5:15-cv-00641•Young v. Rios et al
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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA GEORGE SOLER YOUNG, ) ) Plaintiff, ) ) v. ) Case No. CIV-15-641-R ) HECTOR A. RIOS, Warden, et al., ) ) Defendants. ) REPORT AND RECOMMENDATION Plaintiff George Soler Young, a state prisoner appearing pro se and proceeding in forma pauperis, filed this federal civil rights action pursuant to 42 U.S.C. § 1983, alleging that prison officials violated his rights under the United States Constitution. Compl. (Doc. No. 1). United States District Judge David L. Russell referred the matter to the undersigned Magistrate Judge for preliminary review in accordance with 28 U.S.C. § 636, and, after reviewing the motions to dismiss, the undersigned recommended the Court dismiss some claims and allow others to remain. See R. & R. (Doc. No. 81) at 5-35. The Court agreed with the undersigned’s reasoning, but rather than dismissing the relevant claims, allowed Plaintiff to file an amended complaint so as to provide additional factual support. See Order (Doc. No. 95) at 1-6. The Court instructed Plaintiff that “the Amended Complaint will stand on its own; accordingly, it must contain all of the allegations, claims, and parties he intends to be before this Court.” Id. at 3. The Court also re-referred the matter to the undersigned. See id. at 6. Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 1 of 29
2 PLAINTIFF’S CLAIMS AND RELIEF SOUGHT Plaintiff has filed an Amended Complaint, renaming 18 of the original 21 defendants and adding 18 new defendants. See Am. Compl. (Doc. No. 102) at 2-6.1 Specifically, Plaintiff asserts claims against GEO Group, Inc. (“GEO”); GEO Vice- President Reed Smith; Hector A. Rios, Warden of Lawton Correctional Facility (“LCF”); LCF Deputy Warden, Rick Whitten; and LCF staff members Taime, Rauch, Wiltshire, Benoit, Hill, Roody, Sessums, Gibson, Cation, Calhoun, Johns, Alston, Ellington, Deason, McCracken, Zold, Tweedy, Jones, Cornelius, and Phume. See id.2 Plaintiff sues Defendants Rios, Smith, and GEO in both their official and individual capacities; all other LCF Defendants are sued in their individual capacities only. See id. Plaintiff also sues former Oklahoma Department of Corrections (“ODOC”) Director Robert Patton; current ODOC Director Joe Allbaugh; Anita Trammell, former Warden of Oklahoma State Reformatory (“OSP”); Terry Royal, current Warden at OSP; and ODOC staff members 1 Citations to the original Complaint and the Amended Complaint will refer to this Court’s CM/ECF pagination. When quoting Plaintiff, the undersigned has altered some capitalization for ease of reading. 2 Plaintiff did not rename LCF staff members DeAlmenau, Cantwell, or Caldwell. Compare Compl. at 13, with Am. Compl. at 1-6. The Court initially found that Plaintiff’s claims against LCF staff members DeAlmenau and Caldwell should survive dismissal. See R. & R. at 34-35; Order at 1. Because they have not been identified as Defendants in the Amended Complaint, the Court should terminate these parties from the action. See Order at 3 (warning Plaintiff he must rename all the parties he intends to before the Court); see also S. Utah Wilderness Alliance v. Palma, 707 F.3d 1143, 1152-53 (10th Cir. 2013) (“Where, as here, the original complaint has been superceded by an amended complaint, we examine the amended complaint in assessing a plaintiff’s claims . . . .” (internal quotation marks omitted)). Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 2 of 29
3 Ford, Williams, Miser, Waite, Willingham, Thomas, Perry, and Cooper. See id. Defendants Allbaugh, Royal, Williams, Miser, and Cooper are named in their individual and official capacities, while the remaining ODOC Defendants are named only in their individual capacities. See id.3 Plaintiff sues under 42 U.S.C. § 1983.4 While Plaintiff does not make a specific request for relief, the undersigned assumes Plaintiff seeks monetary damages. Plaintiff also has pending motions for injunctive relief (Doc. Nos. 107, 108, 114).5 Although he names numerous ODOC employees, Plaintiff’s claims arise exclusively from events alleged to have occurred while he was housed at LCF. See Am. 3 Plaintiff also names “John and/or Jane Does” but then explains this is only a placekeeper meant to “reserve [his] right to add or delete any and all Defendants which discovery shows to be participants, and/or who directly or indirectly may have violated [his] civil rights.” Am. Compl. at 6. 4 Plaintiff also invokes 42 U.S.C. §§ 15601-15609 (the Prison Rape Elimination Act (“PREA”)) and asks the Court to take supplemental jurisdiction over his state-law claims. See Am. Compl. at 7. However, the PREA does not confer a private right of action upon Plaintiff. See Coit v. Zavaras, No. 12-cv-00609-WYD-MJW, 2013 WL 3448340, at *11 (D. Colo. July 9, 2013) (“PREA is intended to address the problem of rape in prison, authorizes grant money, and creates a commission to study the issue. The statute does not grant prisoners any specific rights.” (omission and internal quotation marks omitted)); accord Moreno v. Corizon Med. Provider, No. 16-CV-01064-JCH-LF, 2017 WL 3052770, at *2 (D.N.M. June 21, 2017) (“[T]he PREA does not establish a private cause of action for allegations of prison rape.” (internal quotation marks omitted)). And, Plaintiff’s Amended Complaint cannot be reasonably construed as raising any state-law claims. 5 Plaintiff also seeks a “prisoner release order” if it is available. Am. Compl. at 7. It is not. To qualify for a prisoner release order, Plaintiff must show first that “a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order.” 18 U.S.C. § 3626(a)(3)(A)(i). Then, he must demonstrate that “the defendant has had a reasonable amount of time to comply with the previous court orders.” Id. § 3626(a)(3)(A)(ii). These circumstances are not implicated here. Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 3 of 29
