Young v. Rios et al

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, brings this federal civil rights action under 42 U.S.C. § 1983 alleging
violations of the United States Constitution. 	See Compl. (Doc. No. 1). 	United States
District Judge David L. Russell has referred this matter to the undersigned Magistrate
Judge for preliminary review in accordance with 28 U.S.C. § 636. 	Defendants have
moved under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (Doc. Nos. 49, 68)
to dismiss Plaintiff’s claims, Plaintiff has responded (Doc. Nos. 75, 76), and one
Defendant has replied (Doc. No. 77).
PLAINTIFF’S CLAIMS AND RELIEF SOUGHT
Plaintiff, who is presently incarcerated at Oklahoma State Penitentiary (“OSP”) in
McAlester, Oklahoma, initially filed this lawsuit in the United States District Court for
the Eastern District of Oklahoma. 	See Compl. at 1.1 Following service upon all 21
1 Citations to documents filed in this Court use the page numbers assigned by the Court’s
electronic filing system.
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Defendants, the case was transferred to this Court on the basis of improper venue. 	See
Doc. No. 53.
In his Complaint, Plaintiff alleges claims against former Oklahoma Department of
Corrections (“ODOC”) Director Robert Patton;2 GEO Group Inc. (“GEO”); GEO Vice-
President Reed Smith; Hector A. Rios, Warden of Lawton Correctional Facility (“LCF”);
and 17 LCF staff members. 	See Compl. at 1-2, 12-13.3 LCF is a private prison owned
and operated by GEO. 	Id. at 3. 	Defendants Patton, Rios, Smith, and GEO are sued in
both their official and individual capacities. 	All other Defendants are sued in their
individual capacities only. Id. at 13.
Plaintiff’s claims arise from events alleged to have occurred while he was housed
at LCF. See id. at 3-4, 6-7. Through this lawsuit, Plaintiff seeks nominal, compensatory,
and punitive damages as well as declaratory and injunctive relief. Id. at 14.
Plaintiff alleges that Defendants have violated his rights under the First and Eighth
Amendments. 	Liberally and reasonably construed, Plaintiff’s Complaint raises the
following claims: (1) violation of the Eighth Amendment based upon a 2013 assault by
LCF staff members; (2) violation of the Eighth Amendment based upon denial of proper
2 Because Robert Patton is no longer ODOC Director, the current Director should be
substituted as Defendant if any official-capacity claims alleged against Defendant Patton
remain after disposition of this Report and Recommendation. 	See Fed. R. Civ. P. 25(d);
Director’s 	Office, 	Okla. 	Dep’t 	of 	Corr., 	https://www.ok.gov/doc/Organization/
Director’s_Office/index.html (last visited Mar. 8, 2016). 	The undersigned refers to all
Defendants as they are identified in the Complaint.
3 The 17 LCF-staff-member Defendants are Taime, Rauche, Wiltshire, Benoit, Hill,
Roody, DeAlmenau, Sessurs, Gibson, Cation, Cantwell, Caldwell, Calhoun, Johns,
Alston, Ellington, and Phume.
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medical, dental, and vision care; (3) violation of the First and Eighth Amendments and
unlawful conspiracy based upon a retaliatory transfer of Plaintiff from LCF to OSP; (4)
violation 	of 	the 	First 	Amendment 	based 	upon 	Defendants’ 	refusal 	to 	address
administrative grievances; and (5) a challenge to a requirement that Plaintiff be required
to submit payments or copayments for medical care, based upon the fact that this
requirement was not in place in 1994, when he began serving his current prison sentence,
and upon the fact that this requirement results in taxpayers being double-billed. See id. at
2, 4-8, 10-11.4
STANDARD OF REVIEW
While the Court construes a pro se litigant’s pleadings liberally, all parties must
adhere to applicable procedural rules. 	See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir.
2007). 	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). 	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, 1175 (10th Cir. 1997).
Defendant Patton has filed a Motion to Dismiss (“Def. Patton Mot.,” Doc. No. 49),
and the remaining 20 Defendants, who are jointly represented, also have filed a Motion to
4 Although Plaintiff’s Responses refer to state-law tort claims, see Pl.’s Resp. to Def.
Patton Mot. (Doc. No. 75) at 2; Pl.’s Resp. to GEO Defs.’ Mot. (Doc. No. 76) at 3, his
Complaint is not reasonably construed as raising any such claim.
