United States District Court, E.D. Missouri, Northern Division
FRANKLIN G. ENDICOTT, Plaintiff,
JAMES HURLEY, et al., Defendants.
MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION TO DISMISS
D. NOCE, UNITED STATES MAGISTRATE JUDGE
action is before the court on the motion of defendants Larry
Allen, Roger Avery, Jacob Baker, Tyree Butler, Lori Calvin,
David Cutt, Kristin Cutt, Alan Earls, Joyce Edwards, Chantay
Godert, Richard Griggs, James Hurley, William Jones, George
Lombardi, Jeffrey Reid, James Rhodes, and Lisa
to dismiss Counts III, IV, VII, VIII, IX, X, XI, XII, XIII,
XIV, XVII, XVIII, XX, XXI, and XXII of Plaintiff's Fifth
Amended Complaint (ECF No. 114) for failure to state a claim.
(ECF No. 118). The parties have consented to the exercise of
plenary authority by the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c). The court held a
hearing on this matter November 15, 2016. The court grants
the motion in part and denies the motion in part.
relevant facts as alleged in the pleadings, taken in favor of
plaintiff, are as follows. Plaintiff Franklin G. Endicott is
currently incarcerated at Northeast Correctional Center
(“NECC”) in Bowling Green, Missouri. (ECF No.
114, ¶ 1). All Defendants are or were employed by NECC
or the Missouri Department of Corrections
(“MDOC”) or were otherwise tasked with assisting
inmates at NECC at the times pertinent to this litigation.
(Id. at ¶¶ 2-23). Larry Allen was a
Lieutenant at NECC, Roger Avery is a Corrections Officer I
(“CO I”) at NECC, Jacob Baker is a Corrections
Officer II (“CO II”) at NECC, Tyree Butler is a
Function Unit Manager at NECC, Lori Calvin is a Captain at
NECC, David Cutt is a Lieutenant at NECC, Kristen Cutt is a
caseworker and occasionally acts as a Functional Unit Manager
and committee chair at NECC, Alan Earls is the Deputy
Division Director of the Missouri Adult Institutions, Joyce
Edwards is the librarian at NECC, Chantay Godert is an
Assistant Warden at NECC, Richard Griggs is an assistant
Warden at NECC, James Hurley is the Warden at NECC, William
Jones is the Deputy Warden at NECC, George Lombardi is the
Director of the MDOC, Jeffrey Reid is a CO I at NECC, James
Rhodes is an investigator at NECC, and Lisa Ruby is a CO I at
NECC. Id. In addition, medical services provider
Corizon and/or Corizon, LLC (“Corizon”) was under
contract with the MDOC to provide medical services at NECC at
the times pertinent to this litigation. Id.
alleges that defendants were deliberately indifferent to his
serious medical needs. (Id. at ¶¶
154-200). Specifically, plaintiff details conduct related to
his need for a vein ablation procedure, his need for a
supportive boot following an ankle fracture, and his need to
visit sick call for prostate medication. Id.
Plaintiff alleges that defendants Avery, Calvin, Cutt,
Hurley, and Reid know that inmates at NECC need and are
entitled to medical care. (Id. at ¶¶ 177,
190). Plaintiff further alleges that defendant Davis
participated in the review of and response to some of the
grievances which plaintiff made concerning his treatment and
therefore knew or should have known of the alleged deliberate
indifference of Corizon staff at NECC. (Id. at
Vein Ablation Procedure
alleges he was diagnosed with symptomatic varicose veins in
his right leg on or about July 2010. (Id. at
¶¶ 29-50). His doctor wrote him a pain prescription
for Valium and numbing gel, recommended an ultrasound, and
noted that plaintiff would likely need an ablation procedure.
Id. His doctor faxed orders to this effect to NECC
on or about September 13, 2010. Id. Corizon
employees made no effort to supply plaintiff with the
prescribed medication or an alternative, because schedule II
narcotics could not be provided to plaintiff. Id. On
or about September 17, 2010, plaintiff requested medical
services because his calf had become swollen, hardened, red,
warm, and painful. At this time, an ultrasound was requested
for approval. Id.
