Vaughn v. Wallace

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

QUINCY VAUGHN, )

)

Plaintiff, )

)

v. ) No. 4:21-cv-00718-HEA

)

MARK WALLACE, et al., )

)

Defendants. )

OPINION, MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Quincy Vaughn for leave to

commence this civil action without prepayment of the required filing fee. (Docket No. 2). Having

reviewed the motion and the financial information submitted in support, the Court has determined

that plaintiff lacks sufficient funds to pay the entire filing fee, and will assess an initial partial filing

fee of $11.50. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, the Court

will dismiss the official capacity claims against all defendants, as well as the individual capacity

claims against Mary Unknown, Heather Turner, and Unknown Williams. However, the Clerk of

Court will be directed to issue process on Mark Wallace and Unknown Simonton in their individual

capacities as to plaintiff’s retaliation claim.

28 U.S.C. § 1915(b)(1)

Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma pauperis is

required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his or her

prison account to pay the entire fee, the Court must assess and, when funds exist, collect an initial

partial filing fee of 20 percent of the greater of (1) the average monthly deposits in the prisoner’s

account, or (2) the average monthly balance in the prisoner’s account for the prior six-month

period. After payment of the initial partial filing fee, the prisoner is required to make monthly

payments of 20 percent of the preceding month’s income credited to the prisoner’s account. 28

U.S.C. § 1915(b)(2). The agency having custody of the prisoner will forward these monthly

payments to the Clerk of the Court each time the amount in the prisoner’s account exceeds $10.00,

until the filing fee is fully paid. Id.

In support of his motion for leave to proceed in forma pauperis, plaintiff has submitted a

copy of his certified account statement. (Docket No. 5). The account statement shows an average

monthly deposit of $57.50. The Court will therefore assess an initial partial filing fee of $11.50,

which is 20 percent of plaintiff’s average monthly deposit.

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 Eastern Reception,

Diagnostic, and Correctional Center (ERDCC) in Bonne Terre, Missouri. On June 17, 2021, he

filed a civil rights action pursuant to 42 U.S.C. § 1983. (Docket No. 1). The complaint is

handwritten on a Court-provided form. Plaintiff names as defendants COI Mark Wallace, COI

Unknown Simonton, Nurse Mary Unknown, Functional Unit Manager Heather Turner, and

Caseworker Unknown Williams. (Docket No. 1 at 2-3; Docket No. 1-1 at 4-12). Defendants are

sued in both their official and individual capacities.

In his complaint, plaintiff asserts that on June 11, 2020, he was sleeping in his cell when

he was awoken by Officer Wallace. (Docket No. 1-1 at 1). According to plaintiff, Officer Wallace

asked plaintiff if he wanted a shower. Plaintiff refused, but Officer Wallace tried to convince him

to shower, allegedly because Wallace “wanted to see [plaintiff’s] naked body.”

Plaintiff states that he tried to get the shift supervisor to come to his wing so that he could

file a Prison Rape Elimination Act (PREA) report on Officer Wallace. However, Officer Wallace

“refused to go get his supervisor all night long.”

At breakfast the following morning, plaintiff again requested a shift supervisor. Instead,

when he was picking up his breakfast tray, Officer Wallace provided him with two PREA

statement forms ten minutes before Wallace’s shift change.

That day, plaintiff was moved to a different wing. When Officer Wallace returned that

night, plaintiff’s cellmate obscured plaintiff from view. Officer Wallace came to plaintiff’s cell

and opened the food-port, at which point plaintiff states that he “refused to allow [Wallace] to

close it” until Wallace got the shift supervisor, so that plaintiff could file a PREA report against

Wallace for his sexual comments. (Docket No. 1-1 at 1-2). Officer Wallace allegedly told plaintiff:

“Keep playing…You bet not eat your snack bags at breakfast.” (Docket No. 1-1 at 2; Docket No.

1-1 at 4).

When the sergeant came to take plaintiff’s PREA report against Officer Wallace, plaintiff

advised the sergeant that this was his second such complaint. (Docket No. 1-1 at 2). Plaintiff also

advised the sergeant that he was supposed to be separated from Officer Wallace “to prevent

[retaliation].”

