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. 	)
ORDER
Plaintiff Orin Kristich, proceeding pro se and in forma pauperis, initiated this civil
rights actions under 42 U.S.C § 1983 and Bivens alleging that his constitutional rights were
violated while he was incarcerated at Cimarron Correctional Facility. The matter was
referred to United State Magistrate Judge Shon T. Erwin 	for initial proceedings in
accordance with 28 U.S.C. § 636(b)(1)(B) and (C). Judge Erwin issued a Report and
Recommendation [Doc. No. 20] recommending that Plaintiff’s Amended Complaint be
dismissed upon screening. The Court adopted the recommendation but granted Plaintiff an
opportunity to seek leave to amend [Doc. No. 31]. Plaintiff subsequently filed a Second
Amended Complaint which was again referred to Judge Erwin for screening [Doc. Nos.
36, 38].
Judge Erwin has now issued a Report and Recommendation [Doc. No. 51]
recommending that the claims asserted in the Second Amended Complaint be dismissed,
with the exception of Plaintiff’s claim against Defendant Casady in her individual capacity.
Plaintiff filed a timely Objection [Doc. No. 53] and the Court must therefore make a de
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novo determination of those portions of the Report to which a specific objection is made.
28 U.S.C. § 636(b)(1); Fed R. Civ. P. 72(b)(3).
Pursuant to 28 U.S.C. § 1915A and § 1915(e)(2)(B), the Court is obligated to screen
prisoner complaints and dismiss any portion that fails to state a claim upon which relief
may be granted. The standard of review for dismissal under § 1915(e) is the same as for a
Rule 12(b)(6) dismissal for failure to state a claim: the complaint must contain sufficient
factual allegations to plausibly support a legal claim for relief. Kay v. Bemis, 500 F.3d
1214, 1217 (10th Cir. 2007). All well-pled factual allegations are accepted as true and
construed in the light most favorable to the plaintiff. Id. Additionally, as a pro se litigant,
Plaintiff’s pleading is entitled to a liberal construction. Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991).
Plaintiff is a federal prisoner who was previously incarcerated at Cimarron
Correctional Facility, a private prison operated by CoreCivic. Broadly speaking, Plaintiff’s
Second Amended Complaint alleges that his Eighth Amendment right to adequate medical
treatment was violated when staff at the Cimarron Correctional Facility failed to treat his
dislocated shoulder, resulting in extreme pain and long-term injury. The Second Amended
Complaint further alleges that prison officials at USP Tucson harassed and retaliated
against him by placing him in segregated housing, stripping him of program hours,
interfering with his legal mail, and filing false program reviews. As defendants, Plaintiff
has named specific employees of the Cimarron Correctional Facility and employees of the
Bureau of Prisons in both their official and individual capacities.
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In his Report, Judge Erwin notes that Plaintiff has re-asserted official capacity
claims that were previously dismissed with prejudice. See Doc. No. 31. Plaintiff did not
seek reconsideration of the Court’s order dismissing these claims with prejudice and his
Objection provides no persuasive arguments or authority for reconsidering this ruling.
Accordingly, for the same reasons articulated in the Court’s prior order, the official
capacity claims asserted in the Second Amended Complaint are dismissed with prejudice.
Judge Erwin next recommends that Plaintiff’s request for injunctive and declaratory
relief be dismissed because his request is not narrowly tailored and he lacks standing to
seek relief on behalf of other inmates. Plaintiff does not raise a specific objection to this
recommendation and has therefore waived further review of this issue. See United States
v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir.1996) (“[A] party’s objections to
the magistrate judge’s report and recommendation must be both timely and specific to
preserve an issue for de novo review by the district court or for appellate review.”).
The remaining claims include individual capacity claims asserted against various
BOP officials and CCF employees. Regarding the CCF employees,1 the Second Amended
1 The Court previously dismissed the claims asserted against the CCF employees because
Plaintiff alleged that he was a federal prisoner housed in a private prison while in federal
custody and, under those circumstances, neither a cause of action under 42 U.S.C. § 1983
nor Bivens is available. See Lopez v. Vladimir, No. CIV-20-255-SLP, 2020 WL 8671937,
at *3 (W.D. Okla. Nov. 18, 2020), report and recommendation adopted, No. CIV-20-255-
SLP, 2021 WL 741783 (W.D. Okla. Feb. 25, 2021). However, Plaintiff’s Second Amended
Complaint alleges that the medical personnel are contracted by the state to provide medical
treatment. Sec. Am. Compl. at p. 3. Liberally construed, it is plausible that the CCF
personnel were acting under color of state law. Accordingly, the Court considers whether
Plaintiff has plausibly stated an Eighth Amendment claim against these defendants under
§ 1983.