4 Compl. passim. Liberally and reasonably construed, Plaintiff’s Amended Complaint raises the following claims: (1) an Eighth Amendment violation based upon a 2013 assault by LCF staff members; (2) an Eighth Amendment violation based upon denial of proper psychiatric, medical, and dental care; (3) a First Amendment violation through threats of retaliation for reporting the 2013 assault; and (4) First and Eighth Amendment violations based on unlawful conspiracy and a retaliatory transfer from LCF to OSP.6 The undersigned has screened the Amended Complaint and recommends that: (i) Plaintiff’s 42 U.S.C. § 1983 claims for money damages against Defendants Allbaugh, Royal, Williams, Miser, and Cooper in their official capacities should be dismissed pursuant to the Eleventh Amendment; (ii) Plaintiff’s Eighth Amendment excessive-force claim against Defendants Taime, Rauche, Wiltshire, Hill, Roody, Tweedy, and Jones should survive the Court’s screening; (iii) Plaintiff’s Eighth Amendment claim against Defendants Tweedy and Wiltshire, based on a failure to facilitate medical care, should survive the Court’s screening; (iv) Plaintiff’s Eighth Amendment claim involving a two-day delay in receiving medical care should be dismissed for failure to state a claim against any named defendant; (v) Plaintiff’s Eighth Amendment claims against Defendants Rios, GEO Group, Inc., Patton, Allbaugh, Deason, McCracken, and Zold based upon inadequate psychiatric and dental care should be dismissed for failure to state a claim upon which relief can be granted; 6 Plaintiff does not reallege claims involving: (1) an Eighth Amendment violations based on denial of eye care, (2) a First Amendment violation based upon a refusal to address administrative grievances; or (3) a challenge to a requirement that Plaintiff be required to submit payments or copayments for medical care. Compare Compl. at 8, 11, with Am. Compl. passim. Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 4 of 29
5 (vi) Plaintiff’s conspiracy claims should be dismissed for failure to state a claim upon which relief can be granted; (vii) Plaintiff’s claims of retaliatory threats against Defendants Benoit and Roody should be dismissed for failure to state a valid claim for relief; (viii) Plaintiff’s First Amendment retaliatory transfer claim should be dismissed on screening; (ix) All claims against Defendants Smith, Sessums, Gibson, Cation, Cantwell, Caldwell, Calhoun, Johns, Alston, Ellington, Trammel, Royal, Ford, Cornelius, Willingham, Thomas, Perry, and Cooper should be dismissed for failure to state a claim upon which relief can be granted; and (x) Plaintiff’s requests for preliminary injunctive relief (Doc. Nos. 94, 107, 108, 114) should be denied. STANDARD OF REVIEW Because Plaintiff is proceeding in forma pauperis (see Doc. No. 4), the Court is obligated to review and dismiss any portion of the Amended Complaint that is frivolous, malicious, or fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(i)-(ii); see also Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007) (indicating that the Court employs the same analysis for judging a complaint’s sufficiency whether performed sua sponte or pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)). While the Court construes a pro se litigant’s pleadings liberally, all parties must adhere to applicable procedural rules. See Kay, 500 F.3d at 1218. Under such rules, the plaintiff must state a claim upon which relief may be granted, i.e., the complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). That is, from the allegations in the Amended Complaint, Defendants must learn “what [they] did to [Plaintiff]; when [they] did it; how Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 5 of 29
6 [their] action harmed [Plaintiff]; and, what specific legal right [Plaintiff] believes [they] violated.” Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe Cty. Justice Ctr., 492 F.3d 1158, 1163 (10th Cir. 2007). The court reviewing the sufficiency of a complaint “will not supply additional factual allegations to round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). In evaluating whether a plaintiff has stated a valid claim, the Court “accept[s] as true all well-pleaded factual allegations in the complaint and view[s] them in the light most favorable to the plaintiff.” Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013). A complaint fails to state a claim on which relief may be granted when it lacks factual allegations sufficient “to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (footnote and citation omitted). Bare legal conclusions are not entitled to the assumption of truth; “they must be supported by factual allegations” to state a claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “[A] pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted.” Hall v. Bellmon, 935 F.2d 1106, 1110 (1991); see also Whitney, 113 F.3d at 1173-74. Whether a complaint contains sufficient facts to avoid dismissal is context-specific and is determined through a court’s application of “judicial experience and common sense.” Iqbal, 556 U.S. at 679. Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 6 of 29
7 ANALYSIS I. Defendants Allbaugh, Royal, Williams, Miser, and Cooper’s Eleventh Amendment Immunity from Monetary Damages Pursuant to the doctrine of sovereign immunity, as adopted in the Eleventh Amendment, a federal court may not hear a claim brought by a private citizen against a U.S. state. See U.S. Const. amend. XI; Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 65 (1996). But Eleventh Amendment immunity is not absolute. There are three exceptions. First, a state may consent to suit in federal court. Second, Congress may abrogate a state’s sovereign immunity by appropriate legislation when it acts under Section 5 of the Fourteenth Amendment. Finally, under Ex parte Young, 209 U.S. 123 (1908), a plaintiff may bring suit against individual state officers acting in their official capacities if the complaint alleges an ongoing violation of federal law and the plaintiff seeks prospective relief. Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012) (citations omitted). Eleventh Amendment immunity applies to any state agencies considered to be “arms of the state.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70-71 (1989). A defendant’s status as an arm of the state is a question of federal law, but courts make this determination by analyzing the “nature of the entity created by state law.” Steadfast Ins. Co. v. Agric. Ins. Co., 507 F.3d 1250, 1253 (10th Cir. 2007) (internal quotation marks omitted). “Oklahoma has not consented to be sued in federal court.” Berry v. Oklahoma, 495 F. App’x 920, 921 (10th Cir. 2012); accord Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006); Sossamon v. Texas, 563 U.S. 277, 293 (2011). Nor has Congress abrogated state immunity through enactment of 42 U.S.C. § 1983. See Berry, 495 F. App’x Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 7 of 29