Soon after filing his PREA report, Officer Simonton fed plaintiff his breakfast and gave

him his medically-necessitated snack bags. According to plaintiff, these snack bags had been taken

“off camera to the back office every morning,” where staff allegedly did “inhumane things” to

them. (Docket No. 1-1 at 5). He also asserts that Officer Wallace directed Officer Simonton to give

him “contaminated” food. Plaintiff apparently consumed this food. (Docket No. 1-1 at 2). When

he woke up the next morning, the “entire left side of [his] jaw and left side of [his] tongue was

covered in welts and blisters.” Plaintiff states that the welts and blisters hurt and burned. To this

day, he states that “the blisters come and go.”

When the welts had not subsided “[a]fter a day or so,” plaintiff “declared a medical

emergency during med pass.” Nurse Mary Unknown made note of the welts and blisters on his

tongue. She allegedly told plaintiff that “she was going to put [him] in for an urgent referral to see

the dentist,” but never submitted it. Plaintiff states that when meeting with Nurse Mary Unknown,

he advised her of what had taken place with Officer Wallace and Officer Simonton. (Docket No.

1-1 at 7).

Ultimately, plaintiff was seen by the dentist within a month or two, after his father called

the prison. By that point, plaintiff’s “injuries…had disappeared,” though he states that they have

“resurfaced multiple times.” (Docket No. 1-1 at 3). Since that dental appointment, he has seen the

dentist twice more, but the welts were never present. Due to the absence of welts, plaintiff asserts

that he has not been scheduled for an “outside dentist visit so that [his] tongue could be looked at

with the proper microscopic equipment.” (Docket No. 1-1 at 7-8).

With regard to FUM Turner, plaintiff states that he sent Turner “multiple letters” in order

to get copies of his IRR, grievance, and grievance appeal. (Docket No. 1-1 at 9). Plaintiff wanted

these documents because he felt they gave “strong support to [his] claim.” Despite his requests,

plaintiff states that FUM Turner has “utterly refused to print them out.” (Docket No. 1-1 at 10).

Plaintiff insists that FUM Turner’s actions amount to interference with his 42 U.S.C. § 1983 claim.

Likewise, plaintiff accuses Caseworker Williams of also refusing to give him copies of his

IRR, grievance, and grievance appeal. (Docket No. 1-1 at 12). According to plaintiff, Caseworker

Williams advised plaintiff that it was not his job to make him copies. Indeed, plaintiff

acknowledges that the grievance officer gives free copies of these documents “upon signing for

the grievance or grievance appeal.” Nevertheless, plaintiff states that he does not have access to

the grievance officer, and that Caseworker Williams has the ability to retrieve his grievance records

in his database. As with FUM Turner, plaintiff deems Caseworker Williams’s actions to be

interference with his 42 U.S.C. § 1983 claim.

Attached to plaintiff’s complaint are three exhibits.1 The first is an affidavit authored by

plaintiff complaining generally about the alleged obstruction of the grievance process faced by

inmates at the ERDCC. (Docket No. 1-2). The second exhibit is a “declaration” authored by

plaintiff in which he contends that he was not allowed to grieve the issue that forms the basis of

this complaint. (Docket No. 1-3). The third exhibit is an affidavit by inmate William Burgess

regarding his opinion that inmates are being denied access to the courts. (Docket No. 1-4).

The Court notes that plaintiff has left the “injuries” section of the form complaint blank.

(Docket No. 1 at 4). Based on his allegations, it appears that plaintiff has suffered from welts and

blisters in his mouth. He does not indicate that he is seeking any monetary damages, but requests

“to be sent to an outside ears/nose/mouth [specialist] who does not work within the prison for

prognosis and diagnosis.” (Docket No. 1 at 5).

Along with his complaint, plaintiff also filed a document construed as a motion for

preliminary injunction. (Docket No. 4). Plaintiff states that he seeks an injunctive order because

snack bags and certified religious diet (CRD) bags are always “taken off camera” and then “taken

1 The Court will treat these attachments 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”). See also Pratt v. Corrections Corp.

of America, 124 Fed. Appx. 465, 466 (8th Cir. 2005) (explaining that “the district court was required to consider the

allegations not only in [plaintiff’s] pro se complaint, but also in his motion to amend, his response to defendants’

motion to dismiss, and the attachments to those pleadings”).

to the back office where staff members do inhumane things” to them. (Docket No. 4 at 1). He

explains that this is how Officer Wallace and Officer Simonton were able to contaminate his snack

bag.

