United States Court of Appeals

For the Eighth Circuit

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No. 14-1589

___________________________

Terry M. Turner

lllllllllllllllllllll Plaintiff - Appellant

v.

Sidney Mull, Sergeant, Correctional Officer, Transportation Supervisor; Angela

Chandler, Hospital Administrator; Robert Thebeau, Correctional Officer; Terry

Russell; Pete Koenig; John Doe, Correctional Officer

lllllllllllllllllllll Defendants - Appellees

____________

Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

____________

 Submitted: January 13, 2015

 Filed: April 28, 2015

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Before SMITH, BENTON, and SHEPHERD, Circuit Judges.

____________

SMITH, Circuit Judge. 

Terry Turner brought thissuit against several officials at the EasternReception

Diagnostic Correctional Center in Bonne Terre, Missouri (ERDCC), asserting

violations of his rights under the Eighth Amendment; the Fourteenth Amendment;

Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 etseq.; and
§ 504 of the Rehabilitation Act, 29 U.S.C. § 794. The district court granted summary 1

judgment to the officials on all claims. We affirm.

I. Background

At all times relevant to this case, Turner was an inmate at the ERDCC. Turner

suffered froma neurological disorder but was able to ambulate, stand, and sit with the

use of leg braces and crutches. Although Turner sought and received medical care for

his neurological condition on multiple occasions in 2011, no physician ordered that

Turner be provided use of a wheelchair. Similarly, no physician ordered that the

ERDCC transport Turner in a wheelchair-accessible van.

The ERDCC had a wheelchair-accessible van equipped with a "lift"—that is,

a device that raises wheelchair users from the ground to the floor level of the van and

vice versa. The ERDCC generally restricted the van's use to actual wheelchair users,

and signage on the van separately advised that only wheelchairs were allowed on the

wheelchair lift and that standing on the lift was forbidden to avoid falls. Thus, before

allowing inmatesto use the wheelchair-accessible van, the ERDCCgenerallyrequired

that inmates receive a medical order for transportation via a wheelchair-accessible

vehicle and that the inmates arrive at the transportation area in a wheelchair.

On March 22, 2011, Transportation Officer Pete Koenig and Correctional

Officer Robert Thebeau transported Turner to and from a medical appointment at the

CapitolRegional MedicalCenter in Jefferson City, Missouri (CRMC). Turner arrived

at the transportation area with neither a wheelchair nor a physician's order to use a

wheelchair-accessible van. Consequently, he wastransported to and from the CRMC

in a non-wheelchair-accessible van. Turner alleges that, due to physical limitations

allegedly associated with his neurological condition, the only way he could enter the

The Honorable John A. Ross, United States District Judge for the Eastern 1

District of Missouri.

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van was by crawling into it. He also alleges, among other things, that urine and vomit

were on the van floor and that he was unable to eat a sack lunch while traveling in the

van because of his exposure to the unsanitary conditions. 

Turner also alleges that, during his return trip from the CRMC, Thebeau

stopped the van near a bridge for approximately five minutes. At some time during

the stop, according to Turner, Thebau mentioned that he and Koenig could drown

Turner and claim that Turner tried to escape. Thebeau and Koenig then allegedly

looked at Turner and laughed. Turner admits that he "do[es not] know if they [were]

playing or not."

Approximately two months later, on May 19, 2011, Turner filed an Inmate

Resolution Request concerning the alleged events that occurred on March 22, 2011.

At some point thereafter, according to Turner, prison staff searched and "ransacked"

his cell in retaliation for his lodging the complaint. Turner alleges that Thebeau was

present when his cell was searched. Turner further alleges that Thebeau retaliated

against himby visiting "3-House," the housing unit in which Turner wasincarcerated,

and calling Turner "names" and using "expletives."

