# Sutton v. Corizon Health Inc.

> District Court, E.D. Missouri · October 29, 2020

URL: https://www.frixlaw.com/law-library/cases/10233930

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** October 29, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10233930

## How later opinions describe it (automated extraction)

- stating that a “State is not a person under § 1983”
- explaining that to claim a due process violation, plaintiff has to be deprived of either life, liberty, or property, otherwise “it does not matter whether one has received due process or not”
- stating that federal courts are not required to “assume facts that are not alleged, just because an additional factual allegation would have formed a stronger complaint”
- stating that Eighth Circuit has “consistently held that administrative and disciplinary segregation are not atypical and significant hardships under Sandin”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

RONALD LAMONT SUTTON, )
)
Plaintiff, )
)
v. ) No. 1:20-cv-00160-HEA
)
CORIZON HEALTH, INC., et al., )
)
Defendants. )

OPINION, MEMORANDUM AND ORDER
This matter comes before the Court on the motion of plaintiff Ronald Lamont Sutton for
leave to commence this civil action without prepayment of the required filing fee. (Docket No. 2).
Having reviewed the motion, as well as plaintiff’s previous filings in the United States District
Court for the Eastern District of Missouri, the Court has determined that plaintiff, while
incarcerated, has brought three or more civil actions that were dismissed as frivolous, malicious,
or for failure to state a claim. Accordingly, for the reasons discussed below, the Court will dismiss
plaintiff’s complaint without prejudice to the refiling of a fully-paid complaint. See 28 U.S.C. §
1915(g). Moreover, even if plaintiff were granted in forma pauperis status, his complaint would
still be subject to dismissal, as he has failed to state a claim upon which relief can be granted.
Legal Standard on Initial Review
Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To
state a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate a plausible claim for relief,
which is more than a “mere possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.
Determining whether a complaint states a plausible claim for relief is a context-specific task that
requires the reviewing court to draw upon judicial experience and common sense. Id. at 679. The
court must “accept as true the facts alleged, but not legal conclusions or threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements.” Barton v. Taber, 820

F.3d 958, 964 (8th Cir. 2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73
(8th Cir. 2016) (stating that court must accept factual allegations in complaint as true, but is not
required to “accept as true any legal conclusion couched as a factual allegation”).
When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the benefit
of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A “liberal construction”
means that if the essence of an allegation is discernible, the district court should construe the
plaintiff’s complaint in a way that permits his or her claim to be considered within the proper legal
framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, even pro se complaints
are required to allege facts which, if true, state a claim for relief as a matter of law. Martin v.
Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980). See also Stone v. Harry, 364 F.3d 912, 914-15 (8th

Cir. 2004) (stating that federal courts are not required to “assume facts that are not alleged, just
because an additional factual allegation would have formed a stronger complaint”). In addition,
affording a pro se complaint the benefit of a liberal construction does not mean that procedural
rules in ordinary civil litigation must be interpreted so as to excuse mistakes by those who proceed
without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).
The Complaint
Plaintiff is a self-represented litigant who is currently incarcerated at the Northeast
Correctional Center (NECC) in Bowling Green, Missouri. He brings this action pursuant to 42
U.S.C. § 1983. He has named Corizon Health, Inc., Director of Nursing Dawn Wade, CCMII R.
Woods, Kim Weatherford-Williams, Missouri Department of Corrections Director Anne L.
Precythe, and Dr. Joule N. Stevenson as defendants. Nurse Wade, CCMII Woods, Weatherford-
Williams, and Director Precythe are sued in their individual capacities only. (Docket No. 1 at 2-
4). Plaintiff does not indicate the capacity in which Dr. Stevenson is sued.

Plaintiff’s complaint is handwritten on a Court-provided form. Including additional sheets,
the complaint is thirty-one pages long. Plaintiff has also attached eighteen pages of exhibits,
including an informal resolution request, an IRR response, a grievance response, a grievance
appeal response, a single page from a medical record, a conduct violation report, corrective action
reports, and a letter to Weatherford-Williams. The Court has reviewed these exhibits and will treat
them as part of the pleadings. See Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an
exhibit to a pleading is part of the pleading for all purposes”).
The “Statement of Claim” is repetitive, often conclusory, and at times difficult to read. The
substance of the complaint, however, is that when plaintiff transferred to NECC from a different