After Officer Wallace and Officer Simonton allegedly “conspired to harm [him],” plaintiff

spoke with Captain Henson, who agreed that food was not supposed to be tagged with an inmate’s

name, and was not supposed to be taken to the back office. (Docket No. 4 at 2). Plaintiff states that

the practice stopped for thirty days following his conversation with Captain Henson. (Docket No.

4 at 2-3). Once that thirty-day period was over, though, an officer identified as COIII Finwick

came to the unit and said that “food would continue going to the back office.” (Docket No. 4 at 3).

According to plaintiff, he faces a threat of irreparable harm if this practice is not stopped,

especially when defendants “get wind of this lawsuit.” Plaintiff states that “[t]here is no doubt this

is happening now,” and that it is “going to get much worse if they feel like they can get away with

it.” He further notes that he is still on his snack bags, as well as a CRD, and that he is “sincerely

in fear of [his] life.” (Docket No. 4 at 3-4).

In the motion, plaintiff seeks an injunctive order keeping staff from taking CRDs and snack

bags to the back office. (Docket No. 4 at 1-2). He also asks that “cameras be placed under the

porch of housing unit 2 where the food can be monitored.” (Docket No. 4 at 4).

On July 27, 2021, plaintiff filed a document construed as a motion for a temporary

restraining order. (Docket No. 6). In the motion, plaintiff states that Caseworker Williams

intentionally intercepted his lawsuit from the mailroom. (Docket No. 6 at 1-2). Plaintiff also asks

“for a TRO [to be] placed against” Officer Wallace and Officer Simonton. (Docket No. 6 at 2). He

asserts that since the filing of this lawsuit, Officer Wallace and Office Simonton have “made it a

point to feed [him his] CRD and snack bags.” He states that those CRDs and snack bags have been

taken off camera, “which is against policy and procedure.” (Docket No. 6 at 2-3). Plaintiff asserts

that he has “to throw [his] snack bags away due to their inconspicuous harassment since the filing

of this claim.” (Docket No. 6 at 3).

Plaintiff also alleges harassment by the medical staff. He contends that he was poisoned by

a med tech when he was issued his Neurontin. To support this accusation, plaintiff states that his

heart began to flutter after taking it, and that he experienced “excruciating pain.” Plaintiff

concludes that the med tech either “purposely tried killing [him] by overdosing [him],” or placed

“something [poisonous] in [his] meds.” Following this incident, plaintiff acknowledges that an

EKG was done, but no other diagnostic tests. (Docket No. 6 at 4).

Beyond this purported poisoning, plaintiff asserts that he injured himself while doing

burpees. (Docket No. 6 at 3-4). He states that he does not know the severity of his injury, but that

he cannot lift his arm above his head. (Docket No. 6 at 4). Plaintiff alleges that he “cannot get any

medical attention” for his shoulder injury. In particular, he notes that Nurse Mary Unknown

indicated to him that a referral was made for him to see the nurse practitioner. (Docket No. 6 at 4-

5). A different nurse, however, advised him that he would not be receiving an appointment.

(Docket No. 6 at 5).

Plaintiff states that his “life is in danger for filing these petitions within the courts.” He also

asserts that he has been retaliated against and cannot get proper medical care. He seeks the

aforementioned TRO against Officer Wallace and Officer Simonton, as well as transfer to another

prison.

Discussion

Plaintiff is a self-represented litigant who brings this civil action pursuant to 42 U.S.C. §

1983, alleging the violation of his constitutional rights as a result of a contaminated snack bag.

Because plaintiff is proceeding in forma pauperis, the Court reviewed his complaint under 28

U.S.C. § 1915. Based on that review, and for the reasons discussed below, the Court will dismiss

the official capacity claims against all defendants, as well as the individual capacity claims against

Nurse Mary Unknown, FUM Turner, and Caseworker Williams. However, the Clerk of Court will

be directed to issue process on Officer Wallace and Officer Simonton in their individual capacities

as to plaintiff’s retaliation claim.

A. Official Capacity Claims Against Officer Wallace, Officer Simonton, FUM Turner,

and Caseworker Williams

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 v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). 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”).

Here, Officer Wallace, Officer Simonton, FUM Turner, and Caseworker Williams appear

to be employees of the Missouri Department of Corrections. As such, the official capacity claims

against them are actually claims against the State of Missouri itself, their employer. Thus, to prevail

on these claims, plaintiff must establish the state’s liability for the alleged conduct. Kelly, 813 F.3d

at 1075.

