Young v. Rios et al

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
GEORGE SOLER YOUNG, )
)
Plaintiff, )
)
v. ) Case No. CIV-15-641-R
)
HECTOR A. RIOS, Warden, et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
Plaintiff George Soler Young, a state prisoner appearing pro se and proceeding in
forma pauperis, filed this federal civil rights action pursuant to 42 U.S.C. § 1983, alleging
that prison officials violated his rights under the United States Constitution. Compl. (Doc.
No. 1). United States District Judge David L. Russell referred the matter to the undersigned
Magistrate Judge for preliminary review in accordance with 28 U.S.C. § 636, and, after
reviewing the motions to dismiss, the undersigned recommended the Court dismiss some
claims and allow others to remain. See R. & R. (Doc. No. 81) at 5-35. The Court agreed
with the undersigned’s reasoning, but rather than dismissing the relevant claims, allowed
Plaintiff to file an amended complaint so as to provide additional factual support. See
Order (Doc. No. 95) at 1-6. The Court instructed Plaintiff that “the Amended Complaint
will stand on its own; accordingly, it must contain all of the allegations, claims, and parties
he intends to be before this Court.” Id. at 3. The Court also re-referred the matter to the
undersigned. See id. at 6.
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PLAINTIFF’S CLAIMS AND RELIEF SOUGHT
Plaintiff has filed an Amended Complaint, renaming 18 of the original 21
defendants and adding 18 new defendants. See Am. Compl. (Doc. No. 102) at 2-6.1
Specifically, Plaintiff asserts claims against GEO Group, Inc. (“GEO”); GEO Vice-
President Reed Smith; Hector A. Rios, Warden of Lawton Correctional Facility (“LCF”);
LCF Deputy Warden, Rick Whitten; and LCF staff members Taime, Rauch, Wiltshire,
Benoit, Hill, Roody, Sessums, Gibson, Cation, Calhoun, Johns, Alston, Ellington, Deason,
McCracken, Zold, Tweedy, Jones, Cornelius, and Phume. See id.2 Plaintiff sues
Defendants Rios, Smith, and GEO in both their official and individual capacities; all other
LCF Defendants are sued in their individual capacities only. See id. Plaintiff also sues
former Oklahoma Department of Corrections (“ODOC”) Director Robert Patton; current
ODOC Director Joe Allbaugh; Anita Trammell, former Warden of Oklahoma State
Reformatory (“OSP”); Terry Royal, current Warden at OSP; and ODOC staff members
1 Citations to the original Complaint and the Amended Complaint will refer to this Court’s
CM/ECF pagination. When quoting Plaintiff, the undersigned has altered some
capitalization for ease of reading.
2 Plaintiff did not rename LCF staff members DeAlmenau, Cantwell, or Caldwell.
Compare Compl. at 13, with Am. Compl. at 1-6. The Court initially found that Plaintiff’s
claims against LCF staff members DeAlmenau and Caldwell should survive dismissal. See
R. & R. at 34-35; Order at 1. Because they have not been identified as Defendants in the
Amended Complaint, the Court should terminate these parties from the action. See Order
at 3 (warning Plaintiff he must rename all the parties he intends to before the Court); see
also S. Utah Wilderness Alliance v. Palma, 707 F.3d 1143, 1152-53 (10th Cir. 2013)
(“Where, as here, the original complaint has been superceded by an amended complaint,
we examine the amended complaint in assessing a plaintiff’s claims . . . .” (internal
quotation marks omitted)).
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Ford, Williams, Miser, Waite, Willingham, Thomas, Perry, and Cooper. See id.
Defendants Allbaugh, Royal, Williams, Miser, and Cooper are named in their individual
and official capacities, while the remaining ODOC Defendants are named only in their
individual capacities. See id.3
Plaintiff sues under 42 U.S.C. § 1983.4 While Plaintiff does not make a specific
request for relief, the undersigned assumes Plaintiff seeks monetary damages. Plaintiff
also has pending motions for injunctive relief (Doc. Nos. 107, 108, 114).5
Although he names numerous ODOC employees, Plaintiff’s claims arise
exclusively from events alleged to have occurred while he was housed at LCF. See Am.
3 Plaintiff also names “John and/or Jane Does” but then explains this is only a placekeeper
meant to “reserve [his] right to add or delete any and all Defendants which discovery shows
to be participants, and/or who directly or indirectly may have violated [his] civil rights.”
Am. Compl. at 6.
4 Plaintiff also invokes 42 U.S.C. §§ 15601-15609 (the Prison Rape Elimination Act
(“PREA”)) and asks the Court to take supplemental jurisdiction over his state-law claims.
See Am. Compl. at 7. However, the PREA does not confer a private right of action upon
Plaintiff. See Coit v. Zavaras, No. 12-cv-00609-WYD-MJW, 2013 WL 3448340, at *11
(D. Colo. July 9, 2013) (“PREA is intended to address the problem of rape in prison,
authorizes grant money, and creates a commission to study the issue. The statute does not
grant prisoners any specific rights.” (omission and internal quotation marks omitted));
accord Moreno v. Corizon Med. Provider, No. 16-CV-01064-JCH-LF, 2017 WL 3052770,
at *2 (D.N.M. June 21, 2017) (“[T]he PREA does not establish a private cause of action
for allegations of prison rape.” (internal quotation marks omitted)). And, Plaintiff’s
Amended Complaint cannot be reasonably construed as raising any state-law claims.
5 Plaintiff also seeks a “prisoner release order” if it is available. Am. Compl. at 7. It is not.
To qualify for a prisoner release order, Plaintiff must show first that “a court has previously
entered an order for less intrusive relief that has failed to remedy the deprivation of the
Federal right sought to be remedied through the prisoner release order.” 18 U.S.C. §
3626(a)(3)(A)(i). Then, he must demonstrate that “the defendant has had a reasonable
amount of time to comply with the previous court orders.” Id. § 3626(a)(3)(A)(ii). These
circumstances are not implicated here.