8 at 921-22; Quern v. Jordan, 440 U.S. 332, 342-45 (1979). Thus, the State of Oklahoma’s Eleventh Amendment immunity from § 1983 claims for money damages in federal court remains intact. Here, the relevant state agency is ODOC, because Defendants Allbaugh, Royal, Williams, Miser, and Cooper were employed by that agency during the events giving rise to this lawsuit. See Am. Compl. at 2-6. “ODOC is . . . shielded by sovereign immunity because it is an arm of the state.” Berry, 495 F. App’x at 922 (citing Eastwood v. Dep’t of Corr. of Okla., 846 F.2d 627, 631-32 (10th Cir. 1988)). And “it is well-established that ‘the Eleventh Amendment precludes a federal court from assessing damages against state officials sued in their official capacities because such suits are in essence suits against the state.’” Peterson v. Lampert, 499 F. App’x 782, 786 (10th Cir. 2012) (quoting Hunt v. Bennett, 17 F.3d 1263, 1267 (10th Cir. 1994)). ODOC’s immunity extends to a plaintiff’s § 1983 claims against ODOC employees who are sued in their official capacities for damages. Cleveland v. Martin, 590 F. App’x 726, 730 (10th Cir. 2014) (“Because the defendants are employees of the Oklahoma Department of Corrections . . . , the Eleventh Amendment applies to the official-capacity claims for damages.”); accord Turner v. Nat’l Council of State Bds. of Nursing, Inc., 561 F. App’x 661, 665 (10th Cir. 2014). In sum, the Eleventh Amendment protects ODOC Defendants Allbaugh, Royal, Williams, Miser, and Cooper from monetary damages under 42 U.S.C. § 1983. See Cleveland, 590 F. App’x at 730; Eastwood, 846 F.2d at 632. Accordingly, to the extent Plaintiff’s § 1983 claims can be construed as seeking monetary relief from these parties in their official capacities, they should be dismissed without prejudice. Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 8 of 29
9 II. Plaintiff’s Remaining 42 U.S.C. § 1983 Claims When a defendant is sued in his or her individual capacity under § 1983, the complaint must meet specific requirements as to each defendant. First, the plaintiff must allege facts that establish the defendant’s “personal involvement or participation” in the alleged violation of a federal right. Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir. 1996); see also Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). Second, the plaintiff must allege facts that establish a causal connection between the acts of that particular defendant and the alleged violation of a federal right. See Iqbal, 556 U.S. at 676; Pahls v. Thomas, 718 F.3d 1210, 1225-26, 1228 (10th Cir. 2013). Finally, the plaintiff must allege facts to establish that the defendant acted with the state of mind required for the alleged underlying federal rights violation. See Daniels v. Williams, 474 U.S. 327, 330 (1986). These requirements also apply to pleading a § 1983 claim against a supervisor defendant whose liability is based upon his or her supervisory responsibilities, as even though “direct participation” is unnecessary, liability must “be predicated on a violation traceable to a defendant-official’s ‘own individual actions.’” Pahls, 718 F.3d at 1225 (quoting Iqbal, 556 U.S. at 676); see also Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 767-69 (10th Cir. 2013) (“The plaintiff therefore must show an ‘affirmative link’ between the supervisor and the constitutional violation.”); Dodds v. Richardson, 614 F.3d 1185, 1198-1201 (10th Cir. 2010) (“[Section] 1983 liability only [may] be imposed upon those defendants whose own individual actions cause a constitutional deprivation . . . .”). Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 9 of 29
10 A. Plaintiff’s Eighth Amendment Claim: October 2013 Assault Much as he did in his original Complaint, Plaintiff alleges that on October 25, 2013, he was physically and sexually assaulted by LCF officials during a strip search. See Am. Compl. at 10-11. Specifically, Plaintiff alleges he “was handcuffed” and escorted to another pod cell, where Defendants Hill, Taime, Rauch, and Wiltshire began pushing, punching, kicking, and beating him. Id. at 11. Plaintiff claims that during the physical assault, Defendant Taime “roughly insert[ed] his fingers in and out of [Plaintiff’s] rectum.” Id. According to Plaintiff, Defendants Roody, Jones, and Tweedy did not “stop or report the assault.” Id. The Court has previously found that these allegations plausibly state a valid claim for relief against Defendants Hill, Taime, Rauch, Wiltshire, and Roody under the Eighth Amendment. See R. & R. at 9-14; Order passim. Based on the same reasoning, the Court should do so again. Further, the Court should find Plaintiff has stated a plausible claim against newly named Defendants Tweedy and Jones. See Hovater v. Robinson, 1 F.3d 1063, 1068 (10th Cir. 1993); see also Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir. 1996) (denying qualified immunity to defendants where it was clearly established that even if an individual’s own use of force was not excessive, “a law enforcement official who fails to intervene to prevent another law enforcement official’s use of excessive force may be liable under § 1983”). Plaintiff has failed, however, to state a valid claim for relief against Defendant Rios, the LCF Warden. See R. & R. at 9-14; Order passim. In his original Complaint, Plaintiff mentioned Defendant Rios in his narrative of the assault but did not allege facts regarding Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 10 of 29
