Kristich v. United States of America et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ORIN KRISTICH )
)
Plaintiff, )
)
v. ) Case No. CIV-23-544-R
)
FNU CASADY, et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
Plaintiff Orin Kristich, a convicted federal prisoner, appearing
pro se, and
in forma
pauperis, has filed an Amended Complaint under 42 U.S.C. § 1983 and
Bivens v. Six
Unknown named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), alleging
violations of state and federal law. (ECF No. 18).1 United States District Judge David L.
Russell has referred this matter to the undersigned magistrate judge for initial
proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). A review of the Amended
Complaint has been conducted pursuant to 28 U.S.C. § 1915A(a) and 28 U.S.C. §
1915(e)(2)(B). Based on that review, it is recommended that the Court: (1) dismiss the
official capacity claims against Defendants Casady, Foster, Crane, and Dickerson, with
prejudice; (2) dismiss the individual capacity claims against Defendants Casady, Foster,
Crane, and Dickerson without prejudice; (3) dismiss the official capacity claims against
1 Plaintiff has also asserted jurisdiction under: “The Ending Qualified Immunity Act,” “The
Stripping Doctrine,” 28 U.S.C. § 1332; “Tort Claims Act Sec. 2671-80,” United States Constitution
Art. III justiciability/justiciability doctrine; jurisdictional doctrine,” and “Defendants Handbook and
Policy.” (ECF No. 18:1). However, the Court will not consider these jurisdictional bases because
Mr. Kristich has not explained their applicability to his claims.
See ECF No. 18.
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Defendants Rios, Unknown United States Marshals, Poynyer, Gutierrez, Stangle, and
Wong, with prejudice; (4) dismiss the individual capacity claims against Defendants Rios,
Unknown United States Marshals, Poynyer, Gutierrez, Stangle, and Wong, without
prejudice; and (5) decline to exercise supplemental jurisdiction over Plaintiff’s state law
claims.
I. SCREENING REQUIREMENT
The Court must review each complaint in which a prisoner seeks redress against
a governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). The Court likewise
must review each case brought by a prisoner with respect to prison conditions and each
case in which a plaintiff proceeds
in forma pauperis. 42 U.S.C. § 1997e(c)(1); 28 U.S.C.
§ 1915(e)(2). The Court is required to dismiss the complaint or any portion of the
complaint that is frivolous or malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief against a defendant who is immune from such relief.
See 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B); 42 U.S.C. § 1997e(c)(1).
II. STANDARD OF REVIEW
The Court must accept Mr. Kristich’s allegations as true and construe them, and
any reasonable inferences to be drawn from them, in the light most favorable to Plaintiff.
See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Since Mr. Kristich is proceeding
pro se, his complaint must be construed liberally.
See id. at 1218. The Court “review[s]
the complaint for plausibility; that is, to determine whether the complaint includes enough
facts to state a claim to relief that is plausible on its face.”
Young v. Davis, 554 F.3d 1254,
1256 (10th Cir. 2009) (quotations and citation omitted). “Plausible” in this context does
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not mean “likely to be true,” but rather refers “to the scope of the allegations in a
complaint: if they are so general that they encompass a wide swath of conduct,” then
the plaintiff has not “nudged (his) claims across the line from conceivable to plausible.”
Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). The plausibility requirement “serves
not only to weed out claims that do not (in the absence of additional allegations) have a
reasonable prospect of success, but also to inform the defendants of the actual grounds
of the claim against them.”
Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008).
A complaint fails to state such a claim 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).”
Twombly, 550 U.S. at 555
(footnote and citation omitted). Bare legal conclusions in a complaint are not assumed to
be true; legal conclusions “must be supported by factual allegations” to state a claim
upon which relief may be granted.
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 (10th Cir. 1991). “[A] plaintiff's obligation to provide the ‘grounds’ of his
‘entitlement to relief’ requires “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action.”
Twombly, 550 U.S. at 555. As a result,
courts “look to the specific allegations in the complaint to determine whether they
plausibly support a legal claim for relief.”
Kay, 500 F.3d at 1218 (quotation marks and
citations omitted).
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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;
see also Gee v. Pacheco, 627 F.3d 1178, 1184-85 (10th
Cir. 2010) (discussing
Iqbal). To state a claim under 42 U.S.C. § 1983, a plaintiff must
allege sufficient facts to plausibly show that a person acting under color of state law has
violated or is violating a federal right of the plaintiff. 42 U.S.C. § 1983;
Pahls v.
Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013). The specific factual allegations required
depend upon whether the defendant is sued in his or her official or individual capacity,
as well as the type of violation alleged.