On September 5, 2011, Angela Chandler, an employee of Corizon, Inc. who

served as the Health Services Administrator at the ERDCC, requested via email to

ERDCC Transportation Supervisor Sidney Mull that Turner be transported in a

"wheelchair, handicapped-accessible van" for medical appointments. Chandler was

not a physician, but Turner had informed her earlier that same day that he found it

uncomfortable and difficult to ride in the non-wheelchair-accessible van. In response

to Chandler's email, Mull informed Chandler that he was willing to transport Turner

in the wheelchair-accessible van (even though Turner lacked any medical order to

that effect); however, Mull made clear that Turner—per facility policy—must arrive

at the transportation area in a wheelchair:

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The only way I can load him via the lift on the handicap van is if he is

in a wheelchair. The vehicle has a warning not to load people with it due

to the risk of falling. If he comes down in a wheelchair I will definitely

take him in the handicap van.

On October 20, 2011, Turner was transferred to the Western Missouri

Correctional Center in Cameron, Missouri (WMCC). Koenig was one of the

transportation officers who transported Turner to the WMCC. Turner alleges that he

was transported in a non-wheelchair-accessible van for part of the trip, although he

was transported in a wheelchair-accessible van for the remainder of the trip.

II. Procedural History

Turner filed suit against Mull, Thebeau, Koenig, Chandler, and ERDCC

Warden Terry Russell. Turner asserted (1) claims under 42 U.S.C. § 1983 against all

of the officials, in both their individual and official capacities, for alleged violations

of Turner's Eighth and Fourteenth Amendment rights; (2) a claim under 42 U.S.C.

§ 1983 against Thebeau for alleged retaliation; (3) claims against all of the officials,

in both their individual and official capacities, for alleged violations of Turner'srights

under Title II of the ADA and § 504 of the Rehabilitation Act; and (4) an additional

retaliation claimagainst Thebeau for alleged retaliation in violation of Turner'srights

under the ADA and Rehabilitation Act.

The district court granted summary judgment to the officials on all claims. With

respect to the official-capacity claims, the court held that "[t]he undisputed facts

. . . do not support a finding that [Turner] required handicapped-accessible

transportation, or thatsuch transportation would have benefitted [Turner]" given that

Turner was "able to ambulate with the use of leg braces and crutches" and that "no

physician had ordered a wheelchair for [Turner]." The court also found that the

ERDCC's policy "requiring inmates to be in wheelchairs in order to utilize the

wheelchair-accessible vans was for their own safety" and that the ERDCC was not

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required to compromise inmates' safety "simply because [Turner] believed that a

wheelchair-accessible van was more comfortable." The court dismissed the § 1983

individual-capacity and Rehabilitation Act claims largely on the same grounds.

The court held that Turner's relatively brief exposure to the allegedly

unsanitary conditions in the van did not rise to the level of a constitutional violation.

Likewise, the court also held that Thebeau's alleged threat to drown Turner was not

a constitutional violation because it was a one-time, isolated incident and Thebeau

took no action in furtherance of the alleged threat. 

With respect to Thebeau's alleged retaliation, the court found that Turner

provided no evidence that Thebeau directed or was otherwise in charge of the search.

The court also found that Turner had proffered insufficient evidence to show that the

search and accompanying property damage were in retaliation for Turner lodging any

complaints. 

Finally, because the court found no constitutional violations, it held that Mull,

Thebeau, Koenig, and Russell (collectively, "Prison Defendants") were additionally

entitled to qualified immunity with respect to Turner's § 1983 claims.

III. Discussion

On appeal, Turner challenges the district court's grant of summary judgment

with respect to (1) his official-capacity claims, (2) his individual-capacity claims

against all of the officials except Russell, (3) his retaliation claims, (4) his

Rehabilitation Act claim against all of the officials except Chandler, and (5) the

Prison Defendants' qualified immunity. 

We review de novo the district court's grant of summary judgment. Hayek v.

City of St. Paul, 488 F.3d 1049, 1054 (8th Cir. 2007) (citation omitted). We will

affirm the district court's grant of summary judgment if "there is no genuine dispute

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asto any material fact and the movant is entitled to judgment as a matter of law." Fed.

R. Civ. P. 56(a). To establish a genuine issue of materialfact, Turner "may not merely

point to unsupported self-serving allegations, but must substantiate allegations with

sufficient probative evidence that would permit a finding in [his] favor." Davidson

& Assocs. v. Jung, 422 F.3d 630, 638 (8th Cir. 2005) (citation omitted). 