While a plaintiff cannot maintain a 42 U.S.C. § 1983 claim against a state official for

money damages, such a claim is permissible when the plaintiff is seeking prospective injunctive

relief. See 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”); and Andrus ex rel. Andrus v.

Arkansas, 197 F.3d 953, 955 (8th Cir. 1999) (“A claim for damages against a state employee in his

official capacity is barred under the Eleventh Amendment”). As mentioned above, plaintiff does

not seem to be seeking money damages. Instead, he requests an order that he be taken to an outside

medical specialist. Since he is seeking injunctive relief, it is possible to state a § 1983 claim against

the state officials in this case, as long as he can demonstrate the state’s liability for the alleged

conduct.

Nothing in the complaint, however, gives any indication that the state itself is liable for the

alleged violation of plaintiff’s constitutional rights. That is, plaintiff has not presented any facts

showing that the actions of the defendants in this case were attributable to an official policy,

custom, or failure to train by the State of Missouri. See Mick v. Raines, 883 F.3d 1075, 1079 (8th

Cir. 2018) (explaining that to prevail on a claim against a governmental entity, plaintiff must show

that the constitutional violation resulted from (1) an official policy, (2) an unofficial custom, or (3)

a deliberately indifferent failure to train or supervise). Rather, plaintiff’s facts consist solely in

recounting the individual actions of each of the defendants. To the extent that policy is mentioned

in the complaint, it is in the context of plaintiff alleging that defendants violated policy, not that

such a policy was unconstitutional.

For these reasons, plaintiff has failed to state official capacity claims against Officer

Wallace, Officer Simonton, FUM Turner, and Caseworker Williams. Therefore, these claims must

be dismissed.

B. Official Capacity Claim Against Nurse Mary Unknown

Though plaintiff does not provide Nurse Mary Unknown’s employer, it appears that she

works for Corizon, which is a private company contracted by the Missouri Department of

Corrections to provide healthcare to inmates. As noted above, an official capacity claim against an

individual is actually a claim against the entity employing that person. See Johnson, 172 F.3d at

535.

“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”); and Stearns

v. Inmate Services Corp., 957 F.3d 902, 906 (8th Cir. 2020) (explaining that the “proper test” for

determining whether a corporation acting under color of state law is liable under 42 U.S.C. § 1983

“is whether there is a policy, custom, or action by those who represent…official policy that inflicts

injury actionable under § 1983”).

Here, as with the state employees, plaintiff has provided no facts demonstrating that he

suffered an injury due to a policy, custom, or official action on the part of Corizon. In fact, the

only allegation he presents is the assertion that Nurse Mary Unknown was going to refer him to a

dentist but never did. There is no indication that this lack of a referral stemmed from a policy,

custom, or official action, or even that it was anything but a mistake. Regardless, elsewhere in the

complaint, plaintiff notes that he has been seen by a dentist at the ERDCC on several occasions.

Thus, he is clearly receiving healthcare. While he insists that he should be seen by an outside

dentist, he provides no facts to establish that the care he is currently receiving is constitutionally

deficient, or that his complaint is anything more than a disagreement with a treatment decision. As

plaintiff has failed to state a claim against Corizon, the official capacity claim against Nurse Mary

Unknown must be dismissed.

C. Individual Capacity Claims

Aside from suing defendants in their official capacities, plaintiff has also brought

individual capacity claims against Nurse Mary Unknown, Officer Wallace, Officer Simonton,

FUM Turner, and Caseworker Williams. With regard to individual capacity claims, “[g]overnment

officials are personally liable only for their own misconduct.” S.M. v. Krigbaum, 808 F.3d 335,

340 (8th Cir. 2015). As such, § 1983 liability “requires a causal link to, and direct responsibility

for, the deprivation of rights.” Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006) (quoting

Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990)). See also Kohl v. Casson, 5 F.3d 1141,

1149 (8th Cir. 1993) (dismissing plaintiff’s excessive bail claims because none of the defendants

set plaintiff’s bail, and therefore, “there can be no causal connection between any action on the

part of the defendants and any alleged deprivation” of plaintiff’s rights). To that end, a plaintiff

must allege facts connecting the defendant to the challenged action. See Bitzan v. Bartruff, 916

F.3d 716, 717 (8th Cir. 2019).

i. Nurse Mary Unknown

Plaintiff accuses Nurse Mary Unknown of deliberate indifference to his medical needs.