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Compl. passim. Liberally and reasonably construed, Plaintiff’s Amended Complaint raises
the following claims: (1) an Eighth Amendment violation based upon a 2013 assault by
LCF staff members; (2) an Eighth Amendment violation based upon denial of proper
psychiatric, medical, and dental care; (3) a First Amendment violation through threats of
retaliation for reporting the 2013 assault; and (4) First and Eighth Amendment violations
based on unlawful conspiracy and a retaliatory transfer from LCF to OSP.6
The undersigned has screened the Amended Complaint and recommends that:
(i) Plaintiff’s 42 U.S.C. § 1983 claims for money damages against Defendants
Allbaugh, Royal, Williams, Miser, and Cooper in their official capacities
should be dismissed pursuant to the Eleventh Amendment;
(ii) Plaintiff’s Eighth Amendment excessive-force claim against Defendants
Taime, Rauche, Wiltshire, Hill, Roody, Tweedy, and Jones should survive
the Court’s screening;
(iii) Plaintiff’s Eighth Amendment claim against Defendants Tweedy and
Wiltshire, based on a failure to facilitate medical care, should survive the
Court’s screening;
(iv) Plaintiff’s Eighth Amendment claim involving a two-day delay in receiving
medical care should be dismissed for failure to state a claim against any
named defendant;
(v) Plaintiff’s Eighth Amendment claims against Defendants Rios, GEO Group,
Inc., Patton, Allbaugh, Deason, McCracken, and Zold based upon inadequate
psychiatric and dental care should be dismissed for failure to state a claim
upon which relief can be granted;
6 Plaintiff does not reallege claims involving: (1) an Eighth Amendment violations based
on denial of eye care, (2) a First Amendment violation based upon a refusal to address
administrative grievances; or (3) a challenge to a requirement that Plaintiff be required to
submit payments or copayments for medical care. Compare Compl. at 8, 11, with Am.
Compl. passim.
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(vi) Plaintiff’s conspiracy claims should be dismissed for failure to state a claim
upon which relief can be granted;
(vii) Plaintiff’s claims of retaliatory threats against Defendants Benoit and Roody
should be dismissed for failure to state a valid claim for relief;
(viii) Plaintiff’s First Amendment retaliatory transfer claim should be dismissed
on screening;
(ix) All claims against Defendants Smith, Sessums, Gibson, Cation, Cantwell,
Caldwell, Calhoun, Johns, Alston, Ellington, Trammel, Royal, Ford,
Cornelius, Willingham, Thomas, Perry, and Cooper should be dismissed for
failure to state a claim upon which relief can be granted; and
(x) Plaintiff’s requests for preliminary injunctive relief (Doc. Nos. 94, 107, 108,
114) should be denied.
STANDARD OF REVIEW
Because Plaintiff is proceeding in forma pauperis (see Doc. No. 4), the Court is
obligated to review and dismiss any portion of the Amended Complaint that is frivolous,
malicious, or fails to state a claim upon which relief may be granted. See 28 U.S.C. §
1915(e)(2)(B)(i)-(ii); see also Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007)
(indicating that the Court employs the same analysis for judging a complaint’s sufficiency
whether performed sua sponte or pursuant to a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6)). While the Court construes a pro se litigant’s pleadings liberally,
all parties must adhere to applicable procedural rules. See Kay, 500 F.3d at 1218. Under
such rules, the plaintiff must state a claim upon which relief may be granted, i.e., the
complaint must contain “a short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2). That is, from the allegations in the Amended
Complaint, Defendants must learn “what [they] did to [Plaintiff]; when [they] did it; how
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[their] action harmed [Plaintiff]; and, what specific legal right [Plaintiff] believes [they]
violated.” Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe Cty. Justice Ctr., 492
F.3d 1158, 1163 (10th Cir. 2007). The court reviewing the sufficiency of a complaint “will
not supply additional factual allegations to round out a plaintiff’s complaint or construct a
legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th
Cir. 1997).
In evaluating whether a plaintiff has stated a valid claim, the Court “accept[s] as
true all well-pleaded factual allegations in the complaint and view[s] them in the light most
favorable to the plaintiff.” Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231,
1235 (10th Cir. 2013). A complaint fails to state a claim on which relief may be granted
when it lacks factual allegations sufficient “to raise a right to relief above the speculative
level on the assumption that all the allegations in the complaint are true (even if doubtful
in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (footnote and citation
omitted). Bare legal conclusions are not entitled to the assumption of truth; “they must be
supported by factual allegations” to state a claim for relief. Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009).
“[A] pro se plaintiff requires no special legal training to recount the facts
surrounding his alleged injury, and he must provide such facts if the court is to determine
whether he makes out a claim on which relief can be granted.” Hall v. Bellmon, 935 F.2d
1106, 1110 (1991); see also Whitney, 113 F.3d at 1173-74. Whether a complaint contains
sufficient facts to avoid dismissal is context-specific and is determined through a court’s
application of “judicial experience and common sense.” Iqbal, 556 U.S. at 679.
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ANALYSIS
I. Defendants Allbaugh, Royal, Williams, Miser, and Cooper’s Eleventh
Amendment Immunity from Monetary Damages
Pursuant to the doctrine of sovereign immunity, as adopted in the Eleventh
Amendment, a federal court may not hear a claim brought by a private citizen against a
U.S. state. See U.S. Const. amend. XI; Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54,
65 (1996).
But Eleventh Amendment immunity is not absolute. There are three
exceptions. First, a state may consent to suit in federal court. Second,
Congress may abrogate a state’s sovereign immunity by appropriate
legislation when it acts under Section 5 of the Fourteenth Amendment.
Finally, under Ex parte Young, 209 U.S. 123 (1908), a plaintiff may bring
suit against individual state officers acting in their official capacities if the
complaint alleges an ongoing violation of federal law and the plaintiff seeks
prospective relief.
Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012) (citations
omitted). Eleventh Amendment immunity applies to any state agencies considered to be
“arms of the state.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70-71 (1989). A
defendant’s status as an arm of the state is a question of federal law, but courts make this
determination by analyzing the “nature of the entity created by state law.” Steadfast Ins.