A. Official-Capacity Claims

"Official-capacity liability under 42 U.S.C. § 1983 occurs only when a

constitutional injury is caused by 'a government's policy or custom, whether made by

its lawmakers or by those whose edicts or acts may fairly be said to represent official

policy.'" Grayson v. Ross, 454 F.3d 802, 810–11 (8th Cir. 2006) (quoting Monell v.

Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)). Turner may prevail on his officialcapacity claims by identifying a policy that "constitutes either deliberate indifference

to medical needs or a punishment." Haslar v. Megerman, 104 F.3d 178, 180 (8th Cir.

1997) (citations omitted). "To establish a claim of deliberate indifference to serious

medical needs under § 1983, [Turner] must demonstrate that he suffered from an

objectively serious medical need and that [the officials] actually knew of but

deliberately disregarded the need." Santiago v. Blair, 707 F.3d 984, 990 (8th Cir.

2013) (citation omitted).

In the main, Turner argues that the officials violated his constitutional rights

by enforcing a policy that generally restricts use of the wheelchair-accessible van to

inmates in wheelchairs. As a result, according to Turner, the officials were

deliberately indifferent to Turner's alleged serious medical needs and "forced" him

to crawl into the van and to his seat. We disagree.

As a threshold matter, we note that Turner was not "forced" to endure the

hardships of which he now complains; indeed, he could have entirely avoided having

to crawl into the van by, for instance, using a wheelchair. But he did not, even

though, as Turner concedes, wheelchairs were "readily available" there at the

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transportation area. In fact, Turner admitted during his deposition that he did not even

ask to use any of those readily available wheelchairs. Turner may also have avoided

crawling into the van by seeking and obtaining a physician's order to be transported

in a wheelchair and a wheelchair-accessible van.

In any event, the record does not support Turner's assertion that he had an

objectively serious medical need requiring that he use a wheelchair-accessible van.

As noted above, no physician ordered or issued a wheelchair for Turner, much less

ordered that he be transported in a wheelchair-accessible van—even though Turner

sought and obtained medical care for his neurological condition multiple times in

2011. At least one physician specifically deemed that transportation in a wheelchairaccessible vehicle was not necessary for Turner given in part that he was able to

"walk with a leg/torso brace" and "able to sit in a regular vehicle." Furthermore, 2

Turner neither used nor requested to use any of the wheelchairs that were "readily

available" in the transportation area.

The ERDCC and the officials proffered good reasons for enforcing the

wheelchair-users-only policy. It is undisputed that improperly using or standing on

the lift "was considered dangerous due to the possibility of a fall." In short, the

wheelchair-users-only policy represented a rational safety measure for inmates. It is

certainly conceivable that if the ERDCC did not enforce the policy, it would face a

risk of lawsuits from those same inmates in the event they injured themselves while

using the lift improperly. Consequently, asthe district court found, the "ERDCC staff

was not required to compromise its own policy and the safety of its inmates simply

because [Turner] believed that a wheelchair accessible van was more comfortable"

or convenient. The officials' refusal to deviate from this policy did not constitute

The ERDCC's non-wheelchair-accessible minivans sit closer to the ground 2

than wheelchair-accessible vehicles, have dual-sliding doors, and have seats that lean

forward.

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"deliberate indifference" or some other unconstitutional conduct. See, e.g., Farmer

v. Brennan, 511 U.S. 825, 834 (1994) ("[A] prison official violates the Eighth

Amendment only when . . . the deprivation alleged [is], objectively, 'sufficiently

serious' . . . [and results] in the denial of 'the minimal civilized measure of life's

necessities.'" (citations omitted)). 

B. Individual-Capacity Claims

Turner may establish claims against the officials in their individual capacities

under § 1983 if they deprived Turner "of any rights, privileges, orimmunities secured

by the Constitution." 42 U.S.C. § 1983. On appeal, Turner argues that the officials

violated his constitutional rights in various ways. Most of his arguments focus on

whether the officials were deliberately indifferent to an objectively serious medical

need and whether the creation and enforcement of the wheelchair-users-only policy

violatedTurner's constitutionalrights. Having already answered both questions in the

negative, we now address the additional arguments Turner raises with respect to each

individual official.