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Dismiss (“GEO Defs.’ Mot.,” Doc. No. 68), both relying only upon the pleadings to
support their arguments for dismissal. 	In addition, Defendants have filed a Special
Report (Doc. No. 67), in accordance with the Court’s order (Doc. No. 62) and Martinez v.
Aaron, 570 F.2d 317 (10th Cir. 1978). 	Plaintiff has filed a response to each Motion to
Dismiss, see Pl.’s Resp. to Def. Patton Mot.; Pl.’s Resp. to GEO Defs.’ Mot. 	The
undersigned has declined to convert the Motions to Dismiss to motions for summary
judgment and has excluded from consideration the Special Report, Plaintiff’s proffered
exhibits (see Doc. Nos. 76-1 to 76-13), and all other evidence outside the pleadings. See
Fed. R. Civ. P. 12(d); Lowe v. Town of Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998).
Defendants move to dismiss certain of Plaintiff’s claims pursuant to Federal Rule
of Civil Procedure 12(b)(6) for “failure to state a claim upon which relief can be
granted.” See Fed. R. Civ. P. 12(b)(6). In analyzing a motion to dismiss under that rule,
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) (citation omitted). Bare legal conclusions in a complaint 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).
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“[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.
ANALYSIS
I. 	Defendant Patton’s Eleventh Amendment Immunity to Suit
Citing the Eleventh Amendment of the U.S. Constitution, Defendant Patton moves
to dismiss Plaintiff’s 42 U.S.C. § 1983 claims to the extent they seek money damages
from Defendant Patton in his official capacity as ODOC Director. 	See Def. Patton Mot.
at 12-13; Compl. at 12, 13; Fed. R. Civ. P. 12(b)(1). The Court therefore is obligated to
address whether Defendant Patton enjoys immunity from suit. 	See U.S. ex rel. Burlbaw
v. Orenduff, 548 F.3d 931, 942 (10th Cir. 2008) (noting that if a state defendant raises the
issue, “addressing the threshold jurisdictional matter [is] obligatory”); Fent v. Okla.
Water 	Res. 	Bd., 	235 	F.3d 	553, 	558-59 	(10th 	Cir. 	2000) 	(holding 	that 	Eleventh
Amendment immunity “can be waived” but “constitutes a bar to the exercise of federal
subject matter jurisdiction” when effectively asserted).
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. U.S. Const. amend. XI; Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 65
(1996).
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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 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 Defendant Patton was employed
by that agency during the events giving rise to this lawsuit. See Compl. at 12. “ODOC is
. . . shielded by sovereign immunity because it is an arm of the state.” 	Berry, 495 F.
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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).
Defendant Patton, as an employee of ODOC in his official capacity, therefore is
protected by Eleventh Amendment immunity to the extent damages are sought by
Plaintiff under 42 U.S.C. § 1983. 	See Cleveland, 590 F. App’x at 730; Eastwood, 846
F.2d at 632. Accordingly, Plaintiff’s § 1983 claims seeking monetary relief from ODOC
Director Robert Patton in his official capacity are barred by the Eleventh Amendment and
should be dismissed without prejudice.
II. 	Plaintiff’s Remaining 42 U.S.C. § 1983 Claims
To state a claim for relief under 42 U.S.C. § 1983, “a plaintiff must allege the
violation of a right secured by the Constitution and laws of the United States, and must
show that the alleged deprivation was committed by a person acting under color of state
law.” 	West v. Atkins, 487 U.S. 42, 48 (1988); see 42 U.S.C. § 1983; Phillips v. Tiona,
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508 F. App’x 737, 750 (10th Cir. 2013) (“We have long assumed that employees of a
private prison act under color of state law for purposes of § 1983 suits by inmates . . . .”).
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
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[may] 	be 	imposed 	upon 	those 	defendants 	whose 	own 	individual 	actions 	cause 	a
constitutional deprivation . . . .”).