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Complaint asserts claims against Warden Dickerson, Dr. Crane, Nurse Casady, and Nurse
Foster that all arise from the same set of facts and concern the adequacy of medical
treatment provided to Plaintiff. See Sec. Am. Compl., claim nos. 1- 11. Liberally construed,
this group of claims appears to be attempting to assert a claim for deliberate indifference
to Plaintiff’s serious medical needs in violation of the Eighth Amendment and state law
claims for intentional infliction of emotional distress and negligence.
To succeed on an Eighth Amendment claim based on a failure to provide medical
care, a plaintiff “must allege acts or omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97 (1976). “Deliberate
indifference contains both an objective and subjective component.” Lucas v. Turn Key
Health Clinics, LLC, 58 F.4th 1127, 1136 (10th Cir. 2023). The objective component is
satisfied “if the deprivation is sufficiently serious—that is, 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.” Olsen v. Layton Hills
Mall, 312 F.3d 1304, 1315 (10th Cir. 2002) (quotation marks and citation omitted). The
subjective component of deliberate indifference is satisfied if
the official knows of and disregards an excessive risk to inmate health or
safety. 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.
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 of risk that he strongly suspected to exist.
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.
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An official disregards risk when he fails to take reasonable measures to abate
the risk.
Lucas, 58 F.4 th at 1137 (quotation marks and citations omitted).
The Second Amended Complaint alleges that Plaintiff suffered a dislocated
shoulder but was unable to report the injury for fifteen hours due to staff not performing
welfare checks. Sec. Am. Compl. at p. 13. It further alleges that Plaintiff asked Defendant
Casady to examine his shoulder but she refused and that Defendant Foster was told that
Plaintiff needed medical treatment but he failed to check on Plaintiff. Id. The next day,
Defendant Casady allegedly opened the cell door, viewed the injury, and spoke to Dr.
Crane. Id. at 13-14. Dr. Crane then ordered a sling, but no other treatment was provided
until Plaintiff was transported to the hospital. Id. Plaintiff also alleges that the dislocated
shoulder caused extreme pain and he suffered long term nerve and muscle damage from
the delay in care. Id.
Construed in Plaintiff’s favor, the allegations are sufficient to satisfy the objective
component of the deliberate indifference standard as a dislocated shoulder is a serious
injury that even a lay person would recognize as requiring prompt medical attention. See
Petrichko v. Kurtz, 117 F. Supp. 2d 467, 470 (E.D. Pa. 2000) (concluding that a dislocated
shoulder is a serious medical need). The closer question is whether the subjective
component of the deliberate indifference standard is satisfied. Regarding Defendants
Casady and Foster, the Court concludes that these allegations are sufficient to state a claim
for deliberate indifference under the gatekeeper theory, which permits liability where an
official “prevents an inmate from receiving treatment or denies access to someone capable
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of evaluating the inmate’s need for treatment.” Lucas, 58 F.4th at 1137. Plaintiff alleges
that Defendant Casady knew of his shoulder injury and that Defendant Foster was told
Plaintiff had a medical emergency, but neither Defendant treated him or reported his need
for treatment until the next day. Plaintiff also alleges that this delay in care caused
substantial 	harm. 	Liberally 	construing 	Plaintiff’s 	pro 	se 	pleading 	and 	drawing 	all
reasonable inferences in his favor, as is required at this stage, Plaintiff has alleged sufficient
factual content to plausibly infer that Defendants Casady and Foster subjectively knew of
Plaintiff’s need for further medical treatment but unreasonably delayed the care. See
Buchanan v. Turn Key Health Clinics, LLC, No. 22-7029, 2023 WL 6997404, at *5 (10th
Cir. Oct. 24, 2023); (“A nurse fulfills the gatekeeping role by promptly and accurately
reporting an inmate’s serious symptoms to a physician and following the physician’s
instructions.”); Mata v. Saiz, 427 F.3d 745, 754–55 (10th Cir. 2005) (“A prisoner may
satisfy the subjective component by showing that defendants’ delay in providing medical
treatment caused either unnecessary pain or a worsening of her condition. Even a brief
delay may be unconstitutional.”).
