Straub v. Correctional Medical Services Et Al - Document No. 80

Straub v. Correctional Medical Services et al Doc.
80
Case 4:04-cv-01110-RWS Document 80 Filed 12/08/2005 Page 1 of 5
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KEVIN STRAUB, )
)
Plaintiff, )
)
vs. ) Case No. 4:04CV1110 RWS
)
CORRECTIONAL MEDICAL )
SERVICES, et al., )
)
Defendants. )
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motions for reconsideration and
alternative notices of appeal. Plaintiff first asks the Court to reconsider the
dismissal without prejudice of defendant Elaine Moore for failure to obtain timely
service. Plaintiff attempted to serve defendant Moore through her employer, the
Missouri Department of Corrections, but Moore no longer works there. For this
reason, counsel for defendants was unable to waive service on behalf of Moore.
Plaintiff, despite being given numerous opportunities to do so, was unable to
provide the Court with a current address for service of process on this defendant.
Therefore, I eventually dismissed plaintiff’s claims against her without prejudice.
Plaintiff asks the Court to require defense counsel to provide Moore’s
address to the Court in camera for service of process. While the Court may have
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the ability to impose such a requirement under appropriate circumstances, it is not
warranted here because plaintiff’s amended complaint fails to state a claim against
Moore. Plaintiff alleges that Moore, in her position as the housing unit officer, was
ultimately responsible for the failure to post cautionary “wet floor” signs in the
housing unit bathroom. These allegations, however, are insufficient to state a claim
against Moore because respondeat superior cannot apply to a § 1983 action. Will v.
Michigan Dept. of State Police, 491 U.S. 58, 63 (1989); Givens v. Jones, 900 F.2d
1229, 1233 (8th Cir. 1990). Moore was not alleged to have any personal
involvement in the complained-of actions. Without this direct personal involvement,
a causal connection necessary to state a § 1983 claim against Moore cannot be
formed. See Pearl v. Dobbs, 649 F.2d 608, 609 (8th Cir. 1981). For this reason,
Moore’s dismissal -- even if defense counsel could provide an address for service of
process -- would remain appropriate. See 28 U.S.C. § 1915(e)(2)(B)(ii).1 Plaintiff’s
motion for reconsideration will be denied.
Plaintiff also asks the Court to reconsider its October 24, 2005 Memorandum
and Order granting summary judgment in favor of defendants Williams, Young,
1
Moore’s dismissal is also appropriate because the Court has already ruled as
a matter of law that plaintiff cannot maintain an Eighth Amendment deliberate
indifference claim for the failure to post a cautionary “wet floor” sign in the housing
unit.
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Burkel, Jorgenson, Conley and Correctional Medical Services. Im support of
reconsideration, plaintiff reiterates the same arguments he raised in opposition to
summary judgment. The Court remains unpersuaded by plaintiff’s arguments and
finds that summary judgment in favor of these defendants remains appropriate.
Plaintiff also contends that summary judgment was granted prematurely
because he was unable to conduct adequate discovery on his claims. Although
plaintiff complains that he is not “sure” that the defendants provided his complete
medical records in support of summary judgment, he fails to aver what records he
believes were not provided, or more importantly, whether these medical records are
relevant to his claimed injuries at issue in this case. Although plaintiff disputes
defendant’s expert affidavit testimony offered in support of summary judgment, I
find that the testimony meets the requirements of Federal Rule of Civil Procedure
56(e). This testimony was unrefuted by plaintiff. To avoid summary judgment,
plaintiff must specify what additional documents or discovery he needs to properly
respond to defendants’ motion. Plaintiff has not done this. For this reason,
plaintiff’s motion for reconsideration of the October 24, 2005 Memorandum and
Order will be denied.
Finally, plaintiff has also filed alternative notices of appeal with respect to the
dismissal of defendant Elaine Moore and the October 24, 2005 Memorandum and
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Order. As plaintiff’s claims against defendants Satterwaite and Rowley remain
pending, these orders are interlocutory in nature and do not constitute an
immediately appealable final judgment under Federal Rule of Civil Procedure 54(b).
Construing plaintiff’s pro se pleadings liberally as requests for permission to appeal,
I will deny the motions because I do not find that the necessary conditions to certify
an interlocutory appeal have been met. See 28 U.S.C. § 1292(b).
Finally, plaintiff has again asked this Court to appoint counsel to represent
him. I denied plaintiff’s previous request for counsel by Memorandum and Order
dated March 29, 2005. Applying the same factors here that I used to consider
plaintiff’s last request for counsel, I again find that appointment of counsel is not
warranted at this time. For this reason, I will deny the motion for appointment of
counsel without prejudice.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motions for reconsideration
and/or in the alternative, motions for leave to appeal, [#74, #75, #76, #77] are
denied.
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IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel
[#70] is denied without prejudice.
_______________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 8th day of December, 2005.
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Straub v. Correctional Medical Services et al Doc.

UNITED STATES DISTRICT COURT

MEMORANDUM AND ORDER

Plaintiff, despite being given numerous opportunities to do so, was unable to

Therefore, I eventually dismissed plaintiff’s claims against her without prejudice.

Plaintiff asks the Court to require defense counsel to provide Moore’s

the ability to impose such a requirement under appropriate circumstances, it is not

involvement in the complained-of actions. Without this direct personal involvement,

a causal connection necessary to state a § 1983 claim against Moore cannot be

process -- would remain appropriate. See 28 U.S.C. § 1915(e)(2)(B)(ii).1 Plaintiff’s

motion for reconsideration will be denied.

and Order granting summary judgment in favor of defendants Williams, Young,

Burkel, Jorgenson, Conley and Correctional Medical Services. Im support of

reconsideration, plaintiff reiterates the same arguments he raised in opposition to

summary judgment. The Court remains unpersuaded by plaintiff’s arguments and

finds that summary judgment in favor of these defendants remains appropriate.

Plaintiff also contends that summary judgment was granted prematurely

because he was unable to conduct adequate discovery on his claims. Although

medical records in support of summary judgment, he fails to aver what records he

defendant’s expert affidavit testimony offered in support of summary judgment, I

56(e). This testimony was unrefuted by plaintiff. To avoid summary judgment,

plaintiff must specify what additional documents or discovery he needs to properly

Order will be denied.

Order. As plaintiff’s claims against defendants Satterwaite and Rowley remain

pending, these orders are interlocutory in nature and do not constitute an

Construing plaintiff’s pro se pleadings liberally as requests for permission to appeal,

an interlocutory appeal have been met. See 28 U.S.C. § 1292(b).

counsel without prejudice.

IT IS HEREBY ORDERED that plaintiff’s motions for reconsideration

IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel

[#70] is denied without prejudice.

Dated this 8th day of December, 2005.

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