A. Plaintiff’s Eighth Amendment Claim: October 2013 Assault
1. 	Eighth Amendment Standard
Because the Eighth Amendment prohibits “cruel and unusual punishments,” the
Amendment “places restraints on prison officials, who may not . . . use excessive
physical force against prisoners.” 	Farmer v. Brennan, 511 U.S. 825, 832 (1994); see
U.S. Const. amend. VIII. 	In order to hold prison officials liable for excessive force, a
two-prong standard applies: “(1) an objective prong that asks ‘if the alleged wrongdoing
was objectively “harmful enough” to establish a constitutional violation,’ and (2) a
subjective prong under which the plaintiff must show that ‘the officials acted with a
sufficiently culpable state of mind.’” 	Giron v. Corr. Corp. of Am., 191 F.3d 1281, 1289
(10th Cir. 1999) (alteration omitted) (quoting Hudson v. McMillian, 503 U.S. 1, 8
(1992)). 	With respect to the second prong, “when ‘officials stand accused of using
excessive physical force,’” the court asks “whether force was applied in a good faith
effort to maintain or restore discipline or maliciously and sadistically for the very purpose
of causing harm.” 	Whitley v. Albers, 475 U.S. 312, 320-21 (1986) (internal quotation
marks omitted); see also DeSpain v. Uphoff, 264 F.3d 965, 978 (10th Cir. 2001).
2. 	Whether Plaintiff Has Stated an Eighth Amendment Claim
In his Complaint, Plaintiff alleges that on October 25, 2013, he was physically and
sexually assaulted by LCF officials during a strip search. See Compl. at 2, 3, 7. Plaintiff
alleges:
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I was assigned to the Protective Custody Unit (PCU) at LCF in 2004. [O]n
October 25th
, 2013 [Defendant Rios] ordered that [Defendants] Hill and
Roody lock me up in the unit’s disciplinary unit or (DU). 	Three officers
[Defendants] Taime, Rauche, and Wiltshire . . . began pushing, punching,
beating, stomping me and tore and cut off all my clothes. 	I had my hands
restrained in cuffs behind my back, and I had neither did, provoked nor
gave them reason for such beating. 	[O]ne of the officers inserted what me
cry out for help and camera, his finger(s) in my rectum or anus, causing me
pain[. T]this incident went on without [Defendants] Hill or Roody stopping
it. However a c.o. Tweedy has a camera and was told not to cut it on. They
left me naked, and stopped only because other inmates in pod started
yelling and complaining. 	I was refused medical for two days. 	And even
although I asked for phone ignored and refused.
Compl. at 7.
a. 	Personal Involvement or Participation
Assuming the truth of Plaintiff’s allegations, the Complaint reasonably implicates
Defendants Hill, Roody, Taime, Rauche, and Wiltshire in the alleged assault of October
25, 2013. 	See Compl. at 7. 	Plaintiff’s allegations plausibly reflect that Defendants
Taime, Rauche, and Wiltshire actively participated in the beating, stripping, and sexual
assault of Plaintiff, and that Defendants Hill and Roody were present and aware of what
was transpiring but nonetheless failed to prevent Plaintiff from being harmed. 	As to the
latter Defendants, “a prison official’s failure to protect an inmate from a known harm
may constitute a constitutional violation.” 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 	therefore 	has 	adequately 	alleged 	the 	personal
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involvement or participation of these LCF officials as required to state a claim under §
1983. See Pahls, 718 F.3d at 1225; Iqbal, 556 U.S. at 676-77.
Plaintiff additionally mentions Defendant Rios, the LCF Warden, in his narrative
of the assault, but Plaintiff does not allege facts regarding Defendant Rios’ involvement
or participation such as would be required to state a claim against him. 	Although a
supervisor may be held liable if he or she is affirmatively linked to the constitutional
violation, “Section 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). Plaintiff alleges
only that Defendant Rios ordered Defendants Hill and Roody to “lock [Plaintiff] up” in
the disciplinary unit. 	Compl. at 7. 	Plaintiff’s allegations do not reasonably support an
inference that Defendant Rios knew that his order would cause others to violate
Plaintiff’s 	constitutional 	rights, 	much 	less 	that 	Rios 	personally 	participated 	in 	or
facilitated the assault. See Schneider, 717 F.3d at 767-68.