11 Defendant Rios’ involvement or participation such as would be required to state a claim against him. R. & R. at 9-14. Plaintiff’s related allegations against Defendant Rios in the Amended Complaint have not cured that deficiency. Although a supervisor may be held liable if he or she is affirmatively linked to the constitutional violation, “[s]ection 1983 does not authorize liability under a theory of respondeat superior.” Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011). Such an affirmative link requires “more than ‘a supervisor’s mere knowledge of his subordinate’s’ conduct.” Schneider, 717 F.3d at 767 (quoting Iqbal, 556 U.S. at 677). In the Amended Complaint, Plaintiff alleges only that Defendant Rios failed to adequately train or supervise his staff and, based on a supposed previous assault on a different inmate, knew or should have known that his failure to investigate or act on grievances would lead to another assault. See Am. Compl. at 14. Again, Plaintiff’s allegations do not reasonably support an inference that Defendant Rios knew that his alleged failure to properly investigate would cause others to violate Plaintiff’s constitutional rights, much less that Defendant Rios personally participated in or facilitated the assault. See Schneider, 717 F.3d at 767-68. The Court should again dismiss Defendant Rios from Plaintiff’s claim involving the October 2013 assault. B. Plaintiff’s Eighth Amendment Claim: Medical, Dental, and Psychiatric Care Plaintiff in his Amended Complaint reasserts his claims that he was denied proper medical and dental care, and he adds a claim involving denial of psychiatric care while housed at LCF. See Am. Compl. at 16. Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 11 of 29
12 1. Eighth Amendment Standard The Eighth Amendment “imposes duties on [prison] officials” to “provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must ‘take reasonable measures to guarantee the safety of the inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). To succeed on a claim involving medical care, Plaintiff must show in relevant part that Defendants “‘[knew] of and disregard[ed] an excessive risk to inmate health or safety.’” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting Farmer, 511 U.S. at 834). First, Plaintiff must establish an objective prong, showing “that the deprivation at issue was in fact ‘sufficiently serious.’” Id. (quoting Farmer, 511 U.S. at 834). We have said that a medical need is sufficiently serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention. Where the necessity for treatment would not be obvious to a lay person, the medical judgment of the physician, even if grossly negligent, is not subject to second-guessing in the guise of an Eighth Amendment claim. Moreover, a delay in medical care only constitutes an Eighth Amendment violation where the plaintiff can show the delay resulted in substantial harm. The substantial harm requirement may be satisfied by lifelong handicap, permanent loss, or considerable pain. Id. (citations and internal quotation marks omitted). Next, to establish the subjective component—i.e., deliberate indifference to a substantial risk of harm—Plaintiff must show that the prison official in question acted with a “culpable state of mind.” Id.; Farmer, 511 U.S. at 834, 836. The subjective component is satisfied if the official knows of and disregards an excessive risk to inmate health or safety; the official must both Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 12 of 29
13 be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and she must also draw the inference. A prison medical professional who serves solely as a gatekeeper for other medical personnel capable of treating the condition may be held liable under the deliberate indifference standard if he delays or refuses to fulfill that gatekeeper role. Mata, 427 F.3d at 751 (alteration, omission, citations, and internal quotation marks omitted); see also Gamble, 429 U.S. at 104-05 (noting that deliberate indifference can be manifested “by prison guards in intentionally denying or delaying access to medical care”). 2. Plaintiff’s Allegations With respect to medical care, Plaintiff first asserts that Defendants Tweedy and Wiltshire refused to take him for medical care directly after witnessing the attack on October 25, 2013. Then, he asserts he did not receive medical care for two days. See Am. Compl. at 11. Plaintiff’s allegations related to the first assertion state a valid claim but his allegations related to the second, more general assertion do not. Plaintiff’s claim that Defendants Tweedy and Wiltshire refused to take him for medical care directly after the attack on October 25, 2013, should survive the Court’s screening. Plaintiff states the assault left him “scarred, with broken and [loose] teeth, bleeding out of my mouth, temple and rectum.” Id. at 16. He also alleges he has “a bone that protrudes close to my neck area higher than other side and they had my body bruised . . . . So there [was] physical suffering.” Id. These allegations are sufficient to plead both the objective and subjective components of an Eighth Amendment violation. Assuming such facts to be true, Plaintiff’s broken teeth and bleeding mouth, temple, and rectum constituted a medical condition that was both serious and by its nature should have made Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 13 of 29
14 it obvious to Defendants Tweedy and Wiltshire that Plaintiff required medical care. See Mata, 427 F.3d at 751 (“A prison medical professional who serves solely as a gatekeeper for other medical personnel capable of treating the condition may be held liable under the deliberate indifference standard if she delays or refuses to fulfill that gatekeeper role.” (omission and internal quotation marks omitted)). Conversely, Plaintiff has failed to state a valid claim insofar as his general complaint of a two-day delay in medical care. Plaintiff alleges 36 Defendants “refused [him] medical for two days,” but fails to specify—beyond the specific claims and allegations discussed separately—the particular acts or state of mind of those persons. Am. Compl. at 16. Plaintiff’s Amended Complaint thus fails to comply with Federal Rule of Civil Procedure 8’s requirement that a pleading contain the basic factual information needed to identify what claim is being asserted against what defendant. See Pahls, 718 F.3d at 1225-26 (“When various officials have taken different actions with respect to a plaintiff, the plaintiff’s facile, passive-voice showing that his rights ‘were violated’ will not suffice. Likewise insufficient is a plaintiff’s more active-voice yet undifferentiated contention that ‘defendants’ infringed his rights.”); Guinn v. Jeffco Combined Courts, 537 F. App’x 790, 791-94 (10th Cir. 2013) (affirming the district court’s dismissal of plaintiff’s complaint under Rule 8 where inmate named numerous defendants but failed to identify which defendant violated any specific right). With respect to his dental care, Plaintiff alleges newly added Defendant Deason, the LCF dentist, “recommended dentures, yet failed to provide [Plaintiff] with regular scheduled appointments to provide . . . needed treatment.” Am. Compl. at 16. Plaintiff Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 14 of 29