Plaintiff’s allegations with respect to Defendants Crane and Dickerson, however,
fall short of stating a plausible claim. 2 Plaintiff alleges Defendant Dickerson’s “staff’s
2 In determining whether Plaintiff has stated a claim, the Court looks to the allegations in
the Second Amended Complaint and does not consider additional factual allegations
asserted in the Objection or in his prior pleadings. See Scott v. Hormel, No. CIV-18-395-
SLP, 2019 WL 3935101, at *2 (W.D. Okla. Aug. 20, 2019) (“To the extent Plaintiff
includes new factual allegations in his Objection, the new allegations are not determinative
of whether Plaintiff adequately stated claims in his Complaint.”); Davis v. TXO Prod.
Corp., 929 F.2d 1515, 1517 (10th Cir. 1991) (“[A]n amended complaint ordinarily
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failure to perform welfare checks” or have an emergency call device in his cell caused the
delay in medical care. Sec. Am. Compl. at p. 13. However, there are no factual allegations
showing that Defendant Dickerson personally participated in the alleged deprivation or
knew of and disregarded an excessive risk of harm. See Foote v. Spiegel, 118 F.3d 1416,
1423 (10th Cir.1997) (“Individual liability under § 1983 must be based on personal
involvement in the alleged constitutional violation.”); Jenkins v. Wood, 81 F.3d 988, 994–
95 (10th Cir.1996) (explaining that “there is no concept of strict supervisor liability under
section 1983” and “it is not enough for a plaintiff merely to show a defendant was in charge
of other state actors who actually committed the violation”) (citation and quotation marks
omitted).
Similarly, Plaintiff has not adequately alleged that Defendant Crane disregarded an
excessive risk to Plaintiff. The allegations indicate that once he was made aware of the
injury, Defendant Crane ordered a sling for Plaintiff and Plaintiff was subsequently sent to
the hospital. Although Plaintiff takes issue with Dr. Crane’s treatment, a mere disagreement
with the level of care provided is not sufficient to show deliberate indifference. See Self v.
Crum, 439 F.3d 1227, 1234 (10th Cir. 2006) (“But a misdiagnosis, even if rising to the
level of medical malpractice, is simply insufficient under our case law to satisfy the
subjective component of a deliberate indifference claim.”).
In sum, the allegations in the Second Amended Complaint are too conclusory to
state 	plausible 	claims 	against 	Defendants 	Dickerson 	and 	Crane 	under 	the 	Eighth
supersedes the original and renders it of no legal effect.”) (quotation omitted).
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Amendment or state law. However, Plaintiff’s allegations are sufficient to state an Eighth
Amendment claim for deliberate indifference to serious medical needs against Defendants
Casady and Foster. Judge Erwin did not separately analyze whether these allegations are
also sufficient to state plausible claims under state law for intentional infliction of
emotional distress or medical malpractice/negligence. Plaintiff alleges that Defendants
Foster and Crane, who are purportedly both nurses, were aware he had a serious injury and
did nothing in response and that he suffered extreme pain and mental anguish as a result.
Viewing the full scope of the allegations in Plaintiff’s favor, there are sufficient factual
allegation to permit the state law claims against Defendants Casady and Foster to proceed
past the screening stage.
