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Harris v. Kempker

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

June 15, 2018

IRA HARRIS, Plaintiff,
GARY KEMPKER, et al., Defendant.



         This matter is before the Court on defendants' motion to dismiss plaintiff's third amended complaint (#131). Defendants have not filed a reply memorandum in support of their motion, and the time for doing so has passed.

         I. Background

         Plaintiff Ira Harris is incarcerated in the Missouri Department of Corrections (“MDOC”). Plaintiff, through his court-appointed attorneys, filed a third amended complaint (#126) on January 24, 2018. The complaint names as defendants several corrections-related individuals including former MDOC director George Lombardi, current MDOC director Anne Precythe, Eastern Reception Diagnostic Center (“ERDC”) warden Troy Steele, Southeast Correctional Center (“SECC”) warden Ian Wallace, and an unknown correctional officer (“Unknown Null”) at Potosi Correctional Center (“PCC”). The complaint also names several health-related individuals and entities including the MDOC healthcare contractor Corizon, LLC (“Corizon”), SECC health services administrator Brandi Juden, SECC Institutional Chief of Mental Health Cynthia Reese, medical director at SECC John Eppolito, M.D., SECC nurse practitioner Nina Hill, and PCC medical director William McKinney, M.D..

         The following allegations are considered true for the purposes of the instant motion to dismiss.

         A. Mental Health Allegations

         While committed to the custody of MDMH at Fulton State Hospital in 2002, plaintiff was diagnosed with schizophrenia. After plaintiff's physician tried multiple treatment options, plaintiff's physician determined that the best treatment for plaintiff was the drug Geodon. Plaintiff “suffered no ill side effects and his schizophrenia was properly managed” while on Geodon. (#126 at ¶ 21.) In 2003, plaintiff was transferred to MDOC, where he remained on Geodon intermittently until approximately 2012.

         In 2012, plaintiff was taken off Geodon. No. reason was provided to him initially, and, when he inquired, a non-party doctor and defendant Reese told him that “Jefferson City” had determined the drug was too expensive and MDOC and Corizon wanted to try different treatments. No. medical reason was provided to plaintiff. Plaintiff tried some new medications, but sometimes he was provided with no medication at all because it was out of stock. Sometimes he went for days with no mental health medication.

         While plaintiff was taking these different medications, plaintiff continued to see psychiatrists, but his appointments were limited to 15 minutes per MDOC and Corizon policies which were instituted and enforced by defendants Lombardi, Steele, Wallace, Reese, and Precythe. Plaintiff suffered side effects from the different drugs including upset stomach, lethargy, and headaches. In addition, plaintiff alleges the new drugs were less effective at managing his schizophrenia symptoms. Plaintiff eventually refused to take the new drugs due to their side effects and ineffectiveness. He was then not provided with Geodon nor any other schizophrenia medication for approximately one year while he was placed in administrative segregation at PCC and SECC (it is unclear whether plaintiff was placed in administrative segregation due to his refusal to take the non-Geodon medications or for some other reason).

         During that time, plaintiff wrote letters to MDOC and Corizon officials including defendants Reese and Wallace. He also filed numerous grievances and medical service requests indicating that he required mental health medication.

         After plaintiff's arrival at SECC, non-party Dr. Gowin submitted a request that plaintiff be placed on Geodon. Defendant Reese denied the request because it was too expensive. Around that same time, plaintiff suffered a “self-mutilation incident in which he bit his arm” and attempted to commit suicide. (#126 at ¶ 41.) Plaintiff was not taking any medication at that time. Following that incident, plaintiff was prescribed Loxapine. For three and a half years, and for nine months after Dr. Gowin's evaluation and request, plaintiff was not provided with Geodon for his schizophrenia. Plaintiff was eventually prescribed Geodon in late 2015 and remains on Geodon today.

         B. Fistula Allegations

         Plaintiff underwent a colonoscopy around November 10, 2014. Following the procedure, he developed a large, hard lump near his anus. Plaintiff was seen by defendants McKinney, Eppolito, and Hill. During one of those visits, plaintiff alleges he was threatened with a gun by defendant Unknown Null; plaintiff further alleges that defendant Null pulled out his gun and shoved it into plaintiff's side.

         Defendants McKinney, Eppolito, and Hill allegedly determined that the lump was either ran abscess or a hemorrhoid and prescribed antibacterial and hemorrhoid ointment. The lump did not improve for nearly a year, but those defendants continued the same course of treatment. Plaintiff ...

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