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. 	)
SECOND SUPPLEMENTAL REPORT AND RECOMMENDATION
Plaintiff, a state prisoner appearing pro se and in forma pauperis, brings
this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional
rights. Before the Court is the Motion to Dismiss filed by Defendants Crow,
Glover, Atkinson, Prather, Knutson, and Goodwin. Doc. No. 64. The matter has
been 	referred 	to 	the 	undersigned 	Magistrate 	Judge 	for 	initial 	proceedings
consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is
recommended the Motion to Dismiss, converted to a Motion for Summary
Judgment, be granted in part and denied in part.
I. Plaintiff’s Claims
This case arises from Plaintiff’s allegations that while he was incarcerated
at William S. Key Correctional Center (“WKCC”) located in Fort Supply,
Oklahoma, Defendants violated his constitutional rights. See generally Doc. No.
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23. Plaintiff names as Defendants in this matter: Scott Crow, Director of the
Oklahoma Department of Corrections (“ODOC”); Joe Allbaugh, former Director
of ODOC; T. Hastings Siegfried; Mark Knutson, ODOC Administrative Review
Authority; Lonnie Lawson, WKCC Warden; Cheri Atkinson, ODOC Medical
Services Manager; Tammy Foster, WKCC “CHSA”; Aitson, Dentist; T. Lauer,
WKCC “OCS”; Linda Eike, WKCC Unit Manager; Susan Goodwin, WKCC Case
Manager; Persli Elsi, WKCC Kitchen Supervisor; Glover, WKCC Kitchen Staff;
and Prather, WKCC Kitchen Staff. Id. at 4; Doc. No. 23-1 at 1; Doc. No. 23-2 at
2-5.
Plaintiff asserts Defendants violated his rights under the First, Eighth, and
Fourteenth Amendments based upon allegations that they knowingly allowed rat
and pest infestation in the kitchen, served spoiled milk and food, served food with
rat droppings in them and/or food from which rats have eaten, refused to provide
him a heart healthy diet as ordered by a physician, interfered with his ability to
exhaust his administrative remedies, ordered him to do jobs involving dangerous
chemicals without training and while refusing to provide personal protective
equipment resulting in burns on his face, neck, and hands, twice terminated his
employment in retaliation for reporting portions of the previous allegations, and
interfered with his use of the grievance process. Doc. Nos. 23, 23-1, 23-2, 23-3.
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Defendants have filed a Motion to Dismiss wherein they request dismissal
of Plaintiff’s claims. Doc. No. 64. Because Defendants rely, in part, on evidentiary
documents outside of the pleadings in support of their Motion, and Plaintiff was
advised of his responsibilities under Fed. R. Civ. P. 12 and 56 in responding to
Defendants’ Motion, see Doc. No. 65, the Motion will be considered as one
seeking summary judgment. See Arnold v. Air Midwest, Inc., 100 F.3d 857, 859
n.2 (10th Cir. 1996) (“Notice to the parties is required to prevent unfair surprise
when a judge converts a 12(b)(6) motion into a Rule 56 motion.”); Brown v.
Zavaras, 63 F.3d 967, 969 (10th Cir. 1995) (explaining that courts may convert
motion to dismiss into motion for summary judgment in order to consider matters
outside of the pleadings); Wheeler v. Hurdman, 825 F.2d 257, 260 (10th Cir.
1987) (“[W]hen a party submits material beyond the pleadings in support of . . . a
motion to dismiss, the prior action on the part of the part[y] puts them on notice
that the judge may treat the motion as a Rule 56 motion.”).1
1 In their Motion to Dismiss, Defendants state that Plaintiff has failed to serve various
individual Defendants, including but not limited to Carrie Bridges, Rhodona Thomas,
and FNU Pludau. Doc. No. 64 at 8 n.1. As Plaintiff did not name Bridges, Thomas, or
Pludau as Defendants in his Amended Complaint, they are not parties to this lawsuit.
The remaining Defendants have now been served, with the exception of Defendants Elsi,
Allbaugh, Aitson, and Lauer. The Court will address Defendant Elsi herein, and
Defendants Allbaugh, Aitson, and Lauer in a separate Order(s).
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II. Standard of Review
A. Summary Judgment
Summary judgment may only be granted when there is no genuine dispute
as to any material fact and the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). In considering a motion for summary judgment, the
Court reviews the evidence and inferences drawn from the record in the light most
favorable to the nonmoving party. Burke v. Utah Transit Auth. & Local, 462 F.3d
1253, 1258 (10th Cir. 2006).
A dispute is “genuine” if a reasonable jury could return a verdict for the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Material facts are “facts that might affect the outcome of the suit under the
governing law . . . .” Id. “At the summary judgment stage, a complainant cannot
rest on mere allegations, but must set forth by affidavit or other evidence specific
facts, which for purposes of the summary judgment motion will be taken to be
true.” Burke, 462 F.3d at 1258 (quotations omitted). “Where the record taken as a
whole could not lead a rational trier of fact to find for the non-moving party, there
is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (quotations omitted).
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B. Screening of Prisoner Complaints
A federal district court must review complaints filed by prisoners seeking
relief against a governmental entity or an officer or employee of a governmental
entity. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(a). At any point during the litigation,
the court must dismiss a complaint or any portion of it presenting claims that are
frivolous, malicious, fail to state a claim upon which relief may be granted, or
seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§§ 1915(e)(2)(B), 1915A(b).
In conducting this review, the reviewing court must accept the plaintiff's
allegations as true and construe them, and any reasonable inferences to be drawn
from the allegations, in the light most favorable to the plaintiff. Kay v. Bemis, 500
F.3d 1214, 1217 (10th Cir. 2007). Although a pro se litigant’s pleadings are
liberally construed, Haines v. Kerner, 404 U.S. 519, 520 (1972), “[t]he burden is
on the plaintiff to frame a ‘complaint with enough factual matter (taken as true)
to suggest’ that he or she is entitled to relief.” Robbins v. Oklahoma, 519 F.3d
1242, 1247-48 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556 (2007)). The allegations in a complaint must present “enough facts to
state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
Further, a claim is frivolous “where it lacks an arguable basis either in law or in
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fact” or is “based on an indisputably meritless legal theory.” Neitzke v. Williams,
490 U.S. 319, 325, 327 (1989).
III. 	Exhaustion of Administrative Remedies
Defendants contend Plaintiff failed, prior to filing this action, to exhaust
administrative 	remedies 	through 	the 	ODOC 	grievance 	procedure. 	Proper
exhaustion of administrative remedies is mandated by the Prison Litigation
Reform Act (“PLRA”), which provides that a prisoner cannot bring an action
“with respect to prison conditions under [§] 1983 . . . until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see also Ross v.
Blake, 578 U.S. 632, 640 (2016) (“[T]he history of the PLRA underscores the
mandatory nature of its exhaustion regime.”); Jones v. Bock, 549 U.S. 199, 211
(2007) (“There is no question that exhaustion is mandatory under the PLRA and
that unexhausted claims cannot be brought in court.”).
The exhaustion doctrine protects administrative agency authority and
promotes efficiency. Woodford v. Ngo, 548 U.S. 81, 89 (2006). Because the
exhaustion doctrine is an affirmative defense, the defendants “bear the [initial]
burden of asserting and proving that the plaintiff did not utilize administrative
remedies.” Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011). Once the
defendant demonstrates a plaintiff has failed to exhaust his administrative
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remedies, “the onus falls on the plaintiff to show that remedies were unavailable
to him[.]” Id.
Further, 	“substantial 	compliance 	[with 	the 	grievance 	procedure] 	is
insufficient.” Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th Cir.
2007). Proper exhaustion requires compliance with all of the prison’s grievance
procedures, including adherence to “deadlines and other critical procedural
rules[,] because no adjudicative system can function effectively without imposing
some orderly structure on the course of its proceedings.” Woodford, 548 U.S. at
90-91. Thus, “[a]n inmate who begins the grievance process but does not complete
it is barred from pursuing a § 1983 claim[.]” Jernigan v. Stuchell, 304 F.3d 1030,
1032 (10th Cir. 2002).