Co. v. Agric. Ins. Co., 507 F.3d 1250, 1253 (10th Cir. 2007) (internal quotation marks
omitted).
“Oklahoma has not consented to be sued in federal court.” Berry v. Oklahoma, 495
F. App’x 920, 921 (10th Cir. 2012); accord Callahan v. Poppell, 471 F.3d 1155, 1159
(10th Cir. 2006); Sossamon v. Texas, 563 U.S. 277, 293 (2011). Nor has Congress
abrogated state immunity through enactment of 42 U.S.C. § 1983. See Berry, 495 F. App’x
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at 921-22; Quern v. Jordan, 440 U.S. 332, 342-45 (1979). Thus, the State of Oklahoma’s
Eleventh Amendment immunity from § 1983 claims for money damages in federal court
remains intact.
Here, the relevant state agency is ODOC, because Defendants Allbaugh, Royal,
Williams, Miser, and Cooper were employed by that agency during the events giving rise
to this lawsuit. See Am. Compl. at 2-6. “ODOC is . . . shielded by sovereign immunity
because it is an arm of the state.” Berry, 495 F. App’x at 922 (citing Eastwood v. Dep’t of
Corr. of Okla., 846 F.2d 627, 631-32 (10th Cir. 1988)). And “it is well-established that
‘the Eleventh Amendment precludes a federal court from assessing damages against state
officials sued in their official capacities because such suits are in essence suits against the
state.’” Peterson v. Lampert, 499 F. App’x 782, 786 (10th Cir. 2012) (quoting Hunt v.
Bennett, 17 F.3d 1263, 1267 (10th Cir. 1994)). ODOC’s immunity extends to a plaintiff’s
§ 1983 claims against ODOC employees who are sued in their official capacities for
damages. Cleveland v. Martin, 590 F. App’x 726, 730 (10th Cir. 2014) (“Because the
defendants are employees of the Oklahoma Department of Corrections . . . , the Eleventh
Amendment applies to the official-capacity claims for damages.”); accord Turner v. Nat’l
Council of State Bds. of Nursing, Inc., 561 F. App’x 661, 665 (10th Cir. 2014).
In sum, the Eleventh Amendment protects ODOC Defendants Allbaugh, Royal,
Williams, Miser, and Cooper from monetary damages under 42 U.S.C. § 1983. See
Cleveland, 590 F. App’x at 730; Eastwood, 846 F.2d at 632. Accordingly, to the extent
Plaintiff’s § 1983 claims can be construed as seeking monetary relief from these parties in
their official capacities, they should be dismissed without prejudice.
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II. Plaintiff’s Remaining 42 U.S.C. § 1983 Claims
When a defendant is sued in his or her individual capacity under § 1983, the
complaint must meet specific requirements as to each defendant. First, the plaintiff must
allege facts that establish the defendant’s “personal involvement or participation” in the
alleged violation of a federal right. Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir. 1996);
see also Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). Second, the plaintiff
must allege facts that establish a causal connection between the acts of that particular
defendant and the alleged violation of a federal right. See Iqbal, 556 U.S. at 676; Pahls v.
Thomas, 718 F.3d 1210, 1225-26, 1228 (10th Cir. 2013). Finally, the plaintiff must allege
facts to establish that the defendant acted with the state of mind required for the alleged
underlying federal rights violation. See Daniels v. Williams, 474 U.S. 327, 330 (1986).
These requirements also apply to pleading a § 1983 claim against a supervisor
defendant whose liability is based upon his or her supervisory responsibilities, as even
though “direct participation” is unnecessary, liability must “be predicated on a violation
traceable to a defendant-official’s ‘own individual actions.’” Pahls, 718 F.3d at 1225
(quoting Iqbal, 556 U.S. at 676); see also Schneider v. City of Grand Junction Police Dep’t,
717 F.3d 760, 767-69 (10th Cir. 2013) (“The plaintiff therefore must show an ‘affirmative
link’ between the supervisor and the constitutional violation.”); Dodds v. Richardson, 614
F.3d 1185, 1198-1201 (10th Cir. 2010) (“[Section] 1983 liability only [may] be imposed
upon those defendants whose own individual actions cause a constitutional deprivation . .
. .”).
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A. Plaintiff’s Eighth Amendment Claim: October 2013 Assault
Much as he did in his original Complaint, Plaintiff alleges that on October 25, 2013,
he was physically and sexually assaulted by LCF officials during a strip search. See Am.
Compl. at 10-11. Specifically, Plaintiff alleges he “was handcuffed” and escorted to
another pod cell, where Defendants Hill, Taime, Rauch, and Wiltshire began pushing,
punching, kicking, and beating him. Id. at 11. Plaintiff claims that during the physical
assault, Defendant Taime “roughly insert[ed] his fingers in and out of [Plaintiff’s] rectum.”
Id. According to Plaintiff, Defendants Roody, Jones, and Tweedy did not “stop or report
the assault.” Id.
The Court has previously found that these allegations plausibly state a valid claim
for relief against Defendants Hill, Taime, Rauch, Wiltshire, and Roody under the Eighth
Amendment. See R. & R. at 9-14; Order passim. Based on the same reasoning, the Court
should do so again. Further, the Court should find Plaintiff has stated a plausible claim
against newly named Defendants Tweedy and Jones. See Hovater v. Robinson, 1 F.3d
1063, 1068 (10th Cir. 1993); see also Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir. 1996)
(denying qualified immunity to defendants where it was clearly established that even if an
individual’s own use of force was not excessive, “a law enforcement official who fails to
intervene to prevent another law enforcement official’s use of excessive force may be liable
under § 1983”).
Plaintiff has failed, however, to state a valid claim for relief against Defendant Rios,
the LCF Warden. See R. & R. at 9-14; Order passim. In his original Complaint, Plaintiff
mentioned Defendant Rios in his narrative of the assault but did not allege facts regarding
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Defendant Rios’ involvement or participation such as would be required to state a claim
against him. R. & R. at 9-14. Plaintiff’s related allegations against Defendant Rios in the
Amended Complaint have not cured that deficiency.