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).

In this case, plaintiff states that Nurse Mary Unknown violated his constitutional rights

because she did not put him “in for a[n] emergency referral to be seen by the dentist.” This

assertion, in and of itself, is not sufficient to demonstrate that Nurse Mary Unknown’s actions were

“so inappropriate as to evidence intentional maltreatment or a refusal to provide essential care.”

To begin, plaintiff does not establish that he suffered from a serious medical need. While he

initially notes that he suffered from painful welts and blisters in his mouth, he also states that they

went away. Plaintiff provides no facts as to how long this condition lasted, whether he suffered

any other symptoms, such as a fever, or whether the welts made it difficult to eat or breathe. In

other words, while describing this as an “emergency” situation, he provides no support for that

conclusion.

More fundamentally, he provides no facts to show that Nurse Mary Unknown’s failure was

deliberate, rather than a mistake or an oversight. He describes only one interaction with Nurse

Mary Unknown, and nothing about that interaction demonstrates an intent on her part to deny

plaintiff’s needs. To the contrary, as plaintiff acknowledges, Nurse Mary Unknown told him that

she would put in a referral for a dentist. That the referral was apparently not made does not, without

further factual enhancement, establish that Nurse Mary Unknown acted with “a highly culpable

state of mind approaching actual intent.” For example, there is no indication that plaintiff asked

Nurse Mary Unknown several times, and that she kept putting him off or refusing him treatment.

At most, plaintiff’s allegations describe negligence or malpractice, which is not actionable under

42 U.S.C. § 1983. See Popoalii v. Corr. Med. Servs., 512 F.3d 488, 499 (8th Cir. 2008) (stating

that medical malpractice is not actionable under the Eighth Amendment).

For these reasons, plaintiff’s deliberate indifference claim against Nurse Mary Unknown

in her individual capacity must be dismissed.

ii. FUM Turner and Caseworker Williams

Plaintiff alleges that FUM Turner and Caseworker Williams refused to give him copies of

his IRR, grievance, and grievance appeal. According to plaintiff, he needed these documents to

bolster his 42 U.S.C. § 1983 claims.

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 (8th Cir. 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). To that end, 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”).

As noted above, plaintiff accuses FUM Turner and Caseworker Williams of refusing to

give him copies of an earlier IRR, grievance, and grievance appeal. However, a prison’s grievance

procedure does not provide plaintiff with a substantive right. Because plaintiff has no right to a

grievance process, it follows that he also does not have a right to copies of the IRR, grievance, or

grievance appeal generated by that process. Therefore, he has not stated a constitutional violation

against either FUM Turner or Caseworker Williams. As such, the individual capacity claims

against them must be dismissed.

To the extent that plaintiff alleges that FUM Turner and Caseworker Williams interfered

with his attempts to file a 42 U.S.C. § 1983 claim, he has not sufficiently alleged that he was denied

access to the courts. The Supreme Court has stated that it is “established beyond doubt that

prisoners have a constitutional right of access to the courts.” Bounds v. Smith, 430 U.S. 817, 821

(1977). This right requires that prisons provide “a reasonably adequate opportunity to present

claimed violations of fundamental constitutional rights to the courts.” Lewis v. Casey, 518 U.S.

343, 351 (1996). “To prove a violation of the right of meaningful access to the courts, a prisoner

must establish [that] the state has not provided an opportunity to litigate a claim challenging the

prisoner’s sentence or conditions of confinement in a court of law, which resulted in actual injury,

that is, the hindrance of a nonfrivolous and arguably meritorious underlying legal claim.”

Hartsfield v. Nichols, 511 F.3d 826, 831 (8th Cir. 2008). In order to prove actual injury, the plaintiff

must demonstrate that a nonfrivolous legal claim has been frustrated or is being impeded. White v.

Kautzky, 494 F.3d 677, 680 (8th Cir. 2007).