There 	is 	no 	exception 	to 	the 	exhaustion 	requirement 	for 	“special
circumstances.” Ross, 578 U.S. at 638-40 (discussing mandatory language means
a court may not excuse a failure to exhaust, even to take special circumstances
into account) (citing Miller v. French, 530 U.S. 327, 337 (2000) (explaining that
“[t]he mandatory ‘shall’ . . . normally creates an obligation impervious to judicial
discretion”)). Thus, if administrative remedies are available, an inmate must
complete each step of the administrative process before a federal court can
consider the merits of the inmate’s complaint based on alleged violations of
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constitutional rights.
IV. Grievance Procedure for Oklahoma Inmates
The ODOC’s grievance procedure is clearly set forth in the ODOC
Inmate/Offender Grievance Process OP-090124. Doc. No. 64-1.2 Initially, a
prisoner must seek to resolve any complaint by informally raising the matter with
an appropriate staff member. Id. at 7-8. If the matter is not resolved informally,
the prisoner must submit a request to staff within seven calendar days of the
incident, raising only one issue therein. Id. at 8.
If the request to staff does not successfully resolve the issue, the prisoner
must submit a formal grievance form, with a copy of the request to staff attached,
to the appropriate facility reviewing authority within 15 calendar days from the
date of the response to the request to staff, and can only raise one issue. Id. at 9-
11. The reviewing authority will assign a number to each grievance received and
will generally answer the grievance within 20 days of its receipt. Id. at 11-12. If
the reviewing authority denies the grievance at the prison level, a prisoner must
appeal the decision to the Administrative Review Authority (“ARA”) within 15
2 ODOC amended its Grievance Process effective January 18, 2022. Doc. No. 62-18.
The previous version, submitted as Exhibit 1 to Defendants’ Motion to Dismiss, was in
effect during all times relevant to Plaintiff’s claims. Doc. No. 64-1. Therefore, the Court
will refer only to the latter herein.
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days of receipt of the same to complete exhaustion of his administrative remedies.
Id. at 13-15.
When inmates face an emergency or have a sensitive grievance as defined
in OP-090124, they can file a grievance directly to the reviewing authority (or to
the ARA, if the emergency or sensitive grievance involves the reviewing
authority) without attempting to informally resolve the dispute. Id. at 16-18. The
reviewing 	authority 	must 	determine 	within 	twenty-four 	hours 	whether 	the
grievance is of a sensitive nature or requires emergency handling. Id. at 17. If the
reviewing authority decides the matter does not involve a true emergency or a
sensitive topic, the inmate must restart the administrative process by trying to
informally resolve the dispute and resubmitting the grievance. Id. at 18.
V. Plaintiff’s Utilization of the Grievance Process
Defendants concede Plaintiff exhausted his Eighth Amendment claims
regarding his dental care. Doc. No. 64 at 19.3 Thus, the Court will address
Plaintiff’s utilization of the administrative remedies process only with regard to
his additional claims.
3 Defendants also concede Plaintiff exhausted his administrative remedies regarding his
Eighth Amendment claims based on allegations that he was served spoiled milk and
peaches, as well as non-organic food. Doc. No. 64 at 19. However, Plaintiff did not
assert those claims against Defendants seeking dismissal/summary judgment by the
current Motion. Therefore, the Court will not address those claims herein.
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A. Chemical Exposure & Retaliatory Discharge (Bathroom Orderly)
1. Claims & Allegations
Plaintiff asserts First and Eighth Amendment claims arising from his job as
a bathroom orderly during which he was exposed to chemicals that injured the
skin on his hands, arms, and face. On December 31, 2020, Defendants Eike and
Goodwin approved Plaintiff for the job of bathroom orderly. Doc. No. 62-30 at 5.
On January 7, 2021, Defendant Eike instructed Plaintiff to clean the bathrooms,
including the bathroom ceilings. Doc. No. 62-29 at 2-3. Plaintiff requested
protective gear from various individuals but was informed the facility did not have
any. Doc. No. 23-3 at 8; Doc. No. 62-29 at 2-3. Plaintiff performed his duties and
as a result, suffered chemical burns on his hands, arms, and face. Id. Plaintiff
submitted a sick call request regarding the same. He was seen by a physician who
diagnosed his injuries as chemical burns and treated them for some time with
silver sulfadiazine cream and Ibuprofen. Doc. No. 23-3 at 8; Doc. No. 62-29 at
10, 15. On January 8, 2021, Plaintiff first reported his chemical exposure and
burns through the grievance process. Doc. No. 62-29 at 2.
On January 12, 2021, Defendants Eike and Goodwin terminated Plaintiff
from his bathroom orderly position. Doc. No. 23-3 at 8; Doc. No. 62-29 at 5. As
Plaintiff is required to hold a job during his confinement, he applied to be a kitchen
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orderly, as instructed by Defendant Goodwin, and was placed in that position.
Doc. No. 62-30 at 9. However, Plaintiff did not want that position and attempted
on multiple occasions to reobtain his bathroom orderly job. Defendants Eike and
Goodwin denied those requests. Doc. No. 62-29 at 9-10.4
Plaintiff asserts an Eighth Amendment claim against Defendant Eike based
on her failure to provide him with training regarding use of and/or exposure to
hazardous chemicals, as required by ODOC policy, as well as his chemical
exposure and resulting burns. Doc. No. 23-3 at 9-10. Plaintiff also asserts a First
Amendment claim against Defendants Eike and Goodwin based on their actions
in terminating him from his bathroom orderly position in alleged retaliation for
reporting his chemical exposure and resulting burns. Id. at 8.
2. Exhaustion Efforts
On January 8, 2021, Plaintiff submitted a Request to Staff in which he
explained that on the previous day, Defendant Eike ordered that the ceilings and
other areas of the pod be cleaned. Doc. No. 62-29 at 2. He reported that he asked
4 The Court notes Plaintiff’s application for the kitchen orderly position, submitted with
Defendants’ Special Report, is dated December 27, 2020, prior to the date Defendants
terminated him from his bathroom orderly position. Doc. No. 62-29 at 7. However, as
the application date also precedes the date Plaintiff was hired as a bathroom orderly, it
might simply be a previously submitted application and not an application submitted
following his termination.
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Defendant Eike for cleaning supplies and safety gear and she told him to ask
Defendant Goodwin, who told him to ask C.O. Ellis, who informed Plaintiff that
they did not have any. Id. at 2-3. Plaintiff explained that he attempted to avoid
cleaning until the Unit Team provided him with safety equipment, but Defendant
Eike informed him that if he failed to do so, he would lose canteen privileges. Id.
at 3. Plaintiff cleaned the bathroom, including the ceiling, and chemicals got on
his face, eyes, arms, and hands. Id. The following morning, Plaintiff had burns in
those areas. Id. He anticipated facing the same situation and potential harm in the
future. Id.
In the “Action Requested” section, Plaintiff stated, “To be provided with
safety supplies needed for cleaning and handling chemicals. [A]lso not to be
charged medical fees to treat my burns or if there is anything else wrong with me
as [a] result of this issue.” Id. at 2. On January 11, 2021, a WKCC official
responded 	by 	asking, 	“Mr. 	David[,] 	have 	you 	addressed 	with 	the 	Unit
Manager[?]” Id.
On January 19, 2021, Plaintiff submitted Grievance #21-02 in which he
first summarized the history of his Request to Staff, above. Id. at 4. He then
explained that on January 12, 2021, Defendants Goodwin and Eike, as well as
Case Manager Mindy Livshee, met with Plaintiff in his bunk area regarding his
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exposure to hazardous chemicals. Id. at 5. They ultimately terminated Plaintiff
from his bathroom orderly position. Id. Plaintiff cited to ODOC policy prohibiting
the termination of an inmate due to exercising his rights to file a complaint. Id.
He explained that, contrary to policy, he did not receive any training or education
regarding the use of hazardous chemicals. Id. He stated that he was concerned
about the long term health effects resulting from his exposure. Id.
In the section of the Grievance in which Plaintiff was required to state the
action he wanted the reviewing authority to take, he stated, “I should receive my
orderly job back; I should take a safety training class and watch A CIL and SDS
video; take a hazard communication training class [and] also be provided with the
proper safety gear necessary for the job according with OP-150310 Section 15
Hazard Communication Program (ACA Standards 2-CO-3B-01M, 4-4215).” Id.
at 4. Plaintiff also requested a copy of the ODOC Employee Exposure Report
(“EER”), required by ODOC policy. Id. at 5.