institution, his medical lay-in was changed.
With regard to Dr. Stevenson, plaintiff accuses Stevenson of discrimination and harassment
and of denying his serious medical needs from January 21, 2020 to “June 31, [sic] 2020.” (Docket
No. 1 at 5). In particular, plaintiff states that Dr. Stevenson caused him severe suffering and pain
when he denied plaintiff’s lay-in when plaintiff arrived at NECC. (Docket No. 1 at 5-6). Before
coming to NECC, plaintiff asserts that Dr. Moody at the Eastern Reception, Diagnostic and
Correctional Center (ERDCC) gave him a lay-in that started on December 3, 2019 and ended on
December 3, 2020. (Docket No. 1 at 6). Plaintiff concludes that Dr. Stevenson acted with “evil
intent” and is liable for inflicting cruel and unusual punishment upon him. (Docket No. 1 at 7).
As to Nurse Wade, plaintiff repeats the allegation that between January 21, 2020 and “June
31, [sic] 2020,” he was denied a medical lay-in for “serious medical needs.” (Docket No. 1 at 8).
Specifically, plaintiff states that Nurse Wade signed a grievance response that determined that
plaintiff’s current treatment plan was appropriate to meet his healthcare needs, a determination
with which plaintiff disagrees. (Docket No. 1 at 8; Docket No. 1-1 at 1). He also contends that

Nurse Wade knew about the lay-in he had at ERDCC from Dr. Moody. Plaintiff states that Nurse
Wade acted with “evil intent,” “denied [his] serious medical needs,” and also failed to intervene
to help him. (Docket No. 1 at 9).
With regard to Corizon itself, plaintiff asserts that Corizon has denied his medical needs
from approximately November 21, 2020 to “June 31, [sic] 2020.” (Docket No. 1 at 11). Later in
the complaint, plaintiff changes the dates to reflect that Corizon’s “failure to intervene” and failure
to “correct things” occurred between November 22, 2016 and July 8, 2020. (Docket No. 1 at 17).
Plaintiff further states that Corizon is causing him pain and suffering that will “continue for the
rest of [his] life.” (Docket No. 1 at 11). He accuses Corizon’s employees of “wild abuses,” and

contends that “municipal liability” has been established for all Corizon employees because
Corizon works for the Missouri Department of Corrections. (Docket No. 1 at 11, 17).
With regard to CCMII Woods, plaintiff alleges that Woods denied his serious medical
needs after being shown the lay-in approved by Dr. Moody at ERDCC. (Docket No. 1 at 12). This
is a reference to the lay-in that expired on December 3, 2020, and that was not renewed when
plaintiff reached NECC. Plaintiff further states that CCMII Woods punished him by putting him
in the “hole” for ninety days following a conduct violation. (Docket No. 1 at 12; Docket No. 1-1
at 6). He also implies that CCMII Woods is somehow responsible for the denial of his IRRs,
grievances, and grievance appeals. (Docket No. 1 at 12).
As to Weatherford-Williams, plaintiff asserts that she is a parole and probation “superior.”
(Docket No. 1 at 15). Plaintiff wrote to her office on June 4, 2020 and June 8, 2020. As such,
plaintiff states that Weatherford-Williams “know[s] what’s…going on with [him].” He alleges that
Weatherford-Williams changed his outdate because of a conduct violation he received for not
standing up during count. (Docket No. 1 at 15; Docket No. 1-1 at 15). However, plaintiff states

that his old lay-in, which he had before coming to NECC, provided that he did not have to stand
because of his back problems. Therefore, he contends that changing his outdate was inappropriate.
Plaintiff also generally accuses Weatherford-Williams of acting with “evil intent,” of denying his
serious medical needs, and of causing cruel and unusual punishment. (Docket No. 1 at 15-16).
With regard to Director Precythe, plaintiff concludes that she failed to “train or supervise
[her] employees or coworkers who work at all Missouri Department of Corrections [institutions].”
(Docket No. 1 at 18). He further states that Director Precythe failed to intervene to “correct things.”
Plaintiff claims that Director Precythe is responsible for “wild abuses [from] prison to prison” and
in denying his “serious medical needs” from November 21, 2016 to now. (Docket No. 1 at 19). He

also states she has responsibility for denying his grievances. (Docket No. 1 at 20). Plaintiff suggests
that Director Precythe is covering up “evil intent” and does not care if “plaintiff get[s] serious
medical needs or die[s].”
Plaintiff states that he has suffered from back pain for the last five years. (Docket No. 1 at
25). In particular, he states he has a twisted spine that has caused severe damage. As a result, he is
seeking $250 trillion in compensatory damages, as well as a further $250 trillion in punitive
damages. (Docket No. 1 at 26).
Discussion
Plaintiff seeks leave to commence this 42 U.S.C. § 1983 action without prepayment of the
required filing fee. However, while incarcerated, plaintiff has filed at least three previous cases
that were dismissed on the basis of frivolity, maliciousness, or failure to state a claim. As such, his
motion to proceed in forma pauperis must be denied, and his case dismissed without prejudice to