Here, plaintiff has not shown that he has been denied the opportunity to litigate a claim

regarding his conditions of confinement. In point of fact, he has demonstrated the opposite, as he

has filed his complaint in this Court, along with several motions. While plaintiff protests his

inability to get copies of his IRR, grievance, and grievance appeal, which he states will “give

strong support to [his] claim,” there is no indication that this inability has kept him from presenting

his allegations to the Court. That is, plaintiff is able to present his facts to the Court without

reference to past complaints he made to prison officials. Furthermore, as noted above, plaintiff has

no constitutional right to the copies he has requested. Thus, it cannot be said that the failure to

provide these copies has frustrated or impeded plaintiff in a way that is violative of the constitution.

For this reason as well, the individual capacity claims against FUM Turner and Caseworker

Williams must be dismissed.

iii. Officer Wallace and Officer Simonton

Plaintiff has alleged that Officer Wallace and Officer Simonton worked in concert to

retaliate against him for making a PREA report against Wallace. As a general matter, the First

Amendment prohibits government officials from retaliating against an individual for speaking out.

See Hartman v. Moore, 547 U.S. 250, 256 (2006). In order to prevail on a First Amendment

retaliation claim, a plaintiff “must show that [he] engaged in protected activity, that the

[defendant’s] actions caused an injury to the [plaintiff] that would chill a person of ordinary

firmness from continuing to engage in the activity, and that a causal connection exists between the

retaliatory animus and the injury.” Small v. McChrystal, 708 F.3d 997, 1008 (8th Cir. 2013).

Retaliation does not need to be the “sole motive” in taking an action against the plaintiff,

but it must have been a “substantial factor” in the decision. Kilpatrick v. King, 499 F.3d 759, 767

(8th Cir. 2007). Furthermore, the plaintiff must demonstrate that the retaliatory motive was a “but-

for” cause of the action. Baribeau v. City of Minneapolis, 596 F.3d 465, 481 (8th Cir. 2010). See

also Osborne v. Grussing, 477 F.3d 1002, 1006 (8th Cir. 2007) (explaining that “[i]f there is a

finding that retaliation was not the but-for cause…the claim fails for lack of causal connection

between unconstitutional motive and resulting harm, despite proof of some retaliatory animus in

the official’s mind”). That is, plaintiff must show that he was “singled out” because of his exercise

of constitutional rights. Baribeau, 596 F.3d at 481. See also Bernini v. City of St. Paul, 665 F.3d

997, 1007 (8th Cir. 2012) (stating that to establish a causal connection, the plaintiff must show that

he was “singled out” because of his exercise of constitutional rights).

In this case, plaintiff alleges that he made two PREA complaints against Officer Wallace

for inappropriate sexual comments. While making the second complaint, plaintiff states that

Officer Wallace threatened him by telling him not to eat his snack bag. A short time later, Officer

Simonton gave him a snack bag that plaintiff claims was contaminated. After eating the contents,

he apparently got blisters and welts in his mouth. Plaintiff further states that his snack bag was

taken off camera to an office before being served to him, and that this was against proper

procedure. The Court must accept these allegations as true, and make all reasonable inferences in

plaintiff’s favor. See Jones v. Douglas Cty. Sheriff’s Dep’t, 915 F.3d 498, 499 (8th Cir. 2019). As

such, for purposes of initial review, plaintiff has sufficiently alleged that Officer Wallace and

Officer Simonton took adverse action against him for engaging in a protected activity. Therefore,

the Clerk of Court will be directed to issue process on defendants Wallace and Simonton in their

individual capacities.

D. Motion for Preliminary Injunction

Plaintiff has filed a document construed as a motion for a preliminary injunction. (Docket

No. 4). “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter

v. Nat. Res. Def. Council, Inc., 557 U.S. 7, 27 (2008). In determining whether to grant a preliminary

injunction, a district court applies “a flexible consideration of (1) the threat of irreparable harm to

the moving party; (2) balancing this harm with any injury an injunction would inflict on other

interested parties; (3) the probability that the moving party would succeed on the merits; and (4)

the effect on the public interest.” St. Louis Effort for AIDS v. Huff, 782 F.3d 1016, 1021 (8th Cir.

2015). See also Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981).

“None of these factors by itself is determinative; rather, in each case the four factors must be

balanced to determine whether they tilt toward or away from granting a preliminary injunction.”

West Pub. Co. v. Mead Data Cent., Inc., 799 F.2d 1219, 1222 (8th Cir. 1986).

In the prison context, a request for injunctive relief must always be viewed with great

caution because “judicial restraint is especially called for in dealing with the complex and

intractable problems of prison administration.” Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995).