15 then lists the potential side effects that may come with a lack of dental treatment and claims Defendants Deason, Patton, Allbaugh, Rios, and GEO have been deliberately indifferent to his dental needs. See id. The Court previously found Plaintiff had failed to allege facts showing a serious medical need for dentures. See R. & R. at 17-20; Order passim. Plaintiff has not cured that factual deficiency in the Amended Complaint; indeed, Plaintiff has provided fewer details and accusations on this subject in his Amended Complaint than he did in the original Complaint. Moreover, Plaintiff has again offered only vague factual allegations supporting his conclusory assertion that he has been denied regular dental appointments. So, again, the Court should dismiss Plaintiff’s alleged lack of dental care claims against Defendants Deason, Patton, Allbaugh, Rios, and GEO. Finally, the Court should also dismiss Plaintiff’s new claims involving the alleged denial of psychiatric care. In a rambling and unorganized fashion, Plaintiff simply complains that the LCF Special Report shows he visited with a LCF psychiatrist (identified in the exhibit as Defendant McCracken) but he has “no recollection of whether she actually ever stopped at my cell door.” Am. Compl. at 12. He then alleges he asked Defendant Zold, “another psyche lady,” for “her intervention and help.” Id. Such conclusory allegations wholly fail to allege that Plaintiff had a sufficiently serious need for psychiatric care or that either Defendant McCracken or Defendant Zold ignored that need with a culpable state of mind. Because Plaintiff had not adequately pled either the objective or subjective component of an Eighth Amendment claim, the Court should dismiss Plaintiff’s Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 15 of 29
16 claims against Defendants McCracken and Zold based on an alleged denial of psychiatric treatment. C. Plaintiff’s Retaliatory Transfer Claim Plaintiff re-asserts his claim that he was transferred from LCF to another facility, OSP, as punishment for having reported and complained about the sexual and physical assault of October 25, 2013. See Am. Compl. at 14-15. In his Amended Complaint, Plaintiff states that Defendants Rios, Patton, White, Phume, Whitten, Williams, and Miser transferred Plaintiff to OSP under the false accusation that he “had killed an inmate and caused others to overdose” and also “raped another inmate.” Id. at 14. Plaintiff alleges that, due to old grudges at OSP, the transfer put him in “risk of harm or death.” Id. Plaintiff further alleges that Defendants Benoit and Roody verbally threatened him with retaliation. See id. at 11-13. Liberally construed, Plaintiff raises three separate claims regarding his transfer from LCF to OSP: (1) a conspiracy claim; (2) an Eighth Amendment failure-to- protect claim; and (3) a First Amendment retaliation claim. 1. Conspiracy Reviewing Plaintiff’s original Complaint, the Court found that while he had generally alleged that Defendants had conspired to transfer him, he had alleged no specific facts to actually show any such agreement, as required to establish that a conspiracy existed. See R. & R. at 22-23; Order passim. Plaintiff in his Amended Complaint continues to offer the conclusion that there was a conspiracy without any facts to support that conclusion. See Am. Compl. passim. The Court should again dismiss Plaintiff’s conspiracy claim, this time alleged against Defendants Rios, Patton, White, Phume, Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 16 of 29
17 Whitten, Williams, and Miser. See Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994) (holding plaintiff must “allege specific facts showing agreement and concerted action among” the defendants and “[c]onclusory allegations of conspiracy are insufficient to state a valid § 1983 claim” (internal quotation marks omitted)). 2. Failure to Protect In addition to a duty to provide adequate medical care, the Eighth Amendment obligates prison officials to “take reasonable measures to guarantee the safety of the inmates” and to “protect prisoners from violence at the hands of other prisoners.” Farmer, 511 U.S. at 832, 833 (internal quotation marks omitted). “[I]n order to establish a cognizable Eighth Amendment claim for failure to protect, a plaintiff ‘must show that he is incarcerated under conditions posing a substantial risk of serious harm,’ the objective component, and that the prison official was deliberately indifferent to his safety, the subjective component.” Benefield v. McDowall, 241 F.3d 1267, 1271 (10th Cir. 2001) (quoting Farmer, 511 U.S. at 834). As with his original Complaint, Plaintiff’s allegations in his Amended Complaint fail to meet both the objective and subjective components of a failure-to-protect claim. Plaintiff believes his life is in danger at OSP, but aside from describing a “grudge” dating back to 1986, see Am. Compl. at 8-9, he does not allege that his conditions of confinement actually “pos[e] a substantial risk of serious harm,” and so his allegations do not implicate the Cruel and Unusual Punishments Clause of the Eighth Amendment. See Farmer, 511 U.S. at 834; Benefield, 241 F.3d at 1271. Plaintiff’s vague, nonspecific allegations that his life is in danger, even coupled with an assertion that threats were made against him at OSP Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 17 of 29
18 decades ago, do not constitute a well-pleaded factual allegation showing a disregarded “substantial risk of serious harm” or injuries that are plausibly “sufficiently serious to constitute a deprivation of constitutional dimension.” Self v. Crum, 439 F.3d 1227, 1230- 31 (10th Cir. 2006). Plaintiff’s Eighth Amendment failure-to-protect claim therefore should be dismissed without prejudice for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). 3. Retaliation Prison officials may not retaliate against an inmate on account of, or otherwise harass an inmate in retaliation for, the inmate’s exercise of his First Amendment rights. Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990). “This principle applies even where the action taken in retaliation would be otherwise permissible.” Id. at 948. Government retaliation against a plaintiff for exercising his or her First Amendment rights may be shown by proving the following elements: (1) that the plaintiff was engaged in constitutionally protected activity; (2) that the defendant’s actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the defendant’s adverse action was substantially motivated as a response to the plaintiff’s exercise of constitutionally protected conduct. Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007); accord Gee v. Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010). In reviewing a prisoner’s claim of retaliation, however, “it is not the role of the federal judiciary to scrutinize and interfere with the daily operations of a state prison.” Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (citing Turner v. Safley, 482 U.S. 78 (1987)). Thus, to prevail on a retaliation claim, a prisoner must ultimately show that the challenged actions would not have occurred “but for” a retaliatory motive. Id.; see also Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 18 of 29