plaintiff refiling a fully-paid complaint.
A. 28 U.S.C. § 1915(g)
The Prison Litigation Reform Act (PLRA) “enacted a variety of reforms designed to filter
out the bad [prisoner] claims and facilitate consideration of the good.” Jones v. Bock, 549 U.S.
199, 204 (2007). One of these reforms is what is commonly known as the “three strikes” provision
of 28 U.S.C. § 1915(g). Orr v. Clements, 688 F.3d 463, 464 (8th Cir. 2012). Section 1915(g)
provides:
In no event shall a prisoner bring a civil action or appeal a judgment
in a civil action or proceeding under this section if the prisoner has,
on 3 or more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the United States
that was dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g). Prisoners who have had three previous civil lawsuits or appeals dismissed as
frivolous, malicious, or for failure to state a claim must prepay the entire filing fee. Lyon v. Krol,
127 F.3d 763, 764 (8th Cir. 1997). To that end, a dismissal for failure to state a claim counts as a
strike whether the dismissal was with prejudice or without. Lomax v. Ortiz-Marquez, 140 S.Ct.
1721, 1223 (2020). This section does not apply unless the inmate litigant has three strikes at the
time he filed his lawsuit or appeal. Campbell v. Davenport Police Dep’t, 471 F.3d 952, 952 (8th
Cir. 2006).
B. Plaintiff’s Previous “Strikes”
Review of plaintiff’s filing history indicates that while incarcerated, plaintiff has filed at
least four separate lawsuits that qualify as “strikes” under 28 U.S.C. § 1915(g). See Sutton v.
Dunklin Cty. Jail, No. 1:09-cv-184-SNLJ (E.D. Mo. Dec. 23, 2009) (dismissed Jan. 15, 2010,
under 28 U.S.C. § 1915(e)(2)(B) for being legally frivolous and failing to state a claim upon which

relief could be granted); Sutton v. Dolan, No. 1:09-cv-185-LMB (E.D. Mo. Dec. 23, 2009)
(dismissed Jan. 27, 2010, under 28 U.S.C. § 1915(e)(2)(B) for same reasons); Sutton v. State of
Mo., et al., No. 1:18-cv-41-NCC (E.D. Mo. Feb. 20, 2018) (dismissed June 8, 2018, under 28
U.S.C. § 1915(e)(2)(B)); and Sutton v. Maddox, et al., No. 4:19-cv-208-HEA (E.D. Mo. Feb. 11,
2019) (dismissed Aug. 15, 2019, under 28 U.S.C. § 1915(e)(2)(B)). The Court notes that plaintiff
did not file appeals in any of the aforementioned cases, and the time for filing such appeals has
passed. Moreover, all four strikes existed at the time that plaintiff filed the instant action on July
27, 2020.
Plaintiff has also had a prior case in this Court dismissed without prejudice due to the fact

that he has acquired three strikes. See Sutton v. Dunklin Cty., et al., No. 1:19-cv-205-DDN (E.D.
Mo. Nov. 18, 2019) (dismissed on November 21, 2019, pursuant to 28 U.S.C. § 1915(g)). He
appealed the dismissal, but the appeal was dismissed for failure to prosecute on March 4, 2020.
Sutton v. Dunklin Cty., et al., No. 19-3631 (8th Cir. 2020).1 Thus, for these reasons, plaintiff cannot
proceed in forma pauperis unless the imminent danger exception applies.
C. Imminent Danger
Pursuant to 28 U.S.C. § 1915(g), an indigent prisoner who has acquired three strikes may
still file a lawsuit if he or she is in imminent danger of serious physical injury. Higgins v.

1 On July 9, 2020, the Court dismissed another lawsuit filed by plaintiff on the basis of plaintiff having three strikes
under § 1915(g). Sutton v. Karshner, No. 1:20-cv-14-SPM (E.D. Mo.). That case is pending appeal.
Carpenter, 258 F.3d 797, 800 (8th Cir. 2001). This exception provides a “safety valve for the three
strikes rule to prevent impending harms.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003).
However, for this exception to apply, an otherwise ineligible prisoner must be in imminent danger
at the time of filing. Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998). Allegations of past
imminent danger are not sufficient to trigger the exception to § 1915(g). Id.