III. PLAINTIFF’S AMENDED COMPLAINT/NAMED DEFENDANTS
Mr. Kristich, a federal prisoner in the custody of the Bureau of Prisons (BOP),
currently resides at Tucson-USP, a federal prison in Tucson, Arizona.
See ECF No. 18.
However, at some point, while still in the custody of the BOP, Mr. Kristich was housed at
Cimarron Correctional Facility (CCF), a private prison operated by CoreCivic, located in
Cushing, Oklahoma.2 In the Amended Complaint, Mr. Kristich sets forth thirteen claims
against ten Defendants falling into two groups—employees of the BOP and employees of
CCF.
See ECF No. 18. The BOP Defendants include: (1) Melissa Rios, Western Regional
Director, BOP, residing in Stockton, California; (2) Unknown U.S. Marshals; (3) FNU
Poynyer, BOP Health Services Administrator at Tucson-USP; (4) FNU Guitierrez, Warden
at Tucson-USP; (5) FNU Stangle, Assistant Warden at Tucson-USP; and (6) FNU Wong,
2
See https://www.corecivic.com/facilities/cimarron-facility (last visited Nov. 7, 2023).
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Western Regional Counsel, BOP, residing in Stockton, California. (ECF No. 18:6-7). The
CCF Defendants include: (1) FNU Casady, CCF Nurse; (2) FNU Foster, CCF Nurse; (3)
FNU Crane, CCF Physician; and (4) FNU Dickerson, CCF Warden. (ECF No. 18:5, 7).
The basis of Plaintiff’s Amended Complaint concerns an incident involving a
dislocated shoulder which occurred at approximately 4:00 a.m. on December 21, 2021,
which he says he was “unable to report” “for around 15 hours due to staff’s [sic] failure
to perform welfare checks, and lack of any emergency call devices in his cell.” (ECF No.
18:12, 13). Plaintiff states that he suffered “for about 30 hours” “lasting until about 3pm
on December 26, 2021” when he was taken to Hillcrest Hospital and treated. (ECF No.
18:12, 13). Following his return from the hospital, Mr. Kristich alleges a lack of aftercare,
which he contends has attributed to long-term, ongoing nerve damage. (ECF No. 18:15-
17).
In addition to allegations of deliberate indifference to his serious medical needs in
violation of the Eighth Amendment, Mr. Kristich has also alleged state law violations of
intentional infliction of emotion distress pertaining to the alleged lack of medical care.
(ECF No. 18:17-18). Additionally, Plaintiff has alleged a Fifth Amendment Due Process
violation, a violation of Equal Protection, a First Amendment violation involving his right
to “redress the government,” and “Retaliation and Harassment.” (ECF No. 18:19).
Regarding these claims, Plaintiff alleges that BOP officials have:
• interfered with his legal mail,
• thwarted his attempts at seeking administrative relief,
• placed him in the segregated housing unit as a form of retaliation;
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• “tried to strip [him] of 1800 programs hours,”
• “filed [a] false program review,” and
• maintained Plaintiff at a “high” security level which “plac[es] his life at risk.”
(ECF No. 18:20). Plaintiff sues all Defendants in their official and individual capacities and
seeks monetary relief. (ECF No. 18:5-7, 10-21).
The nature of the claims, as well as the individuals sued, in what capacity, and
what type of relief is asserted, mandate various standards of review. For instance, civil
rights violations may be asserted against all of the Defendants, but their status as either
state or federal officials, dictate the specific jurisdictional basis of said claims and related
applicable rules. Federal officials, for example, can only be sued under
Bivens,
supra,3
and Mr. Kristich may sue the state officials under 42 U.S.C. § 1983.
See 42 U.S.C. § 1983
(providing redress against those persons who, under color of state law, deprive an
individual of “any rights, privileges, or immunities secured by the Constitution and
laws.”).4 The undersigned will discuss the various rules and standards as they become
relevant.
IV. FEDERAL CLAIMS AGAINST DEFENDANTS CASADY, FOSTER, CRANE,
AND DICKERSON
In Claims One, Two, Three, Four, Five, Six, Seven, Eight, and Eleven, Plaintiff
alleges deliberate indifference to his serious medical needs in violation of the Eighth
3
See Smith v. U.S., 561 F.3d 1090, 1099 (10th Cir. 2009).
4 “ ‘Section 1983 itself does not create any substantive rights.’ ”
Brown v. Buhman, 822 F.3d
1151, 1161 n.9 (10th Cir. 2016) (citation omitted). Rather, it “is a remedial vehicle for raising
claims based on the violation of [federal] constitutional rights.”