1. Thebeau and Koenig

Turner alleges that Thebeau and Koenig were deliberately indifferent to

Turner's serious medical needs essentially because they (1) "forced" Turner to be

transported and crawl in the non-accessible, unsanitary van and (2) threatened Turner

once on March 22, 2011, while they were returning from his appointment at the

CRMC.

As discussed above, it is factually incorrect to assert that Thebeau and Koenig

"forced" Turner to endure the alleged hardships that he now complains of. In any

event, even assuming arguendo that Turner's only option wasto crawl in the allegedly

unsanitary van, the district court did not err in dismissingTurner'sindividual-capacity

claims against Thebeau and Koenig.

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Although it istrue that "inmates are entitled to reasonably adequate sanitation,

. . . particularly over a lengthy course of time," Owens v. Scott Cnty. Jail, 328 F.3d

1026, 1027 (8th Cir. 2003) (per curiam) (quotation omitted), Turner's exposure to the

van's allegedly unsanitary conditions did not constitute an Eighth Amendment

violation. It is undisputed that the trip between the ERDCC and the CRMC is

approximately three hours in each direction, meaning that Turner was exposed to the

unsanitary conditions on a single day for a combined maximum of approximately six

hours. Assuming Turner's description of the conditions is accurate, he endured an

undoubtedly unpleasant, potentially unhealthy experience; nonetheless, the district

court did not err in finding no constitutional violation given the record before us and

the relative brevity of Turner's experience. Goldman v. Forbus, 17 F. App'x 487, 488

(8thCir. 2001) (per curiam) (finding no constitutional violation when a detainee slept

two nights on a cell's floor next to a toilet and "urine was sprinkled on him when his

cellmates used the toilet"); Smith v. Copeland, 87 F.3d 265, 268–69 (8th Cir. 1996)

(finding no constitutional violation when detainee wassubjected to "raw sewage" and

an "overflowed toilet" in his cell for four days); Howard v. Adkison, 887 F.2d 134,

137 (8th Cir. 1989) ("Conditions, such as a filthy cell, may 'be tolerable for a few

days and intolerably cruel for weeks or months.'" (quoting Hutto v. Finney, 437 U.S.

678, 687 (1978))).3

Similarly, Thebeau's alleged one-time, one-sentence threat to Turner on March

22, 2011, did not amount to a constitutional violation. "Generally, mere verbal threats

To the extent Turner argues that his alleged inability to eat a sack lunch during

3

his transportation in the van constitutes an Eight Amendment violation, we disagree.

See Hernandez v. Fla. Dep't of Corr., 281 F. App'x 862, 866 (11th Cir. 2008) (per

curiam) (holding that an alleged "routine deprivation of lunch to [an inmate] five days

per week for about five months" did not constitute an Eighth Amendment violation);

Lindsey v. O'Connor, 327 F. App'x 319, 321 (3d Cir. 2009) (per curiam) ("The

purported deprivation of a single meal is not of such magnitude as to rise to the level

of a constitutional violation." (citation omitted)).

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made by a state-actor do not constitute a § 1983 claim." Hopson v. Fredericksen, 961

F.2d 1374, 1378 (8th Cir. 1992) (citations omitted). "In determining whether the

constitutional line has been crossed, a court must look to such factors as the amount

of force that was used in relationship to the need presented, the extent of injury

inflicted, and the motives of the state officer." Id. (quotation omitted). The alleged

threat is redressable under § 1983 if it "caused severe injuries, was grossly

disproportionate to the need for action under the circumstances and was inspired by

malice rather than merely careless or unwise excess of zeal so that it amounted to an

abuse of official power that shocks the conscience." Id. (quotation omitted).

The isolated "threat" at issue resulted in no "injury"; in fact, neither Thebeau

nor Koenig took any action whatsoever to effectuate the threat. Turner admitted that

Thebeau was "like kind of laughing about it, kind of like it wasfunny" when he made

the alleged statement, and Turner further admitted that he does not know whether

Thebeau was actually "playing" at the time. Thebeau's alleged statement was wholly

improper and unprofessional, but it does not amount to an Eighth Amendment

violation, particularly when, by Turner's own admission, it may not have been a true

statement. See, e.g., Walton v. Terry, 38 F. App'x 363, 364–65 (9th Cir. 2002)

(affirming dismissal of a prisoner's "Eighth Amendment claim that prison officials

threatened him, because verbal threats do not constitute cruel and unusual

punishment"); Hopson, 961 F.2d at 1378–79 (finding no constitutional violation

when officers confined plaintiff in a police car, uttered a racial slur, and threatened

to "knock [his] remaining teeth out of his mouth" if he remained silent); Emmons v.

