United States District Court, E.D. Missouri, Northern Division
MEMORANDUM REGARDING SUMMARY JUDGMENT
D. NOCE, UNITED STATES MAGISTRATE JUDGE
action is before the court on the second motion of defendants
Karma Niemeyer, Melanie Powell, Michael Weis, and Theresa
Salmons for summary judgment. (Doc. 66). 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). (Doc. 19). The court heard oral
arguments on this matter on September 22, 2017. For the
following reasons, the motion is granted.
first amended complaint, plaintiff Joseph Murchison alleges
he was incarcerated by the Missouri Department of Corrections
at the Northeast Correctional Center ("NECC") at
all times relevant to this lawsuit. (Doc. 50 at 1.) On
November 14, 2013, he alleges he was attacked by another
prisoner, which left him with an injured fifth digit on his
left hand ("little finger"). He alleges this
"finger was bent or unable to flex, and [was] left at a
roughly 20 [degree] angle to the rest of his fingers. The
bend in Plaintiff's finger is at the very end or 1st
joint in the digit, " with resulting swelling and pain.
(Id. at ¶ ¶ 11, 12). Plaintiff alleges
that the defendant NECC medical personnel were deliberately
indifferent to his serious medical needs, in violation of the
Eighth Amendment to the United States Constitution.
October 31, 2014, plaintiff commenced this action under 42
U.S.C. § 1983 against defendants Corizon Medical
Services NECC Medical Director, Jane Doe Nurse, Jane Doe
Nurse #1, Jane Doe Nurse #2, Jane Doe Nurse #3, James Hurley,
George Lombardi, Missouri Department of Corrections Regional
Health Services Director, and Corizon Medical Services
Regional Medical Director, all in their individual and
official capacities. (Doc. 1.) On January 5, 2015, District
Court Judge Jean C. Hamilton dismissed the claims against
defendants Corizon Medical Service NECC Medical Director,
James Hurley, George Lombardi, Missouri Department of
Corrections Regional Health Services Director, and Corizon
Medical Services Regional Medical Director, in their
individual and official capacities. (Docs. 6, 7.) On the same
day, Judge Hamilton also dismissed the claims against Jane
Doe Nurses #1-3 and John Doe Nurse in their official
capacities. (Id.) On March 13, 2015, plaintiff
provided the names of the Jane and John Doe Nurses as Karma
Niemeyer, Melanie Powell, Michael Weis, and Theresa Salmons.
(Doc. 13.) This court corrected the identities of the
remaining defendants accordingly. (Id.)
filed his first amended complaint on September 7, 2016. (Doc.
50). Remaining for disposition are the following claims:
(1) Count I, alleging a failure to use adequate procedures
with deliberate indifference against defendants Niemeyer,
Powell, Weis, and Salmons (Doc. 50 at ¶¶ 36-49) and
(2) Count II, alleging intentional infliction of emotional
distress against defendants Niemeyer, Powell, Weis, and
Salmons. (Id. at ¶¶ 50-63).
Counts are against the respective defendants in their
individual capacities only. (Doc. 7). Plaintiff seeks nominal
damages, compensatory damages, punitive damages, attorney
fees, and costs. (Doc. 50 at 13-14).
filed their first motion for summary judgment in January
2016, but it was denied without prejudice upon the agreement
of the parties because of a variety of delays in the
discovery process. Defendants renewed their motion for
summary judgment on June 20, 2017. (Doc. 66).
SUMMARY JUDGMENT PRINCIPLES
judgment is proper “if there is no dispute of material
fact and reasonable fact finders could not find in favor of
the nonmoving party.” Shrable v. Eaton Corp.,
695 F.3d 768, 770 (8th Cir. 2012); see also Fed. R.
Civ. P. 56(a). The party moving for summary judgment must
demonstrate the absence of a genuine issue of material fact
and that it is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
A fact is “material” if it could affect the
ultimate disposition of the case, and a factual dispute is
“genuine” if there is substantial evidence to
support a reasonable jury verdict in favor of the nonmoving
party. Rademacher v. HBE Corp., 645 F.3d 1005, 1010
(8th Cir. 2011). The court must view the evidence in the
light most favorable to the nonmoving party and accord it the
benefit of all reasonable inferences. Scott v.
Harris, 550 U.S. 372, 379-80 (2007). The burden shifts
to the non-moving party to demonstrate that disputes of fact
do exist only after the movant has made its showing.
for summary judgment are typically ruled on showings of
evidence by affidavit. However, affidavits “shall be
made on personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters
stated therein.” Fed.R.Civ.P. 56(e). “When an
affidavit contains an out-of-court statement offered to prove
the truth of the statement that is inadmissible hearsay, the
statement may not be used to support or defeat a motion for
summary judgment.” Brooks v. Tri-Sys., Inc.,
425 F.3d 1109, 1111 (8th Cir. 2005).
record establishes that, unless otherwise stated, the
following facts are without genuine dispute. Plaintiff was a
prisoner incarcerated by the Missouri Department of
Corrections ("MDOC") at the Northeast Correctional
Center from November 14, 2013, to May 12, 2014. (Doc. 68 at
¶ 1). During this time, Corizon, LLC, was under contract
with the State of Missouri to provide medical care to MDOC
prisoners, and employed at NECC defendants Karma Niemeyer and
Melanie Powell as Licensed Practical Nurses, defendant
Michael Weis as a part-time, as-needed Nurse, and Theresa
Salmons as a Licensed Practical Nurse on temporary assignment
to NECC. (Doc. 68 at ¶¶ 2-6).
November 14, 2013, plaintiff was involved in a physical
altercation with another prisoner. (Docs. 68, 72, and 78 at
¶ 7). NECC officers intervened and sprayed pepper gas on
plaintiff in order to stop the altercation. (Doc. 68 at
¶ 8). After this use of force, the officers ordered
plaintiff to be placed in administrative segregation
(“ad-seg”). (Docs. 68, 72, and 78 at ¶ 9).
Before being placed in ad-seg, and pursuant to NECC Standard
Operating Procedure 11-39, defendant Niemeyer examined
plaintiff for the presence of any acute illnesses or injuries
that would preclude ad-seg confinement. (Docs. 68 and 72 at
¶¶ 10-15). During defendant Niemeyer's
evaluation, plaintiff complained of an injury to and bleeding
from the inside of his lower lip, a sore left elbow, and a
sore left little finger. (Docs. 68 and 72 at ¶ 16).
Plaintiff reported that he had a history of ...