Id.
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Amendment against Defendants Casady, Foster, Crane, and Dickerson.
See ECF No. 18:9-
17, 19. As stated, these claims are asserted under 42 U.S.C. § 1983, against these
Defendants in their individual and official capacities.
See supra.
A. Official Capacity Claims
As employees of CCF, a private prison, claims against Defendants Casady, Foster,
Crane, and Dickerson in their official capacities cannot stand.
See Jones v. Barry, 33 F.
App’x 967, 971, n.5 (10th Cir. 2002) (“the CCA defendants are not state actors, and they
do not have an “official capacity.” ”);
Alamiin v. Patton, No. CIV-13-1001-F, 2016 WL
7217857, at *6 (W.D. Okla. Dec. 13, 2016) (“As employees of a private prison, they are
not state officials, and official capacity claims cannot be asserted against them.”). Thus,
the Court should dismiss the claims against Defendants Casady, Foster, Crane, and
Dickerson with prejudice.
See Borrego v. Core Civic, No. CIV-18-1044-D, 2018 WL
7108068, at *3 (W.D. Okla. Dec. 27, 2018) (dismissing official capacity claims against
private prison employees with prejudice),
adopted, 2019 WL 303013, at *1 (W.D. Okla.
Jan. 23, 2019).
B. Individual Capacity Claims
With that recommendation, what remains are Mr. Kristich’s individual capacity
claims against Defendants Casady, Foster, Crane, and Dickerson alleging deliberate
indifference to Plaintiff’s serious medical needs in violation of the Eighth Amendment.
See supra. The Court should dismiss these claims.
When a defendant is sued in his or her individual capacity under § 1983, the
plaintiff must establish specific elements as to each defendant. First, the plaintiff must
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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 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, 718 F.3d at 1225–
28. Finally, the plaintiff must 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).
Additionally, deliberate indifference contains both an objective and subjective
component.
Id. The objective component is satisfied if the deprivation is “sufficiently
serious.”
Lucas v. Turn Key Health Clinics, LLC, 58 F. 4th 1127, 1136 (10th Cir. 2023)
(citing
Farmer v. Brennan, 511 U.S. 825, 834 (1994)). 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.”	
Id. (internal citation omitted). The standard for the subjective
component is that the official “knows of and disregards an excessive risk to inmate health
or safety.”
Id. at 1137 (citing
Farmer, 511 U.S. at 837). The official must be aware of the
facts from which the inference of a substantial risk of serious harm could be drawn and
also draw that inference.
Id.
A plaintiff “need not show that a prison official acted or failed to act believing that
harm actually would befall an inmate,” but rather that the official “merely refused to verify
underlying facts that he strongly suspected to be true, or declined to confirm inferences
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of risk that he strongly suspected to exist.”
Id. “Whether a prison official had the requisite
knowledge of a substantial risk is a question of fact subject to demonstration in the usual
ways, including inference from circumstantial evidence” such as whether “the risk was
obvious.”
Id. An official disregards risk when he fails to take reasonable measures to
abate the risk.
Id. A claim that a course of treatment was inadequate after the exercise
of medical judgment, absent an extraordinary degree of neglect does not rise to disregard
of serious medical need.
Id. (citing
Self v. Crum, 439 F.3d 1227, 1232, 1234 (10th Cir.
2006)).
The subjective component of the deliberate indifference test can be satisfied in
two ways: failure to properly treat a serious medical condition (“failure to properly treat
theory”) or as a gatekeeper who prevents an inmate from receiving treatment or denies
access to someone capable of evaluating the inmate’s need for treatment (“gatekeeper
theory”).
Id. The latter theory can apply to medical professionals when the professional
knows that his or her role in a medical emergency is solely to refer the patient to another.
Id. Even a brief delay in treatment can be unconstitutional.
Id.
1. Claim One
In Claim One, Plaintiff alleges a violation of the Eighth Amendment through
deliberate indifference to his medical needs “by acting as ‘Gate Keeper’ when refusing to
open cell door.” (ECF No. 18:9). Presumably these allegations refer to the 15-hour period
of time following his injury at 4:00 a.m. on December 25, 2021.
See supra. Plaintiff asserts
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this claim against Defendants Casady, Foster, Crane, and Dickerson. (ECF No. 18:9).5
Specifically, Mr. Kristich alleges:
• “Nurse Casady showed deliberate indifference to Mr. Kristich’s serious
medical needs;”
• “Nurse Foster demonstrated extream [sic] negligence in failing to perform
any of his functions as a medical professional;” and
• “Dr. Crane showed willful malconduct; only offering a sling to immobilize
Kristich’s arm rather than attempting to reset the dislocated joint when the
door was finally open the next day!”
