United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
AUDREY G. FLEISSIG, District Judge.
Plaintiff brought this action pro se under 42 U.S.C. § 1983 and Missouri state law alleging violations of his constitutional rights and assault and battery by numerous defendants employed at Missouri's Sex Offender Rehabilitation and Treatment Services ("SORTS") facility and the Missouri Department of Mental Health. This matter is before the Court on the joint motion for summary judgment (Doc. No. 83) filed by the 35 individually named Defendants, all employed at SORTS. For the reasons set forth below, Defendants' motion will be granted in part and denied in part.
In 1979, Plaintiff pled guilty to four instances of rape. In 1999, upon his release from prison, the State of Missouri filed a petition alleging that Plaintiff met the definition of a sexually violent predator ("SVP") under Missouri's Sexually Violent Predator Act. A jury found Plaintiff to be an SVP, and in 2001 the court entered an order committing Plaintiff to the custody of the Missouri Department of Mental Health for treatment at SORTS.
In October 2001, Plaintiff escaped from SORTS by cutting through his window, climbing two stories down to the ground on tied-together bed sheets, and cutting through three fences. Plaintiff absconded to Florida and, approximately two years later, was apprehended by Florida law enforcement and returned to Missouri. Plaintiff was held in jail until February 2005 when he was convicted of felony property damage as a result of cutting through the fences surrounding SORTS.
Plaintiff ruptured a disc in his lumbar spine on May 23, 2008, while incarcerated on the felony conviction. On August 8, 2008, Plaintiff was transferred back to SORTS, where he was placed on special precautions, including one-to-one visual observation 24 hours per day and total ward restriction (until December 2011). Plaintiff informed SORTS officials about his back problems on arrival. On October 28, 2008, Plaintiff had out-patient surgery to repair the ruptured disc. In March 2010, in order to address Plaintiff's escape and disorderly conduct, Defendant Dr. Jay Englehart (Plaintiff's treating psychiatrist) along with other SORTS medical staff put in place a behavioral plan to direct staff how to respond to Plaintiff's outbursts.
Plaintiff alleges in his amended complaint that on nine occasions (November 15, 2008, November 11, 2009, December 29, 2009, April 20, 2010, October 8, 2010, October 10, 2010, March 31, 2011, May 11, 2011, and October 27, 2011), Defendants used excessive force in physically restraining Plaintiff or failing to prevent others from doing so, and that these actions caused pain, injuries, and re-injury to his back. He further alleges that he was denied use of SORTS weight lifting equipment which he needed in order to fully rehabilitate his back condition, and was denied a timely MRI to assess the condition of his back.
Plaintiff's amended complaint asserts three federal counts and one supplemental state count. Count I asserts a claim of deliberate indifference to Plaintiff's serious medical needs as a result of the denial of adequate medical care for his back. The only remaining Defendant in Count I is Jay Englehart, Medical Director of SORTS. Count II asserts claims of failure to protect from an excessive risk of substantial harm to Plaintiff's health and safety as a result of Defendants ordering, or failing to prevent others from performing, physical restraints on Plaintiff which he contends amounted to the use of excessive force. There are nine remaining Defendants in Count II. Count III asserts claims of excessive use of force as a result of Defendants personally performing physical restraints or otherwise physically attacking Plaintiff in nine separate incidents, as set forth below. There are 28 remaining Defendants in Count III. Plaintiff also asserts a supplemental claim based on state law against all Count III Defendants claiming the actions alleged in Count III constituted assault and battery under Missouri law.
November 15, 2008 Incident
Defendant Smith ordered a pat down search of Plaintiff in order to locate a small cup of Vaseline he thought Plaintiff had. When Plaintiff refused the search, Defendants Basler and Koenig were called, lifted Plaintiff off the floor by his limbs and placed him on the floor. It is undisputed that Ron Scharer, a medical provider at SORTS was present, as were Defendants Hooker, Gillespie, Easter, and Jones. According to Defendants, Scharer was present "to oversee the restraint." (Doc. No. 84 at 7.) This incident occurred 23 days after Plaintiff's surgery for his ruptured lumbar disc and four months before he received a "medical release" from a SORTS medical provider.
According to Plaintiff, Scharer was the one who told the other Defendants to put Plaintiff on the floor, and while he was held on the floor by other Defendants who were present, Basler placed his knee at the site of Plaintiff's surgery. By deposition, Plaintiff testified that he was screaming, "You're hurting me! You're hurting me!" and that when he was allowed to get up he heard Scharer say to the other Defendants present "You guys heard me say don't hurt him didn't you?" (Doc. No. 84-3 at 1.) No Vaseline was found.