September 20, 2010, plaintiff was seen at sick call in NECC
and diagnosed with phlebitis and inflammation of a vein.
Id. He was ordered to rest and ice the area and
given aspirin. An ultrasound had still not been performed.
Id. On or about September 29, 2010, plaintiff was
admitted to the Audrain Medical Center where an ultrasound
was performed, showing a clot in his vein above his right
ankle. The results of this ultrasound are in the
Plaintiff's chart from Corizon, suggesting that Corizon
employees knew or should have known of the blood clot.
Id. Plaintiff was prescribed pre-operative
medication for a vein ablation procedure to take place on or
about October 1, 2010. Id. Corizon employees made no
effort to provide these medications to plaintiff before the
procedure. Id. The procedure was more painful and
stressful than it would have been had plaintiff been given
the prescribed medication. Id. Due in part to these
factors, the procedure was only partially completed on
October 1, 2010, and a follow-up procedure was scheduled for
October 15, 2010. Id.
October 15, 2010, appointment, no employee at Corizon made
any effort to arrange for the pre-operative medication to be
supplied to plaintiff, and they knowingly sent him to the
appointment without the required medication being given.
Id. Defendants Avery and Reid were assigned to take
plaintiff to this appointment. Id. They were aware
of Plaintiff's blood clot and that the purpose of the
appointment was for surgery on the blood clot. Id.
Defendants Calvin and Cutt knew that defendants Avery and
Reid had this assignment. (Id. at ¶ 193). All
of these defendants knew when “count time”
occurred and that no inmate movement was allowed during this
time. (Id. at ¶ 194). The officers
unnecessarily delayed Plaintiff's transfer to his
appointment such that it had to be rescheduled to November 5,
2010. (Id. at 29-50). Captain Calvin and Lt. Cutt
contributed to this delay by intentionally distracting CO I
Avery and CO I Reid from preparing for and leaving on the
transportation assignment. Id. They called
defendants Avery and Reid into an office area before count
time and kept them there until after count time was cleared.
Id. Defendants Avery and Reid then left the plastic
cuffs required for the transfer at the institution. They had
to return to obtain them. As a result of these actions,
plaintiff missed his surgery and had to have it rescheduled.
waiting for his rescheduled surgery, on October 21, 2010,
plaintiff went to the infirmary with a self-reported
emergency because his left hand was tingling and his fingers
and face were becoming numb. Id. Plaintiff informed
an employee of Corizon of the blood clot and that he was
concerned it was moving. Id. The nurse assessed the
situation as “non-emergent, but urgent” and
scheduled plaintiff to be seen at the next available sick
call. Id. On October 22, 2010, plaintiff appeared at
sick call and reported that he had experienced numbness from
the top upper left side of his lip and his left upper arm
down to his fifth digit the night before. He complained of
dizziness and a headache. The nurse at sick call did not
consult a physician, order any tests, or take any action to
rule out complications or conditions related to his lower
extremity blood clot, but referred plaintiff to Chronic Care.
November 3, 2010, plaintiff reported to a nurse that he had
felt pressure to the brain, which worried him that he was
having stroke-like symptoms. Id. He had not seen a
physician even though he had reported the same symptoms on
October 21, 2010. Id. Corizon made no other efforts
to rule out a stroke, transient ischemic attack, or other
complications due to the known blood clot in his left leg.
November 5, 2010, plaintiff attended his follow-up
appointment, where the doctor recommended that plaintiff
receive an ultrasound on his leg as follow-up to the October
vein ablation procedure, as well as a carotid Doppler due to
the transient ischemic attack symptoms. Id. On
November 8, 2010, a Corizon employee reviewed the
doctor's recommendation and referred it for approval.
Id. It was approved on or about the same day and the
carotid Doppler occurred on November 18, 2010. Id.
The follow-up ultrasound was delayed until December 2, 2012,
due to an alleged error in obtaining a referral. Id.