(ECF No. 18:10).
Although Plaintiff has named Defendant Dickerson, he has failed to allege that
Defendant Dickerson had personally participated in the alleged deliberate indifference.
As a result, the Court should dismiss the individual capacity claim as set forth against
Defendant Dickerson in Claim One.
The Court should also dismiss Claim One as to Defendants Casady and Foster, as
the allegations against these Defendants are conclusory, consisting of nothing more than
“labels” and conclusory allegations. For example, Plaintiff has failed to allege how,
exactly, Nurse Casady “showed deliberate indifference to Mr. Kristich’s serious medical
needs” or Nurse Foster “demonstrated extream [sic] negligence.”6
See supra,
Twombly.
5 Mr. Kristich has also named “Unknown U.S. Marshals” as Defendants to this claim.
See ECF No.
18:9. The Court will address these allegations when addressing the claims against the federal
defendants.
See infra.
6 Furthermore, as to Defendant Foster, the United States Supreme Court has held that
“negligen[ce]” does not violate the Eighth Amendment.
Farmer v. Brennan, 511 U.S. 825, 860
(1994).
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Finally, the Court should dismiss Claim One as to Dr. Crane, as Plaintiff has made no
allegations that Dr. Crane acted with “deliberate indifference”—i.e.—that in offering a
sling to treat Plaintiff’s injury, he “kn[ew] [of] and disregard[ed] an excessive risk to [Mr.
Kristich’s] health or safety.”
See supra,
Lucas.
2. Claim Two
In Claim Two, Plaintiff alleges that his “right to adequate medical treatment was
violated.” (ECF No. 18:10). Plaintiff asserts this claim against Defendants Casady, Foster,
Crane, and Dickerson. (ECF No. 18:9).7 Specifically, Mr. Kristich alleges: “The above
named defendants deprived Mr. Kristich of his right to seek medical treatment, after being
made aware of and being told about his medical emergency.” (ECF No. 18:11). The Court
should dismiss Claim Two as to these Defendants.
In a case such as this one where Mr. Kristich has brought claims against more than
one defendant, “it is particularly important . . . that the complaint make clear exactly
who
is alleged to have done
what to
whom, to provide each individual with fair notice as to
the basis of the claims against him.”
Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th
Cir. 2008). Indeed, the Tenth Circuit Court of Appeals has stated that “[m]erely lumping
[a defendant] in with fifteen other medical professionals under the generic label
‘defendants’. . . does not adequately plead a § 1983 claim against him.”
Walker v.
Mohiuddin, 947 F.3d 1244, 1250 (10th Cir. 2020). As a result, because Mr. Kristich failed
to link any of the Defendants with any of particular violation in Claim Two, the Court
7 Mr. Kristich has also named “Unknown U.S. Marshals” as Defendants to this claim.
See ECF No.
18:10. The Court will address these allegations when addressing the claims against the federal
defendants.
See infra.
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should dismiss the allegations in Claim Two as legally deficient.
See Nasious v. Two
Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th
Cir. 2007) (explaining “that, to state a claim in federal court, a complaint must explain
what each defendant did to [the pro se plaintiff]; when the defendant did it; how the
defendant’s action harmed (the plaintiff); and, what specific legal right the plaintiff
believes the defendant violated.”).
3. Claim Three
In Claim Three, Plaintiff alleges that his “right to seek medical care was violated.”
(ECF No. 18:11). Plaintiff asserts this claim against Defendants Casady, Foster, Crane,
and Dickerson. (ECF No. 18:9).8 Specifically, Mr. Kristich alleges: “The above named
defendants deprived Mr. Kristich of his right to access medical care.” (ECF No. 18:11). As
stated, lumping in Defendants together fails to state a claim against any of them
individually. However, regarding Defendants Casady and Foster, Plaintiff specifically
contends:
• Defendant Casady would not open his cell door and
• Defendant Foster never came to check on Plaintiff.
(ECF No. 18:12). But the Court should dismiss these allegations against these Defendants,
because Mr. Kristich failed to allege that either Defendant had acted with the requisite
state of mind to demonstrate deliberate indifference.
See supra.
8 Mr. Kristich has also named “Unknown U.S. Marshals” as Defendants to this claim.
See ECF No.
18:11. The Court will address the allegations when addressing the claims against the federal
defendants.
See infra.