Although a supervisor may be held liable if he or she is affirmatively linked to the
constitutional violation, “[s]ection 1983 does not authorize liability under a theory of
respondeat superior.” Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011). Such an
affirmative link requires “more than ‘a supervisor’s mere knowledge of his subordinate’s’
conduct.” Schneider, 717 F.3d at 767 (quoting Iqbal, 556 U.S. at 677). In the Amended
Complaint, Plaintiff alleges only that Defendant Rios failed to adequately train or supervise
his staff and, based on a supposed previous assault on a different inmate, knew or should
have known that his failure to investigate or act on grievances would lead to another assault.
See Am. Compl. at 14. Again, Plaintiff’s allegations do not reasonably support an
inference that Defendant Rios knew that his alleged failure to properly investigate would
cause others to violate Plaintiff’s constitutional rights, much less that Defendant Rios
personally participated in or facilitated the assault. See Schneider, 717 F.3d at 767-68. The
Court should again dismiss Defendant Rios from Plaintiff’s claim involving the October
2013 assault.
B. Plaintiff’s Eighth Amendment Claim: Medical, Dental, and Psychiatric
Care
Plaintiff in his Amended Complaint reasserts his claims that he was denied proper
medical and dental care, and he adds a claim involving denial of psychiatric care while
housed at LCF. See Am. Compl. at 16.
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1. Eighth Amendment Standard
The Eighth Amendment “imposes duties on [prison] officials” to “provide humane
conditions of confinement; prison officials must ensure that inmates receive adequate food,
clothing, shelter, and medical care, and must ‘take reasonable measures to guarantee the
safety of the inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v.
Palmer, 468 U.S. 517, 526-27 (1984)). To succeed on a claim involving medical care,
Plaintiff must show in relevant part that Defendants “‘[knew] of and disregard[ed] an
excessive risk to inmate health or safety.’” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir.
2005) (quoting Farmer, 511 U.S. at 834).
First, Plaintiff must establish an objective prong, showing “that the deprivation at
issue was in fact ‘sufficiently serious.’” Id. (quoting Farmer, 511 U.S. at 834).
We have said that a medical need is sufficiently serious if it is one that has
been diagnosed by a physician as mandating treatment or one that is so
obvious that even a lay person would easily recognize the necessity for a
doctor’s attention. Where the necessity for treatment would not be obvious
to a lay person, the medical judgment of the physician, even if grossly
negligent, is not subject to second-guessing in the guise of an Eighth
Amendment claim. Moreover, a delay in medical care only constitutes an
Eighth Amendment violation where the plaintiff can show the delay resulted
in substantial harm. The substantial harm requirement may be satisfied by
lifelong handicap, permanent loss, or considerable pain.
Id. (citations and internal quotation marks omitted).
Next, to establish the subjective component—i.e., deliberate indifference to a
substantial risk of harm—Plaintiff must show that the prison official in question acted with
a “culpable state of mind.” Id.; Farmer, 511 U.S. at 834, 836.
The subjective component is satisfied if the official knows of and
disregards an excessive risk to inmate health or safety; the official must both
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be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and she must also draw the inference. A prison
medical professional who serves solely as a gatekeeper for other medical
personnel capable of treating the condition may be held liable under the
deliberate indifference standard if he delays or refuses to fulfill that
gatekeeper role.
Mata, 427 F.3d at 751 (alteration, omission, citations, and internal quotation marks
omitted); see also Gamble, 429 U.S. at 104-05 (noting that deliberate indifference can be
manifested “by prison guards in intentionally denying or delaying access to medical care”).
2. Plaintiff’s Allegations
With respect to medical care, Plaintiff first asserts that Defendants Tweedy and
Wiltshire refused to take him for medical care directly after witnessing the attack on
October 25, 2013. Then, he asserts he did not receive medical care for two days. See Am.
Compl. at 11. Plaintiff’s allegations related to the first assertion state a valid claim but his
allegations related to the second, more general assertion do not.
Plaintiff’s claim that Defendants Tweedy and Wiltshire refused to take him for
medical care directly after the attack on October 25, 2013, should survive the Court’s
screening. Plaintiff states the assault left him “scarred, with broken and [loose] teeth,
bleeding out of my mouth, temple and rectum.” Id. at 16. He also alleges he has “a bone
that protrudes close to my neck area higher than other side and they had my body bruised
. . . . So there [was] physical suffering.” Id. These allegations are sufficient to plead both
the objective and subjective components of an Eighth Amendment violation. Assuming
such facts to be true, Plaintiff’s broken teeth and bleeding mouth, temple, and rectum
constituted a medical condition that was both serious and by its nature should have made
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it obvious to Defendants Tweedy and Wiltshire that Plaintiff required medical care. See
Mata, 427 F.3d at 751 (“A prison medical professional who serves solely as a gatekeeper
for other medical personnel capable of treating the condition may be held liable under the
deliberate indifference standard if she delays or refuses to fulfill that gatekeeper role.”
(omission and internal quotation marks omitted)).
Conversely, Plaintiff has failed to state a valid claim insofar as his general complaint
of a two-day delay in medical care. Plaintiff alleges 36 Defendants “refused [him] medical
for two days,” but fails to specify—beyond the specific claims and allegations discussed
separately—the particular acts or state of mind of those persons. Am. Compl. at 16.
Plaintiff’s Amended Complaint thus fails to comply with Federal Rule of Civil Procedure
8’s requirement that a pleading contain the basic factual information needed to identify
what claim is being asserted against what defendant. See Pahls, 718 F.3d at 1225-26
(“When various officials have taken different actions with respect to a plaintiff, the
plaintiff’s facile, passive-voice showing that his rights ‘were violated’ will not suffice.
Likewise insufficient is a plaintiff’s more active-voice yet undifferentiated contention that
‘defendants’ infringed his rights.”); Guinn v. Jeffco Combined Courts, 537 F. App’x 790,
791-94 (10th Cir. 2013) (affirming the district court’s dismissal of plaintiff’s complaint
under Rule 8 where inmate named numerous defendants but failed to identify which
defendant violated any specific right).
