Rosenthal v. Missouri Department of Corrections et al

Filing 36

ORDER granting in part and denying in part 14 defendants' Motion to Dismiss and granting 25 putative intervenor Deonta Dudley's motion to intervene. Putative Intervenor Dudley shall file his intervenor's complaint on or before JANUARY 29, 2014. Signed on 1/24/14 by District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
KEVIN ROSENTHAL
Plaintiff,
v.
MISSOURI DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

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Case No. 2:13-cv-04150

ORDER
Pending before the Court are (1) Defendants’ Motion to Dismiss (Doc. No. 14);
and (2) Putative Intervenor Deonta Dudley’s Motion to Intervene (Doc. No. 25). Both
will be considered, below.
I.

Background
Plaintiff filed the pending action on June 14, 2013. Plaintiff and other putative

class members are deaf or hard-of-hearing inmates in the custody of the Missouri
Department of Corrections (MDOC). Defendants are (1) MDOC, (2) George Lombardi
(Director, MDOC), (3) Ed Davis (Superintendent, Ozark Correctional Center), and
James Hurley (Superintendent, Northeast Correctional Center).

Plaintiff seeks

declaratory and injunctive relief, as well as damages, on his own behalf and on behalf of
a putative class for alleged discrimination by Defendants against deaf and hard-ofhearing inmates in the custody of MDOC. Doc. No. 1, pp. 2-5.
Plaintiff’s Complaint contains four counts: Count I – violation of the Americans
with Disabilities Act (ADA)(Doc. No. 1, p. 21); Count II – violation of the Rehabilitation
Act (Doc. No. 1, p. 24); Count III – class-wide claim for injunctive relief under 42 U.S.C.

§ 1983 (Doc. No. 1, p. 27); and Count IV – individual claim for damages under 42
U.S.C. § 1983 (Doc. No. 1, p. 28).
Defendants have filed a motion to dismiss using the doctrine of claim preclusion
(Doc. No. 14), arguing that plaintiff Rosenthal’s claims were all disposed of in a
summary judgment order entered by the Circuit Court of Cole County, Missouri, on
August 12, 2011 as to the MDOC, and as to other defendants on November 9, 2011.
See Doc. No. 14-3, p.1. Plaintiff responds that his lawsuit is regarding actions taken by
MDOC and other defendants beginning in November 2011, and continuing through
2012 and 2013. See Response, Doc. No. 22, pp. 3-6. In reply, defendant argues that
plaintiff’s claims prior to November 9, 2011, are barred, and plaintiff’s ADA claims are
barred due to Eleventh Amendment immunity.
Putative Intervenor Deonta Dudley (who is represented by the same counsel as
Plaintiff Rosenthal) filed a motion to intervene (Doc. No. 25) on September 27, 2013.
II.

Standard
When ruling on a defendant=s motion to dismiss, a judge must accept as true all

of the factual allegations in the complaint. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555-56 (2007). A plaintiff need not provide specific facts in support of his allegations.
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). But the plaintiff Amust include sufficient
factual information to provide >grounds= on which the claim rests, and to raise a right to
relief above a speculative level.@ Schaaf v. Residential Funding Corp., 517 F.3d 544,
549 (8th Cir. 2008). A[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.@ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This

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requires a plaintiff to plead Amore than labels and conclusions, and a formulaic recitation
of the elements of the cause of action will not do.@ Twombly, 550 U.S. at 555. A
complaint must contain either direct or inferential allegations respecting all the material
elements necessary to sustain recovery under some viable legal theory. Id. at 562
(quoted case omitted). The standard Asimply calls for enough fact to raise a reasonable
expectation that discovery will reveal evidence of@ the claim. Id. at 556.
Under the Federal Rules of Civil Procedure, the “court must permit anyone to
intervene” who “claims an interest relating to the property or transaction that is the
subject of the action, and is so situated that disposing of the action may as a practical
matter impair or impede the movant’s ability to protect its interest, unless existing
parties adequately represent that interest.” Fed. R. Civ. P. 24(a)(2). A “court may
permit anyone to intervene” if that party “has a claim or defense that shares with the
main action a common question of law or fact.”

Fed. R. Civ. P. 24(b)(1)(B).

In

exercising its discretion to allow permissive intervention under Fed. R. Civ. P.
24(b)(1)(B), the “court must consider whether the intervention will unduly delay or
prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3).
III.

Motion to Dismiss (Doc. No. 14)
Defendants have moved to dismiss plaintiff’s complaint under the doctrine of

claim preclusion. The federal full faith and credit statute, 28 U.S.C. § 1738, requires
federal courts to give preclusive effect to state court judgments. Simmons v. O’Brien,
77 F.3d 1093, 1096 (8th Cir. 1996).

“The law of the forum that rendered the first

judgment controls the [claim preclusion] analysis.” C.H. Robinson Worldwide, Inc. v.
Lobrano, 695 F.3d 758, 764 (8th Cir. 2012). In Missouri, claim preclusion applies “to