On February 3, 2021, Plaintiff received a response to Grievance #21-02. Id.
at 6. It stated the following:
Partial Relief Granted
You have already gotten another job in the kitchen. Attached is a
copy of the back of your approved application. Therefore, you do not
need 	to 	get 	your 	orderly 	position 	back. 	The 	kitchen 	will 	be
responsible for training you in the areas that you will need to be
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trained in.
Attached is also a copy of OP-150310 A – Oklahoma Department of
Corrections Employee Exposure Report.
Id.
On February 8, 2021, Plaintiff submitted an appeal from this response. Id.
at 9-10. He explained that although the grievance response stated that it offered
partial relief, it actually did not. Id. He wanted his bathroom orderly position and
did not want his kitchen position. Id. Additionally, he intended his request for the
EER to reference the Report that should have been completed following his
exposure, rather than a copy of a blank EER form. Id. at 10. He also described the
continuing problems he was experiencing with his burns. Id.
On March 17, 2021, Defendant Knutson, the ARA, sent a Memorandum
regarding Grievance #21-02 to Defendant Lawson as WKCC Warden. Id. at 11.
Therein, Defendant Knutson stated the following:
Initially on the RTS dated 1/8/21, the inmate complained of having
to clean the bathroom without gloves and safety supplies and alleges
that he received burns due to the exposure to chemicals. His relief
requested was to be supplied with safety supplies and not to be
charged medical fees for any burns or related medical issues.
Apparently, between the submission of the RTS on 1/11/21 and the
grievance on 1/22/21 the inmate was reassigned from his unit orderly
position to the kitchen. The inmate then changed his relief requested
on the grievance to wanting his orderly job back, requested safety
and hazard training classes and requested a copy of the ODOC
“Employee 	Exposure 	Report.” 	These 	are 	different 	issues. 	The
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reviewing authority will prepare an amended response to WKCC 21-
02 and return the grievance unanswered on a checklist notifying the
Inmate that he has more than one issue, the relief requested on the
RTS is not consistent with the grievance and that since he has been
reassigned to the kitchen, his safety issues as an orderly are now
moot. He will also be notified that issues regarding medical co-pays
should be properly addressed with the facility health administrator.
Id. On March 17, 2021, Defendant Knutson sent a letter to Plaintiff explaining
that he had forwarded Plaintiff’s Grievance #21-02 to Defendant Lawson for
further review and investigation and that an amended response would be provided
within twenty days. Id. at 12.
On April 16, 2021, Plaintiff appealed the amended response to Grievance
#21-02. Doc. No. 62-29 at 13-14.5 This appeal focused primarily on officials’
failure to comply with requirements related to his chemical exposure. Id. He also
noted that he was instructed to use chemicals without training, as well as
Defendants Eike and Goodwin’s threats to his employment if he did not clean the
bathrooms in spite of not having any protective gear, and the burns he suffered as
a result. Id. at 13-15. He included several additional pages in which he set forth
his general grievance history. Id. at 16-22.
On 	May 	18, 	2021, 	Defendant 	Knutson 	returned 	Plaintiff’s 	appeal
5 The amended response was not included with Defendants’ Special Report. However,
in Plaintiff’s April 16, 2021 appeal, he indicated he received the response on April 7,
2021. Id. at 13.
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unanswered. Id. at 23. Defendant Knutson indicated Plaintiff had submitted
additional pages that were not authorized, had included more than one issue in the
appeal, and failed to identify on the appeal form the facility where the grievance
occurred. Id. Defendant Knutson provided Plaintiff 10 days to file a corrected
appeal, see id., but Plaintiff did not do so.
Plaintiff initiated an additional round of grievances arising from events that
occurred while he was a bathroom orderly. On January 19, 2021, Plaintiff
submitted a Request to Staff in which he discussed the January 12, 2021 meeting
with Defendants Eike and Goodwin, as well as Ms. Livshee, in which they
terminated his employment as a bathroom orderly. Doc. No. 62-30 at 2-3. He
stated that Defendants Eike and Goodwin indicated Plaintiff could no longer work
as a bathroom orderly because his skin is too sensitive to chemicals. Id. at 3.
Plaintiff argued it would not be a problem if he had been provided with the proper
safety gear. Id. As relief, Plaintiff stated that he intended to seek compensatory,
punitive, and nominal damages through a lawsuit under 42 U.S.C. § 1983, though
he was not seeking such damages through the administrative grievance process.
Id. at 2. A WKCC official responded on January 25, 2021, stating, “Mr. David[,]
did you talk to your unit teams about getting another job? If you have issues with
the products that we use[,] then it would be a good idea to get another job.” Id.
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On February 3, 2021, Plaintiff submitted Grievance #21-4 alleging that
Defendants Eike and Goodwin terminated his employment as a bathroom orderly
in retaliation for reporting his chemical burns through the grievance process. Id.
at 5-6. He explained that he had tried to get his orderly job back, but Defendants
Eike and Goodwin refused. Id. at 5. Regarding the action he wanted the reviewing
authority to take, Plaintiff stated, “I should not have been threaten[ed], nor lost
anything because I filled out A RTS, Grievance Process to report my exposure to
hazardous chemicals, because I was deprived [of] safety ware [sic] In accordance
with OP-150310.” Id.
On February 17, 2021, Plaintiff received a response to Grievance #21-4,
stating, “You already have another job . . . therefore you do not need your orderly
job back.” Id. at 7. It also indicated Grievance #21-4 could have been sent back
unanswered because Plaintiff did not request any affirmative relief that an official
could provide. Id.
Plaintiff filed an appeal from the response stating that Defendant Eike and
Goodwin had terminated his employment as a bathroom orderly in retaliation for
using the grievance system, they had failed to offer him his job back, and now he
is working at a job he does not want. Id. at 8-9. On March 17, 2021, Defendant
Knutson submitted a Memorandum to Defendant Lawson setting forth the
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administrative history of Plaintiff’s appeal and then explaining, “[T]he inmate has
not requested any lawful o[r] even tangible relief that the reviewing authority may
grant. . . . The reviewing authority will prepare an amended response to WKCC
21-04 and return the grievance unanswered on a checklist notifying the inmate
that the relief requested on the RTS and grievance are not consistent and that he
has not requested any lawful or tangible relief that the reviewing authority may
grant.” Id. at 10. On the same date, Defendant Knutson sent a letter to Plaintiff
explaining that he had forwarded Grievance #21-04 to Defendant Lawson for
further review and investigation and that an amended response would be provided
within 20 days. Id. at 11.
On March 22, 2021, Plaintiff received the amended response indicating that
Plaintiff’s requests for relief on the Request to Staff and Grievance did not match
and that, in any event, he had not requested any lawful or tangible relief. Id. at 12.
It also instructed Plaintiff that he had 10 days to resubmit a corrected grievance.
Id.
On March 29, 2021, in an attempt to comply, Plaintiff resubmitted
Grievance #21-04 and requested compensatory, nominal, and punitive damages.
Id. at 13. On April 7, 2021, the Grievance was returned unanswered with a form
indicating that Plaintiff’s issue was not grievable through the administrative
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grievance process. Id. at 15. Additionally, the response indicated Plaintiff had
previously been placed on grievance restriction and that Plaintiff had failed to
follow the extra steps restriction requires in order for an inmate to file a grievance.
Id.6
Plaintiff appealed the response to Defendant Knutson. Id. at 16-17. He
indicated that he had been terminated from his orderly position in retaliation for
utilizing the grievance process, but also extensively discussed complaints about
the grievance process itself. Id. On April 21, 2021, Defendant Knutson returned
the appeal unanswered, indicating Plaintiff had “failed to follow previous
instructions 	from 	the 	reviewing 	authority 	or 	the 	ARA 	for 	filing 	this
grievance/appeal and/or properly resubmit. YOU ARE NOW OUT OF TIME.”
Id. at 18.
6 Defendants did not submit formal documentation memorializing Defendant Lawson’s
actions in placing Plaintiff on grievance restriction, nor any notification provided to
Plaintiff indicating the same. The only notation in the record pertaining to this issue is
found within Plaintiff’s Case Manager’s Notes, which indicate that Plaintiff was placed
on grievance restriction as of April 20, 2021. Doc. No. 62-26 at 7. Said date is well after
Plaintiff’s resubmission of Grievance #21-04. Therefore, at least based on the record
before the Court, Plaintiff should not have been required to comply with grievance
restriction requirements. However, as Plaintiff’s failure to comply with said restrictions
was not the only stated reason Grievance #21-04 was rejected and Plaintiff nevertheless
appealed the response, the Court should not find that administrative remedies were
rendered unavailable in this instance. See Tuckel, supra.