With respect to his dental care, Plaintiff alleges newly added Defendant Deason, the
LCF dentist, “recommended dentures, yet failed to provide [Plaintiff] with regular
scheduled appointments to provide . . . needed treatment.” Am. Compl. at 16. Plaintiff
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then lists the potential side effects that may come with a lack of dental treatment and claims
Defendants Deason, Patton, Allbaugh, Rios, and GEO have been deliberately indifferent
to his dental needs. See id.
The Court previously found Plaintiff had failed to allege facts showing a serious
medical need for dentures. See R. & R. at 17-20; Order passim. Plaintiff has not cured
that factual deficiency in the Amended Complaint; indeed, Plaintiff has provided fewer
details and accusations on this subject in his Amended Complaint than he did in the original
Complaint. Moreover, Plaintiff has again offered only vague factual allegations supporting
his conclusory assertion that he has been denied regular dental appointments. So, again,
the Court should dismiss Plaintiff’s alleged lack of dental care claims against Defendants
Deason, Patton, Allbaugh, Rios, and GEO.
Finally, the Court should also dismiss Plaintiff’s new claims involving the alleged
denial of psychiatric care. In a rambling and unorganized fashion, Plaintiff simply
complains that the LCF Special Report shows he visited with a LCF psychiatrist (identified
in the exhibit as Defendant McCracken) but he has “no recollection of whether she actually
ever stopped at my cell door.” Am. Compl. at 12. He then alleges he asked Defendant
Zold, “another psyche lady,” for “her intervention and help.” Id. Such conclusory
allegations wholly fail to allege that Plaintiff had a sufficiently serious need for psychiatric
care or that either Defendant McCracken or Defendant Zold ignored that need with a
culpable state of mind. Because Plaintiff had not adequately pled either the objective or
subjective component of an Eighth Amendment claim, the Court should dismiss Plaintiff’s
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claims against Defendants McCracken and Zold based on an alleged denial of psychiatric
treatment.
C. Plaintiff’s Retaliatory Transfer Claim
Plaintiff re-asserts his claim that he was transferred from LCF to another facility,
OSP, as punishment for having reported and complained about the sexual and physical
assault of October 25, 2013. See Am. Compl. at 14-15. In his Amended Complaint,
Plaintiff states that Defendants Rios, Patton, White, Phume, Whitten, Williams, and Miser
transferred Plaintiff to OSP under the false accusation that he “had killed an inmate and
caused others to overdose” and also “raped another inmate.” Id. at 14. Plaintiff alleges
that, due to old grudges at OSP, the transfer put him in “risk of harm or death.” Id. Plaintiff
further alleges that Defendants Benoit and Roody verbally threatened him with retaliation.
See id. at 11-13. Liberally construed, Plaintiff raises three separate claims regarding his
transfer from LCF to OSP: (1) a conspiracy claim; (2) an Eighth Amendment failure-to-
protect claim; and (3) a First Amendment retaliation claim.
1. Conspiracy
Reviewing Plaintiff’s original Complaint, the Court found that while he had
generally alleged that Defendants had conspired to transfer him, he had alleged no specific
facts to actually show any such agreement, as required to establish that a conspiracy
existed. See R. & R. at 22-23; Order passim. Plaintiff in his Amended Complaint continues
to offer the conclusion that there was a conspiracy without any facts to support that
conclusion. See Am. Compl. passim. The Court should again dismiss Plaintiff’s
conspiracy claim, this time alleged against Defendants Rios, Patton, White, Phume,
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Whitten, Williams, and Miser. See Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994)
(holding plaintiff must “allege specific facts showing agreement and concerted action
among” the defendants and “[c]onclusory allegations of conspiracy are insufficient to state
a valid § 1983 claim” (internal quotation marks omitted)).
2. Failure to Protect
In addition to a duty to provide adequate medical care, the Eighth Amendment
obligates prison officials to “take reasonable measures to guarantee the safety of the
inmates” and to “protect prisoners from violence at the hands of other prisoners.” Farmer,
511 U.S. at 832, 833 (internal quotation marks omitted). “[I]n order to establish a
cognizable Eighth Amendment claim for failure to protect, a plaintiff ‘must show that he
is incarcerated under conditions posing a substantial risk of serious harm,’ the objective
component, and that the prison official was deliberately indifferent to his safety, the
subjective component.” Benefield v. McDowall, 241 F.3d 1267, 1271 (10th Cir. 2001)
(quoting Farmer, 511 U.S. at 834).
As with his original Complaint, Plaintiff’s allegations in his Amended Complaint
fail to meet both the objective and subjective components of a failure-to-protect claim.
Plaintiff believes his life is in danger at OSP, but aside from describing a “grudge” dating
back to 1986, see Am. Compl. at 8-9, he does not allege that his conditions of confinement
actually “pos[e] a substantial risk of serious harm,” and so his allegations do not implicate
the Cruel and Unusual Punishments Clause of the Eighth Amendment. See Farmer, 511
U.S. at 834; Benefield, 241 F.3d at 1271. Plaintiff’s vague, nonspecific allegations that his
life is in danger, even coupled with an assertion that threats were made against him at OSP
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decades ago, do not constitute a well-pleaded factual allegation showing a disregarded
“substantial risk of serious harm” or injuries that are plausibly “sufficiently serious to
constitute a deprivation of constitutional dimension.” Self v. Crum, 439 F.3d 1227, 1230-
31 (10th Cir. 2006). Plaintiff’s Eighth Amendment failure-to-protect claim therefore
should be dismissed without prejudice for failure to state a claim upon which relief may be
granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
3. Retaliation
Prison officials may not retaliate against an inmate on account of, or otherwise
harass an inmate in retaliation for, the inmate’s exercise of his First Amendment rights.
Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990). “This principle applies even where
the action taken in retaliation would be otherwise permissible.” Id. at 948.
