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Johnson v. Lombardi

United States District Court, W.D. Missouri, Central Division

November 1, 2017

GEORGE LOMBARDI, et al., Defendants.



         Pending before the Court is Plaintiff Larry Johnson's Motion for Summary Judgment, [Doc. 1');">174], Defendants' Earnest Jackson and Carey Markley's (“Corizon Defendants”) Motion for Summary Judgment, [Doc. 1');">177], and Defendants Mike Alexander, Danielle Avant, Louisa Bolinger, Bill Bresnahan, Sandra Jimmerson, Scott Lawrence, George Lombardi, Tim Leach, Glen Markley, Justin Murray, Cyndi Prudden, Amy Roderick, David Rothenay, Bill Schmutz, Tom Schultz, Merlin Thomas, Teri Twyman, Scott Weber, Victoria Wells, Eric Whittle, and Justin Wyatt's (“State Defendants”) Motion for Summary Judgment, [Doc. 1');">180]. For the following reasons, Defendants' motions are granted, and Plaintiff's motion is denied.

         I. Factual Background [1');">1" name= "FN1');">1" id="FN1');">1">1');">1]

         Plaintiff Larry E. Johnson is an inmate of the Missouri Department of Corrections, and at all relevant times was housed at Algoa Correctional Center in Jefferson City, Missouri. Plaintiff brings the majority of this suit under 42 U.S.C. §§ 1');">1983 and 1');">1988, alleging several federal constitutional violations by correctional officers and staff. Plaintiff also brings one count under state law, alleging a violation of the Missouri Sunshine Law.

         A. Attorney-Client Communications

         Counts I, II, and VII stem from Plaintiff's interactions with several defendants while trying to communicate with his attorneys. While Plaintiff was housed at Algoa Correctional Center, the Defendants consistently denied him any opportunity to speak privately with his attorneys, either on the phone or in person. Plaintiff points to several specific instances to support his claims.

         Plaintiff and his attorney, Michael Horn, held attorney-client phone calls on 1');">11');">1/1');">19/201');">15, 1');">12/7/201');">15, 1');">12/1');">17/201');">15, 1');">12/30/201');">15, 1');">1/7/201');">16, 1');">1/29/201');">16, 2/5/201');">16, 2/1');">11');">1/201');">16, 2/24/201');">16, and 3/1');">16/201');">16. On each date, Defendants refused to leave the room or otherwise give Plaintiff an opportunity to speak privately with his attorney. Horn also personally visited Plaintiff on 1');">11');">1/6/201');">15, 1');">1/1');">15/201');">16, and 3/8/201');">16, and during each visit, Corrections officers remained in close proximity to the pair and required the doors to remain open. Without referencing any specific dates or occurrences, Plaintiff states that the same practice was followed during his phone calls with two other attorneys, Stuart Huffman and Joseph Allen. On several occasions, Plaintiff's attorneys requested that Defendants leave the room so Plaintiff could speak privately, but the Defendants refused, often citing security concerns.

         At no point during any phone call or visit did Horn represent Plaintiff in a criminal matter. However, Plaintiff often sought second opinions from Horn with regard to work being done by other attorneys. The record does not show what that work pertained to.

         Additionally, on one recent occasion, Plaintiff went to the mail room to retrieve his mail. When the Defendants handed it to him, he saw that an envelope containing his legal mail was already open. Because officers are not allowed to open legal mail without the inmate present, Plaintiff confronted the two Defendants. The Defendants responded by stating, “we just watched you open it.” According to Plaintiff, he could tell the documents that were enclosed had been read, but he did not take any further action except to speak with his attorney about it

         B. Dental Care

         Count IV arises out of two separate medical issues. In October 201');">15, Plaintiff fell in the shower and cut open his lip. After waiting several days, Plaintiff received stitches for his injury. Several days later, Defendants Jackson and Markley went to Plaintiff's cell, and requested that Plaintiff sign a medical waiver. When he refused, Defendant Markley shut the “chuckhole” door, which struck Plaintiff and reinjured his lip.