Here, plaintiff has not shown that the non-renewal of his lay-in places him in imminent
danger. The lay-in concerns a back injury that plaintiff states he has been dealing with for five
years. The lay-in at issue expired on December 3, 2020, and he did not file the instant case until
July 27, 2020. There is no indication from these facts that plaintiff is facing an impending harm.
Furthermore, plaintiff does not allege that he is not being seen or treated by medical staff or that
he is not receiving medications or treatment. To the contrary, the exhibits plaintiff has attached to
the complaint show that plaintiff is being seen by the chronic pain clinic, the pulmonary clinic,
and the mental health clinic, and that he is seen by each of these separate clinics at least once every
six months. The exhibits also show that there is a treatment plain in place for plaintiff’s back issues,

and that the decision not to renew his lay-in was based on an evaluation of his current condition.
In short, based on what he has presented to the Court, plaintiff has not established that he is in
imminent danger of serious physical injury sufficient to trigger the exception to the three-strikes
provision in 28 U.S.C. § 1915(g). The Court will therefore deny plaintiff’s motion for leave to
proceed in forma pauperis, and will dismiss this action without prejudice to plaintiff refiling a
fully-paid complaint.
D. Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
Even if plaintiff were granted in forma pauperis status, his case would still be subject to
dismissal. Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court is required to dismiss a case filed in
forma pauperis if it determines that the complaint is frivolous, malicious, or fails to state a claim
upon which relief can be granted. In this case, plaintiff has failed to state a claim under 42 U.S.C.
§ 1983 against any of the defendants.
i. Corizon
“A corporation acting under color of state law cannot be liable on a respondeat superior

theory.” Smith v. Insley’s Inc., 499 F.3d 875, 880 (8th Cir. 2007). Rather, to support a claim against
such a corporation, the plaintiff “must show that there was a policy, custom, or official action that
inflicted an actionable injury.” Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006). See also
Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975 (8th Cir. 1993) (stating that a corporation
acting under color of state law will only be held liable where “there is a policy, custom or action
by those who represent official policy that inflicts injury actionable under § 1983”).
In this case, plaintiff has not demonstrated that Corizon harmed him due to a policy,
custom, or official action. His allegations against Corizon, such as they are, broadly claim that he
has been denied medical care. Elsewhere in his complaint, though, plaintiff focuses his assertions

on the fact that a medical lay-in he had before coming to NECC was not renewed. However, none
of plaintiff’s facts support the proposition that this non-renewal was the result of a policy, custom,
or official action taken by Corizon itself. That is, there is no indication that this decision was
attributable to anything other than a treatment decision made by the medical professionals who
evaluated him. Moreover, to the extent that plaintiff seeks to hold Corizon liable solely because it
employed some of the other defendants, such a claim fails because respondeat superior is not
available under 42 U.S.C. § 1983. Therefore, even if plaintiff were allowed to proceed in forma
pauperis, his claim against Corizon would be subject to dismissal.
ii. Dr. Stevenson
Plaintiff accuses Dr. Stevenson of being deliberately indifferent to his medical needs.
However, he has not indicated the capacity in which Dr. Stevenson is sued. A plaintiff can bring a
§ 1983 claim against a public official acting in his or her official capacity, his or her individual
capacity, or both. Baker v. Chisom, 501 F.3d 920, 923 (8th Cir. 2007). If a plaintiff’s complaint is

silent about the capacity in which the defendant is being sued, the complaint is interpreted as
including only official capacity claims. Id. See also Johnson v. Outboard Marine Corp., 172 F.3d
531, 535 (8th Cir. 1999) (“[I]n order to sue a public official in his or her individual capacity, a
plaintiff must expressly and unambiguously state so in the pleadings, otherwise, it will be assumed
that the defendant is sued only in his or her official capacity”); Artis v. Francis Howell North Band
Booster Ass’n, Inc., 161 F.3d 1178, 1182 (8th Cir. 1998) (“If the complaint does not specifically
name the defendant in his individual capacity, it is presumed he is sued only in his official
capacity”); and Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir. 1995) (“If a plaintiff’s
complaint is silent about the capacity in which she is suing the defendant, we interpret the

complaint as including only official-capacity claims”). Thus, the Court has to assume that plaintiff
sued Dr. Stevenson in an official capacity only.
In an official capacity claim against an individual, the claim is actually “against the
governmental entity itself.” See White v. Jackson, 865 F.3d 1064, 1075 (8th Cir. 2017). Thus, a
“suit against a public employee in his or her official capacity is merely a suit against the public
employer.” Johnson, 172 F.3d at 535. See also Brewington v. Keener, 902 F.3d 796, 800 (8th Cir.
2018) (explaining that official capacity suit against sheriff and his deputy “must be treated as a
suit against the County”); Kelly v. City of Omaha, Neb., 813 F.3d 1070, 1075 (8th Cir. 2016)
(stating that a “plaintiff who sues public employees in their official, rather than individual,
capacities sues only the public employer”); and Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir.
2006) (stating that a “suit against a public official in his official capacity is actually a suit against
the entity for which the official is an agent”).
Plaintiff is unclear as to whether Dr. Stevenson is employed by Corizon or the Missouri
Department of Corrections. In either event, the official capacity claim against Dr. Stevenson must