Plaintiff alleges that he suffered back and hip pain and that his "back was injured and the surgery comprised." (Doc No. 100 at 12-13.) Plaintiff argues that the force used was excessive in relation to the need as there was "no need to manually restrain him to the floor over a non-dangerous item that did not exist." (Doc. No. 100 at 13.) In connection with his allegations of another challenged incident, Plaintiff asserts that in approximately September 2009 he was examined by a SORTS doctor because a "bone was sticking out of Plaintiff's back" as a result of the November 15 altercation. (Doc. No. 100 at 14.)
Defendants assert that Plaintiff was assessed by a nurse and the only noted injury 24 hours after the incident was a "small, old bruise on his thigh that had already turned lavender." (Doc. No. 84 at 22.) Defendants further note that at a follow-up appointment with Dr. Keith Wilkey, Plaintiff's outside treating orthopedic surgeon, on December 18, 2008, Dr. Wilkey stated that Plaintiff's back condition had "improved." Id. Defendants argue that this claim fails because "Plaintiff's lack of injuries shows he faced no objectively serious harm and reasonable force was used." Id.
Defendants assert that Plaintiff testified that he could not identify any conduct of Gillespie, Hooker, Easter, and Jones with regard to this incident and that therefore the Court should grant them summary judgment. Plaintiff, however, testified that Hooker was "on my right shoulder." (Doc. No. 84-3 at 2-3.) Plaintiff could not identify where each Defendant who was present might have touched him. Easter attested by affidavit that he was called to Plaintiff's cell but arrived after Plaintiff was restrained.
November 11, 2009
Plaintiff alleges that on this date, SORTS employees asked that he submit to a random pat down search, just one day after they had conducted such a search, knowing that he had no contraband on his person. When he refused, Defendant Portel, a SORTS supervisor, called Dr. Englehart who ordered a manual restraint. Plaintiff alleges that six Defendants then "attacked him" and dragged him 60 feet to a seclusion room and threw him onto a bed. Defendants then did a "mock pat search" and let him go. Plaintiff asserts that his "attackers" were Defendants Miller, Thurman, Weeks, Dolan, Vinson, and Edgar.
Plaintiff asserts that he sustained injuries to his arms, wrists, shoulder, neck, and back. Plaintiff claims that since he was on 24 hour observation and total ward restriction, there was no need for the search other than to harass him and that, therefore, the force used was excessive.
Defendants assert that Plaintiff was "escorted" to the seclusion room and struggled the entire way, making it difficult for the six SORTS employees to move him 60 feet. Defendants state that Plaintiff was held down on the bed in the seclusion room until he calmed down. Plaintiff was then released and allowed to exit seclusion after complying with the search. Defendants assert "Plaintiff had no identifiable injury as a result of the restraint." (Doc. No. 100 at 8.)
Defendants argue that "the lack of evidence of even a de minimis injury show[s] that the force was reasonable." Defendants assert that in his deposition, Plaintiff could not identify the specific conduct of each Defendant involved in this incident and that they are therefore all entitled to summary judgment.
December 29, 2009
Plaintiff alleges that as he was walking down a hallway, Defendant Knox, who knew he had a pre-existing back condition, deliberately stretched her legs across the hallway to intentionally trip him. Plaintiff claims that he tripped over Knox's legs, reinjuring his back and sustaining pain from other injuries. Defendants assert that this incident was an accident and that his lack of any injury defeats a claim of excessive force.
April 20, 2010
On this date, Plaintiff refused to give up grapes that the SORTS staff determined were contaminated. Plaintiff went to his room with the grapes and shut the door. Plaintiff held the door shut with his feet lodged against it and refused to follow Defendants Easter and Bennett's direction to open the door. Plaintiff alleges that when Easter and Bennett tried to force the door open, he told them that they were hurting his back but they continued in their efforts. After Plaintiff opened the door, Easter and Bennett entered the room and according to Plaintiff, they "assaulted him by slamming him into a locker." (Doc. No. 100 at 19.) Plaintiff asserts that under the circumstances, Defendants' actions constituted excessive force.
Defendants argue that Easter and Bennett are entitled to summary judgment as the force was reasonable under the circumstances to secure and restrain Plaintiff during his outburst and was only used after Plaintiff barricaded himself in his room. Defendants claim that the force used was reasonable because Plaintiff managed to keep the door closed for approximately five minutes. Defendants claim that after entering the room, Plaintiff was taken to seclusion. Defendants further assert that Plaintiff did not display any injury after the incident. Additionally, Defendants claim that SORTS medical personnel were present throughout the incident and that Plaintiff did not request any medical ...