Government retaliation against a plaintiff for exercising his or her First
Amendment rights may be shown by proving the following elements: (1) that
the plaintiff was engaged in constitutionally protected activity; (2) that the
defendant’s actions caused the plaintiff to suffer an injury that would chill a
person of ordinary firmness from continuing to engage in that activity; and
(3) that the defendant’s adverse action was substantially motivated as a
response to the plaintiff’s exercise of constitutionally protected conduct.
Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007); accord Gee v. Pacheco, 627
F.3d 1178, 1189 (10th Cir. 2010).
In reviewing a prisoner’s claim of retaliation, however, “it is not the role of the
federal judiciary to scrutinize and interfere with the daily operations of a state prison.”
Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (citing Turner v. Safley, 482 U.S.
78 (1987)). Thus, to prevail on a retaliation claim, a prisoner must ultimately show that
the challenged actions would not have occurred “but for” a retaliatory motive. Id.; see also
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Brown v. Wyo. Dep’t of Corr. State Penitentiary Warden, 234 F. App’x 874, 877-78 (10th
Cir. 2007) (“[A] prisoner claiming retaliation must allege specific facts showing retaliation
[on account] of the exercise of the prisoner’s constitutional rights, and he must prove that
‘but for’ the retaliatory motive, the incidents to which he refers, including the disciplinary
action, would not have taken place.” (second alteration in original) (citation and internal
quotation marks omitted)). Under this standard, the Court should dismiss Plaintiff’s
retaliation claims.
Turning first to Plaintiff’s allegation that Defendants Benoit and Roody verbally
threatened that he would “never get released from segregation” if he reported the alleged
October 25, 2013 assault, Am. Compl. at 11-12, the Court should dismiss the retaliation
claim on screening. Mere verbal threats of harm or harassment by correctional officials do
not state a § 1983 claim in the absence of specific events creating an imminent fear of death
or serious injury. See Northington v. Jackson, 973 F.2d 1518, 1524 (10th Cir. 1992)
(recognizing constitutional “right to be free from the terror of instant and unexpected death
at the hands of [the prisoner’s] keepers”); Collins v. Cundy, 603 F.2d 825, 827 (10th Cir.
1979) (noting that sheriff’s laughing at prisoner and threatening to hang him was “[v]erbal
harassment or abuse” but “not sufficient to state a constitutional deprivation under 42
U.S.C. § 1983.”). Moreover, Plaintiff did report the alleged assault. Thus, Plaintiff almost
certainly cannot show Defendants Benoit and Roody’s verbal threats were such that they
would “chill or silence a person of ordinary firmness from future First Amendment
activities.” Hallstein v. City of Hermosa Beach, 87 F. App’x 17, 19 (10th Cir. 2003)
(finding officer’s threats of retaliation did not rise to the level of a constitutional violation
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where the threats “would not dissuade an ordinary person from further complaining” and
“did not deter” plaintiff from exercising his rights). The Court should summarily dismiss
the retaliation claim against Defendants Benoit and Roody without prejudice.
With respect to Plaintiff’s retaliatory transfer claim, Plaintiff states that he reported
the October 25, 2013 incident to Defendant Whitten on October 29, 2013, but he was not
transferred to OSP until February 19, 2014—over 3½ months later.7 See Am. Compl. at
10 (providing the date transferred), 12 (referencing Am. Compl. Ex. 10 (Doc. No. 102-10),
showing a report date of October 29, 2013). The Tenth Circuit has “repeatedly held that
one cannot infer causation from temporal proximity alone when the time lapse between the
protected activity and the retaliatory act exceeds three months.” Lauck v. Campbell Cty.,
627 F.3d 805, 815 (10th Cir. 2010) (collecting cases). Thus, Plaintiff must provide
additional facts to establish causation. See Meiners v. Univ. of Kan., 359 F.3d 1222, 1231
(10th Cir. 2004) (holding where the adverse action is not “very closely connected in time”
to the exercise of a constitutional right, plaintiff must provide “additional evidence” to
establish causation to support a retaliation claim (internal quotation marks omitted)). He
does not do so. Plaintiff offers his opinion that Defendant Rios “only ordered my removal
from protective custody . . . after I reported the [sexual] assault.” Am. Compl. at 14.
However, “[a] plaintiff’s subjective beliefs about why the government took action, without
7 Plaintiff alleges that on February 13, 2014, Defendant Williams became aware that
Plaintiff had sent a letter to Oklahoma Governor Mary Fallin. See Am. Compl. at 15.
Plaintiff does not allege, however, that Defendant Williams initiated or ordered Plaintiff’s
transfer, but only that Defendant Williams went “along with the scheme.” Id. at 14-15.
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facts to back up those beliefs, are not sufficient.” Nielander v. Bd. of Cty. Comm’rs of Cty.
of Republic, 582 F.3d 1155, 1165 (10th Cir. 2009); see also Jones v. Greninger, 188 F.3d
322, 325 (5th Cir. 1999) (“[T]he inmate must allege more than his personal belief that he
is the victim of retaliation.”).
In sum, Plaintiff cannot rely on a temporal proximity to demonstrate causation and
his bald allegation that Defendants Rios, Patton, White, Phume, Whitten, Williams, and
Miser acted in retaliation is not supported by sufficient facts. Accordingly, Plaintiff’s
retaliation claim against these Defendants should be dismissed for failure to state a claim
upon which relief can be granted.8
D. Plaintiff’s Allegations Against Defendants Smith, Sessums, Gibson,
Cation, Cantwell, Caldwell, Calhoun, Johns, Alston, Ellington, Trammel,
Royal, Ford, Cornelius, Willingham, Thomas, Perry, and Cooper
In listing the defendants in his lawsuit, Plaintiff names LCF and DOC officers
Smith, Sessums, Gibson, Cation, Cantwell, Caldwell, Calhoun, Johns, Alston, Ellington,
Trammel, Royal, Ford, Cornelius, Willingham, Thomas, Perry, and Cooper. See Am.