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B. Kitchen Conditions
Plaintiff asserts Eighth Amendment conditions of confinement claims
against Defendants Elsi, Glover, and Prather based upon an alleged infestation of
mice, rats, and cockroaches in the kitchen. Doc. No. 23-3 at 1-3. On February 2,
2021, Plaintiff submitted a Request to Staff in which he explained that he began
working in the kitchen in January 2021 and immediately and continuously noticed
it was infested with rats, mice, and cockroaches. Doc. No. 62-11 at 2. On frequent
occasions, he saw rat feces in dishware, cookware, and food being served to
inmates. Id. at 2-3.
Plaintiff explained that he and other inmates reported the issue to various
officials. Id. at 3. Defendant Glover allegedly responded that it was an ongoing
issue because there is a field behind the facility and directed Plaintiff to “shut up
about it.” Id. Defendant Prather told Plaintiff not to worry about it because “rats
won’t eat much.” Id. On one occasion, Defendant Prather also directed Plaintiff
to continue to serve carrots that had rat feces in it, although Defendant Glover
subsequently directed Defendant Prather to pull the carrots. Id. Plaintiff stated that
these conditions likely explain why the food sometimes made him nauseous and
now that he was aware of the same, he experienced fear, stress, worry, and anxiety
daily regarding the food. Id. He also stated that he spoke with all the kitchen
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supervisors, as well as others, but nothing was being done. Id. Plaintiff stated on
the Request to Staff that he was seeking compensatory and punitive damages. Id.
at 2. On February 28, 2021, Plaintiff received a response on which a staff member
explained, “Mr. David, We have done several different extermination practices
and will continue to do this. Any time you have mice feces in your food please let
the kitchen supervisor know.” Id. at 2.
On February 24, 2021, Plaintiff completed Grievance #21-05 discussing
various incidents in which he alerted multiple WKCC officials/kitchen staff to the
rat feces on the dishes, cookware, and in the food. Doc. No. 62-13 at 2-3.7 He
explained that on February 16, 2021, Plaintiff saw and reported 10 to 15 mice
running from behind a kitchen sink. Id. at 3. On February 18, 2021, Defendant
Elsi chastised Plaintiff for “bitchin about the mice and rats infestation and rat[]
feces and urine being in the food.” Id. She told him that if he continued to do so,
she would terminate him. Id. She also ordered him to apologize to Defendant
Glover for showing the rat feces to a WKCC Lieutenant and Corrections Officer.
Id.
Plaintiff also stated that on February 21, 2021, the maintenance crew
removed a mirror globe from the ceiling and found over 30 dead mice inside it.
7 Plaintiff’s underlying Request to Staff for this Grievance is not included in the record.
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Id. On one occasion, a piece of tile fell from the dining hall ceiling and dead mice
fell with it. Id. Plaintiff requested compensatory, punitive, and nominal damages
through a lawsuit under 42 U.S.C. § 1983. Id. at 2.
On 	March 	8, 	2021, 	Defendant 	Lawson 	returned 	Grievance 	#21-05
unanswered. Id. at 4. Defendant Lawson indicated Plaintiff had not attached a
copy of the underlying Request to Staff, the Grievance was out of time from the
date of the incident, and his request for relief was not available through the
administrative process. Id. at 4-5.
On March 31, 2021, Plaintiff submitted Grievance #21-07 in which he
raised essentially the same concerns and asked for the same relief as that in his
February 2, 2021 Request to Staff. Doc. No. 62-11 at 4-5. On April 7, 2021, a
WKCC official returned Grievance #21-07 unanswered stating, “You are on
grievance restriction. You have failed to complete the required paperwork you
need to fill out to complete any future grievances. You have forfeited the
opportunity to submit your grievance due to failure to properly submit your
paperwork.” Id. at 6.
On April 19, 2021, Plaintiff appealed Grievance #21-07 and in doing so,
set out a lengthy history of his attempts to exhaust his administrative remedies
regarding this and other issues. Id. at 7-15. He further alleged Defendant Lawson
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was attempting to interfere with his ability to exhaust his administrative remedies.
Id. On May 18, 2021, Defendant Knutson completed a checklist form indicating
that he was returning Plaintiff’s appeal unanswered for the following reasons: (1)
Attachments to Plaintiff’s appeal were limited to an affidavit and Plaintiff’s
attachments were lengthy; (2) “Requests for disciplinary action against staff or
monetary compensation will not be addressed in the grievance process”; and (3)
Plaintiff included “[m]ore than one issue or additional issues submitted in the
grievance appeal” that were “not presented in the initial grievance to the
reviewing authority.” Id. at 16. The form indicated Plaintiff was afforded one final
opportunity to properly resubmit a corrected grievance appeal within 10 days of
receipt. Id.8 Based on the record, Plaintiff did not attempt to resubmit his appeal.
C. Retaliatory Discharge (Kitchen)
On March 14, 2021, Plaintiff submitted a Request to Staff in which he
complained that Defendant Lawson had terminated him from his kitchen position,
but Plaintiff did not know the reason for the same. Doc. No. 62-32 at 2-3. Plaintiff
explained that he had earned excellent evaluations regarding his kitchen work and
had recently been promoted to baker. Id. at 3. On March 29, 2021, Plaintiff
8 The checklist form that Defendant Knutson completed does not contain Plaintiff’s
signature. Id. Therefore, it is not clear from the record when Plaintiff received the same.
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received Defendant Lawson’s response in which he stated, “I do not feel that you
need to work in the kitchen.” Id. at 2.
On April 5, 2021, Plaintiff submitted Grievance #21-10 in which he alleged
Defendant Lawson terminated him from his kitchen position in retaliation for
Plaintiff using the administrative grievance process to complain about the kitchen
infestation and general conditions. Doc. No. 62-32 at 4-5. On April 21, 2021,
Plaintiff received his Grievance returned unanswered. Id. at 6. Defendant Lawson
indicated that jobs were not grievable issue. Id. Plaintiff did not file an appeal
from this response.
VI. Plaintiff’s Failure to Exhaust
As illustrated above, prior to filing this lawsuit, Plaintiff did not complete
the administrative process as to his Eighth Amendment claims based upon the
kitchen conditions and the chemical exposure he experienced. He asserted these
claims against Defendants Eike, Elsi, Glover, Goodwin, and Prather. He also
failed to exhaust his First Amendment retaliatory discharge claims arising from
his kitchen and bathroom orderly positions. He asserted these claims against
Defendants Eike, Goodwin, and Lawson.
In his Amended Complaint, Plaintiff indicates that his ability to exhaust his
administrative 	remedies 	was 	thwarted 	by 	Defendants 	Lawson, 	Crow, 	and
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Knutson. Doc. No. 23-3 at 11. Specifically, he states that the policy Defendant
Crow enacted prohibiting him from filing multiple grievances about the same
issue hindered his ability to exhaust when the issue involved multiple jail officials.
Id. He explained, “An inmate has one issue but involves, X, Y, & Z correctional
officers. This procedure restricts inmate(s) form filing 3 different Request to staff
individually against X, Y, & Z correctional officers about the same issue.” Id.
However, in reviewing Plaintiff’s various submissions within the grievance
process, he was never prohibited from filing requests to staff or grievances that
involved one issue and multiple officers. Instead, such submissions were rejected
when they involved more than one issue, rather than more than one individual.
See Doc. No. 23-3 at 62-29 at 2-3, 4, 13-22 (Request to Staff regarding chemical
exposure, Grievance rejected because he raised not only chemical exposure but
also retaliatory discharge; appeal to the ARA rejected because he not only raised
issue of chemical exposure but added several additional pages regarding his
general grievance history); Doc. No. 62-11 at 2-3, 4-5, 7-15 (Plaintiff’s appeal
rejected because, inter alia, rather than only discussing kitchen conditions, as in
his underlying Request to Staff, he also added several additional pages regarding
his general grievance history).
Plaintiff also complains that Defendant Knutson did not respond to one of
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his appeals within 30 days, as required by ODOC policy. Plaintiff does not specify
the appeal to which Defendant Knutson allegedly responded past 30 days,
however, a review of the record overall does not support Plaintiff’s assertion.