For an injunction to issue, “a right must be violated,” and the court must determine whether “a

cognizable danger of future violation exists.” Id. at 521. Furthermore, the “danger must be more

than a mere possibility.” Id. Regarding the issue of whether a situation is ripe for injunctive relief,

the Eighth Circuit has noted that courts “should not get involved unless either a constitutional

violation has already occurred or the threat of such a violation is both real and immediate.” Id.

Plaintiff has the burden of proving that an injunction should be issued. See Mgmt. Registry, Inc. v.

A.W. Cos., Inc., 920 F.3d 1181, 1183 (8th Cir. 2019).

In his motion, plaintiff seeks an injunctive order to stop snack bags and CRDs from being

taken off camera, and to have additional cameras placed in the housing unit so that food can be

monitored. To support this request, plaintiff alleges that the “illegal practice” of taking snack bags

and CRDs off camera has continued since the filing of his complaint.

Plaintiff has not carried his burden of demonstrating that injunctive relief is warranted.

Specifically, he has not demonstrated the threat of irreparable harm. While plaintiff claims that he

is “sincerely in fear of [his] life,” he presents no facts to demonstrate that prison officials are

systematically contaminating snack bags or CRDs. For example, plaintiff does not allege any

reoccurrence of the incident whereby he ate a “contaminated” snack bag, and then developed welts

in his mouth. Balanced against plaintiff’s failure to demonstrate irreparable harm is the potential

harm that might result from the Court attempting to insert itself into issues of prison administration,

based on plaintiff’s vague allegations. Therefore, plaintiff’s motion for a preliminary injunction is

denied.

E. Motion for a Temporary Restraining Order

Plaintiff has also filed a document that has been construed as a motion for a temporary

restraining order (TRO). (Docket No. 6). The standards applicable to a TRO are the same as those

applied to a request for a preliminary injunction. See S.B. McLaughlin & Co. v. Tudor Oaks Condo.

Project, 877 F.2d 707, 708 (8th Cir. 1989) (affirming district court’s application of Dataphase

factors to a motion for a temporary restraining order). As noted above, those standards consist of

“a flexible consideration of (1) the threat of irreparable harm to the moving party; (2) balancing

this harm with any injury an injunction would inflict on other interested parties; (3) the probability

that the moving party would succeed on the merits; and (4) the effect on the public interest.” St.

Louis Effort for AIDS, 782 F.3d at 1021. See also Dataphase Systems, Inc., 640 F.2d at 113. “None

of these factors by itself is determinative; rather, in each case the four factors must be balanced to

determine whether they tilt toward or away from granting a preliminary injunction.” West Pub.

Co., 799 F.2d at 1222.

In his motion, plaintiff asserts a number of different allegations, some of which are

unconnected to his complaint. The allegations are not sufficient to carry his burden of

demonstrating he is entitled to a TRO.

First, plaintiff states that unidentified prison officials have been “tampering with [his] legal

mail,” and that Caseworker Williams intercepted the instant lawsuit from the mail room. This does

not demonstrate irreparable harm. Indeed, it does not state any harm at all. Plaintiff does not

explain what he means when he says that his mail has been tampered with, or what the

consequences were of Caseworker Williams “intercepting [his] lawsuit.” To the extent that

plaintiff believes that the filing of his lawsuit has been hindered, the Court can only note that he

has been able to successfully submit a complaint and four separate motions, and that there is no

indication that he has been unable to get anything on file.

Second, plaintiff asks “for a TRO [to] be placed against” Officer Wallace and Officer

Simonton. To support this request, he states that both officers have continued to feed him his CRDs

and snack bags, which plaintiff throws away. This does not establish a risk of irreparable harm, as

plaintiff has not alleged a reoccurrence of the incident in which he purportedly consumed a

contaminated snack bag. He implies that all his snack bags and CRDs are contaminated, since they

have been “off of camera,” but this belief is not supported by any factual allegations.