be treated as a claim against Stevenson’s employer. To prevail, plaintiff must establish the
governmental entity’s liability for the alleged conduct. Kelly, 813 F.3d at 1075.
As discussed above, if Dr. Stevenson is an employee of Corizon, the claim must be
dismissed because plaintiff has not demonstrated that he was harmed due a policy, custom, or
official action on the part of Corizon.
If Dr. Stevenson is employed by the State of Missouri, plaintiff has likewise failed to state
a claim. “Section 1983 provides for an action against a ‘person’ for a violation, under color of law,
of another’s civil rights.” McLean v. Gordon, 548 F.3d 613, 618 (8th Cir. 2008). See also Deretich
v. Office of Admin. Hearings, 798 F.2d 1147, 1154 (8th Cir. 1986) (stating that “[§] 1983 provides

a cause of action against persons only”). However, “neither a State nor its officials acting in their
official capacity are ‘persons’ under § 1983.” Will v. Michigan Dep’t of State Police, 491 U.S. 58,
71 (1989). See also Calzone v. Hawley, 866 F.3d 866, 872 (8th Cir. 2017) (stating that a “State is
not a person under § 1983”); and Kruger v. Nebraska, 820 F.3d 295, 301 (8th Cir. 2016) (stating
that “a state is not a person for purposes of a claim for money damages under § 1983”).
Furthermore, in the absence of a waiver, the Eleventh Amendment bars suit against a state official
acting in his or her official capacity. Morstad v. Dep’t of Corr. & Rehab., 147 F.3d 741, 744 (8th
Cir. 1998).
For these reasons, whether Dr. Stevenson is a Corizon employee or a State of Missouri
employee, plaintiff has failed to state a claim. As such, even if plaintiff had been allowed to
proceed in forma pauperis, his claim against Dr. Stevenson would be subject to dismissal.
Even if plaintiff had sued Dr. Stevenson in an individual capacity, the result would be the
same. Under the Eighth Amendment, the government has an obligation to provide medical care to

those whom it is punishing by incarceration. Estelle v. Gamble, 429 U.S. 97, 103 (1976). To
demonstrate constitutionally inadequate medical care, the inmate must show that a prison official’s
conduct amounted to deliberate indifference. Dulany v. Carnahan, 132 F.3d 1234, 1237-38 (8th
Cir. 1997).
In order to establish deliberate indifference, a plaintiff must prove that he suffered from an
objectively serious medical need, and that prison officials actually knew of and disregarded that
need. Roberts v. Kopel, 917 F.3d 1039, 1042 (8th Cir. 2019). See also Hamner v. Burls, 937 F.3d
1171, 1177 (8th Cir. 2019). “A serious medical need is one that has been diagnosed by a physician
as requiring treatment, or one that is so obvious that even a layperson would easily recognize the
necessity for a doctor’s attention.” Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997). Deliberate

indifference can include the intentional denial or delay of access to medical care, or the intentional
interference with treatment or prescribed medication. Vaughn v. Lacey, 49 F.3d 1344, 1346 (8th
Cir. 1995).
To prevail under this standard, an inmate must demonstrate that a prison health care
provider’s actions were “so inappropriate as to evidence intentional maltreatment or a refusal to
provide essential care.” Jackson v. Buckman, 756 F.3d 1060, 1066 (8th Cir. 2014). As such,
“deliberate indifference requires a highly culpable state of mind approaching actual intent.” Kulkay
v. Roy, 847 F.3d 637, 643 (8th Cir. 2017). Thus, a showing of deliberate indifference requires more
than a mere disagreement with treatment decisions and is greater than gross negligence. Gibson v.
Weber, 433 F.3d 642, 646 (8th Cir. 2006).
Here, most of plaintiff’s claim against Dr. Stevenson consist of conclusory assertions that
Dr. Stevenson harassed him, discriminated against him, and acted with “evil intent.” The only true
factual allegation against Dr. Stevenson is that Dr. Stevenson denied plaintiff’s lay-in when he