19 Brown v. Wyo. Dep’t of Corr. State Penitentiary Warden, 234 F. App’x 874, 877-78 (10th Cir. 2007) (“[A] prisoner claiming retaliation must allege specific facts showing retaliation [on account] of the exercise of the prisoner’s constitutional rights, and he must prove that ‘but for’ the retaliatory motive, the incidents to which he refers, including the disciplinary action, would not have taken place.” (second alteration in original) (citation and internal quotation marks omitted)). Under this standard, the Court should dismiss Plaintiff’s retaliation claims. Turning first to Plaintiff’s allegation that Defendants Benoit and Roody verbally threatened that he would “never get released from segregation” if he reported the alleged October 25, 2013 assault, Am. Compl. at 11-12, the Court should dismiss the retaliation claim on screening. Mere verbal threats of harm or harassment by correctional officials do not state a § 1983 claim in the absence of specific events creating an imminent fear of death or serious injury. See Northington v. Jackson, 973 F.2d 1518, 1524 (10th Cir. 1992) (recognizing constitutional “right to be free from the terror of instant and unexpected death at the hands of [the prisoner’s] keepers”); Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979) (noting that sheriff’s laughing at prisoner and threatening to hang him was “[v]erbal harassment or abuse” but “not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983.”). Moreover, Plaintiff did report the alleged assault. Thus, Plaintiff almost certainly cannot show Defendants Benoit and Roody’s verbal threats were such that they would “chill or silence a person of ordinary firmness from future First Amendment activities.” Hallstein v. City of Hermosa Beach, 87 F. App’x 17, 19 (10th Cir. 2003) (finding officer’s threats of retaliation did not rise to the level of a constitutional violation Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 19 of 29
20 where the threats “would not dissuade an ordinary person from further complaining” and “did not deter” plaintiff from exercising his rights). The Court should summarily dismiss the retaliation claim against Defendants Benoit and Roody without prejudice. With respect to Plaintiff’s retaliatory transfer claim, Plaintiff states that he reported the October 25, 2013 incident to Defendant Whitten on October 29, 2013, but he was not transferred to OSP until February 19, 2014—over 3½ months later.7 See Am. Compl. at 10 (providing the date transferred), 12 (referencing Am. Compl. Ex. 10 (Doc. No. 102-10), showing a report date of October 29, 2013). The Tenth Circuit has “repeatedly held that one cannot infer causation from temporal proximity alone when the time lapse between the protected activity and the retaliatory act exceeds three months.” Lauck v. Campbell Cty., 627 F.3d 805, 815 (10th Cir. 2010) (collecting cases). Thus, Plaintiff must provide additional facts to establish causation. See Meiners v. Univ. of Kan., 359 F.3d 1222, 1231 (10th Cir. 2004) (holding where the adverse action is not “very closely connected in time” to the exercise of a constitutional right, plaintiff must provide “additional evidence” to establish causation to support a retaliation claim (internal quotation marks omitted)). He does not do so. Plaintiff offers his opinion that Defendant Rios “only ordered my removal from protective custody . . . after I reported the [sexual] assault.” Am. Compl. at 14. However, “[a] plaintiff’s subjective beliefs about why the government took action, without 7 Plaintiff alleges that on February 13, 2014, Defendant Williams became aware that Plaintiff had sent a letter to Oklahoma Governor Mary Fallin. See Am. Compl. at 15. Plaintiff does not allege, however, that Defendant Williams initiated or ordered Plaintiff’s transfer, but only that Defendant Williams went “along with the scheme.” Id. at 14-15. Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 20 of 29
21 facts to back up those beliefs, are not sufficient.” Nielander v. Bd. of Cty. Comm’rs of Cty. of Republic, 582 F.3d 1155, 1165 (10th Cir. 2009); see also Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999) (“[T]he inmate must allege more than his personal belief that he is the victim of retaliation.”). In sum, Plaintiff cannot rely on a temporal proximity to demonstrate causation and his bald allegation that Defendants Rios, Patton, White, Phume, Whitten, Williams, and Miser acted in retaliation is not supported by sufficient facts. Accordingly, Plaintiff’s retaliation claim against these Defendants should be dismissed for failure to state a claim upon which relief can be granted.8 D. Plaintiff’s Allegations Against Defendants Smith, Sessums, Gibson, Cation, Cantwell, Caldwell, Calhoun, Johns, Alston, Ellington, Trammel, Royal, Ford, Cornelius, Willingham, Thomas, Perry, and Cooper In listing the defendants in his lawsuit, Plaintiff names LCF and DOC officers Smith, Sessums, Gibson, Cation, Cantwell, Caldwell, Calhoun, Johns, Alston, Ellington, Trammel, Royal, Ford, Cornelius, Willingham, Thomas, Perry, and Cooper. See Am. Compl. at 2-6. However, these parties are not mentioned again in the Amended Complaint, and Plaintiff never identifies any wrongdoing by any of them. See id. passim. In other words, Plaintiff has wholly failed to inform these individuals “what [they] did to [Plaintiff]; 8 The undersigned made a converse recommendation when reviewing Plaintiff’s original Complaint and the Defendants’ motions to dismiss. See R. & R. at 25-27. Plaintiff’s pleadings have changed, however. In his Amended Complaint, Plaintiff gives precise dates for his protected activity and transfer, but he fails to offer further specific facts surrounding his transfer. Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 21 of 29
