United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. COLLINS UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant Fred Rottnek's
(“Rottnek”) Motion for Summary Judgment (Doc.
129), Defendant Philip Wenger's (“Wenger”)
Motion for Summary Judgment (Doc. 133), and Plaintiff Keith
Lamar Blackwell's Motion for Summary Judgment (Doc. 154).
The Motions are fully briefed and ready for disposition. The
parties have consented to the jurisdiction of the undersigned
United States Magistrate Judge pursuant to Title 28 U.S.C.
§ 636(c) (Doc. 102). For the following reasons,
Defendants' Motions for Summary Judgment will be GRANTED
and Plaintiff's Motion will be DENIED.
standards applicable to summary judgment motions are well
settled. Pursuant to Federal Rule of Civil Procedure 56(c), a
court may grant a motion for summary judgment if all of the
information before the court shows "there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law." See Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
initial burden is placed on the moving party. See City of
Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838
F.2d 268, 273 (8th Cir. 1988) (the moving party has the
burden of clearly establishing the non-existence of any
genuine issue of fact that is material to a judgment in its
favor). Once this burden is discharged, if the record shows
that no genuine dispute exists, the burden then shifts to the
non-moving party who must set forth affirmative evidence and
specific facts showing there is a genuine dispute on a
material factual issue. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986).
the burden shifts, the non-moving party may not rest on the
allegations in its pleadings, but by affidavit and other
evidence must set forth specific facts showing that a genuine
issue of material fact exists. Fed.R.Civ.P. 56(e);
Herring v. Canada Life Assur. Co., 207 F.3d 1026,
1029 (8th Cir. 2000); Allen v. Entergy Corp., 181
F.3d 902, 904 (8th Cir.), cert. denied, 528 U.S.
1063 (1999). The non-moving party “must do more than
simply show that there is some metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “
dispute about a material fact is Agenuine” only
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party."
Herring, 207 F.3d at 1029 (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A party
resisting summary judgment has the burden to designate the
specific facts that create a triable question of fact.
See Crossley v. Georgia-Pacific Corp., 355 F.3d
1112, 1114 (8th Cir. 2004). Self-serving, conclusory
statements without support are not sufficient to defeat
summary judgment. Armour and Co., Inc. v. Inver Grove
Heights, 2 F.3d 276, 279 (8th Cir. 1993).
Keith Lamar Blackwell (“Blackwell”) initiated
this pro se action on June 6, 2014 against eight (8)
correctional and medical officials connected with the St.
Louis County Justice Center (“Justice Center”).
At that time, he was being held as a pretrial detainee at the
Justice Center. In his Complaint, Blackwell alleges that
the conditions in the St. Louis County Justice Center were
unsanitary and that Defendants took action against him in
violation of his civil rights under the 4th, 8th and 14th
Amendments of the United States Constitution.
Blackwell also alleges that Defendants were deliberately
indifferent to his serious medical needs. The Complaint
sought monetary and injunctive relief.
Blackwell sought to add additional claims and Defendants to
his Complaint, on August 11, 2014, the Court ordered
Blackwell to submit an amended complaint on a court-provided
form. Blackwell filed his Amended Complaint on August 18,
2014. Blackwell's verified Amended Complaint asserted
claims against eleven (11) named correctional and medical
officials connected with the Justice Center. Blackwell
alleged that the conditions in the Justice Center were
unsanitary and that Defendants took action against him in
violation of his civil rights under the 1st, 8th and 14th
Amendments of the United States Constitution. Blackwell also
alleged that the named Defendants were deliberately
indifferent to his serious medical needs. The verified
Amended Complaint sought monetary and injunctive relief.
November 10, 2014, the Court reviewed Blackwell's Amended
Complaint pursuant to 28 U.S.C. § 1915 for
frivolousness, maliciousness and for failure to state a claim
upon which relief could be granted. The Court dismissed
several claims and Defendants in accordance with § 1915.
However, the Court ordered service of process on
Blackwell's claims against Defendants Dolores Gunn,
Gerald Kramer, Rottnek, Wenger, Andrew Moore and Janet Duwe.
than file an answer to Blackwell's claims, Defendants
Gerald Kramer, Dolores Gunn and Janet Duwe immediately filed
separate Motions for Summary Judgment after being served with
process (Docs. 41, 53, 56). Defendants Wenger and Rottnek
filed separate Answers to Blackwell's Amended Complaint
(Docs. 27, 40). Blackwell filed responses to Defendants'
Motions for Summary Judgment, while simultaneously moving for
summary judgment on his claims against all of the named
Defendants (Docs. 62, 67, 68, 70, 75, 77). On May 5, 2015,
Blackwell's claims against Andrew Moore were dismissed,
without prejudice, due to Blackwell's failure to provide
the Court with an address at which Defendant Moore could be
served (Doc. 100). On July 17, 2015, the Court granted
Defendants Gerald Kramer, Dolores Gunn and Janet Duwe's
Motions for Summary Judgment (Doc. 110) and entered Partial
Judgment on behalf of these Defendants (Doc. 114).
