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Elston v. Pollard

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

November 15, 2019

JAMES ELSTON, Plaintiff,
JOHNNIE POLLARD, et al., Defendants.



         This matter is before the court on Defendants Johnnie Pollard and Joshua Zuccarini's Motion for Summary Judgment (ECF No. 51). This matter is fully briefed and ready for disposition.


         Plaintiff James Elston ("Elston") is an offender in the Missouri Department of Corrections ("MDOC") and is incarcerated currently and at all relevant times at the Moberly Correctional Center ("MCC"). (Defendants' Statement of Uncontroverted Material Facts in Support of Summary Judgment ("DSUMF"), ECF No. 53, ¶¶1, 2). Defendant Johnnie Pollard ("Pollard") is employed by MDOC as a correctional officer II ("CO II") and assigned to MCC. (DSUMF, ¶3). Defendant Joshua Zuccarini ("Zuccarini") is employed by MDOC and is assigned to MCC. (DSUMF, ¶4).

         Because of damage to his esophagus, Elston has a medical lay-in, permitting him thirty minutes to eat. (DSUMF, ¶5). On October 16, 2017, Elston was eating in the dining hall. (DSUMF, ¶6). Pollard was on duty in the dining hall. (DSUMF, ¶7). The Captain instructed Pollard to check the identification of the remaining offenders in the dining hall. (DSUMF, ¶8). Elston instead produced his medical lay-in. (DSUMF, ¶9). Pollard gave four directives for Elston to produce his identification before Elston produced his identification. (DSUMF, ¶10). Another officer told Elston to leave the dining hall. (DSUMF, ¶11). Elston was asked to leave because he did not comply repeatedly with Pollard's order to produce his identification. (DSUMF, ¶12). Elston did not suffer any medical injuries because of the incident on October 16, 2017. (DSUMF, ¶13). Elston violated Rule 20.1 of the Offender Handbook ("Failing to comply with a written or verbal of instruction of any employee."). Under MDOC policy IS 19-1.1, Pollard could have issued a conduct violation to Elston for violation of Rule 20.1, but Elston was permitted to return to his housing unit. (DSUMF, ¶15).

         On October 17, 2017, Elston filed an Informal Resolution Request ("IRR"), complaining that he tried to show Pollard his medical lay-in on the prior day, but that Pollard would not look at it and that another officer made him leave, despite Elston's medical lay-in that provided him extra time for eating. (DSUMF, ¶17). On or around November 14, 2017, Elston's IRR was denied because the investigator found Elston had not been harassed by staff. (DSUMF, ¶19).

         On or around November 27, 2017, Elston filed a grievance about the October 16, 2017 incident. (DSUMF, ¶20). Elston argued that there had not been an investigation and that video footage would have proven him correct. (DSUMF, ¶21). Elston's grievance was denied. (DSUMF, ¶22).

         On or around January 12, 2018, Elston filed a grievance appeal, which was denied on or around February 22, 2018. (DSUMF, ¶¶23-24). In this action, Elston brings claims under the 42 U.S.C. §1983 for violation of the Eighth and Fourteenth Amendments, Title II of the Americans with Disabilities Act ("ADA"), and the Rehabilitation Act ("RA"). (ECF No. I).[1] Elston's allegations against Defendants in his complaint are:

On 10/16/2017, 1/28/2018, 2/13/2018 CO II Pollard, CO I Zukerina (sic) and Unknown Captain, custody personaell (sic) who run the operation in the dining facility denied Plaintiff the right to eat even after he showed this is layin for reasonable accommodation and made him throw away his food. Plaintiff informed the CO's that he had grieved the issue to Dean Minor the Warden at MCC who stated his layin would be honored in MCC-07-1033, now grieved to appeal deputy director in Jefferson City. The CO's did not care what the warden had said and refused to honor the layin.

(ECF No. 1, p. 8). Elston, however, had not filed a grievance about the alleged incidence on January 28, 2018 and February 13, 2018. (DSUMF, ¶26). Elston did not allege Zuccarini was present during the dining hall confrontation on October 16, 2017. (DSUMF, ¶29).



         A. Standard of Review

         The Court may grant a motion for summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Citrate,477 U.S. 317, 322 (1986); Torgerson v. City of Rochester,643 F.3d 1031, 1042 (8th Cir. 2011). The substantive law determines which facts are critical and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Only disputes over facts that might affect the outcome will properly ...

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