arrived at NECC.
This, without more, does not state a deliberate indifference claim. That is, plaintiff has not
shown why Dr. Stevenson’s decision not to renew his previous lay-in was “so inappropriate as to
evidence intentional maltreatment or a refusal to provide essential care.” Rather than providing
factual support for his statement, plaintiff asks the Court to assume that Dr. Stevenson’s decision
resulted from improper motives. The Court will not engage in such speculation. See Torti v. Hoag,
868 F.3d 666, 671 (8th Cir. 2017) (“Courts are not bound to accept as true a legal conclusion
couched as a factual allegation, and factual allegations must be enough to raise a right to relief
above the speculative level”). Furthermore, without facts showing that Dr. Stevenson acted

improperly, plaintiff’s contention that he should have received a medical lay-in for his back
amounts to a disagreement with a treatment decision, which does not constitute deliberate
indifference. See Meuir v. Greene Cty. Jail Emps., 487 F.3d 1115, 1118-19 (8th Cir. 2007) (“A
prisoner’s mere difference of opinion over matters of expert medical judgment or a course of
medical treatment fails to rise to the level of a constitutional violation”).
The Court notes that there is no indication that plaintiff is being denied treatment or is not
being seen by medical providers. To the contrary, his own exhibits show that he is seen by medical
professionals on a regular basis. His contention that he should have received a lay-in for his back
upon his arrival at NECC does not, without anything more, demonstrate deliberate indifference to
his medical needs. Therefore, even if plaintiff were allowed to proceed in forma pauperis, and even
if he had sued Dr. Stevenson in an individual capacity, the claim would be subject to dismissal.
iii. Nurse Wade
Plaintiff alleges that Nurse Wade signed a grievance response in which she determined that
plaintiff’s current treatment plan was appropriate to meet his healthcare needs. An inmate has a

liberty interest in the nature of his confinement, but not an interest in the procedures by which the
state believes it can best determine how he should be confined. Kennedy v. Blankenship, 100 F.3d
640, 643 (1996). As such, “there is no constitutional liberty interest in having state officers follow
state law or prison officials follow prison regulations.” Phillips v. Norris, 320 F.3d 844, 847 (8th
Cir. 2003). A prison grievance procedure is a procedural right only and does not confer upon an
inmate a substantive right. Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). See also Lomholt
v. Holder, 287 F.3d 683, 684 (8th Cir. 2002) (agreeing with district court that “defendants’ denial
of [plaintiff’s] grievances did not state a substantive constitutional claim”); and Fallon v. Coulson,
5 F.3d 531, 1993 WL 349355, at *1 (8th Cir. 1993) (unpublished opinion) (stating that the failure

of defendants “to acknowledge receipt of and respond to plaintiffs’ grievances pursuant to prison
procedure did not violate any of plaintiffs’ constitutional rights”).
Here, plaintiff’s claim against Nurse Wade amounts to a contention that she denied his
grievance. However, the denial of a grievance does not amount to a substantive constitutional
violation. Therefore, even if plaintiff were allowed to proceed in forma pauperis, his individual
capacity claim against Nurse Wade would be subject to dismissal.
iv. CCMII Woods
Plaintiff accuses CCMII Woods of deliberate indifference, of putting him in the “hole,”
and of denying his IRRs, grievances, and grievance appeals.
With regard to the deliberate indifference claim, plaintiff merely mentions showing CCMII
Woods the expired lay-in that Dr. Moody had issued while plaintiff was at ERDCC. Plaintiff does
not explain what he expected CCMII Woods to do with the expired lay-in, or why plaintiff believes
that Woods acted improperly. Indeed, Woods is alleged to be a correctional case manager, not a
medical professional. In any event, plaintiff’s vague allegations do not establish that CCMII

Woods intentionally denied or delayed plaintiff’s access to medical care, or interfered in any way
with plaintiff’s treatment or prescribed medication. See Vaughn, 49 F.3d at 1346. As such, he has
not stated a deliberate indifference claim.
With regard to his claim that CCMII Woods placed him in the “hole” for ninety days,
plaintiff has not shown a violation of his constitutional rights. In the administrative segregation
context, the determination of whether prison officials denied an inmate due process involves a
two-step inquiry. Williams v. Hobbs, 662 F.3d 994, 1000 (8th Cir. 2011). First, a plaintiff must
demonstrate that he or she was deprived of life, liberty, or property by government action. Phillips,
320 F.3d at 846. See also Beaulieu v. Ludeman, 690 F.3d 1017, 1047 (8th Cir. 2012) (stating that