With regard to an appeal Plaintiff submitted on February 8, 2017,
Defendant Knutson did not receive the same until February 18, 2021. Doc. No.
62-29 at 9; see also Doc. No. 64-1 at 15 (“The ARA has 30 days from receipt of
the appeal to respond.” (emphasis provided)). He responded on March 17, 2021,
at which time he informed Plaintiff that he had forwarded the Grievance to
Defendant Lawson for further review and investigation. Doc. No. 62-29 at 9, 12.
Defendant Knutson received another appeal on April 21, 2021. Id. at 13. He
responded on May 18, 2021. Id. at 23. Defendant Knutson also responded to the
remainder of Plaintiff’s appeals within the 30 day window. Doc. No. 62-11 at 7,
16; Doc. No. 62-30 at 8, 11, 16, 18.
Finally, Plaintiff implies Defendant Lawson placed him on grievance
restriction without cause. Doc. No. 23-3 at 11. However, his assertions are entirely
conclusory and not sufficient to establish that the administrative process was not
available to him. See Roberts v. Taylor, No. CIV–11–368–M, 2012 WL 874877,
at *4 (W.D. Okla. Feb. 15, 2012) (“But to support his allegations, Plaintiff relies
on nothing more than conclusory allegations and the mere fact of his placement
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on grievance restriction. Although Plaintiff contends he was placed on grievance
restriction as a “ruse” he does not support his contention with specific factual
allegations. And, the record before the Court demonstrates Plaintiff repeatedly
misused the Grievance Process and refused to comply with the requirements of
his placement on grievance restriction. Thus, the record demonstrates that
Plaintiff’s own conduct, not that of prison officials, resulted in the returns of his
grievances.”).
Though Plaintiff began the administrative process for each of his First and
Eighth Amendment claims addressed within this section, he did not complete it.
Nor 	has 	Plaintiff 	established 	that 	the 	administrative 	remedy 	process 	was
unavailable to him. Accordingly, Defendants Prather, Glover, and Goodwin’s
Motion as to these claims should be granted based on Plaintiff’s failure to exhaust
his administrative remedies. See Jernigan, 304 F.3d at 1032 (“An inmate who
begins the grievance process but does not complete it is barred from pursuing a
§ 1983 claim[.]”). 9
9 Although Defendants Eike, Elsi, and Lawson are not parties to the current Motion, the
Court dismisses these claims against them without prejudice pursuant to 28 U.S.C.
§ 1915(e)(2)(B). See Scoby v. Allbaugh, No. CIV-18-721-D, 2020 WL 529705, at *1, 4
(W.D. Okla. Feb. 3, 2020) (dismissing claims against unserved parties under 28 U.S.C.
§ 1915(e)(2)(B) upon granting summary judgment to additional defendants on same
claims based on the plaintiff’s failure to exhaust administrative remedies); Steele v. Fed.
Bureau of Prisons, 355 F.3d 1204, 1213 (10th Cir. 2003) (holding that dismissal of
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VII. Eighth Amendment (Dental Care)
A. Requirement for Medical Care
The Eighth Amendment “imposes duties on [prison] officials, who must
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 (1984)). The
Supreme Court first recognized claims for deliberate indifference to a prisoner’s
medical needs in Estelle v. Gamble, 429 U.S. 97 (1976). The Court held that
prison officials violate the Eighth Amendment’s ban on cruel and unusual
punishment if their “deliberate indifference to serious medical needs of prisoners
constitutes the unnecessary and wanton infliction of pain.” Id. at 104 (quotations
omitted).
For over forty years, the Tenth Circuit has recognized that “dental care is
one of the most important medical needs of inmates.” Ramos v. Lamm, 639 F.2d
559, 576 (10th Cir. 1980). Other jurisdictions, too, recognize “the [E]ighth
[A]mendment requires that prisoners be provided with a system of ready access
prisoner’s claims based on lack of exhaustion of administrative remedies should
ordinarily be without prejudice), overruled on other grounds by Bock, 549 U.S. at 216-
17.
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to adequate dental care.” Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989).
See also Williams v. York, 891 F.3d 701, 707 (8th Cir. 2018) (stating that an
inmate’s right to treatment for serious and painful dental conditions has been
clearly-established for more than three decades); Carlucci v. Chapa, 884 F.3d
534, 539 (5th Cir. 2018) (finding allegations of severe physical pain and denial of
recommended dental treatment are sufficient to state a plausible claim for relief);
McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010) (noting principle that
deliberate indifference to serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain proscribed by the Eighth Amendment
applies equally to dental care); Boyd v. Knox, 47 F.3d 966, 969 (8th Cir. 1995)
(“A three-week delay in dental care, coupled with knowledge of the inmate-
patient’s suffering, can support a finding of an Eighth Amendment violation under
section 1983.”).
B. Deliberate Indifference
To successfully allege an Eighth Amendment deliberate indifference claim,
a plaintiff must present sufficient allegations to satisfy a two-prong test. First, the
plaintiff must satisfy an objective component showing that the deprivation
suffered was “objectively sufficiently serious” to implicate Eighth Amendment
protections. Second, the plaintiff must allege allegations that the defendant had a
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sufficiently culpable state of mind or was “deliberately indifferent” to the inmate’s
safety. Farmer, 511 U.S. at 834; Wilson v. Seiter, 501 U.S. 294, 298-99 (1991);
Garcia v. Salt Lake Cnty., 768 F.2d 303, 307 (10th Cir. 1985). “Deliberate
indifference” is defined as knowing of and disregarding an excessive risk to an
inmate’s health or safety. Farmer, 511 U.S. at 827; Estelle, 429 U.S. 97, 104-05.
1. Objective Component
The objective component of the aforementioned test is satisfied “if the
condition has been diagnosed by a physician as mandating treatment or . . . is so
obvious that even a lay person would easily recognize the necessity for a doctor’s
attention.” Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001) (quotations
omitted). The Tenth Circuit has reiterated in recent years that the objective
component is satisfied where a prisoner demonstrates he suffered unnecessary
pain associated with delay in receiving medical care. McCowan v. Morales, 945
F.3d 1276, 1291 (10th Cir. 2019) (officer’s delay in getting prisoner to detention
center which resulted in several hours of excruciating pain associated with his
shoulder injury was sufficient to satisfy the objective prong of the deliberate
indifference test); see also Stack v. McCotter, 79 F. App’x 383, 389 (10th Cir.
2003) (“Under circuit precedent, pain itself can be considered substantial harm
resulting from delay, giving rise to a cause of action for deliberate indifference.”);
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Sealock v. Colorado, 218 F.3d 1205, 1210 n.5 (10th Cir. 2000) (noting that,
although defendant prison official did not cause inmate’s heart attack, “there is
factual evidence from which a jury could conclude that the delay occasioned by
his inaction unnecessarily prolonged appellant’s pain and suffering”).
Plaintiff alleges that while he was confined at WKCC, he was repeatedly
denied restorative dental care. Doc. No. 23-3 at 4. Specifically, Plaintiff asserts
that Defendant Aitson examined his teeth and screened him as a “priority III per
OP-140124 #3 (periodontal disease, mesial decay, severe cavities, etc.).” Plaintiff
contends these conditions caused great pain and discomfort that would worsen if
left untreated. Id. Although Defendant Aitson placed him on a treatment plan for
restorative care, she also refused to reschedule Plaintiff for a two week follow up.
Ultimately, his treatment was delayed for seven months, during which he
experienced ongoing pain, discomfort, sleep deprivation, biting holes in his mouth
because it was difficult for him to chew food properly, and swelling in his face.
Id. Eventually, Plaintiff’s dental condition deteriorated and he had to undergo an
emergency extraction. Id. Based upon these allegations, Plaintiff has satisfied the
objective prong of his deliberate indifference claim.
2. Subjective Component
To satisfy the subjective component of the test for deliberate indifference
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to his serious dental pain, Plaintiff must demonstrate Defendants “kn[ew] of and
disregard[ed] an excessive risk to inmate health or safety,” Sealock, 218 F.3d at
1209 (quoting Farmer, 511 U.S. at 837), or as in Sealock, they knew of and
disregarded Plaintiff’s excessive pain. Each Defendant must have been aware of
“facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837.