22 when [they] did it; how [their] action harmed [Plaintiff]; and, what specific legal right [Plaintiff] believes [they] violated.” Nasious, 492 F.3d at 1163. According, the Court should dismiss Plaintiff’s claims against these individuals. E. Plaintiff’s Requests for Injunctive Relief Plaintiff also has submitted three requests for injunctive relief. These should be denied for the reasons provided below. 1. Plaintiff’s First Request Prior to the filing of his Amended Complaint, Plaintiff filed a motion asserting that OSP officials were retaliating against him by improperly taking his paperwork and by falsely accusing him of concealing contraband. See Doc. No. 94, at 1-4. In this motion, Plaintiff requested that the Court transfer him from OSP to protective custody at LCF and grant injunctive relief to prevent OSP officials from taking further improper action. Id. at 4. A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). For entry of a preliminary injunction, the applicant generally must satisfy four elements: (1) a substantial likelihood that he or she will prevail on the merits; (2) irreparable harm unless the restraining order is issued; (3) outweighing of the harm from the threatened injury against the adversary’s harm from the preliminary injunction; and (4) the absence of an adverse impact on the public interest. Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). A preliminary injunction is Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 22 of 29
23 appropriate only when the movant’s right to relief is clear and unequivocal. Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005). Plaintiff is unable to show a clear and unequivocal right to relief. First, although Plaintiff was housed at OSP when he filed this motion, he since has been transferred to Joseph Harp Correctional Center (“JHCC”) in Lexington, Oklahoma. See Doc. No. 115. There is no indication in the record that Plaintiff will return to OSP in the foreseeable future. Plaintiff’s request to enjoin officials’ conduct toward him at that facility “was undoubtedly mooted by his transfer” to another facility. Stephens v. Jones, 494 F. App’x 906, 910 (10th Cir. 2012). “A preliminary injunction directed at [OSP] prison officials would not . . . provide[] any ‘conclusive relief’ because [Plaintiff] [is] no longer housed there.” Id. (quoting Jordan v. Sosa, 654 F.3d 1012, 1024 (10th Cir. 2011)). Second, a preliminary injunction grants intermediate relief of the same character as that which may be finally granted. De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 220 (1945). The Court may not enter a preliminary injunction when the movant seeks intermediate relief beyond the claims of the complaint. See Stouffer v. Eulberg, No. CIV- 09-320-C, 2010 WL 567998, at *1, *2 & n.3 (W.D. Okla. Feb. 11, 2010) (citing Omega World Travel, Inc. v. Trans World Airlines, 111 F.3d 14, 16 (4th Cir. 1997) (“[A] preliminary injunction may never issue to prevent an injury or harm which not even the moving party contends was caused by the wrong claimed in the underlying action.”)). Thus, “the movant must establish a relationship between the injury claimed in the party’s motion and the conduct asserted in the complaint.” Little, 607 F.3d at 1251 (internal Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 23 of 29
24 quotation marks omitted); see also Penn v. San Juan Hosp., Inc., 528 F.2d 1181, 1185 (10th Cir. 1975). Here, the undersigned has recommended dismissal of all but two of Plaintiff’s legal claims, and those claims implicate only action that transpired at LCF and conduct of LCF officials. Plaintiff therefore has not shown the requisite relationship between his remaining legal claims and his request for injunctive relief and cannot show a substantial likelihood he would prevail on the merits of claims related to his request for an injunction against OSP officials. See Little, 607 F.3d at 1251; De Beers Consol. Mines, Ltd., 325 U.S. at 220. Moreover, a federal court considering a motion for preliminary injunctive relief affecting the conditions of a prisoner’s confinement must give substantial weight to the adverse impact on public safety and on prison operation. See 18 U.S.C. § 3626(a)(2); Stephens, 494 F. App’x at 911-12. The Supreme Court has declared that courts are not to substitute their judgment on matters of institutional administration for the determinations made by prison officials. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 353 (1987). Granting the relief Plaintiff seeks would require this Court to intrude directly into the affairs of state prison administration, which for important policy reasons is a step courts should be reluctant to take. See Safley, 482 U.S. at 84-86; cf. Stephens, 494 F. App’x at 912 (affirming denial of requested injunctive relief as “overbroad and more intrusive than necessary”). Plaintiff cannot meet his burden to demonstrate that the injunction he requests is not adverse to the public interest—the relevant public interest here being deference to prison officials’ proper administration of their prison facilities. See Kikumura, 242 F.3d at 955. Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 24 of 29
25 For all of these reasons, Plaintiff’s first motion should be denied. 2. Plaintiff’s Second Request In his second motion, Plaintiff again seeks to be transferred away from OSP and placed in protective housing at LCF. Doc. No. 108; see also Doc. No. 107 (Plaintiff’s declaration in support). Though labeled as a motion for “injunction/TRO,” Plaintiff’s request is properly viewed as seeking a preliminary injunction under Federal Rule of Civil Procedure 65(a) rather than a temporary restraining order (“TRO”) under Federal Rule of Civil Procedure 65(b). Rule 65(b) generally contemplates that a TRO would be issued only for a short term and “without written or oral notice to the adverse party or its attorney.” See Fed. R. Civ. P. 65(b)(1). Because the served Defendants have had notice, the Court should treat the request for a TRO as superseded by the alternative request for a preliminary injunction. See, e.g., Kan. Hosp. Ass’n v. Whiteman, 835 F. Supp. 1548, 1551 (D. Kan. 1993); TLX Acquisition Corp. v. Telex Corp., 679 F. Supp. 1022, 1028 (W.D. Okla. 1987); see also 11A Charles Alan Wright et al., Federal Practice and Procedure § 2951 (3d ed. 2013). Plaintiff has not met his burden to show that entry of a preliminary injunction is warranted. First, as noted above, Plaintiff already has been transferred away from OSP, and this transfer “undoubtedly mooted” his request to the extent he complains of actions taken against him by OSP officials. Stephens, 494 F. App’x at 910. Next, the undersigned has recommended that the Court dismiss all of Plaintiff’s claims except those involving excessive force at LCF and the denial of medical care immediately following the alleged assault at LCF. As a result, Plaintiff has not shown the Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 25 of 29