a court “need reach the question of what process is due only if the inmates establish a
constitutionally protected liberty interest”); and Singleton v. Cecil, 155 F.3d 983, 987 (8th Cir.
1998) (explaining that to claim a due process violation, plaintiff has to be deprived of either life,
liberty, or property, otherwise “it does not matter whether one has received due process or not”).
Once it has been established that a liberty interest exists, the process necessary to protect that
interest must be determined. Williams, 662 F.3d at 1000.
As life or property is not at issue in this case, plaintiff must identify a liberty interest to
sustain a due process claim. See Phillips, 320 F.3d at 847. The United States Supreme Court has
determined that prisoners have a protected liberty interest in avoiding conditions of confinement
that impose an “atypical and significant hardship on the inmate in relation to the ordinary incidents
of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). As such, in order to assert a due
process violation based on a liberty interest of avoiding administrative segregation, “an inmate
must show that the segregation created an atypical and significant hardship on him in relation to
the ordinary incidents of prison life to demonstrate that his liberty interest was curtailed.” Rahman

X v. Morgan, 300 F.3d 970, 973 (8th Cir. 2002).
The Eighth Circuit has stated that an assignment to disciplinary or administrative
segregation is not, in and of itself, an atypical and significant hardship. See Portley-El v. Brill, 288
F.3d 1063, 1065 (8th Cir. 2002) (stating that Eighth Circuit has “consistently held that
administrative and disciplinary segregation are not atypical and significant hardships under
Sandin”); Kennedy, 100 F.3d at 642 (stating that plaintiff’s “demotion from administrative
segregation to punitive isolation is not the sort of deprivation that qualifies as atypical and
significant”); and Wycoff v. Nichols, 94 F.3d 1187, 1190 (8th Cir. 1996) (stating that plaintiff “has
no liberty interest in avoiding administrative segregation unless the conditions of his confinement

present the type of atypical, significant deprivation in which a state might conceivably create a
liberty interest”). This is so even if the demotion to segregation is without cause. Phillips, 320 F.3d
at 847.
Here, plaintiff has not shown that being placed in administrative segregation for ninety
days constituted an atypical and significant hardship. The length of time alone is not dispositive.
See Kennedy, 100 F.3d at 641-42 (stating that plaintiff’s thirty days in punitive isolation was not
atypical and significant); and Orr v. Larkins, 610 F.3d 1032, 1033-34 (8th Cir. 2010) (stating that
nine months in administrative segregation did not constitute an atypical and significant hardship).
Beyond the amount of time spent, plaintiff presents no facts demonstrating why his placement into
administrative segregation amounts to a constitutional violation.
Finally, with regard to the claim that CCMII Woods was somehow responsible for the
denial of plaintiff’s IRRs, grievances, and grievance appeals, the Court has already noted that a
prison grievance procedure is a procedural right only and does not confer upon an inmate a

substantive right. Buckley, 997 F.2d at 495. See also Lomholt, 287 F.3d at 684 (agreeing with
district court that “defendants’ denial of [plaintiff’s] grievances did not state a substantive
constitutional claim”); and Fallon, 5 F.3d 531, 1993 WL 349355, at *1 (unpublished opinion)
(stating that the failure of defendants “to acknowledge receipt of and respond to plaintiffs’
grievances pursuant to prison procedure did not violate any of plaintiffs’ constitutional rights”).
For these reasons, even if plaintiff was allowed to proceed in forma pauperis, his individual
capacity claim against CCMII Woods would be subject to dismissal.
v. Weatherford-Williams
Plaintiff alleges that probation and parole officer Weatherford-Williams denied him

medical care and changed his outdate due to a conduct violation he received for not standing up
during count.
As to the deliberate indifference to medical care allegation, plaintiff has provided no facts
to show that Weatherford-Williams intentionally denied or delayed plaintiff’s access to medical
care, interfered in any way with plaintiff’s treatment or prescribed medications, or even that she
had any responsibility with regard to plaintiff’s healthcare. Indeed, plaintiff himself identifies her
as a probation and parole “superior,” and not as a medical professional or correctional officer.
With regard to changing his outdate, plaintiff has not adequately alleged that Weatherford-
Williams violated a constitutional right. That is because the Supreme Court has stated that a
convicted person has no constitutional or inherent right to conditional release before the expiration
of a valid sentence. Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7
(1979). To that end, it has been specifically held that Missouri’s parole statutes “do not create a
liberty interest protected by the due process clause of the Fourteenth Amendment.” Marshall v.
Mitchell, 57 F.3d 671, 672 (8th Cir. 1995). Clearly, even assuming plaintiff’s allegation as true,