Plaintiff does not identify any of the other 15 Defendants as direct or indirect
actors in the events of October 25, 2013. 	Plaintiff thus has failed to plausibly allege the
personal involvement or participation of Defendant Rios or of Defendants Patton, Smith,
GEO, Benoit, DeAlmenau, Sessurs, Gibson, Cation, Cantwell, Caldwell, Calhoun, Johns,
Alston, Ellington, or Phume. 	This claim should be dismissed without prejudice as to
those Defendants. 	See Fed. R. Civ. P. 12(b)(6); Iqbal, 556 U.S. at 676-77; Pahls, 718
F.3d at 1225-26 (“When various officials have taken different actions with respect to a
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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.”).
b. 	Excessive Force
Again, in order to hold prison officials liable for excessive force, a two-prong
standard applies: “(1) an objective prong that asks ‘if the alleged wrongdoing was
objectively “harmful enough” to establish a constitutional violation,’ and (2) a subjective
prong under which the plaintiff must show that ‘the officials acted with a sufficiently
culpable state of mind.’” 	Giron, 191 F.3d at 1289 (alteration omitted). 	Regarding the
objective component, Defendants contend that Plaintiff’s complained-of conduct is only a
de minimis use of physical force, insufficient to rise to the level of a constitutional
violation. 	See GEO Defs.’ Mot. at 2-5; Hudson, 503 U.S. at 9-10 (“The Eighth
Amendment’s prohibition of ‘cruel and unusual’ punishments necessarily excludes from
constitutional recognition de minimis uses of physical force, provided that the use of
force is not of a sort repugnant to the conscience of mankind.” (internal quotation marks
omitted)).
The 	objective 	component 	of 	an 	excessive 	force 	claim 	is 	“contextual 	and
responsive to contemporary standards of decency.” Hudson, 503 U.S. at 8 (internal
quotation marks omitted). “[A]n inmate has a constitutional right to be secure in [his or]
her bodily integrity and free from attack by prison guards.” Hovater, 1 F.3d at 1068.
Sexual abuse is repugnant to contemporary standards of decency and
allegations of sexual abuse can satisfy the objective component of an
Eighth Amendment excessive force claim. . . . . The right to be secure in
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one’s bodily integrity includes the right to be free from sexual abuse. 	See
Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998) (holding that
“plaintiffs’ deprivations resulting from the sexual assaults are sufficiently
serious to constitute a violation under the Eighth Amendment.”).
Smith v. Cochran, 339 F.3d 1205, 1212 (10th Cir. 2003).
Defendants compare the acts at issue to those considered in an unpublished Tenth
Circuit case, Rhoten v. Werholtz, 243 F. App’x 364 (10th Cir. 2007). 	See GEO Defs.’
Mot. at 3-5. In Rhoten, the Tenth Circuit upheld the dismissal of an Eighth Amendment
excessive force claim where the plaintiff contended that he had been slammed, squeezed,
and had his testicles pulled, finding that the defendant’s use of force was de minimis. See
Rhoten, 243 F. App’x at 365, 367 (citing Norton v. City of Marietta, 432 F.3d 1145, 1156
(10th Cir. 2005) (holding that allegations of grabbing and twisting inmate’s neck were
not objectively harmful enough to establish excessive force claim); Reed v. Smith, No.
97-6341, 1999 WL 345493, at *4 (10th Cir. June 1, 1999) (holding inmate’s allegations
that prison officials grabbed, walked, and dragged him, and tried to ram him into a wall,
were insufficient to state an excessive force claim)). 	But Rhoten is not persuasive here,
because the claims rejected in Rhoten, based upon “grabbing” and “squeezing,” allege
objectively less harmful physical wrongdoing than Plaintiff’s specific allegations—i.e.,
that he was pushed, punched, beaten, stomped on, handcuffed, had his clothes torn off,
and had his anus painfully penetrated by instrumentation. 	Compare Compl. at 7, with
Rhoten, 243 F. App’x at 365, and Norton, 432 F.3d at 1156, and Reed, 1999 WL 345493,
at *4. And under governing Tenth Circuit authority, deprivations suffered through sexual
assaults “are sufficiently serious to constitute a violation under the Eighth Amendment.”
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Barney, 143 F.3d at 1310; see, e.g., Smith, 339 F.3d at 1212 (finding allegations of forced
exposure, rape, and rape by instrumentation satisfied the objective prong of an excessive
force claim); see also Giron, 191 F.3d at 1290.