         Then, Plaintiff began having tooth pain as early as December 201');">15. He filed Medical Service Requests, which complained about the pain and requested extraction, on 1');">12/26/201');">15, 1');">1/3/201');">16, 1');">1/1');">13/201');">16, 1');">1/1');">14/201');">16, and 1');">1/1');">16/201');">16. After reviewing the MSRs, nurses scheduled Plaintiff for a dentist appointment. Still in pain while he awaited treatment, Plaintiff self-declared dental emergencies on 1');">1/29/201');">16, 2/4/201');">16, 2/1');">16/201');">16, and 2/21');">1/201');">16. Plaintiff was initially scheduled for an appointment on 2/8/201');">16 with Defendant Jackson, but it was moved to 2/9/201');">16 because Plaintiff was not released from work/school in time. On 2/9/201');">16, Defendant Jackson assessed that Plaintiff needed a tooth extraction due to decay, and triaged him for the procedure. Before the procedure occurred, however, Jackson stated Plaintiff was a “troublemaker” and rescheduled the appointment. On 2/1');">16/201');">16, Defendant Jackson saw Plaintiff again and finally scheduled him for a tooth extraction to occur on 2/29/201');">16. On 2/29/201');">16, Defendant Jackson performed the tooth extraction. At each appointment with Defendant Jackson and on each MSR, Plaintiff asked for his tooth to be pulled.

         II. Discussion

         Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242');">477 U.S. 242 (1');">1986). The Court “look[s] to the substantive law to determine whether an element is essential to a case, and ‘only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.'” Wells Fargo Fin. Leasing, Inc. v. LMF Fette, Inc., 52');">382 F.3d 852, 855 (8th Cir. 2004) (quoting Anderson, 477 U.S. at 248).

         A movant is entitled to Summary Judgment when the nonmoving party has failed “to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 31');">17');">477 U.S. 31');">17, 322 (1');">1986). No genuine issue of fact exists in such a case because “a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 323; see also, Sallis v. University of Minnesota, 408 F.3d 470, 474 (8th Cir. 2005).

         Plaintiff's claim arises under § 1');">1983, which affords a remedy for damages when a person acting under color of state law deprives another person of any federal constitutional right. City of Oklahoma City v. Tuttle, 471');">1 U.S. 808');">471');">1 U.S. 808, 81');">16 (1');">1985); Zutz v. Nelson, 1');">1 F.3d 842');">601');">1 F.3d 842, 848 (8th Cir. 201');">10). “For there to be section 1');">1983 liability, ‘there must first be a violation of the plaintiff's constitutional rights.'” Avalos v. City of Greenwood, 382 F.3d 792, 802 (8th Cir. 2004) (quoting Shrum ex rel. Kelly v. Kluck, 49 F.3d 773');">249 F.3d 773, 777 (8th Cir. 2001');">1)). “[T]he statute creates no substantive rights; it merely provides remedies for deprivations of rights established elsewhere.” Id. (citing Baker v. McCollan, 443 U.S. 1');">137');">443 U.S. 1');">137, 1');">140, 1');">144, n. 3 (1');">1979)). Plaintiff alleges the Defendants violated his Sixth and Eighth Amendment rights by denying him a private method of communication with his attorney, denying him counsel at a prison disciplinary hearing, retaliating against him and delaying his access to dental care, employing a constitutionally inadequate grievance system, opening his legal mail without him present, and retaliating against him for filing grievances and the instant lawsuit.[2]

         A. Counts I and II

         Count I alleges both Sixth and Eighth Amendment violations for refusing to give Plaintiff privacy during his phone calls with attorneys. Defendants Lombardi, Lawrence, Roderick, Schmutz, Jimmerson, Bolinger, Weber, Thomas, Twyman, Avant, Bresnahan, Schultz, Leach, and Wells are named in Count I. Count II also alleges both Sixth and Eighth Amendment violations, but for refusing to give Plaintiff and his attorneys a space to speak privately during in-person visits. Count II is brought against Defendants Lombardi, Lawrence, Roderick, Bolinger, Rothenay, Alexander, and Jimmerson. Although the complaint brings Counts I & II under only the Sixth and Eighth Amendment, Plaintiff's briefing raises Fifth and Fourteenth Amendment Due Process issues as well.

         1');">1. Sixth Amendment

         Plaintiff alleges that the Defendants violated his Sixth Amendment right to counsel when they listened to his phone calls and in person meetings with his attorneys. However, “[a] violation of the attorney-client privilege implicates the Sixth Amendment right to counsel only under certain circumstances-specifically, when the government interferes with the relationship between a criminal defendant and his attorney.” Partington v. Gedan,1');">1 F.2d 852');">961');">1 F.2d 852, 863 (9th Cir. 1');">1992) (citing Greater Newburyport Clamshell Alliance v. Public Serv. Co. of New Hampshire, 838 F.2d 1');">13, 1');">19 (1');">1st Cir. 1');">1988) (“The sixth amendment provides a shield for the attorney-client privilege only in criminal proceedings; upon the termination of those proceedings and initiation of a civil action putting the privilege at issue, that constitutional ...

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