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every point properly belonging to the subject matter of litigation and which the parties,
exercising reasonable diligence, might have brought forward at the time” of the original
action. Chesterfield Village, Inc. v. City of Chesterfield, 64 S.W.3d 315, 318 (Mo. banc
2002) (internal quotation omitted). It “prevents reassertion of the same claim even
though additional or different evidence or legal theories might be advanced to support
it.” Id. at 320 (internal quotation omitted).
Defendants argue that plaintiff filed an action in Missouri state court in December
2009, where he sought injunctive relief as well as damages based on similar legal
theories as are present in the current action. Summary judgment was granted as to all
of plaintiff’s claims on August 12, 2011; the original order, however, only listed the
Missouri Department of Corrections as the dismissed party, and the state court
corrected the dismissal to include all defendants on November 9, 2011. Defendant
argues that plaintiff’s claims of discrimination under the ADA, Section 504 of the
Rehabilitation Act, and Section 1983 are almost identical to the claims decided by the
state court in 2011, and even if some differences exist, those are not sufficient to
overcome Missouri’s requirement that claims involving the same subject matter are
barred if they might have been reasonably brought in the prior suit. Kesterson v. State
Farm Fire & Cas. Co., 242 S.W.3d 712, 716 (Mo. banc 2008).
The problem with defendants’ theory, as pointed out by plaintiff in his
suggestions in opposition (Doc. No. 22), is that the factual bases for plaintiff’s claims
include actions taken by defendants after the November 9, 2011, state court dismissal.
See Doc. No. 1, pages 15-20. Under Missouri law, res judicata “extends only to the
facts in issue as they existed at the time the judgment was rendered, and does not

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prevent a reexamination of the same questions between the same parties where in the
interval the facts have changed or new facts have occurred which may alter the legal
rights of relations of litigants.” Elam v. City of St. Ann, 784 S.W.2d 330, 334 (Mo. App.
1990) (internal citation omitted).
In defendants’ reply, defendants assert that plaintiff’s claims for actions prior to
November 9, 2011 are barred, and thus plaintiff’s complaint should be limited to events
occurring after the dismissal with prejudice of his prior petition. Defendants also argue,
for the first time, that plaintiff’s ADA claims fail due to Eleventh Amendment Immunity.
Defendants note that the Supreme Court and the Eighth Circuit have held that claims
under Title II of the ADA must be examined on a claim-by-claim basis to determine
whether plaintiff has alleged conduct which violates both the ADA and the U.S.
Constitution. See United States v. Georgia, 546 U.S. 151, 159 (2006); Klinger v. Dir.,
Dept. of Revenue, Mo., 455 F.3d 888, 897 (8th Cir. 2006) (finding Eleventh Amendment
Immunity prevented collection of monetary damages against the state for ADA
violations that did not implicate Constitutional rights). Defendants argue, in two short
paragraphs without citations to legal authority, that plaintiff has not made allegations
sufficient to rise to the level of a Constitutional violation. In sur-reply, plaintiff asserts
that he has pled specific facts that relate to denial of access to hearings, programs and
services within prison, in violation of plaintiff’s Constitutional rights.
Upon review of the parties’ briefs and plaintiff’s complaint, the Court finds that
defendants’ motion (Doc. No. 14) should be GRANTED IN PART as to any claims
arising prior to November 9, 2011. In all other aspects, defendants’ motion to dismiss
will be DENIED, as the facts pled in plaintiff’s complaint raise a plausible claim for

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violations of plaintiff’s constitutional rights, and claims which arose after the dismissal of
the previous lawsuit are not precluded by that dismissal.
IV.

Motion to Intervene (Doc. No. 25)
Putative Intervenor Deonta Dudley (who is represented by the same counsel as

Plaintiff Rosenthal) filed a motion to intervene (Doc. No. 25) on September 27, 2013.
Dudley indicates that he is also a deaf inmate, who is incarcerated at Potosi
Correctional Center, and he has also been subject to defendants’ allegedly
discriminatory conduct. Dudley seeks to intervene under Fed. R. Civ. P. 24(a)(2) as his
claims relate so closely to the subject matter of this action that disposing of the action
against plaintiff will, as a practical matter, impair or impede Dudley’s ability to protect his
interests.

Dudley further notes that plaintiff’s claims may be barred for conduct

occurring prior to November 9, 2011, and therefore Dudley’s interest may not be
adequately protected by plaintiff. Alternatively, Dudley seeks to intervene under Fed. R.
Civ. P. 24(b)(1)(B), as his claims share a common question of fact and law with this
action.
Defendant responds (Doc. No. 29) that Dudley has not exhausted his grievances
related to claims dating prior to November 9, 2011, and therefore Rule 24(a)(2) is not
implicated.

Defendants further argue that Dudley is not entitled to permissive

intervention, as he has not shown that his injury is beyond that suffered by Rosenthal
and inclusion of his claims will “only needlessly complicate the current lawsuit, adding to
the expense of the case, without providing any additional protections for the class
Rosenthal and Dudley seek to represent.” Doc. No. 29, p. 7.

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Although the Court is not convinced that Dudley is entitled to intervene as a
matter of right under Fed. R. Civ. P. 24(a)(2), the Court believes that permissive
intervention under Rule 24(b)(1)(B) is appropriate in this matter.

Adding putative

intervenor Dudley’s claim in this matter would not unduly delay or prejudice defendants’
adjudication of the parties’ rights in this matter, given that the complaint was filed on
June 11, 2013 and the motion to intervene was filed a little over three months later.
Accordingly, putative intervenor Dudley’s motion to intervene under Fed. R. Civ.
P. 24(b)(1)(B) is GRANTED.
V.

Conclusion
Accordingly, for the foregoing reasons, (1) Defendants’ Motion to Dismiss (Doc.

No. 14) is GRANTED IN PART and DENIED IN PART; and (2) Putative Intervenor
Deonta Dudley’s Motion to Intervene (Doc. No. 25) is GRANTED. Putative Intervenor
Dudley shall file his intervenor’s complaint on or before JANUARY 29, 2014.
IT IS SO ORDERED.

Date: January 24, 2014
Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge 

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