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In the “supporting facts” section of this claim, Plaintiff mentions Defendants
Dickerson and Crane, but does not allege that they “deprived [Plaintiff] of his right to
medical care” or make any allegations which would suggest that they had acted with
deliberate indifference to Plaintiff’s serious medical needs. Instead, Plaintiff states only
that Defendant Dickerson directed Plaintiff to be transported to an outside hospital and
Defendant Crane had ordered a sling for Plaintiff. (ECF No. 18:12). Thus, the Court should
dismiss the individual capacity claims asserted against Casady, Foster, Crane, and
Dickerson as set forth in Claim Three.
4. Claim Four
In Claim Four, Plaintiff alleges “Abuse and Neglect of a Prisoner; by not responding
to a medical emergency.” (ECF No. 18:13). Plaintiff asserts this claim against Defendants
Casady, Foster, Crane, and Dickerson. (ECF No. 18:9).9 In support of this claim, Plaintiff
states:
Mr. Kristich was locked in a cell in Unit F.C. for over 24 hours after his injury.
For about 15 hours there were no officers making well-fair checks; staff not
even serve food on December 25, 2021. After being told about the injury
Mr. Kristich was locked in the cell. Leading to extreme pain and suffering
for about 30 hours on December 25, 2021 around 4 am (Christmas Day)
and lasting until about 3pm on December 26, 2021 when Mr., Kristich was
finally treated at the hospital.
9 Mr. Kristich has also named “Unknown U.S. Marshals” as Defendants to this claim.
See ECF No.
18:13. The Court will address these allegations when addressing the claims against the federal
defendants.
See infra.
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(ECF No. 18:13). But because Mr. Kristich has failed to specify which Defendant did what
to him, precisely, the Court should dismiss the individual capacity claims asserted against
Defendants Casady, Foster, Crane, and Dickerson as set forth in Claim Four.
5. Claim Five
In Claim Five, Plaintiff alleges “Extreme pain and suffering.” (ECF No. 18:14).
Plaintiff asserts this claim against Defendants Casady, Foster, Crane, and Dickerson. (ECF
No. 18:9).10 In support of this claim, Plaintiff states: “extreme pain and suffering for about
30 hours. Due to being locked in cell with no medical treatment.” The Court should dismiss
the individual capacity claims asserted in Claim Five against Defendants Dickerson, Crane,
Casady, and Foster because Mr. Kristich has failed to explain exactly how each Defendant
was responsible for his “extreme pain and suffering.”
See supra,
Robbins (noting “it is
particularly important . . . that the complaint make clear exactly
who is alleged to have
done
what to
whom, to provide each individual with fair notice as to the basis of the
claims against him.”).
6. Claim Six
In Claim Six, Plaintiff alleges “Medical Malpractice leading to long-term nerve
damage and/or muscle damage.” (ECF No. 18:14). Plaintiff asserts this claim against
10 Mr. Kristich has also named “Unknown U.S. Marshals” as Defendants to this claim.
See ECF
No. 18:14. The Court will address these allegations when addressing the claims against the federal
defendants.
See infra.
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Defendants Casady, Foster, Crane, and Dickerson. (ECF No. 18:14).11 In support of this
claim, Plaintiff states:
Long-term nerve and/or muscle damage (an injury) because medical
treatment and aftercare were not forthcoming. Mr. Kristich is still in pain
while on nerve pain medication at this time. However, Medical trips that
were scheduled by B.O.P. Juchan M.D. and B.O.P. Newland PA-C; have
been canceled more than once. . . . Mr. Kristich needs to see a nerve and
muscle specialist and orthopedic specialist. To see if surgery would correct
the problem. Medical trips have been cancelled to block any kind of
treatment, care and/or determination of all the injuries to Mr., Kristich, his
shoulder, and/or his nerve and muscle system. So it’s an ongoing issue.
(ECF No. 18:15).
The Court should dismiss the individual capacity claims asserted in Claim Six
against Defendants Casady, Foster, Crane, and Dickerson because Mr. Kristich has failed
to explain exactly how each Defendant was responsible for his “extreme pain and
suffering.”
See supra,
Robbins.
7. Claim Seven
In Claim Seven, Plaintiff alleges “Life Long Pain and Suffering.” (ECF No. 18:15).
Plaintiff asserts this claim against Defendants Casady, Foster, Crane, and Dickerson. (ECF
No. 18:9).12 In support of this claim, Plaintiff states:
Mr. Kristich is still in pain, and suffering to this time table. His pain and
suffering could have been prevented with prompt medical attention and
11 Mr. Kristich has also named “Defendants Rios, Gutierrez, Stangle, Poyner, and Unknown U.S.
Marshals” as Defendants to this claim.