Plaintiff alleges that on January 11, 2014, he injured his
right ankle. (Id. at ¶¶ 51-61). He was
sent via ambulance to Hannibal Regional Hospital's
Emergency Department and diagnosed with an avulsion fracture
of his right ankle. Id. He received discharge
instructions to follow up with an orthopedic specialist in
five days. When plaintiff returned to NECC the same day, a
Corizon nurse saw him and noted only some of the discharge
instructions, stating plaintiff was to follow up with a
Corizon doctor in ten days, not an orthopedic specialist in
five days. Id. The Corizon nurse failed to provide
the Emergency Department's report to Corizon doctors, and
although plaintiff was given tramadol and Ibuprofen for his
pain, plaintiff did not receive any further aid until January
21, 2014. Id. This delay increased his risk for
complications due to his pre-existing medical conditions.
January 21, 2014, a Corizon doctor refilled Plaintiff's
medication and ordered a referral to an orthopedic
specialist. Id. On January 29, 2014, eighteen days
after his Emergency Department visit, plaintiff saw an
orthopedic specialist via teleconference and was prescribed a
boot cast. Id. This cast was to be shipped overnight
to arrive at NECC for Plaintiff's immediate use.
Id. On February 4, 2014, plaintiff went to sick call
to inquire about his prescribed boot cast. Id. A
Corizon nurse stated she knew something about a boot cast,
left the room, and returned with the cast. Id. An
x-ray technician fitted the boot and gave it to plaintiff to
wear. Id. On March 5, 2014, the orthopedic
specialist ordered plaintiff to remain in the boot cast for
two weeks and then to wean out of the boot cast. Id.
On March 19, 2014, the boot cast was taken away from
plaintiff with no time to strengthen his leg and wean out of
the boot cast. Id.
times pertinent to this litigation, plaintiff alleges that
the contractual agreement between Corizon and the MDOC
provided inmates with fifteen minutes to move from their
housing unit to sick call in order to turn in a Medical
Services Request form. (Id. at ¶¶ 60-81,
176-188). NECC Warden James Hurley and CO I Lisa Ruby were
aware or should have been aware of the 15 minute contractual
provision but defendant Hurley reduced this time to only ten
minutes in NECC. Id. Defendants Hurley and Ruby knew
that some inmates would be denied medical care if they
arrived between ten and fifteen minutes, rather than in ten
minutes or less. Id.
about August 1, 2014, a Corizon doctor renewed
Plaintiff's medications and, without seeing plaintiff,
changed his prostate medication. Id. This was
because Plaintiff's medication was a
“formula” medication, and a changed NECC policy
prohibited formula medications from being prescribed for
inmates. Id. This change in Plaintiff's prostate
medication caused him to experience a swollen prostate, with
difficulty urinating, pain, and discomfort. Id. When
plaintiff attempted to visit sick call on August 29, 2014, to
complain of this issue, he was denied because it took him
between ten and fifteen minutes to arrive. Due to the
NECC's reduced timeframe and the difficulty of movement
in the prison environment, plaintiff was outside the
Warden's ten-minute policy. Id. CO I Lisa Ruby
enforced defendant Hurley's 10 minute time limit.
Id. Plaintiff, therefore, continued to suffer the
effects of the wrong prostate medication, resulting in
continued difficulty urinating, pain, and discomfort.
Id. CO I Ruby was aware that by enforcing the
ten-minute window, she was denying inmates access to health
care regardless of their medical condition. Id. MDOC
Director George Lombardi made no meaningful attempt to change
the NECC time-limit to reflect the contracted-for time of
fifteen minutes. Id.
about September 5, 2014, plaintiff reported to a Corizon
nurse that he needed to see a physician because of his
continued difficulty urinating. Id. However, the
nurse never discussed these complaints with a physician or
scheduled an appointment for plaintiff to see a physician.