McLaughlin, 874 F.2d 351, 353–54 (6th Cir. 1989) (finding no constitutional

violation when a patrolman threatened the plaintiff and caused him "to fear for his

life").

2. Mull

Turner argues that Mull was deliberately indifferent to Turner's allegedly

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serious medical condition because he allegedly threatened to harm Turner if Turner

refused to ride in the non-wheelchair-accessible van on October 20, 2011. 

As discussed in Section III.A, the record does not support that Turner had a

serious medical need requiring that he use the wheelchair-accessible van. Based on

this reason alone, his individual-capacity claim against Mull for alleged deliberate

indifference fails. See Santiago, 707 F.3d at 990. Moreover, and critically, Turner

overlooks his own contradictory deposition testimony in which he admitted that he

does not know whether it was Mull who allegedly threatened him. Turner's inability

to identify who allegedly made the statement is understandable given that, as Turner

also testified, the person was "behind" Turner at the time that he or she made the

alleged threat. Turner's contradictory testimony alone cannot create a disputed issue

of materialfact necessary to survive summary judgment. See, e.g., Marathon Ashland

Petroleum, L.L.C. v. Int'l Bhd. of Teamsters, 300 F.3d 945, 951 (8th Cir. 2002)

(holding that a witness's "revised" testimony "does not create an issue of disputed

fact" necessary to defeat summary judgment).

3. Chandler

Turner argues in conclusory fashion that Chandler was deliberately indifferent

to his serious medical needs. As discussed above, Chandler's primary involvement in

this case was that she requested that Turner be provided a wheelchair-accessible

van—even though Turner had no physician's order for the use ofsuch a van, and even

though Turner's medical condition neither required him to use a wheelchair to

ambulate nor required him to be transported in a wheelchair-accessible van. On this

record, Turner's claim against Chandler for violating his constitutional rights lacks

any factual support. 

C. Retaliation Claims

Turner alleges that Thebeau unlawfully retaliated against him for complaining

about Thebeau's allegedly unlawful conduct by participating in a cell search in which

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certain of Turner's property was damaged. To establish unlawful retaliation under

§ 504 of the Rehabilitation Act, Turner must show that (1) he "engaged in protected

activity," (2) he was subjected to an "adverse action," and (3) "a causal connection

[exists] between the activity and the [adverse] action." Bradley ex rel. Bradley v. Ark.

Dep't of Educ., 443 F.3d 965, 976 (8th Cir. 2006) (citing Neudecker v. Boisclair

Corp., 351 F.3d 361, 363–64 (8th Cir. 2003)). The elements required for Turner to

establish his claim of retaliation under § 1983 are essentially identical to those under

the Rehabilitation Act. L.L. Nelson Enters., Inc. v. Cnty. of St. Louis, Mo., 673 F.3d

799, 807–08 (8th Cir. 2012) (requiring (1) "protected activity," (2) "adverse action,"

and (3) that the "adverse action [be] motivated at least in part by the exercise of the

protected activity." (quotation omitted)). 

Upon review, we conclude Turner'sretaliation claims fail for two independent

reasons. First, Turner has provided insufficient evidence of any causal link between

his complaints and the cell search. Stripped of their adornments, Turner's claims are

based largely on the timing of the events—that is, that the cell search occurred after

he lodged a complaint. The mere timing of these events, however, does not establish

the causal link necessary to defeat summary judgment. See Dockery v. Beard, 509 F.

App'x 107, 111 (3d Cir. 2013) (affirming dismissal of retaliation claims in part

because "nothing connect[ed] the cell search, confiscation of property, and failure to

return [the inmate's] in-cell property to any particular protected activity"); Huskey v.

