agency holds out, and doing so properly so that the agency addresses the issues on the merits”).
Accordingly, the MDOC’s three step grievance procedure defines the boundaries of exhaustion
here.
Dr. Bredeman argues that he is entitled to summary judgment because Plaintiff has failed
to exhaust his administrative remedies with respect to Plaintiff’s claims related to the decision not
to authorize a surgical consult for Plaintiff’s hydrocele. Plaintiff’s first grievance complaining that
Dr. Bredeman denied his surgical consult is PCC 19-617. The MDOC lost the grievance and did
not respond to it. Plaintiff failed to initiate the next step in the grievance process and the MDOC
deemed PCC 19-617 abandoned.
Plaintiff then filed PCC 19-999. Dr. Bredeman admits that Plaintiff exhausted his
administrative remedies with respect to PCC 19-999, but argues PCC 19-999 has not exhausted
the administrative remedies for Plaintiff’s claims against him because the grievance regarded the
failure to document IRR PCC-19-617. However, Plaintiff did request treatment for his hydrocele
in PCC 19-999; Plaintiff asked either that the MDOC allow him to reinstate PCC 19-617—which
the MDOC lost—or that he receive treatment for his hydrocele. PCC 19-999 gave the MDOC a
“fair and full opportunity to adjudicate” Plaintiff’s claims against Dr. Bredeman related to the
hydrocele. Woodford, 548 U.S. at 90. See also Jones v. Engle, No. 4:18 CV 984 RWS, 2020 WL

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4732047, at *2 (E.D. Mo. Aug. 14, 2020) (finding the plaintiff exhausted administrative remedies
despite not specifically addressing the wrongdoing of the defendant because the grievance gave
the MDOC the opportunity to adjudicate the claims against the defendant). Accordingly, Plaintiff’s
administrative remedies are exhausted.
IV.

Motion for Extension

Under the Case Management Order, dispositive motions are due by May 20, 2021. (ECF No.
17). Dr. Bredeman asks for an extension of 21 days after this Court rules on his Motion for
Summary Judgment to file any further dispositive motions. The parties have more than 21 days
from the date of this motion to file any further dispositive motions. As such, the Court will deny
the motion for extension.
V.

Conclusion
Accordingly,

IT IS HEREBY ORDERED that Defendants’ motion for summary judgment [23] is
DENIED.
IT IS FURTHER ORDERED that Plaintiff’s motion for reconsideration [31] is
DENIED.
IT IS FURTHER ORDERED that Defendant’s motion for extension [34] is DENIED.

Dated this 26th day of April, 2021.

________________________________

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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