Id. On or about September 20, 2014, plaintiff saw a
doctor for a cardiology appointment and was finally able to
change his prostate medication prescription. Id. He
was able to begin taking that medication on September 30,
2014, after which it took 7-10 days for the medication to
reduce the swelling in Plaintiff's prostate and relieve
his symptoms. Id. Throughout this time, in addition
to difficulty urinating, he had a painful bladder, lack of
sleep, emotional stress, and irritability. Id.
alleges that he filed multiple grievances against Corizon and
NECC personnel regarding his medical needs. (Id. at
¶¶ 60, 61, 78, 82-84). These were consistently
denied with little to no remedial action taken at NECC.
Id. Plaintiff alleges that he experienced
retaliation as a result of filing these grievances, in that
certain defendants transferred plaintiff to administrative
segregation, placed him in hazardous conditions, and denied
him access to the law library. (Id. at ¶¶
85-145). Plaintiff further alleges that defendants Hurley,
Davis, Griggs, Jones, Godert, Earls, and Lombardi had actual
knowledge of the retaliation against plaintiff, failed to
fully investigate Plaintiff's allegations, and authorized
the NECC and Corizon retaliatory actions. (Id. at
Transfer to Administrative Segregation
Plaintiff alleges that as a result of the grievances he filed
against a Corizon nurse, she was informed on or about March
19, 2014, not to delay or deny Plaintiff's access to
medical care. (Id. at ¶¶ 85-94). On or
about the same day, the nurse's husband, Lt. Larry Allen,
put plaintiff in administrative segregation for investigation
of gang activity. Id. Other correctional officers
objected to this classification, but defendant Allen insisted
on it. Id. During the transfer of plaintiff to
administrative segregation, defendant Allen treated him in an
intimidating manner and arranged for his wife to perform a
vital signs check before plaintiff was placed in
administrative segregation. Id.
to this time, plaintiff had been on honor status.
Id. Upon placement in administrative segregation his
honor status was revoked and all privileges were rescinded.
Id. Additionally, while in administrative
segregation plaintiff was unable to perform physical therapy
on his ankle. Id. The initial decision to keep
plaintiff incarcerated in administrative segregation on March
28, 2014, was approved by Assistant Warden Godert.
(Id. at ¶¶ 100-105). The decisions to keep
plaintiff in administrative segregation were approved by
defendants Deputy Warden Jones and Assistant Warden Scott
Griggs. Id. The decision to place plaintiff in
administrative segregation and the decisions to keep him
there were all also approved by defendant Warden Hurley.
Id. Plaintiff was not released from administrative
segregation until August 1, 2014. Id.
Plaintiff alleges that the cell doors in administrative
segregation are solid steel with a solid glass window.
(Id. at ¶¶ 112-130). Each steel door has
eleven steel pieces welded to the inside of the door at chest
level at a horizontal angle potentially allowing for severe
injury to inmates. Id. Warden Hurley, Deputy
Director Earls, and Director Lombardi permitted or required
these steel plates to be placed inside the cells, with no
penological purpose. Id.
housed in administrative segregation are double celled with
anyone not on their list of known enemies. Id. At
least three declared gang members refused to be housed with
plaintiff, and plaintiff refused to be housed with any known
gang member. Id. Plaintiff was housed in a single
cell and then with a non-gang member for a least a portion of
his time in administrative segregation. Id.
2014, defendants Baker and Cutt moved Plaintiff's
property while plaintiff was showering and then ordered
plaintiff shackled and cuffed on a steel bench until he
agreed to be double celled. Id. Plaintiff agreed to
a double cell if he would not be placed with a gang member.
Id. Plaintiff was placed with a member of a prison
gang known to assault sex offenders, which the plaintiff is.
The corrections officer knew plaintiff was a convicted sex
offender and that the other prisoner was a member of a prison
gang known for assaulting sex offenders. Id.
this incident, when plaintiff was released from
administrative segregation back into general population in
August 2014, NECC failed to obtain an enemy waiver from
plaintiff for each prisoner who declared him to be an enemy.
Id. Under NECC policies, if two inmates declare
themselves enemies in administrative segregation, each must
sign a waiver before being placed back into general
population. Id. If one refuses, one must be moved to
a different prison. Id.