Weatherford-Williams’s actions cannot deprive plaintiff of an interest he does not possess. It thus
follows that she could not have violated plaintiff’s constitutional rights by simply changing his
outdate. See Adams v. Agniel, 405 F.3d 643, 645 (8th Cir. 2005) (explaining that inmate’s
allegations that he was denied parole based on erroneous factual determinations about past drug
and alcohol abuse did not state a claim under § 1983 because inmate did not have a
constitutionally-protected liberty interest in the possibility of parole).
For these reasons, even if plaintiff were allowed to proceed in forma pauperis, his
individual capacity claim against Weatherford-Williams would be subject to dismissal.
vi. Director Precythe

Plaintiff alleges that Director Precythe failed to train or supervise her employees, denied
his serious medical needs for five years, and is responsible for the denial of his grievances.
Vicarious liability is inapplicable to § 1983 suits. Marsh v. Phelps Cty., 902 F.3d 745, 754
(8th Cir. 2018). As such, “[g]overnment officials are personally liable only for their own
misconduct.” S.M. v. Krigbaum, 808 F.3d 335, 340 (8th Cir. 2015). Thus, “a supervising officer
can be liable for an inferior officer’s constitutional violation only if he directly participated in the
constitutional violation, or if his failure to train or supervise the offending actor caused the
deprivation.” Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010). See also Moore v. City of
Desloge, Mo., 647 F.3d 841, 849 (8th Cir. 2011) (stating that in order to maintain an action for
training or supervisory liability, the plaintiff must show that the failure to train or supervise caused
the injury).
The standard used to determine liability for failure to train is deliberate indifference.
Brockinton v. City of Sherwood, Ark., 503 F.3d 667, 673 (8th Cir. 2007). To show deliberate
indifference, a plaintiff must prove that the defendant had notice that the procedures were

inadequate and likely to result in a violation of his constitutional rights. See Jennings v. Wentzville
R-IV Sch. Dist., 397 F.3d 1118, 1122 (8th Cir. 2005). See also Rogers v. King, 885 F.3d 1118, 1122
(8th Cir. 2018) (“A supervisor may be liable under § 1983 if he (1) received notice of a pattern of
unconstitutional acts committed by a subordinate, and (2) was deliberately indifferent to or
authorized those acts”).
With regard to plaintiff’s accusation that Director Precythe failed to train or supervise her
employees, plaintiff has failed to demonstrate a pattern of unconstitutional acts, much less that
Precythe was deliberately indifferent to or authorized those acts. Instead, plaintiff’s allegations
concern a purported constitutional violation that occurred to him alone, rather than a widespread

pattern.
As to plaintiff’s deliberate indifference to medical needs claim, plaintiff fails to
demonstrate that Director Precythe was personally responsible for overseeing plaintiff’s care.
Instead, he appears to rely on Director Precythe’s position with the Missouri Department of
Corrections to hold her liable. However, “a general responsibility for supervising the operations
of a prison is insufficient to establish the personal involvement required to support liability.”
Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995). There is nothing in the complaint to
indicate that Director Precythe was aware of plaintiff’s complaints, much less mishandled them,
or that there was any link between her actions or inactions and the violation of a constitutional
right. See Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (explaining that 42 U.S.C. §
1983 liability “requires a causal link to, and direct responsibility for, the deprivation of rights”).
Finally, as to plaintiff’s contention that Director Precythe is liable because his grievances
were denied, the Court again notes that a prison grievance procedure is a procedural right only and
does not confer upon an inmate a substantive right. Buckley, 997 F.2d at 495. See also Lomholt,

287 F.3d at 684 (agreeing with district court that “defendants’ denial of [plaintiff’s] grievances did
not state a substantive constitutional claim”); and Fallon, 5 F.3d 531, 1993 WL 349355, at *1
(unpublished opinion) (stating that the failure of defendants “to acknowledge receipt of and
respond to plaintiffs’ grievances pursuant to prison procedure did not violate any of plaintiffs’
constitutional rights”).
For these reasons, even if plaintiff were allowed to proceed in forma pauperis, his
individual capacity claim against Director Precythe would be subject to dismissal.
E. Motion to Appoint Counsel and Motion to Compel
Plaintiff has filed a motion to appoint counsel and a motion to compel. (Docket No. 3;

Docket No. 8). The motions will be denied as moot as this action is being dismissed without
prejudice.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in forma pauperis
(Docket No. 2) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel (Docket No. 3)
is DENIED AS MOOT.
IT IS FURTHER ORDERED that plaintiff’s motion to compel (Docket No. 8) is
DENIED AS MOOT.
IT IS FURTHER ORDERED that this action is DISMISSED without prejudice to
plaintiff refiling a fully-paid complaint. See 28 U.S.C. § 1915(g). A separate order of dismissal
will be entered herewith.
IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in
good faith.
Dated this 29" day of October, 2020. Naload; ip □

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

21

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10233930. Public record. Not legal advice.