Compl. at 2-6. However, these parties are not mentioned again in the Amended Complaint,
and Plaintiff never identifies any wrongdoing by any of them. See id. passim. In other
words, Plaintiff has wholly failed to inform these individuals “what [they] did to [Plaintiff];
8 The undersigned made a converse recommendation when reviewing Plaintiff’s original
Complaint and the Defendants’ motions to dismiss. See R. & R. at 25-27. Plaintiff’s
pleadings have changed, however. In his Amended Complaint, Plaintiff gives precise dates
for his protected activity and transfer, but he fails to offer further specific facts surrounding
his transfer.
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when [they] did it; how [their] action harmed [Plaintiff]; and, what specific legal right
[Plaintiff] believes [they] violated.” Nasious, 492 F.3d at 1163. According, the Court
should dismiss Plaintiff’s claims against these individuals.
E. Plaintiff’s Requests for Injunctive Relief
Plaintiff also has submitted three requests for injunctive relief. These should be
denied for the reasons provided below.
1. Plaintiff’s First Request
Prior to the filing of his Amended Complaint, Plaintiff filed a motion asserting that
OSP officials were retaliating against him by improperly taking his paperwork and by
falsely accusing him of concealing contraband. See Doc. No. 94, at 1-4. In this motion,
Plaintiff requested that the Court transfer him from OSP to protective custody at LCF and
grant injunctive relief to prevent OSP officials from taking further improper action. Id. at
4.
A preliminary injunction is “an extraordinary remedy that may only be awarded
upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 22 (2008). For entry of a preliminary injunction, the
applicant generally must satisfy four elements: (1) a substantial likelihood that he or she
will prevail on the merits; (2) irreparable harm unless the restraining order is issued; (3)
outweighing of the harm from the threatened injury against the adversary’s harm from the
preliminary injunction; and (4) the absence of an adverse impact on the public interest.
Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). A preliminary injunction is
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appropriate only when the movant’s right to relief is clear and unequivocal. Schrier v.
Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005).
Plaintiff is unable to show a clear and unequivocal right to relief. First, although
Plaintiff was housed at OSP when he filed this motion, he since has been transferred to
Joseph Harp Correctional Center (“JHCC”) in Lexington, Oklahoma. See Doc. No. 115.
There is no indication in the record that Plaintiff will return to OSP in the foreseeable
future. Plaintiff’s request to enjoin officials’ conduct toward him at that facility “was
undoubtedly mooted by his transfer” to another facility. Stephens v. Jones, 494 F. App’x
906, 910 (10th Cir. 2012). “A preliminary injunction directed at [OSP] prison officials
would not . . . provide[] any ‘conclusive relief’ because [Plaintiff] [is] no longer housed
there.” Id. (quoting Jordan v. Sosa, 654 F.3d 1012, 1024 (10th Cir. 2011)).
Second, a preliminary injunction grants intermediate relief of the same character as
that which may be finally granted. De Beers Consol. Mines, Ltd. v. United States, 325 U.S.
212, 220 (1945). The Court may not enter a preliminary injunction when the movant seeks
intermediate relief beyond the claims of the complaint. See Stouffer v. Eulberg, No. CIV-
09-320-C, 2010 WL 567998, at *1, *2 & n.3 (W.D. Okla. Feb. 11, 2010) (citing Omega
World Travel, Inc. v. Trans World Airlines, 111 F.3d 14, 16 (4th Cir. 1997) (“[A]
preliminary injunction may never issue to prevent an injury or harm which not even the
moving party contends was caused by the wrong claimed in the underlying action.”)).
Thus, “the movant must establish a relationship between the injury claimed in the party’s
motion and the conduct asserted in the complaint.” Little, 607 F.3d at 1251 (internal
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quotation marks omitted); see also Penn v. San Juan Hosp., Inc., 528 F.2d 1181, 1185
(10th Cir. 1975).
Here, the undersigned has recommended dismissal of all but two of Plaintiff’s legal
claims, and those claims implicate only action that transpired at LCF and conduct of LCF
officials. Plaintiff therefore has not shown the requisite relationship between his remaining
legal claims and his request for injunctive relief and cannot show a substantial likelihood
he would prevail on the merits of claims related to his request for an injunction against
OSP officials. See Little, 607 F.3d at 1251; De Beers Consol. Mines, Ltd., 325 U.S. at 220.
Moreover, a federal court considering a motion for preliminary injunctive relief
affecting the conditions of a prisoner’s confinement must give substantial weight to the
adverse impact on public safety and on prison operation. See 18 U.S.C. § 3626(a)(2);
Stephens, 494 F. App’x at 911-12. The Supreme Court has declared that courts are not to
substitute their judgment on matters of institutional administration for the determinations
made by prison officials. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 353 (1987).
Granting the relief Plaintiff seeks would require this Court to intrude directly into the
affairs of state prison administration, which for important policy reasons is a step courts
should be reluctant to take. See Safley, 482 U.S. at 84-86; cf. Stephens, 494 F. App’x at
912 (affirming denial of requested injunctive relief as “overbroad and more intrusive than
necessary”). Plaintiff cannot meet his burden to demonstrate that the injunction he requests
is not adverse to the public interest—the relevant public interest here being deference to
prison officials’ proper administration of their prison facilities. See Kikumura, 242 F.3d at
955.
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For all of these reasons, Plaintiff’s first motion should be denied.
2. Plaintiff’s Second Request
In his second motion, Plaintiff again seeks to be transferred away from OSP and
placed in protective housing at LCF. Doc. No. 108; see also Doc. No. 107 (Plaintiff’s
declaration in support). Though labeled as a motion for “injunction/TRO,” Plaintiff’s
request is properly viewed as seeking a preliminary injunction under Federal Rule of Civil
Procedure 65(a) rather than a temporary restraining order (“TRO”) under Federal Rule of
Civil Procedure 65(b). Rule 65(b) generally contemplates that a TRO would be issued only
for a short term and “without written or oral notice to the adverse party or its attorney.”
See Fed. R. Civ. P. 65(b)(1). Because the served Defendants have had notice, the Court
should treat the request for a TRO as superseded by the alternative request for a preliminary
injunction. See, e.g., Kan. Hosp. Ass’n v. Whiteman, 835 F. Supp. 1548, 1551 (D. Kan.