Denial of Access to Law Library
alleges that while he was in administrative segregation from
March to August 2014, he was denied access to the prison law
library by the librarian, a corrections officer, Assistant
Warden Griggs, and Warden Hurley. (Id. at
¶¶ 131-145). Plaintiff was then in the process of
appealing his conviction in state court and preparing the
lawsuit at issue here. Id. Plaintiff submitted
multiple Special Unit Legal Request forms, which are required
for inmates in administrative segregation to access case law
and law clerk assistance. Id. Assistant Warden
Griggs initially supported Plaintiff's requests and
stated he could have access to legal materials while in
administrative segregation. Id. The librarian,
however, denied Plaintiff's forms and stated an
additional Qualified Legal Claim form was required.
Id. Defendant Griggs then responded to
Plaintiff's request by either saying a qualified legal
claim verification was not required or that plaintiff could
not access law materials as there was no court deadline to
prepare for. Id. Plaintiff filed a grievance
regarding the denials. Id.
23, 2014, defendants Butler, Kristin Cutt, and Griggs denied
Plaintiff's grievance and stated he needed an approved
Qualified Legal Claim verification for such access.
Id. Plaintiff appealed this decision to defendant
Earls, who stated that “plaintiff failed to provide any
evidence to substantiate that he was denied access to the
materials in the law library.” (Id. at ¶
138). Other similarly situated prisoners were given access to
the law library and offender law clerks. Id. Due to
this denial, plaintiff was prevented from preparing and
providing motions and research to his attorney who at that
time was Larry Fleming. Id.
release from administrative segregation, Plaintiff's
access to the law library continued to be restricted.
Id. Assistant Warden Griggs had plaintiff report to
mandatory work detail during the free time plaintiff could
have used in the law library. Id. Defendant Griggs
also sent Plaintiff's Qualified Legal Claim form back to
Plaintiff's case worker for verification of which days of
the week plaintiff would be using the law library.
Id. Assistant Warden Griggs has not delayed another
prisoner's request in this way. Id.
MOTION TO DISMISS
plaintiff filed his fifth amended complaint, defendants
Allen, Avery, Calvin, David Cutt, Earls, Godert, Griggs,
Hurley, Jones, Lombardi, Reid, and Ruby moves to dismiss
Counts III, IV, VII, VIII, IX, X, XI, XII, XIII, XIV, XVII,
XVIII, XX, XXI, and XXII of that complaint for failure to
state a claim. Plaintiff opposes the motion. (See
ECF Nos. 114, 118-121, 132, 134).
Federal Rule of Civil Procedure 12(b)(6), a party may move to
dismiss part or all of a case for its failure to state a
claim upon which relief can be granted. Fed. R. Civ. Pro.
12(b)(6). A complaint “must include enough facts to
state a claim to relief that is plausible on its face,
” providing more than just labels and conclusions.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). Such a complaint will “allow 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), and will state a claim
for relief that rises above mere speculation.
Twombly, 550 U.S. at 555.
reviewing the pleadings under this standard, the court
accepts all of the Plaintiff's factual allegations as
true and draws all inferences in the Plaintiff's favor,
but the court is not required to accept the legal conclusions
the plaintiff draws from the facts alleged. Retro
Television Network, Inc. v. Luken Commc'ns, LLC, 696
F.3d 766, 768-69 (8th Cir. 2012). A motion to dismiss will be
granted “when there is no dispute as to any material
facts and the moving party is entitled to judgment as a
matter of law.” Ashley Cnty, Ark. v. Pfizer,
Inc., 552 F.3d 659, 665 (8th Cir. 2009).
Count III Does Not State a Claim
Count III, plaintiff alleges defendants Hurley and Ruby were
deliberately indifferent to his serious medical need when
plaintiff was denied medical attention at sick call for
arriving outside of the NECC ten-minute window. (ECF No. 114,
¶¶ 176-188). Even construing all of the facts pled
in the complaint in Plaintiff's favor, the court
concludes that this Count fails to ...