Johnson v. McCurdy et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MARILYN MONAE PORTER, 	)
a/k/a LAMONE M. JOHNSON, 	)
)
Plaintiff, 	)
) 	CIV-22-023-R
v. 	)
)
JOEL MCCURDY, et. al., 	)
)
Defendants. 	)
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 Defendant Utilization Review Committee’s Motion to
Dismiss, Doc. No. 29, to which Plaintiff has filed a Response. Doc. No. 41. 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 be granted and Plaintiff be allowed leave
to amend her Complaint.
I. 	Background Information
Plaintiff 	is 	confined 	at 	the 	Oklahoma 	State 	Penitentiary 	located 	in
McAlester, Oklahoma. Doc. No. 1 at 2. Plaintiff has asserted claims under the
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Eighth and Fourteenth Amendments. Id. at 4-6. As Defendants, she has named
Joel McCurdy, Oklahoma Department of Corrections (“ODOC”) Chief Medical
Officer, and ODOC’s Utilization Review Committee (“URC”). Id. at 3.
In her Complaint, Plaintiff explains that she suffers from gender dysphoria.
Id. at 4-6. A Qualified Healthcare Professional (“QHCP”), Dr. Payne Wren
appointed by Defendant McCurdy, diagnosed Plaintiff with this condition. Id. at
5, 6. Pursuant to ODOC policy, the QHCP submitted a request to Defendants for
Plaintiff to receive certain surgical treatments. Id. Defendants denied the request.
Id.
By this action, Plaintiff asserts an Eighth Amendment claim alleging that
in denying the surgical requests, Defendants were deliberately indifferent to her
serious medical needs. Id. at 4-6. Additionally, Plaintiff asserts a claim under the
Fourteenth Amendment’s equal protection clause based on allegations that
Defendants approved similar surgeries for a fellow inmate. Id. 4, 6. Defendant
URC has filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) arguing it is not a proper party to this action under 42 U.S.C. § 1983.
II. 	Standard of Review
A motion to dismiss may be granted when the plaintiff has “failed to state
a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In applying
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this standard the court must assume 	the truth of all well-pleaded factual
allegations in the complaint and construe them in the light most favorable to the
plaintiff. Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011);
Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005). To survive a motion to
dismiss, a complaint must present factual allegations that “raise a right to relief
above the speculative level[.]” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). This review contemplates the assertion of “enough facts to state a claim
to relief that is plausible on its face.” Id. at 570. Thus, “when the allegations in a
complaint, however true, could not raise a [plausible] claim of entitlement to
relief,” the cause of action should be dismissed. Id. at 558.
A pro se plaintiff’s complaint must be broadly construed under this
standard. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S.
519, 520 (1972). However, the generous construction to be given the pro se
litigant’s allegations “does not relieve the plaintiff of the burden of alleging
sufficient facts on which a recognized legal claim could be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). See Whitney v. New Mexico, 113
F.3d 1170, 1173-1174 (10th Cir. 1997) (courts “will not supply additional factual
allegations to round out a plaintiff’s complaint or construct a legal theory on a
plaintiff's behalf”).
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A court evaluating a Rule 12(b)(6) motion to dismiss may consider the
complaint as well as any documents attached to it as exhibits. Bellmon, 935 F.2d
at 1112. Additionally, “[a] district court may consider documents (1) referenced
in a complaint that are (2) central to a plaintiff’s claims, and (3) indisputably
authentic when resolving a motion to dismiss without converting the motion to
one for summary judgment.” Thomas v. Kaven, 765 F.3d 1183, 1197 (10th Cir.
2014).1
III. 	Analysis
42 U.S.C. § 1983 creates a cause of action where a “person . . . under color
of any statue, ordinance, regulation, custom, or usage, of any State . . . subjects,
or causes to be subjected, any citizen of the United States . . . to the deprivation
of any rights, privileges, or immunities secured by the Constitution . . . .”
(emphasis added). State entities and state officials sued in their official capacities
are not “persons” within the meaning of § 1983. Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989). Defendant URC requests dismissal based on a
contention that it is a subdivision of ODOC and therefore, not a person under
1 Defendant referenced one document in its Motion to Dismiss that was not submitted
with Plaintiff’s Complaint. However, because it was unnecessary to rely on the same in
issuing this Recommendation, the Court did not convert Defendant’s Motion to Dismiss
into a Motion for Summary Judgment.
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§ 1983. The Court agrees.
It is well established that committees within state entities or agencies are
considered subdivisions of the same and are therefore, not suable entities under
42 U.S.C. § 1983. See Paulsen v. Hickenlooper, No. 18-cv-01396-PAB-KMT,
2019 WL 4412695, at *1 n.1 (D. Colo. Sept. 16, 2019) (noting dismissal of the
Colorado Department of Corrections “Infectious Committee on the ground that
the committee is not a person subject to suit in a 42 U.S.C. § 1983 action.”
(quotations omitted)); Lomax v. Raemisch, No. 18-cv-00321-GPG, 2018 WL
10373661, at *3 (D. Colo. March 19, 2018) (“Plaintiff [] may not pursue any
constitutional claims against the [Colorado Department of Corrections] Central
Classification Committee because the committee is not a person subject to suit in
a 42 U.S.C. § 1983 action.” (quotations omitted)); Russom v. Jimmerson, No. 07–
cv–02574–CMA–MEH, 2008 WL 5083423, at *1 (D. Colo. Nov. 25, 2008)
(explaining that the “Colorado Department of Corrections Central Review
Committee Unknown Names” was not a suable entity inasmuch as “State entities
and state officials sued in their official capacities are not ‘persons’ within the
meaning of [§] 1983”); Barney v. Broomfield Cnty. Jail Admin., No. 1:06 CV
01216 BNB, 2006 WL 2226240, at *1 (D. Colo. Aug. 2, 2006) (“With respect to
named Defendant Classification Committee, the Committee is not a person for the
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purpose of a § 1983 action.”). Thus, it is clear Defendant URC is not a person for
purposes of § 1983 and therefore, not a proper party for claims brought pursuant
to the same.
In her Response to Defendant’s Motion to Dismiss, Plaintiff points out the
inequitable result in dismissing her claims in this circumstance when she has not
been afforded the opportunity to engage in the discovery process and learn the
identities of the individual URC members. Plaintiff makes a compelling point.
In Barney, wherein the plaintiff had named a county jail committee as a
defendant, the court explained that the plaintiff could use fictitious names, such
as “Jane or John Doe,” if he did not yet know the real names of the individuals
who allegedly violated his rights. Id. at *2. The court further explained that if the
plaintiff used fictitious names, he must provide sufficient information about each
defendant so that each defendant can be identified for purposes of service. Id. The
same principles apply in the present case. Additionally, because Plaintiff’s
naming of the URC previously resulted in effective service of process, one could
surmise that using fictious names, identifying the individual as a member of the
URC, and providing the previous contact information would be sufficient.
RECOMMENDATION
Based on the foregoing findings, it is recommended Defendant’s Motion to
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Dismiss (Doc. No. 29) be GRANTED. The Court further recommends Plaintiff
be provided leave of court in order to amend her Complaint and name the proper
defendants.
The parties are advised of their right to file an objection to this Report and
Recommendation with the Clerk of this Court by July 5 th , 2022, in accordance
with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this
Report and Recommendation would waive appellate review of the recommended
ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v.
Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in
objections to the magistrate judge’s recommendation are deemed waived.”).
This Report and Recommendation does not dispose of all issues referred to
the undersigned Magistrate Judge in the captioned matter.
Dated this 	13 th day of June, 2022.
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