Whether a prison official had the requisite knowledge of an inmate’s severe pain
is a question of fact subject to demonstration in the usual ways, including
inference from circumstantial evidence, and a factfinder may conclude that a
prison official knew of a substantial risk from the very fact that the risk was
obvious. Id. at 842. The Tenth Circuit has stated that “if a risk is obvious so that
a reasonable man would realize it, we might well infer that [the defendant] did in
fact realize it.” Mata v. Saiz, 427 F.3d 745, 752 (10th Cir. 2005) (quotations
omitted).
C. Defendant Atkinson
1. Official Capacity
Plaintiff asserts Eighth Amendment claims against Defendant Atkinson, in
both her individual and official capacity, related to his dental care. Doc. No. 23-3
at 3, 5. Plaintiff bases his official capacity Eighth Amendment claim on
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inadequate dental care staffing. Id.
“[T]he three elements required to establish a successful § 1983 claim
against a defendant based on his or her supervisory responsibilities [are]: (1)
personal involvement[,] (2) causation, and (3) state of mind.” Schneider v. City of
Grand Junction Police Dep’t, 717 F.3d 760, 767 (10th Cir. 2013); see also Dodds
v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010). The first element requires
the plaintiff to “show an ‘affirmative link’ between the supervisor and the
constitutional violation.” Estate of Booker v. Gomez, 745 F.3d 405, 435 (10th Cir.
2014) (quotations omitted). “The plaintiff can show such a link by establishing
‘the 	[supervisor] 	promulgated, 	created, 	implemented[,] 	or 	possessed
responsibility for the continued operation of a policy,’ or ‘the establishment or
utilization of an unconstitutional policy or custom’ . . . provided the policy or
custom resulted in a violation of the plaintiff’s constitutional rights.” Burke v.
Regalado, 935 F.3d 960, 997 (10th Cir. 2019) (quoting Brown v. Montoya, 662
F.3d 1152, 1164 (10th Cir. 2011) and Dodds, 614 F.3d at 1199).
Under the second element, there must be evidence that “the defendant’s
alleged action(s) caused the constitutional violation by setting in motion a series
of events that the defendant knew or reasonably should have known would cause
others to deprive the plaintiff of her constitutional rights.” Burke, 935 F.3d at 997
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(quoting Estate of Booker, 745 F.3d at 435). With respect to the third element, “a
plaintiff can ‘establish the requisite state of mind by showing that [a supervisor]
‘acted with deliberate indifference.’” Burke, 935 F.3d at 997 (quoting Perry v.
Durborow, 892 F.3d 1116, 1122 (10th Cir. 2018)). “[A] local government
policymaker is deliberately indifferent when he deliberately or consciously fails
to act when presented with an obvious risk of constitutional harm which will
almost inevitably result in constitutional injury of the type experienced by the
plaintiff.” Burke, 935 F.3d at 998 (quoting Hollingsworth v. Hill, 110 F.3d 733,
745 (10th Cir. 1997)).
Plaintiff identifies Defendant Atkinson as the WKCC Medical Supervisor.
Id. According to Plaintiff, though WKCC holds over 700 inmates, she provided
the facility with only one dentist and one dental assistant. Id. Plaintiff contends
the lack of adequate dental staff resulted in constraints in the dental care provided.
Id. For example, when Dr. Aitson left WKCC for several months, Plaintiff did not
receive any dental care. Id. at 4-5. It was during this time Plaintiff’s dental
conditions deteriorated, he suffered continuous and increasing pain, as well as
swelling in his face, and after several months, was ultimately forced to undergo
an emergency extraction. Id. at 4-5.
In Burke, the Tenth Circuit concluded that the evidence presented to a jury
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sufficiently established that a county sheriff - identified as the individual who
managed the county jail - maintained a policy or custom of providing deficient
medical care, including, inter alia, inadequate staffing. Id. at 999-1001. The Burke
court summarized its determination as to the sheriff’s supervisory liability as
follows:
It was reasonable for the jury to find (1) Sheriff Glanz was
responsible for “an unconstitutional policy or custom,” Dodds, 614
F.3d at 1199, of poor training, inadequate staffing, and lack of
urgency surrounding jail medical care; (2) that this policy or conduct
resulted in a violation of Mr. Williams’s right to adequate medical
care under the Fourteenth Amendment; and (3) Sheriff Glanz acted
with deliberate indifference toward the risk that the policy or conduct
of providing inadequate medical care would result in an injury like
Mr. Williams’s. Accordingly, the evidence was sufficient to support
the jury's verdict against Sheriff Glanz holding him liable for
supervisory liability.
Id. at 1001. There was also evidence in the record that outside entities who had
inspected and/or audited the jail in previous years had notified the sheriff of
inadequacies and he had not corrected them. Id. at 999-1001.
Defendant Atkinson initially acknowledges in her Motion that one of
Plaintiff’s Eighth Amendment claims against her is based on WKCC’s inadequate
staffing of dental care personnel. Doc. No. 64 at 22 (“Plaintiff alleges he was
denied access to a larger dental staff and denied a policy that provided more
constitutionally adequate treatment options.”). However, in support of her request
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for summary judgment, she asserts only one argument.10 Relying on ODOC
policy, OP-140101, Defendant Atkinson contends that she was not responsible for
hiring and firing decisions. Specifically, OP-140101(I)(A)(3) provides:
Hiring, termination and performance management of unclassified
medical services personnel, to include . . . dentists, in correctional
facilities will be coordinated with the facility head. Final decisions
will be made by the chief medical officer or chief dental officer in
conjunction with the facility head and director of Offender Services.
Doc. No. 64-2 at 1-2. Based upon this policy, Defendant argues, “[] Plaintiff’s
allegations regarding Atkinson’s authority to hire dental staff have no basis in fact
or policy.” Doc. No. 64 at 22.
If Plaintiff’s claim was based upon hiring and firing decisions, the Court
would agree. However, Plaintiff does not allege Defendant Atkinson hired
dentists that were somehow inadequate. Rather, his claim is based upon a lack of
dentists - that there was only one dentist and one assistant to serve over 700
inmates. Doc. No. 23-3 at 5. He asserts that only having one dentist and one
assistant was a decision for which Defendant Atkinson was responsible. Id. In this
regard, further provisions of OP-140101 are notable.
Directly after the portion of the policy upon which Defendant relies, it
10 Notably, Defendant Atkinson does not argue that Plaintiff does not meet the objective
component of his deliberate indifference claim, nor that WKCC did in fact have
adequate staffing for dental care.
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states:
The facility will use a staffing analysis, developed by medical
services, to determine the essential positions needed to perform the
health services mission and provide the defined scope of services.
The staffing plan will be reviewed annually by the health authority
to determine if the number and type of staff is adequate.
Doc. No. 64-2 at 2.
Defendant identifies herself as the Medical Services Manager. Doc. No. 64
at 22. It appears from the language contained within the above policy that
“medical services” performs a staffing analysis to determine the number of
positions necessary to perform health services. Construing the facts in favor of
Plaintiff as the non-moving party, because Defendant Atkinson is the Medical
Services Manager and ‘medical services’ determines “the essential positions
needed to perform the health services mission,” it appears that she does in fact
play a key role, possibly the primary role, in determining the number of WKCC
health care positions, including dental care staff.
Plaintiff alleges that Defendant Atkinson should have been aware that one
dentist and one assistant was not adequate to provide dental care to over 700
inmates. Id. at 5. Unlike Burke, the record does not currently contain direct
evidence that Defendant Atkinson was previously notified by third parties or
entities that WKCC’s dental care staffing was inadequate. However, Burke and
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other Tenth Circuit authority has recognized that a “policymaker is deliberately
indifferent when he deliberately or consciously fails to act when presented with
an obvious risk of constitutional harm which will almost inevitably result in
constitutional injury of the type experienced by the plaintiff.” Burke, 935 F.3d at
998 (emphasis provided). Construing the facts in the light most favorable to
Plaintiff, the Court concludes a question of fact exists as to whether Defendant
Atkinson should have known that one dentist and one assistant for over 700
inmates would lead to constitutional delays and deficiencies in the dental care
provided that would result in injuries similar to Plaintiff’s.
As Defendant Atkinson’s sole basis for requesting summary judgment
against this portion of Plaintiff’s claim is that she was not responsible for
determining the number of dental care staff WKCC employed, and ODOC policy
indicates otherwise, the Court should deny her request for summary judgment
against this portion of Plaintiff’s claim.