The final issue concerns whether the Second Amended Complaint plausibly states
claims against the individual federal defendants, which includes various BOP officials and
“unknown U.S. Marshals”. The Second Amended Complaint alleges that these defendants
violated Plaintiff’s rights under the First and Fifth Amendment by retaliating against him
in various ways and failing to pack his property. To state a claim for First Amendment
retaliation, a plaintiff must allege that “(1) he was engaged in a constitutionally protected
activity; (2) the defendants caused him ‘to suffer an injury that would chill a person of
ordinary firmness from continuing to engage in that activity’; and (3) the defendants’ action
‘was substantially motivated as a response to [the plaintiff’s] exercise of constitutionally
protected conduct.’” Turner v. Falk, 632 Fed.Appx. 457, 460 (10th Cir. 2015) (quoting
Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007)). To satisfy the third prong,
a plaintiff “is required to show that ‘but for the retaliatory motive, the incidents to which
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he refers, including the disciplinary action, would not have taken place.’” Id. (quoting
Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir.1998)). Of course, as with any claim
under § 1983 or Bivens, the plaintiff must also show that a defendant’s own individual
actions are traceable to the alleged constitutional violation. Pahls v. Thomas, 718 F.3d
1210, 1225 (10th Cir. 2013). This requires “careful attention to particulars, especially in
lawsuits involving multiple defendants[,]” where “it is it is incumbent upon a plaintiff to
identify specific actions taken by particular defendants in order to make out a viable
§ 1983 or Bivens claim.” Id. (citations and quotations omitted).
For the most part, the allegations in the Second Amended Complaint fail to state a
claim against the individual defendants because they do not identify any specific actions
taken by those individuals. For this reason, the claims against Defendants Rios, Gutierrez,
Stangle, Wong, Poynyer, and the unnamed U.S. Marshals are dismissed without prejudice.
To the extent the Second Amended Complaint identifies actions taken by specific
defendants, they are also insufficient to state plausible claims. The Second Amended
Complaint alleges that a gang member threatened and attacked Plaintiff after he “filed a
complaint with the BOP central office to have staff at USP Tucson correct his program
review, that was held July 7, 2023 by Case-Manager Felix” and after “unit counsel Merk
shared a false P.S.I with all the inmates.” Sec. Am. Compl. at 17. The Second Amended
Complaint also alleges that Officers Wilwood and Farnell did not pack his property after
he was transferred to a different institution. Although Plaintiff makes the conclusory
allegation that these actions were done to harass and delay this litigation, his limited factual
allegations are not sufficient to plausibly show that these defendants’ actions were
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substantially motivated by Plaintiff’s constitutionally protected activities. See Banks v.
Katzenmeyer, 645 F. App'x 770, 773 (10th Cir. 2016) (holding that dismissal of retaliation
claim was warranted where plaintiff “failed to allege specific, objective facts from which
it could plausibly be inferred that” prison official acted with retaliatory motive). The
allegations are also insufficient to support a claim under the Fifth Amendment as Plaintiff
has not alleged “facts plausibly showing that the procedures attendant to the deprivation of
his property interest were inadequate in this case”. See Sabbath v. Hicks, No. 20-CV-
00893-PAB-KMT, 2021 WL 1300602, at *8 (D. Colo. Feb. 19, 2021), report and
recommendation adopted, No. 20-CV-00893-PAB-KMT, 2021 WL 1015986 (D. Colo.
Mar. 17, 2021).
As an alternative ground for dismissal of the claims against the federal and BOP
defendants, the Court notes that venue is improper for these claims. 3 The Second Amended
Complaint alleges that the events forming the basis of these claims occurred in 2023 at
USP Tucson, a federal facility located in Tucson, Arizona. This Court is not the appropriate
venue for claims that concern events that occurred entirely in Arizona. See 28 U.S.C. §
1391(b). If venue is not proper, the court may either dismiss or transfer the case. Id. at §
1406(a); see also Trujillo v. Williams, 465 F.3d 1210, 1216 (10th Cir. 2006). Here, the
Court concludes that it would not be in the interest of justice to transfer these claims
because, as noted above, Plaintiff has not stated plausible claims.
3 A district court may dismiss claims based on improper venue at the screening stage where
the defense is obvious from the face of the complaint. Trujillo, 465 F.3d at 1217.
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As outlined above, the Report and Recommendation [Doc. No. 51] is ADOPTED.
The 	official 	capacity 	claims 	remain 	dismissed 	with 	prejudice, 	the 	claims 	for
injunctive/declaratory relief are dismissed, the claims against Defendants Dickerson and
Crane are dismissed for failure to state a claim, the claims against Defendants Rios,
Gutierrez, Stangle, Wong, Poynyer, Merk, Felix and unknown U.S. Marshals are dismissed
for improper venue or, alternatively, for failure to state a claim. The claims against
Defendants Casady and Foster remain.
IT IS SO ORDERED this 14 th day of August, 2024.
UNITED STATES DISTRICT JUDGE
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