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Endicott v. Hurley

United States District Court, E.D. Missouri, Northern Division

January 9, 2017

JAMES HURLEY, et al., Defendants.



         This 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 Ruby[1] 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.

         I. BACKGROUND

         The 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.

         A. Medical Claims

         Plaintiff 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 ¶¶ 82-84).

         i. Vein Ablation Procedure

         Plaintiff 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.

         On 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.

         For the 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. Id.

         While 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. Id.

         On 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. Id.

         On 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.

         ii. Fractured Ankle

          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. Id.

         On 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.

         iii. Prostate Medication

         At the 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.

         On or 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.

         On or 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.

         B. Retaliation Claims

         Plaintiff 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 ¶¶ 251-258).

         i. 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.

         Prior 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.

         ii. Hazardous Conditions

          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.

         Prisoners 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.

         In July 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.

         Following 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.

         iii. Denial of Access to Law Library

         Plaintiff 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.

         On July 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.

         Upon 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.


         After 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).

         A. Legal Standard

         Under 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.

         In 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).

         B. Count III Does Not State a Claim

         In 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 ...

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