2. Individual Capacity
Second, Plaintiff asserts Defendant Atkinson was personally aware of his
specific dental conditions and his need for treatment. Id. at 5. He further alleges
that she knew he qualified for emergency dental care under WKCC policy but was
not receiving it, and that she denied him access to the same. Id. Plaintiff states,
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Medical 	Supervisor 	[Defendant] 	Atkinson 	knew 	of 	my 	teeth
conditions through D.D.S. Paul Haines Dental chart examination and
investigation. [Defendant] Atkinson said Plaintiff was receiving
treatment which was not truth. . . . [Defendant] Atkinson denied
Plaintiff relief from EMERGENCY Access to Health Care per OP-
140117. This led to ongoing months of pain, infections and so forth.
Doc. No. 23-2 at 5.
With regard to Defendant Atkinson’s personal knowledge and denial of
treatment, it appears Plaintiff is relying on her response to one of his grievances.
On January 4, 2021, Plaintiff submitted a Request to Staff in which he requested
certain dental treatment, including dental implants. Doc. No. 62-25 at 2-3. On
January 	13, 	2021, 	Defendant 	Lauer 	responded 	to 	the 	same 	explaining
requirements that must be met in order to qualify for dentures and that WKCC
does not offer implants. Id. at 2. On January 21, 2021, Plaintiff submitted
Grievance #21-03 raising similar concerns and describing his dental pain,
discomfort, and related problems. Id. at 4-5. On January 28, 2021, Defendant
Foster responded to Grievance #21-3 describing Plaintiff’s dental records, WKCC
policy regarding dental treatment, and finding Plaintiff’s dental plan was in place
and was being followed. Id. at 6.
On February 8, 2021, Plaintiff submitted an appeal from this denial raising
various concerns regarding his dental care. Id. at 7-8. Defendant Atkinson
responded to the appeal on April 12, 2021, stating,
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The 	department’s 	chief 	dental 	officer, 	Paul 	Haines, 	D.D.S.,
investigated your dental concerns. Dr. Haines concluded that you are
receiving dental care and treatment in accordance with OP-140124.
According to OP-140124, in part, any highly specialized dental
procedure, 	including 	implants 	and 	treatment 	associated 	with
implants are not available through the Oklahoma Department of
Corrections.
Id. at 10.
As an initial matter, the Court notes that Defendant Atkinson did not state
that “Plaintiff was receiving treatment . . .” as alleged by Plaintiff. Doc. No. 23-3
at 5. Instead, in her response to Plaintiff’s appeal, Defendant Atkinson plainly
stated that the chief dental officer, Dr. Haines, concluded that Plaintiff was
receiving dental care. See, supra. This distinction is significant to Plaintiff’s claim
against her.
Personal participation is necessary for individual liability under § 1983. See
Bennett 	v. 	Passic, 	545 	F.2d 	1260, 	1262-63 	(10th 	Cir. 	1976) 	(“Personal
participation 	is 	an 	essential 	allegation 	in 	a 	[§] 	1983 	claim.”). 	Defendant
Atkinson’s only participation in Plaintiff’s dental care appears to be the denial of
his appeal. In her Motion, she argues that this denial is not adequate to establish
personal participation in a constitutional violation. Doc. No. 64 at 22. The Tenth
Circuit has concluded that “a denial of a grievance, by itself without any
connection to the violation of constitutional rights alleged by plaintiff, does not
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establish personal participation under § 1983.” Gallagher v. Shelton, 587 F.3d
1063, 1069 (10th Cir. 2009) (emphasis provided). However, Defendant Atkinson,
as Medical Services Manager, was responding to an appeal regarding Plaintiff’s
contention that he was not receiving proper dental care, as well as describing the
resulting pain and difficulties. Thus, the Court cannot conclude that the appeal
was 	“without 	any 	connection” 	to 	the 	underlying 	constitutional 	violation.
However, this is not the end of the inquiry.
In unpublished decisions, the Tenth Circuit has held that prison officials
may reasonably rely on the judgment of prison medical staff in responding to
grievances and such reliance “negates rather than supports liability.” Arocho v.
Nafziger, 367 F. App’x 942, 956 (10th Cir. 2010) (initial emphasis provided);
accord, Phillips v. Tiona, 508 F. App’x 737, 744 (10th Cir. 2013). As a corollary,
“unreasonable reliance on the advice of a medical professional will not excuse
deliberate indifference to a prisoner’s serious medical needs.” Weatherford ex rel.
Thompson v. Taylor, 347 F. App'x 400, 404 (10th Cir. 2009).
In Bowlds v. Turn Key Health, No. CIV-19-726-SLP, 2022 WL 193012
(W.D. Okla. Jan. 20, 2022), the court concluded that a jail administrator’s denial
of a grievance related to a plaintiff’s dental care was sufficient to establish
personal participation in an Eighth Amendment deliberate indifference claim
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arising from the same. Id. at *3-5. In Bowlds, the plaintiff submitted a request to
staff to the jail administrator requesting emergency dental treatment, challenging
the treatment he had been provided thus far, and describing chronic pain. Id. at
*3. The administrator responded by stating that the plaintiff “had not been denied
treatment for his dental condition but had seen the medical provider who had
provided 	treatment.” 	Id. 	Later, 	the 	plaintiff 	submitted 	a 	grievance 	to 	the
administrator seeking a response to a previous request to staff that he had
submitted to the sheriff apparently regarding his dental care. Id. at *4. The
administrator responded by “advising Plaintiff that both the Sheriff and the
medical staff had responded and that the medical treatment he was receiving was
as far as we can go unless your situation gets worse.” Id. (quotations omitted).
The plaintiff later asserted an Eighth Amendment deliberate indifference
claim related to his dental care. In challenging the plaintiff’s contention that these
responses/denials constituted personal participation in the underlying violation,
the administrator argued that “[p]rior to providing a response to Mr. Bowlds[’]
Offender Grievance Form dated May 27, 2019, I consulted with Turn Key
Medical Staff of the LCDC . . . to confirm that the treatment he was being
prescribed was the extent reasonably necessary unless his condition worsened.”
Id. (citation omitted). The administrator asserted that because he reasonably relied
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on Turn Key medical staff, the court should not conclude he had personally
participated in the constitutional violation. Id.
The court, however, disagreed, explaining,
Defendant Lester states in his Declaration that as a matter of practice
at LCDC, Turn Key staff are consulted prior to responding to any
inmate request to staff or grievance concerning a medical issue.
Defendant Lester further states that he consulted with medical staff
prior 	to 	responding 	to 	Plaintiff's 	April 	26, 	2019 	Grievance.
Defendant Lester provides no information about the date on which
he consulted medical staff, who he consulted, or what he was told.
The reasonableness of his reliance, therefore, cannot be determined
on the present record.
Id. 	The court also noted that the administrator made no reference to any
consultation he undertook prior to responding to the plaintiff’s previous request
to staff. Id. at *3.
Like the administrator in Bowlds, Defendant Atkinson indicated in her
response to Plaintiff’s appeal that she had consulted with medical staff prior to
responding. In contrast to the situation in Bowlds, however, although she does not
say the date she consulted him, she specifically stated that she had consulted Dr.
Haines, WKCC’s chief dental officer, who had informed her that he was receiving
dental care and treatment in accordance with ODOC’s specific dental policy. Doc.
No. 62-25 at 10. She further addressed Plaintiff’s request for implants explaining
that ODOC did not provide the same. Id. Based on the record, the Court concludes
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that Defendant Atkinson’s reliance on her consultation with WKCC’s chief denial
officer 	appears 	reasonable 	and 	therefore, 	negates 	a 	finding 	of 	personal
participation in any constitutional violation arising from Plaintiff’s dental care.
Accordingly, the undersigned recommends the Court grant Defendant Atkinson,
in 	her 	individual 	capacity, 	summary 	judgment 	against 	Plaintiff’s 	Eighth
Amendment claim.