See ECF No. 18:14. The Court will address the allegations
against these defendants when addressing the claims against the federal defendants.
See infra.
12 Mr. Kristich has also named “Unknown U.S. Marshals, et. al” as Defendants to this claim.
See
ECF No. 18:15. The Court will address the allegations against these defendants when addressing
the claims against the federal defendants.
See infra.
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after care. As it is their duity [sic] to responed [sic] to a medical emergency
while acting under color of law.
(ECF No. 18:15).
Again, the Court should dismiss the individual capacity claims asserted in Claim
Seven against Defendants Dickerson, Crane, Casady, and Foster because Mr. Kristich has
failed to explain exactly how each Defendant was responsible for his “Life Long Pain and
Suffering.”
See supra,
Robbins.
8. Claim Eight
In Claim Eight, Plaintiff alleges “Crule and Unusual Treatment.” (ECF No. 18:16).
Plaintiff asserts this claim against Defendants Casady, Foster, Crane, and Dickerson. (ECF
No. 18:9).13 In support of this claim, Plaintiff states:
The defendant’s [sic] at CCA knew that Mr. Kristich was in pain with an
injury and gave no medical treatment for around 30 hours. The most
condemning facts are the lack of emergency call devices in unit F.C., and
the lack of treatment. B.O.P. staff have blocked treatment and
determination of all injuries in this case to aid the other defendants. When
Mr. Kristich was sent to the B.O.P. he was locked in a cell for 21 days, in a
sling, no medical treatment or care, and was stripped of pain medications
and Ice needed for pain.
(ECF No. 18:16-17).
Again, the Court should dismiss the individual capacity claims asserted in Claim
Eight against Defendants Casady, Foster, Crane, and Dickerson because Mr. Kristich has
13 Mr. Kristich has also named “Defendants Rios, Gutierrez, Stangle, Poyner, and Unknown U.S.
Marshals, et, al” as Defendants to this claim.
See ECF No. 18:16. The Court will address the
allegations against these defendants when addressing the claims against the federal defendants.
See infra.
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failed to explain exactly how each Defendant was responsible for the alleged cruel and
unusual treatment.
See supra,
Robbins.
9. Claim Eleven
In Claim Eleven, Plaintiff alleges “Intentional Infliction of Physical Pain.” (ECF No.
18:19). Plaintiff asserts this claim against Defendants Casady, Foster, Crane, and
Dickerson. (ECF No. 18:19).14 In support of this claim, Plaintiff states:
The above defendants knew that Mr. Kristich was in extream [sic] pain, and
demostrated [sic] the physical torture by failing to perform any of their
professional functions. They knew or should have known that the only
treatment for a dislocated joint is reseting [sic] the joint. They knew or
should have known this caused Mr. Kristich extream [sic] pain.
(ECF No. 18:19).
Again, Mr. Kristich has lumped all of the named Defendants into Claim Eleven, but
has failed to explain what each Defendant did, personally, to violate Plaintiff’s
constitutional rights. As a result, the Court should dismiss the individual capacity claims
asserted in Claim Eleven against Defendants Casady, Foster, Crane, and Dickerson
because Mr. Kristich has failed to explain exactly how each Defendant was responsible
for the alleged “Intentional Infliction of Physical Pain.”
See supra,
Robbins.
10. Summary
In Claims One, Two, Three, Four, Five, Six, Seven, Eight, and Eleven, Plaintiff has
asserted individual capacity Eighth Amendment claims against Defendants Casady,
14 Mr. Kristich has also named “Unknown U.S. Marshals” as Defendants to this claim.
See ECF
No. 18:19. The Court will address these allegations when addressing the claims against the federal
defendants.
See infra.
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Foster, Crane, and Dickerson. For the forgoing reasons, the Court should dismiss all of
said claims against all of these Defendants, without prejudice.
V. FEDERAL CLAIMS AGAINST DEFENDANTS RIOS, UNKNOWN UNITED
STATES MARSHALS, POYNYER, GUTIERREZ, STANGLE, AND WONG
In Claims One, Two, Three, Four, Five, Six, Seven, Eight, Eleven, Twelve, and
Thirteen, Plaintiff alleges deliberate indifference to his serious medical needs in violation
of the Eighth Amendment; a Fifth Amendment Due Process violation; a violation of Equal
Protection; a First Amendment violation involving his right to “redress the government;”
and “Retaliation and Harassment.”
See ECF No. 18:9-21. These claims are brought
against Defendants Rios, Unknown U.S. Marshals, Poynyer, Gutierrez, Stangle, and Wong,
and are asserted pursuant to
Bivens v. Six Unknown named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
See supra, n.3. Mr. Kristich asserts these claims against
these Defendants in their individual and official capacities.