City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (affirming summary judgment

against a plaintiff's retaliation claim when holding otherwise "would be to engage in

the logicalfallacy of post hoc, ergo propter hoc, literally, 'after this, therefore because

of this'" (citation omitted)); Bermudez v. TRC Holdings, Inc., 138 F.3d 1176, 1179

(7th Cir. 1998) ("Post hoc ergo propter hoc is not enough to support a finding of

retaliation . . . ."). The mere timing of events is particularly unpersuasive in this case

given that cells in Turner's cell block are searched "at least once a month" as a matter

of course. 

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Second, as the district court noted, "[a]t most, [Turner] has provided evidence

that Thebeau was present, but not personally involved in [the] search." Turner has

not, for instance, shown that Thebeau ordered the search or directed the other officers

during the course of the search. This court has made clear that "[l]iability under

§ 1983 requires a causal link to, and direct responsibility for, the deprivation of

rights." Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (citing Rizzo v.

Goode, 423 U.S. 362, 370–71, 375–77 (1976), and Cotton v. Hutto, 577 F.2d 453,

455 (8th Cir. 1978) (per curiam)). Thus, Turner's failure to establish the requisite

level of involvement from Thebeau is fatal to his retaliation claims. See also Powell

v. Martinez, 579 F. App'x 250, 252 (5th Cir. 2014) (per curiam) (affirming dismissal

for failure to state a claim of retaliation against a prison officer in part because the

plaintiff did not allege the officer "ordered the cell search").

D. Rehabilitation Act Claims

Section 504 of the Rehabilitation Act provides that "[n]o otherwise qualified

individual with a disability in the United States . . . shall, solely by reason of her or

his disability, be excluded from the participation in, be denied the benefits of, or be

subjected to discrimination under any program or activity receiving Federal financial

assistance." 29 U.S.C. § 794(a) (emphasis added). To establish unlawful

discrimination under § 504, Turner "must demonstrate that: (1) he is a qualified

individual with a disability; (2) he was denied the benefits of a program or activity

of a public entity which receives federal funds, and (3) he was discriminated against

based on his disability." Gorman v. Bartch, 152 F.3d 907, 911 (8th Cir. 1998)

(citations omitted). Even if Turner established each of these elements, however, the

officials "may demonstrate as an affirmative defense that a requested accommodation

would constitute an undue burden." Id. (citations omitted).

Turner's claim fails because he has adduced insufficient evidence of unlawful

disability discrimination. The ERDCC's policies freely allowed inmates requiring a

wheelchair to use the wheelchair-accessible van. The wheelchair-users-only policy

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was not instituted to discriminate against wheelchair users or otherwise disabled

people;rather, it wasrooted in concerns over the undisputed safety hazards associated

with people standing on or otherwise improperly using the lift. Moreover, Turner

neither used a wheelchair on the days in question nor obtained any physician's order

to use the wheelchair-accessible van. His failure to do so precluded him from riding

in the wheelchair-accessible van under the ERDCC's policy. Turner has not shown

that ERDCC or its employees treated him differently because of his disability.4

E. Qualified Immunity

"Government officials who perform discretionary functions are entitled to

qualified immunity unless their alleged conduct violated clearly established federal

constitutional orstatutoryrights of which a reasonable person in their positions would

have known." Ottman v. City of Independence, Mo., 341 F.3d 751, 756 (8th Cir.

2003) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). For the reasons

discussed above, the Prison Defendants did not violate Turner's constitutional or

statutory rights. The district court therefore did not err in holding that qualified

immunity bars Turner's § 1983 claims against them.

IV. Conclusion

After thoroughly considering all of Turner's arguments on appeal, we affirm

the district court's dismissal of Turner's claims.

______________________________

To the extent Turner argues he was entitled to use the wheelchair-accessible

4

van and its wheelchair lift as a reasonable accommodation—even though he was not

in a wheelchair and had received no such order froma physician—he isincorrect. The

ERDCC was not required to make such an unsafe accommodation. See Gardner v.

Morris, 752 F.2d 1271, 1280–84 (8thCir. 1985) (holding that an accommodation was

not required under the Rehabilitation Act when it would endanger the plaintiff);

Sharon v. Larson, 650 F. Supp. 1396, 1402 (E.D. Pa. 1986) (holding that an

accommodation not required under § 504 when "the accommodation itself . . . carries

its own built-in danger").

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