26 requisite relationship between his remaining legal claims and this request for injunctive relief and cannot show a substantial likelihood he would prevail on the merits of claims related to this request for an injunction. See Little, 607 F.3d at 1251; De Beers Consol. Mines, Ltd., 325 U.S. at 220. Finally, Plaintiff cannot meet his burden to demonstrate that the injunction he requests is not adverse to the public interest, given the Court’s obligation to give substantial weight to the adverse impact on public safety and on prison operation of such relief. See 18 U.S.C. § 3626(a)(2); Stephens, 494 F. App’x at 911-12; Safley, 482 U.S. at 84-86; see, e.g., Johnson v. Saffle, No. 99-6148, 2000 WL 130726, at *2 (10th Cir. Feb. 4, 2000) (affirming denial of temporary restraining order in which “the relief requested was not consistent with the public interest”). For all of these reasons, Plaintiff’s second motion should be denied. 3. Plaintiff’s Third Request In his third motion, filed July 31, 2017, Plaintiff seeks a preliminary injunction or TRO, complaining that he is about to be transferred to the general population at an unknown facility, where his life will be in danger due to his being “an ex-prospective correctional officer.” Doc. No. 114, at 1. According to Plaintiff, his placement into a facility’s general population rather than protective custody places him in danger of being “seriously hurt or killed.” Id. at 2. Plaintiff’s request for “immediate protection” should be construed as a request for preliminary injunctive relief. Id. at 3; see discussion supra Part II.E.2. Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 26 of 29
27 Plaintiff’s vague, unsubstantiated speculation as to the imminent danger of a transfer from OSP do not adequately demonstrate that he is faced with irreparable harm, as required for injunctive relief to issue. See Kikumura, 242 F.3d at 955.9 Further, his speculation of harm at an unidentified facility does not bear the requisite relationship to the legal claims of his Amended Complaint. See Little, 607 F.3d at 1251. And Plaintiff cannot show that the Court stepping in to halt a proposed transfer of one prisoner to an unidentified location is not adverse to the public interest. See Stephens, 494 F. App’x at 911-12; Johnson, 2000 WL 130726, at *2. This motion should be denied. RECOMMENDATION For the reasons outlined above, the undersigned recommends that: (i) Plaintiff’s 42 U.S.C. § 1983 claims for money damages against Defendants Allbaugh, Royal, Williams, Miser, and Cooper in their official capacities be dismissed pursuant to the Eleventh Amendment; (ii) Plaintiff’s Eighth Amendment excessive-force claim against Defendants Taime, Rauche, Wiltshire, Hill, Roody, Tweedy, and Jones should survive the Court’s screening; (iii) Plaintiff’s Eighth Amendment claim against Defendants Tweedy and Wiltshire, based on a failure to facilitate medical care, should survive the Court’s screening; (iv) Plaintiff’s Eighth Amendment claim involving a two-day delay in receiving medical care should be dismissed for failure to state a claim against any named defendant; 9 On August 17, 2017, Plaintiff notified the Court that he had been transferred to JHCC, see Doc. No. 115; he has submitted no further filings regarding his new facility or his placement therein. Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 27 of 29
28 (v) Plaintiff’s Eighth Amendment claims against Defendants Rios, GEO, Patton, Allbaugh, Deason, McCracken, and Zold based upon inadequate psychiatric and dental care should be dismissed for failure to state a claim upon which relief can be granted; (vi) Plaintiff’s conspiracy claims should dismissed for failure to state a claim upon which relief can be granted; (vii) Plaintiff’s claims of retaliatory threats against Defendants Benoit and Roody should be dismissed for failure to state a valid claim for relief; (viii) Plaintiff’s First Amendment retaliatory transfer claim should be dismissed on screening; (ix) All claims against Defendants Smith, Sessums, Gibson, Cation, Cantwell, Caldwell, Calhoun, Johns, Alston, Ellington, Trammel, Royal, Ford, Cornelius, Willingham, Thomas, Perry, and Cooper should be dismissed for failure to state a claim upon which relief can be granted; and (x) Plaintiff’s request for preliminary injunctive relief (Doc. Nos. 94, 107, 108, 114) should be denied. In sum, only Plaintiff’s § 1983 individual-capacity claims against Defendants Taime, Rauche, Wiltshire, Hill, Roody, Tweedy, and Jones (involving excessive force and, for Defendants Tweedy and Wiltshire, also a failure to facilitate medical care) should survive the Court’s screening. Should the Court adopt this recommendation, Plaintiff should be directed to serve the newly named Defendants (Tweedy and Jones) with copies of the Amended Complaint and summonses issued by the Court Clerk within ninety days from the Court’s order. See Fed. R. Civ. P. 4(c). NOTICE OF RIGHT TO OBJECT Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court on or before September 14, 2017, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. Plaintiff is Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 28 of 29
29 further advised that failure to timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the present case. Should the Court adopt the recommendation, the undersigned recommends a new referral to oversee litigation of the Amended Complaint. ENTERED this 24th day of August, 2017. Case 5:15-cv-00641-G Document 116 Filed 08/24/17 Page 29 of 29
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