D. Defendant Crow
Plaintiff also asserts an Eighth Amendment claim against Defendant Crow
based upon an ODOC policy related to dental care. Doc. No. 23-3 at 7. Plaintiff
states that ODOC has a policy that fillings and restorative treatment, specifically
dentures, will only be completed on inmates with over one year remaining on their
sentence. 	Doc. 	No. 	23-3 	at 	7. 	Defendants 	acknowledge 	ODOC’s 	policy,
describing it as creating a “priority classification system for provision of dental
services to inmates.” Doc. No. 64 at 23. The policy provides, “Impressions to
begin fabrication of dentures (complete or partial) will only be done if the inmate
has at least one calendar year remaining before discharge from the correctional
system.” Doc. No. 64-14 at 10.
It appears from his Amended Complaint that Plaintiff misreads this policy.
He repeatedly states that it prevented him from obtaining dental care and/or was
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responsible for his delay in receiving said care. Doc. No. 23-3 at 7. However, this
policy does not prohibit Plaintiff from receiving dentures as he currently has over
one year remaining on his sentence. Doc. No. 62-1 at 2-3; Doc. No. 64-3. Thus,
the policy upon which Plaintiff relies in asserting his claim against Defendant
Crow has not, by its language, prevented Plaintiff from receiving the dental care
he deems necessary. Accordingly, the Court should grant Defendant Crow’s
request for summary judgment.
VIII. Fourteenth Amendment (Interference with Grievance Process)
Plaintiff asserts Fourteenth Amendment claims against Defendants Crow,
Lawson, and Knutson related to the grievance process. Doc. No. 23-3 at 11-12. 11
Specifically, he contends Defendant Crow enacted procedures that prevented him
from exhausting their administrative remedies. Id. at 11. He further complains
Defendant Lawson “used a variety of improper and obstructive tactics to prevent
Plaintiff from taking advantage of the grievance process, seeking relief.” Id.
Finally, Plaintiff makes similar allegations against Defendant Knutson, including
11 Defendants requested summary judgment against this claim based solely upon
Plaintiff’s failure to exhaust administrative remedies. However, it is unnecessary to
address that argument as the claim should be dismissed with prejudice for failure to state
a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). See Steele, 355 F.3d at 1212-13
(explaining that a dismissal for failure to state a claim is generally with prejudice unless
“deficiencies in a complaint are attributable to oversights” or similar curable issues).
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that he placed Plaintiff on grievance restriction without cause. Id. at 12.
Interference with the administrative remedy process, standing alone, does
not provide a valid basis for a constitutional claim because a prisoner has no
constitutional right to a grievance procedure. See Green v. Corr. Corp. of Am.,
401 F. App’x 371, 375 n.4 (10th Cir. 2010) (explaining that prisoner had no
constitutional right to use the prison grievance procedure); see also, cf., Sawyer v.
Green, 316 F. App’x 715, 717 (10th Cir. 2008) (holding that jail and sheriff’s
office authorities’ lack of response to prisoner’s grievances did not violate the
constitution because procedurally, nothing more is required than the plaintiff’s
ability to raise his constitutional claims in the courts); Walters v. Corr. Corp. of
Am., 119 F. App’x 190, 191 (10th Cir. 2004) (holding that prisoner failed to state
a claim for § 1983 relief where he alleged a denial of access to state administrative
grievance procedures; “the prisoner’s right to petition the government for redress
is the right of access to the courts, which is not compromised by the prison’s
refusal to entertain his grievance”) (quoting Flick v. Alba, 932 F.2d 728, 729 (8th
Cir. 1991)).
This result is not changed by the PLRA’s requirement that an inmate must
exhaust all available administrative remedies before filing a civil rights complaint.
The inmate can still file his civil rights complaint; a defendant’s assertion that a
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plaintiff failed to exhaust administrative remedies is only an affirmative defense.
Tuckel, 660 F.3d at 1254 (stating that failure to exhaust under the PLRA is an
affirmative defense) (citing Bock, 549 U.S. at 212). As previously explained
herein, once failure to exhaust administrative remedies is asserted and proven by
defendants, “the onus falls on [Plaintiff] to show that remedies were unavailable
to him[.]” Tuckel, 660 F.3d at 1254. If an inmate can demonstrate he was thwarted
in his attempt to exhaust his administrative remedies, the court may consider the
merits of his claim.
Thus, presuming without deciding that Defendants Crow, Lawson, and
Knutson interfered with Plaintiff’s grievance process, those actions standing alone
did not violate Plaintiff’s constitutional rights. See Stuart v. Steer, No. CIV-10-
1026-R, 2011 WL 2491616, at *2 (W.D. Okla. Jun. 22, 2011) (holding that an
inmate has no state-created right to a grievance response under Oklahoma law).
See also Gallagher, 587 F.3d at 1069 (explaining that denial of grievances, alone,
does not provide factual basis to support an alleged constitutional violation).
Accordingly, the Court should dismiss with prejudice Plaintiff’s Fourteenth
Amendment claims against Defendants Crow, Lawson, and Knutson pursuant to
28 U.S.C. § 1915(e)(2)(B) based on his failure to state a claim upon which relief
could be granted.
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RECOMMENDATION
Based on the foregoing findings, the undersigned makes the following
recommendations:
(1) Summary Judgment should be GRANTED in favor of Defendant
Goodwin 	against 	Plaintiff’s 	Eighth 	Amendment 	claims 	related 	to 	alleged
chemical exposure based on Plaintiff’s failure to exhaust his administrative
remedies;
(2) Plaintiff’s Eighth Amendment claims related to chemical exposure
against Defendant Eike should be dismissed without prejudice pursuant to 28
U.S.C. §1915(e)(2)(B) based on Plaintiff’s failure to exhaust administrative
remedies and therefore, failure to state a claim upon which relief could be granted;
(3) Summary judgment should be GRANTED in favor of Defendant
Goodwin against Plaintiff’s First Amendment claim of retaliatory discharge from
his 	bathroom 	orderly 	position 	based 	on 	Plaintiff’s 	failure 	to 	exhaust 	his
administrative remedies;
(4) 	Plaintiff’s First Amendment claim of retaliatory discharge from his
bathroom orderly position against Defendant Eike should be dismissed without
prejudice pursuant to 28 U.S.C. §1915(e)(2)(B) based on Plaintiff’s failure to
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exhaust administrative remedies and therefore, failure to state a claim upon which
relief could be granted;
(5) Summary judgment should be GRANTED in favor of Defendants
Glover and Prather against Plaintiff’s Eighth Amendment claims related to
kitchen conditions and/or infestation based upon Plaintiff’s failure to exhaust his
administrative remedies;
(6) Plaintiff’s Eighth Amendment claims related to kitchen conditions
and/or infestation against Defendant Elsi should be dismissed without prejudice
pursuant to 28 U.S.C. §1915(e)(2)(B) based on Plaintiff’s failure to exhaust
administrative remedies and therefore, failure to state a claim upon which relief
could be granted;
(7) Plaintiff’s First Amendment claim of retaliatory discharge from his
kitchen position against Defendant Lawson should be dismissed without prejudice
pursuant to 28 U.S.C. §1915(e)(2)(B) based on Plaintiff’s failure to exhaust
administrative remedies and therefore, failure to state a claim upon which relief
could be granted;
(8) Summary Judgment should be granted in favor of Defendant Atkinson,
in her individual capacity, 	and Defendant Crow 	against Plaintiff’s Eighth
Amendment claim based on a denial/delay of dental care;
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(9) 	Plaintiff’s 	Fourteenth 	Amendment 	claims 	based 	upon 	alleged
interference with the grievance procedure against Defendants Crow, Lawson, and
Knutson 	should 	be 	dismissed 	with 	prejudice 	pursuant 	to 	28 	U.S.C.
§ 1915(e)(2)(B) for failure to state a claim upon which relief could be granted;
(10) Summary judgment should be DENIED as to Plaintiff’s Eighth
Amendment claim against Defendant Atkinson, in her official capacity, based
upon inadequate dental care staffing.
Accordingly, Defendants Elsi, Eike, Glover, Prather, Lawson, Crow,
Knutson, and Goodwin, in their official and individual capacities, and Defendant
Atkinson, in her individual capacity, should be dismissed from this lawsuit.
Plaintiff is advised of the right to file an objection to this Second
Supplemental Report and Recommendation with the Clerk of this Court by June
21 st , 2022, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure
to timely object to this Second Supplemental 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 the magistrate judge’s
recommendation are deemed waived.”).
This Second Supplemental Report and Recommendation partially disposes
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of issues referred to the undersigned Magistrate Judge in the captioned matter.
Dated this 	1 st day of June , 2022.
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