Rottnek and Wenger filed Motions for Summary Judgment on
November 17, 2015, and December 2, 2015, respectively (Docs.
129, 133). Blackwell responded to Wenger's Motion for
Summary Judgment by filing an
“Affidavit” (Doc. 145). Blackwell also filed a
response to Rottnek's Motion for Summary Judgment (Doc.
147). In support of his response, Blackwell filed another
“Affidavit” (Id. at 11-13) and a copy of
Rottnek's Affidavit (Id. at 15-24).
Additionally, Blackwell filed a more specific response
addressing the medical wedge issue (Doc. 149) along with a
photograph of a medical wedge (Doc. 148). Rottnek and Wenger
both replied to Blackwell's various filings (Docs. 152,
153). In his reply, Wenger specifically requested the Court
strike Blackwell's Affidavit (Doc. 153 at 5). The Court
will deny this request and will treat Blackwell's
Affidavit as a supplement to his response.
Blackwell moved for summary judgment against all
Defendants (Doc. 154). Wenger filed a response which
in part requests the Court strike the motion (Doc. 155). The
Court will deny Wenger's request to strike and will
address Blackwell's cross Motion for Summary Judgment.
Rottnek also responded (Doc. 156). Blackwell subsequently
filed a “Motion, Opposition Briefs, ” a second
filing of his Motion for Summary Judgment (Doc. 158). Rottnek
and Wenger responded incorporating their prior briefing
(Docs. 160, 161), with Wenger again requesting, in part, that
the Court strike the filing (Doc. 160). Again, the Court will
not strike the supplemental filing, even in consideration of
its repetitive nature, but will instead, in an abundance of
caution, treat the filing as additional briefing in support
of Blackwell's Motion for Summary Judgment.
inmate Blackwell was housed in the St. Louis County Justice
Center (“Justice Center”) from November 21, 2013
to November 1, 2014. During his incarceration, Blackwell
reported that he was suffering from or had experienced
symptoms related to the following medical conditions: chronic
obstructive pulmonary disease (COPD); sleep apnea;
glaucoma; edema; gastrointestinal problems,
including a pre-incarceration history of rectal bleeding; and
back and neck pain.
Rottnek is a licensed medical doctor who offers medical care
to inmates incarcerated at the Justice Center (Affidavit of
Fred Rottnek (“Rottnek Aff.”) ¶ 3, Doc.
131-1). Blackwell received medical care from Rottnek and
other health care providers, including Defendant Wenger,
during his incarceration at the Justice Center (Id.
¶ 2). Wenger is a licensed clinical pharmacist in the
State of Missouri (Affidavit of Philip Wenger (“Wenger
Aff.”) ¶ 1, Doc. 135-1). As a pharmacist,
Wenger's involvement with the care and treatment of
Blackwell was dependent upon and required the approval,
orders and/or prescriptions from a medical doctor
(Id. ¶ 5).
for Sleep Apnea
after his arrival at the Justice Center, Rottnek provided
Blackwell with an additional mattress to use as a medical
wedge to prop up the head of his bed
(Rottnek Aff. ¶ 13). This was done to help alleviate
breathing difficulties related to Blackwell's sleep apnea
and his COPD (Id.). The Justice Center Medical Staff
does not have access to “traditional” medical
wedges (Id.). In Rottnek's medical opinion and
professional judgment, the second folded mattress
accomplished the same medical purpose as a traditional wedge
of Blackwell's treatment for his Sleep Apnea, Blackwell
used a CPAP machine at night (Id. ¶ 7). On
several occasions, Blackwell complained about the efficacy of
his machine and the mask he used with the machine
(Id.). In response, Rottnek contacted a Medical West
Representative to recalibrate his machine (Id.
¶¶ 8-10). On January 10, 2014, an employee from
Provider Plus, a Medical Products and Services Company that
works with the Justice Center, provided Blackwell with
instructions on how to properly use his CPAP machine
(Id. ¶ 8). At that time, the technician
informed Blackwell that his CPAP mask was too big for him
(Id.). He responded that it was not, denied having
any issues using it, and informed the Provider Plus employee
that it was working well (Id.). Rottnek contacted
the U.S. Marshals Service to get approval for a new CPAP mask
for Blackwell (Id.). Despite complaining about