See supra.
A. Official Capacity Claims
As stated, Plaintiff has sued Defendants Rios, Unknown U.S. Marshals, Poynyer,
Gutierrez, Stangle, and Wong in their official capacities.
See supra. However, such official
capacity claims may not lie against these Defendants in his or her official capacity.
See
Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231 (10th Cir. 2005). That is, “[t]here
is no such animal as a
Bivens suit against a public official tortfeasor in his or her official
capacity. Instead, any action that charges such an official with wrongdoing while
operating in his or her official capacity as a United States agent operates as a claim
against the United States ”
Id. at 1231 (quoting
Farmer v. Perrill, 275 F.3d 958, 963 (10th
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Cir. 2001)). The doctrine of sovereign immunity, however, precludes a
Bivens action
against the United States or any agency thereof.
See, e.g.,
Hatten v. White, 275 F.3d
1208, 1210 (10th Cir. 2002). The United States is immune from suit unless it expressly
consents to be sued.
United States v. Testan, 424 U.S. 392, 399, (1976).
In this case, Mr. Kristich has not shown that the United States waived its sovereign
immunity by consenting to being sued. Accordingly, the Court should find that Plaintiff’s
Bivens claims against Defendants Unknown U.S. Marshals, Poynyer, Gutierrez, Stangle,
and Wong, in their official capacities, are barred by sovereign immunity15 and should be
dismissed for lack of subject matter jurisdiction.16
See Hatten v. White, 275 F.3d 1208,
1210 (10th Cir. 2002) (“A
Bivens action may not be brought against federal agencies or
agents acting in their official capacities.”);
Watson v. Hollingsworth, 741 F. App’x 545,
550 (10th Cir. 2018) (affirming dismissal of official-capacity
Bivens claims for lack of
jurisdiction).
B. Individual Capacity Claims
With the previous recommendation, what remains are Plaintiffs individual capacity
claims for monetary damages against the federal Defendants as set forth in Claims One,
Two, Three, Four, Five, Six, Seven, Eight, Eleven, Twelve, and Thirteen. In Claims One,
15 Sovereign immunity does not preclude prisoners from seeking injunctive relief against federal
officials to enforce their constitutional rights.
Simmat, 413 F.3d at 1233. However, in this case,
Mr. Kristich asks only for monetary damages.
See supra.
16 “Federal courts ‘have an independent obligation to determine whether subject-matter
jurisdiction exists, even in the absence of a challenge from any party,’ and thus a court may
sua
sponte raise the question of whether there is subject matter jurisdiction ‘at any stage of the
litigation.’ ”
1mage Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir.
2006) (quoting
Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)).
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Two, Three, Four, Five, Seven, and Eleven, Plaintiff seeks liability against “Unknown U.S.
Marshals.”
See ECF No. 18:9-11, 13-15, 19. In Claim Six, Plaintiff seeks liability against
Defendants Rios, Unknown U.S. Marshals, Poynyer, Gutierrez, and Stangle. (ECF No.
18:14). In Claim Eight, Plaintiff seeks liability against Defendants Rios, Unknown United
States Marshals, Gutierrez, Stangle, and Wong. (ECF No. 18:16). In Claim Twelve, Plaintiff
seeks liability against Defendants Rios, Poynyer, Gutierrez, Stangle, and Wong. (ECF No.
18:20). And in Claim Thirteen, Plaintiff seeks liability against Defendants Rios, Gutierrez,
Stangle, and Wong. (ECF No. 18:21). The Court should dismiss these claims.
The undersigned will not repeat the allegations as set forth by Mr. Kristich in
Claims One, Two, Three, Four, Five, Six, Seven, Eight, and Eleven. For Claim Twelve,
Plaintiff alleges a violation of the First Amendment, his “right to redress the government”
and “Retaliation and Harassment.” (ECF No. 18:18-19). In support of Claim Twelve, Mr.
Kristich states:
The above defendants have prevented, thwarted or hindered Mr. Kristich’s
Administrative remdies [sic] more than once: by way of BP-process, Form
95, and obstruction of legal mail in this Court, and Others. Harassed and
retaliated by placing Mr. Kristich in the S.H.U. on three false charges, tried
to strip Kristich of 1800 program hours; filed false program review BP-337
and 3238 are being maintained to keep Mr. Kristich at a High placing his life
at risk, and effecting his liberty intrest [sic] now and upon release. Further,
legal mail in this case and others gets sent back and/or does not reach Mr.