1993); TLX Acquisition Corp. v. Telex Corp., 679 F. Supp. 1022, 1028 (W.D. Okla. 1987);
see also 11A Charles Alan Wright et al., Federal Practice and Procedure § 2951 (3d ed.
2013).
Plaintiff has not met his burden to show that entry of a preliminary injunction is
warranted. First, as noted above, Plaintiff already has been transferred away from OSP,
and this transfer “undoubtedly mooted” his request to the extent he complains of actions
taken against him by OSP officials. Stephens, 494 F. App’x at 910.
Next, the undersigned has recommended that the Court dismiss all of Plaintiff’s
claims except those involving excessive force at LCF and the denial of medical care
immediately following the alleged assault at LCF. As a result, Plaintiff has not shown the
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requisite relationship between his remaining legal claims and this request for injunctive
relief and cannot show a substantial likelihood he would prevail on the merits of claims
related to this request for an injunction. See Little, 607 F.3d at 1251; De Beers Consol.
Mines, Ltd., 325 U.S. at 220.
Finally, Plaintiff cannot meet his burden to demonstrate that the injunction he
requests is not adverse to the public interest, given the Court’s obligation to give substantial
weight to the adverse impact on public safety and on prison operation of such relief. See
18 U.S.C. § 3626(a)(2); Stephens, 494 F. App’x at 911-12; Safley, 482 U.S. at 84-86; see,
e.g., Johnson v. Saffle, No. 99-6148, 2000 WL 130726, at *2 (10th Cir. Feb. 4, 2000)
(affirming denial of temporary restraining order in which “the relief requested was not
consistent with the public interest”).
For all of these reasons, Plaintiff’s second motion should be denied.
3. Plaintiff’s Third Request
In his third motion, filed July 31, 2017, Plaintiff seeks a preliminary injunction or
TRO, complaining that he is about to be transferred to the general population at an
unknown facility, where his life will be in danger due to his being “an ex-prospective
correctional officer.” Doc. No. 114, at 1. According to Plaintiff, his placement into a
facility’s general population rather than protective custody places him in danger of being
“seriously hurt or killed.” Id. at 2. Plaintiff’s request for “immediate protection” should
be construed as a request for preliminary injunctive relief. Id. at 3; see discussion supra
Part II.E.2.
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Plaintiff’s vague, unsubstantiated speculation as to the imminent danger of a transfer
from OSP do not adequately demonstrate that he is faced with irreparable harm, as required
for injunctive relief to issue. See Kikumura, 242 F.3d at 955.9 Further, his speculation of
harm at an unidentified facility does not bear the requisite relationship to the legal claims
of his Amended Complaint. See Little, 607 F.3d at 1251. And Plaintiff cannot show that
the Court stepping in to halt a proposed transfer of one prisoner to an unidentified location
is not adverse to the public interest. See Stephens, 494 F. App’x at 911-12; Johnson, 2000
WL 130726, at *2.
This motion should be denied.
RECOMMENDATION
For the reasons outlined above, the undersigned recommends that:
(i) Plaintiff’s 42 U.S.C. § 1983 claims for money damages against Defendants
Allbaugh, Royal, Williams, Miser, and Cooper in their official capacities be
dismissed pursuant to the Eleventh Amendment;
(ii) Plaintiff’s Eighth Amendment excessive-force claim against Defendants
Taime, Rauche, Wiltshire, Hill, Roody, Tweedy, and Jones should survive
the Court’s screening;
(iii) Plaintiff’s Eighth Amendment claim against Defendants Tweedy and
Wiltshire, based on a failure to facilitate medical care, should survive the
Court’s screening;
(iv) Plaintiff’s Eighth Amendment claim involving a two-day delay in receiving
medical care should be dismissed for failure to state a claim against any
named defendant;
9 On August 17, 2017, Plaintiff notified the Court that he had been transferred to JHCC,
see Doc. No. 115; he has submitted no further filings regarding his new facility or his
placement therein.
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(v) Plaintiff’s Eighth Amendment claims against Defendants Rios, GEO, Patton,
Allbaugh, Deason, McCracken, and Zold based upon inadequate psychiatric
and dental care should be dismissed for failure to state a claim upon which
relief can be granted;
(vi) Plaintiff’s conspiracy claims should dismissed for failure to state a claim
upon which relief can be granted;
(vii) Plaintiff’s claims of retaliatory threats against Defendants Benoit and Roody
should be dismissed for failure to state a valid claim for relief;
(viii) Plaintiff’s First Amendment retaliatory transfer claim should be dismissed
on screening;
(ix) All claims against Defendants Smith, Sessums, Gibson, Cation, Cantwell,
Caldwell, Calhoun, Johns, Alston, Ellington, Trammel, Royal, Ford,
Cornelius, Willingham, Thomas, Perry, and Cooper should be dismissed for
failure to state a claim upon which relief can be granted; and
(x) Plaintiff’s request for preliminary injunctive relief (Doc. Nos. 94, 107, 108,
114) should be denied.
In sum, only Plaintiff’s § 1983 individual-capacity claims against Defendants
Taime, Rauche, Wiltshire, Hill, Roody, Tweedy, and Jones (involving excessive force and,
for Defendants Tweedy and Wiltshire, also a failure to facilitate medical care) should
survive the Court’s screening. Should the Court adopt this recommendation, Plaintiff
should be directed to serve the newly named Defendants (Tweedy and Jones) with copies
of the Amended Complaint and summonses issued by the Court Clerk within ninety days
from the Court’s order. See Fed. R. Civ. P. 4(c).
NOTICE OF RIGHT TO OBJECT
Plaintiff is advised of his right to file an objection to this Report and
Recommendation with the Clerk of this Court on or before September 14, 2017, in
accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. Plaintiff is
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further advised that failure to timely object to this Report and Recommendation waives the
right to appellate review of both factual and legal issues contained herein. See Moore v.
United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned
Magistrate Judge in the present case. Should the Court adopt the recommendation, the
undersigned recommends a new referral to oversee litigation of the Amended Complaint.
ENTERED this 24th day of August, 2017.
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