David v. Crow et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JEROME ADRIAN DAVID, 	)
)
Plaintiff, 	)
) 	CIV-21-534-SLP
v. 	)
)
SCOTT CROW, et. al., 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
Plaintiff, a state prisoner appearing pro se, initiated this civil action on May
21, 2021. Doc. No. 1. Currently before the Court is Plaintiff’s Motion for
Injunctive Relief. Doc. No. 8. The matter has been referred to the undersigned
Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B).
Based on the reasons set forth herein, the undersigned recommends Plaintiff’s
Motion be denied as moot.
I. Background Information
When Plaintiff initiated this action, he was incarcerated at the William S.
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Key Correctional Center (“WSKCC”), located in Ft. Supply, Oklahoma. Since
filing this lawsuit, Plaintiff has been transferred to Howard McLeod Correctional
Center located in Atoka, Oklahoma. Doc. No. 15. In his Amended Complaint, he
asserts Eighth Amendment claims arising from, inter alia, the dental care he
received while confined at WSKCC. In his Motion for Injunctive Relief, Plaintiff
requests this Court order WSKCC officials to provide him with restorative dental
care.
In his Motion, Plaintiff explains that he arrived as WSKCC in November
2020. Doc. No. 8 at 1. In December 2020, following a dental examination,
Plaintiff was diagnosed with periodontal disease, mesial decay, cavities, and deep
carious lesions. Id. He began receiving dental care treatment in the form of
antibiotics for infections as well as anti-inflammatory painkillers. Id. at 1-2.
Plaintiff asserts the medication essentially stopped working, and that he is in
constant pain. Id. at 2. The initial dentist who examined him is either on extended
leave or is no longer employed at WSKCC and they have only one part-time
dentist, Dr. Pottorff, for 500-700 inmates. Id. Dr. Pottorff visits WSKCC on
Mondays and sees emergency patients only. Id.
In May 2021, Plaintiff submitted a request for health services in which he
requested restorative dental treatment and asked to be referred to an outside dental
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facility if WSKCC could not provide the same. Id. at 3. Defendant T. Lauer
responded explaining that Plaintiff needed several fillings and either a root canal
or an extraction and that he would first need to pass another plaque test. Doc. No.
8-2. Plaintiff alleges plaque tests are being used as a “delay tactic” and that Dr.
Pottorff provided dental care to a white inmate that had been at WSKCC for a
shorter time period than Plaintiff. Doc. No. 8 at 2-3.
On May 24, 2021, Dr. Pottorff saw Plaintiff and intended to extract several
teeth, but Plaintiff refused because he wanted restorative treatment instead of
extractions. Id. at 3; Doc. No. 8-3. Plaintiff requested a referral to an outside dental
facility for restorative treatment. Doc. No. 8-3. Plaintiff contends Defendant
Lauer encourages WSKCC dentists to not perform any dental treatment except
extractions. Id. On June 7, 2021, Plaintiff submitted a sick call request in which
he stated that he had tried to obtain emergency dental care because he was in
extreme pain, but no one answered the door. Doc. No. 8-4. Plaintiff also stated
therein that Defendant Lauer told him that the only treatment he could receive
were extractions and that root canals were not permitted. Id. He requested Dr.
Pottorff either provide restorative treatment or refer him to an outside specialist.
Id. He also requested Dr. Pottorff not allow Defendant Lauer to influence the care
Plaintiff received. Id. Though his June 7, 2021 sick call request does not reflect a
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response, in his Motion, Plaintiff states that Defendant Lauer denied him
treatment that day. Doc. No. 8 at 3.
Plaintiff asserts that Defendants Lauer and Tammy Foster, as well as Dr.
Pottorff, refused to provide him dental treatment because of his race and his First
Amendment activities. Id. at 3, 4. Plaintiff requests the Court “step in” and order
Defendants to provide him with restorative dental care. Id. at 4-8.
II. Analysis
On July 9, 2021, Plaintiff filed a notice with the Court that he had been
transferred 	to 	the 	Howard 	McLeod 	Correctional 	Center 	located 	in 	Atoka,
Oklahoma. Doc. No. 15. Because Plaintiff is no longer incarcerated at WSKCC,
his request for injunctive relief is moot. The Tenth Circuit has held that an
inmate’s transfer from one prison to another generally renders moot any request
for injunctive relief against the employees of the original prison concerning the
conditions of confinement. Green v. Branson, 108 F.3d 1296, 1299-1300 (10th
Cir. 1997); see also Wirsching v. Colorado, 360 F.3d 1191, 1196 (10th Cir. 2004)
(explaining that an inmate’s release from prison moots his claims for declaratory
and injunctive relief); McAlpine v. Thompson, 187 F.3d 1213, 1215 (10th Cir.
1999) (recognizing prisoner’s release from prison mooted his § 1983 claim for
injunctive relief); Love v. Summit Cty., 776 F.2d 908, 910 n.4 (10th Cir. 1985)
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(noting transfer of inmate to different prison renders his § 1983 claim for
injunctive relief moot).
The mootness doctrine is based on the reality that even if the inmate
receives injunctive relief, Defendants from the former prison would be unable to
provide said relief to Plaintiff. Plaintiff specifically alleges Defendants Lauer and
Foster, as well as Dr. Pottorff, denied Plaintiff dental treatment because of his race
and his First Amendment activities. Plaintiff is no longer subject to these
individuals and the Court directing them to provide Plaintiff dental care will not
bring him any relief. Because Plaintiff is no longer incarcerated at the WSKCC,
his request for injunctive relief is moot.
RECOMMENDATION
Based on the foregoing findings, it is recommended Plaintiff’s Motion for
Injunctive Relief (Doc. No. 8) be DENIED as moot. Plaintiff is advised of the
right to file an objection to this Report and Recommendation with the Clerk of
this Court by 	September 	7 th , 2021, in accordance with 28 U.S.C. § 636 and
Fed. 	R. 	Civ. 	P. 	72. 	The 	failure 	to 	timely 	object 	to 	this 	Report 	and
Recommendation would waive appellate review of the recommended ruling.
Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75
F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to
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the magistrate judge’s recommendation are deemed waived.”).
This Report and Recommendation does not dispose of all issues referred to
the undersigned Magistrate Judge in the captioned matter.
Dated this 	18 th day of 	August 	, 2021.
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