Kristich at all; (when it does legal mail is given past the response deadline;
(and/or ripped or missing pages) this is going on in the B.O.P. as a custom
with regards to persons needing medical treatment or care. “Just ask MPR
News!”
(ECF No. 18:20).
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For Claim Thirteen, Plaintiff states: “Same as (12) claim XII in this amendment.
retaliation and harassment; false reports; legal mail sent back and/or ripped or missing
pages in this case and other ect.” (ECF No. 18:21).
Personal participation is an essential element of any
Bivens claim.
See Pahls v.
Thomas, 718 F.3d. 1210, 1226 (10th Cir. 2013).To establish personal participation, a
plaintiff must show how the defendant caused the deprivation of a federal right.
Kentucky
v. Graham, 473 U.S. 159, 166, (1985). Here, however, Mr. Kristich has failed to allege
that any of the federal Defendants—Defendants Rios, Unknown U.S. Marshals, Poynyer,
Gutierrez, Stangle, and Wong—have personally participated in any of the allegations that
comprise any of the aforementioned claims asserted against them.
See supra. As a result,
the Court should dismiss all of the individual capacity claims asserted against Defendants
Rios, Unknown U.S. Marshals, Poynyer, Gutierrez, Stangle, and Wong as set forth in
Claims One, Two, Three, Four, Five, Six, Seven, Eight, Eleven, Twelve, and Thirteen.
VI. STATE CLAIMS AGAINST ALL DEFENDANTS
In Claims Nine and Ten, Plaintiff has asserted claims for Intentional Infliction of
Emotional and Mental Distress—claims which fall under Oklahoma state law.
See ECF No.
18:17-18. But because Plaintiff has not asserted a viable federal claim herein,
see supra,
and has not alleged or established any basis for jurisdiction for these claims other than
supplemental jurisdiction, this Court should decline to exercise supplemental jurisdiction
over Plaintiff's state law claim. 28 U.S.C. § 1367(c)(3);
cf., Smith v. City of Enid ex rel.
Enid City Comm'n, 149 F.3d 1151, 1156 (10th Cir. 1998) (“When all federal claims have
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been dismissed, the court may, and usually should, decline to exercise jurisdiction over
any remaining state claims.”).
VII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
The Court should: (1) dismiss the official capacity claims against Defendants
Casady, Foster, Crane, and Dickerson, with prejudice; (2) dismiss the individual capacity
claims against Defendants Casady, Foster, Crane, and Dickerson without prejudice; (3)
dismiss the official capacity claims against Defendants Rios, Unknown United States
Marshals, Poynyer, Gutierrez, Stangle, and Wong, with prejudice; (4) dismiss the
individual capacity claims against Defendants Rios, Unknown United States Marshals,
Poynyer, Gutierrez, Stangle, and Wong, without prejudice; and (5) decline to exercise
supplemental jurisdiction over Plaintiff’s state law claims.17 Adoption of this
recommendation will moot Plaintiff’s Motion for Discovery (ECF No. 19).
Plaintiff is hereby advised of his right to object to this Report and
Recommendation.
See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the
District Court by December 15, 2023.
See 28 U.S.C. § 636(b)(1); and Fed. R. Civ. P.
17 One aspect of screening is reviewing whether venue is proper “when the defense is obvious
from the face of the complaint and no further factual record is required to be developed.”
Trujillo
v. Williams, 465 F.3d 1210, 1217 (10th Cir. 2006) (quoting
Fratus v. DeLand, 49 F.3d 673, 674
(10th Cir. 1995)). “[T]he term ‘venue’ refers to the geographic specification of the proper court
or courts for the litigation of a civil action ....” 28 U.S.C. § 1390(a). The proper venue for Plaintiff’s
action is in the “judicial district in which any defendant resides” or the “judicial district in which a
substantial part of the events or omissions giving rise to the claim occurred.”
Id. § 1391(b)(1),
(2);
see also Anaeme v. Florida, 169 F. App’x 524, 527-28 (10th Cir. 2006) (applying the general
venue statute, 28 U.S.C. § 1391(b), to the plaintiff's claims of constitutional violations made under
42 U.S.C. § 1983). In the future, Mr. Kristich is cautioned to consider the appropriate venue when
considering, for example, the federal defendants in this case, whom he identifies as either residing
in Arizona or California.
See supra.
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72(b)(2). Failure to make timely objection to this Report and Recommendation waives
the right to appellate review of both factual and legal questions contained herein.
Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VIII. STATUS OF THE REFERRAL
This Report and Recommendation terminates the referral to the undersigned
magistrate judge in the captioned matter.
ENTERED on November 28, 2023.
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