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Edwards v. McSwain

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

June 20, 2019

ELLIS MCSWAIN, et al., Defendants.



         This matter is before the Court on the parties' cross motions for summary judgment. ECF Nos. 139 & 145. For the reasons set forth below, the Court will grant Defendant's motion and deny Plaintiff's motion.


         Plaintiff Lawrence Edwards, a Missouri Department of Corrections (“MODOC”) inmate and participant in MODOC's Missouri Sex Offender Program (“MOSOP”), filed this complaint, pro se, on July 28, 2017. In the claims that remain, Plaintiff alleges that Defendant Les Semar, a functional unit manager at Farmington Correctional Center (“FCC”), where Plaintiff was at one point housed, intentionally delayed Plaintiff's progress in MOSOP in retaliation for Plaintiff having filed grievances against two of Semar's coworkers. Specifically, Plaintiff alleges that Semar delayed Plaintiff's entry into Phase II of MOSOP beyond the time permitted under MODOC policy-until January 29, 2018-resulting in the loss of Plaintiff's good time eligibility release date of February 23, 2017. Plaintiff seeks damages and injunctive relief, including advancement in MOSOP and good-time credits to make him eligible for earlier release.

         For the purpose of the motions before the Court, the record establishes the following.[1] Semar was a functional unit manager at FCC from 2005 until October 1, 2015. Sometime before August 6, 2015, Plaintiff sought a transfer from FCC for his own safety, due to his cooperation with police in the investigation of another FCC inmate. Plaintiff attempted to withdraw his transfer request on August 6, 2015, allegedly due to pressure or coercion by Semar. According to Plaintiff, Semar told Plaintiff that “if [he] attempted to transfer [Semar] would contact his best friend MOSOP Director Gould and make sure Plaintiff served his maximum sentence of 2024.” ECF No. 139 at 28. Plaintiff alleges that his attorney assisted him in re-seeking a transfer and that Semar ultimately approved Plaintiff's transfer request on September 9, 2015.

         Plaintiff filed several grievances while incarcerated at FCC and elsewhere, including grievances against officers Wendy Dashner and James Ford, whom Plaintiff alleges are friends of Semar. Plaintiff claims that Semar “threatened Plaintiff by telling him it would be in his best interest to dismiss the [grievances] he had against [Semar's] two co-workers, and would give Plaintiff until that afternoon to rethink his decision.” Id. Semar retired from MODOC on October 1, 2015. On October 13, 2015, Plaintiff was transferred to Moberly Correctional Center (“MCC”). MCC did not offer MOSOP, and on October 13, 2015, MCC staff immediately submitted Plaintiff for transfer to Eastern Reception, Diagnostic and Correctional Center (“ERDCC”). Plaintiff's transfer to ERDCC occurred on December 8, 2015. Plaintiff began MOSOP Phase I at ERDCC on February 11, 2016.

         Plaintiff alleges that after his completion of MOSOP Phase I in March 2016, he was not immediately enrolled in MOSOP Phase II. Instead, Plaintiff's enrollment in Phase II was delayed by nearly two years, until January 29, 2018. Plaintiff began MOSOP Phase II on January 29, 2018 and completed Phase II on January 28, 2019. Plaintiff alleges that, because of his delayed entry into MOSOP Phase II, he lost his GTE release date of February 23, 2017.

         Plaintiff alleges that the delay in his enrollment in MOSOP Phase II was in retaliation for his grievances. Specifically, Plaintiff alleges that he “realizes that FUM Semar's threat to have MOSOP Director Gould to make plaintiff serve his maximum sentence of 2024 is actually being carried out since his 2-23-2017 GTE been took [sic].” Am. Compl. ¶ 27.

         MOSOP is administered by Corizon Health, the healthcare contractor for MODOC. Semar never worked for Corizon or for MOSOP. Semar has submitted evidence, including his sworn declaration and that of MOSOP Director, Gould, that Semar had no control over MOSOP scheduling; Semar never contacted anyone at MOSOP regarding Plaintiff or Plaintiff's participation in MOSOP; and Semar did not threaten Plaintiff. See, e.g., ECF Nos. 146-23 & 146-25. In response to this evidence, Plaintiff offers his own declaration reiterating the facts stated above.[2]


         Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted “if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” “[T]he burden of demonstrating that there are no genuine issues of material fact rests on the moving party, ” and the court must view “the evidence and the inferences that may be reasonably drawn [therefrom] in the light most favorable to the non moving party.” Allard v. Baldwin, 779 F.3d 768, 771 (8th Cir. 2015).

         “A disputed fact is not material unless it may affect the outcome of the suit under governing law.” Hill v. St. Louis Univ., 123 F.3d 1114, 1118-19 (8th Cir. 1997) (citation omitted). Once the movant has met his burden, the nonmoving party may not rest on the allegations in his pleadings but must, by affidavit and other evidence, set forth specific facts showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(c)(1), (e). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A plaintiff's status as a pro se prisoner does not excuse him from responding to a defendant's motion “with specific factual support for his claims to avoid summary judgment.” Beck v. Skon, 253 F.3d 330, 333 (8th Cir. 2001).

         First Amendment Retaliation § 1983

         The plaintiff in a § 1983 action must show that a defendant deprived him of a constitutional right while acting under color of state law. “Liability under § 1983 requires a causal link to, and direct responsibility for, the deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990). “A defendant will not be held liable under § 1983 unless he was personally involved ...

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