Third, plaintiff accuses a med tech of trying to kill him by giving him “poisoned”

Neurontin. This claim fails because it is not related to the claims in his complaint. Specifically,

plaintiff presents no facts connecting the med tech to the retaliation of which he has previously

complained. See Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (explaining that “a party

moving for a preliminary injunction must necessarily establish a relationship between the injury

claimed in the party’s motion and the conduct asserted in the complaint”); and Hale v. Wood, 89

F.3d 840, 1996 WL 341206, at *1 (8th Cir. 1996) (unpublished opinion) (rejecting plaintiff’s

request for injunctive relief because he “failed to establish a connection between these injuries and

the conduct he challenged in his complaint”). Furthermore, plaintiff has entirely failed to support

this startling accusation with any facts whatsoever. There is not a single allegation that tends to

demonstrate that the med tech tried to kill plaintiff, either by poisoning his medication or giving

him an overdose. Without such facts, plaintiff cannot show that he is at risk of irreparable harm

and entitled to injunctive relief.

Similarly, plaintiff’s assertion that his shoulder injury is not being treated fails, because it

is not connected with the retaliation claim in his complaint. Additionally, plaintiff’s ambiguous

statement that he “cannot get any medical attention” for his shoulder is not enough to establish the

necessity of a TRO to prevent irreparable harm.

In short, plaintiff’s motion for a TRO is premised on his belief that he is being

systematically retaliated against because of his initial PREA reports against Officer Wallace. There

are no facts, however, indicating that the medical staff have somehow conspired with Officer

Wallace to deny plaintiff medical care. There are also no facts in the motion supporting the

proposition that Officer Wallace and Officer Simonton have continued to act in such a way as to

place plaintiff at risk for harm. For these reasons, the motion must be denied.

F. Motion to Appoint Counsel

Plaintiff has filed a motion to appoint counsel. (Docket No. 3). In civil cases, a pro se

litigant does not have a constitutional or statutory right to appointed counsel. Ward v. Smith, 721

F.3d 940, 942 (8th Cir. 2013). Rather, a district court may appoint counsel in a civil case if the

court is “convinced that an indigent plaintiff has stated a non-frivolous claim…and where the

nature of the litigation is such that plaintiff as well as the court will benefit from the assistance of

counsel.” Patterson v. Kelley, 902 F.3d 845, 850 (8th Cir. 2018). When determining whether to

appoint counsel for an indigent litigant, a court considers relevant factors such as the complexity

of the case, the ability of the pro se litigant to investigate the facts, the existence of conflicting

testimony, and the ability of the pro se litigant to present his or her claim. Phillips v. Jasper Cty.

Jail, 437 F.3d 791, 794 (8th Cir. 2006).

After reviewing these factors, the Court finds that the appointment of counsel is not

warranted at this time. Plaintiff has demonstrated, at this point, that he can adequately present his

claims to the Court. Additionally, neither the factual nor the legal issues in this case appear to be

complex. The Court will entertain future motions for appointment of counsel as the case

progresses.

Accordingly,

IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in forma pauperis

(Docket No. 2) is GRANTED.

IT IS FURTHER ORDERED that plaintiff must pay an initial partial filing fee of $11.50

within twenty-one (21) days of the date of this order. Plaintiff is instructed to make his remittance

payable to “Clerk, United States District Court,” and to include upon it: (1) his name; (2) his prison

registration number; (3) the case number; and (4) the statement that the remittance is for an original

proceeding.

IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel (Docket

No. 3) is DENIED at this time.

IT IS FURTHER ORDERED that plaintiff’s motion for preliminary injunction (Docket

No. 4) is DENIED.

IT IS FURTHER ORDERED that plaintiff’s motion for a temporary restraining order

(Docket No. 6) is DENIED.

IT IS FURTHER ORDERED that the official capacity claims against all defendants are

DISMISSED without prejudice. See 28 U.S.C. § 1915(e)(2)(B). A separate order of partial

dismissal will be entered herewith.

IT IS FURTHER ORDERED that the individual capacity claims against defendants

Mary Unknown, Heather Turner, and Unknown Williams are DISMISSED without prejudice. See

28 U.S.C. § 1915(e)(2)(B). A separate order of partial dismissal will be entered herewith.

IT IS FURTHER ORDERED that the Clerk of Court shall issue process or cause process

to issue on defendants Mark Wallace and Unknown Simonton in their individual capacities as to

plaintiff’s claims of retaliation. Defendants shall be served with process in accordance with the

waiver agreement the Court maintains with the Missouri Attorney General's Office for service on

Missouri Department of Corrections Employees.

IT IS FURTHER ORDERED that an appeal from this partial dismissal would not be

taken in good faith.

Dated this 30" day of July , 2021. Zs _

HENRY EDWARD AUTREY

UNITED STATES DISTRICT JUDGE

24