With respect to the subjective inquiry, “[w]here no legitimate penological purpose
can be inferred from a prison employee’s alleged conduct, including but not limited to
sexual abuse or rape, the conduct itself constitutes sufficient evidence that force was used
‘maliciously and sadistically for the very purpose of causing harm.’” Giron, 191 F.3d at
1290 (quoting Albers, 475 U.S. at 320-21)); accord Smith, 339 F.3d at 1212-13. At least
as pled, Plaintiff has adequately alleged that Defendants Taime, Rauche, Wiltshire, Hill,
and Roody acted with an improper intent.5
Plaintiff thus has alleged a specific incident of physical and sexual abuse that is
objectively sufficiently serious and not a de minimis use of physical force, and he has
adequately alleged that the relevant Defendants had “a sufficiently culpable state of
mind.” See Compl. at 2, 3, 4-8; Barney, 143 F.3d at 1310; Hudson, 503 U.S. at 8; Albers,
475 U.S. at 320-21. 	Plaintiff’s excessive force claim should not be dismissed as to
Defendants Taime, Rauche, Wiltshire, Hill, and Roody.
B. Plaintiff’s Eighth Amendment Claim: Medical, Dental, and Vision Care
Plaintiff next asserts that he was denied proper medical, dental, and vision care
while 	housed 	at 	LCF. 	See 	Compl. 	at 	8, 	10-11. 	“A 	prison 	official’s 	deliberate
5 Although not considerable for purposes of Federal Rule of Civil Procedure 12(b)(6),
materials 	outside 	the 	pleadings 	indicate 	another 	possibility, 	that 	Defendants 	were
searching Plaintiff for contraband.
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indifference 	to 	an 	inmate’s 	serious 	medical 	needs 	is 	a 	violation 	of 	the 	Eighth
Amendment’s prohibition against cruel and unusual punishment.” Mata v. Saiz, 427 F.3d
745, 751 (10th Cir. 2005) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
1. 	Eighth Amendment Standard
A similar two-prong standard governs claims of deliberate indifference to serious
medical needs. 	To establish the objective prong of this Eighth Amendment claim,
Plaintiff must show “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).
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 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 she delays or refuses to
fulfill that gatekeeper role.
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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 alleges that after the attack on October 25,
2013, he requested but was denied medical attention for two days. 	See Compl. at 7.
Plaintiff alleges that on October 27, 2013, a nurse reported the incident, and Plaintiff was
taken to “main medical.” 	Compl. at 6. 	Plaintiff, however, alleges only that the attack
caused nonspecific pain and presents no allegations that support an inference that he was
suffering from an obvious, “sufficiently serious” medical need. See Compl. at 6-7; Mata,
427 F.3d at 751. 	And Plaintiff does not allege that the two-day delay caused him any
harm, much less “substantial harm.” 	See Compl. at 6-7; Mata, 427 F.3d at 751.
Plaintiff’s Eighth Amendment claim based upon denial of medical care following his
October 2013 attack therefore should be dismissed without prejudice pursuant to Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be
granted.
Regarding his vision care, Plaintiff alleges: “On or about March 15, 2015 I was
finally seen by an eye doctor and prescribed bifocals in order to able to properly see. 	I
had to procure and buy prior to that my own reading glasses, just so I could read and
write.” 	Compl. at 11. 	An allegation that an individual requires reading glasses or
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17
bifocals does not reflect either a diagnosed condition or a medical need “so obvious that
even a lay person would easily recognize the necessity for a doctor’s attention.” 	Mata,
427 F.3d at 751; see Canell v. Multnomah Cnty., 141 F. Supp. 2d 1046, 1057 (D. Or.
2001) (“While severe eye injuries or legal blindness may constitute a serious medical
need, that is not the case with reading glasses.”). 	And even assuming Plaintiff’s vision
constituted a sufficiently serious medical need, Plaintiff nowhere identifies a Defendant
who knew of and disregarded this need or intentionally delayed Plaintiff’s access to
vision care. See Compl. at 11; Mata, 427 F.3d at 751; Gamble, 429 U.S. at 104-05. This
claim should be dismissed without prejudice pursuant to Federal Rule of Civil Procedure
12(b)(6).
With respect to his dental care, Plaintiff alleges that various beatings by other
prisoners and by staff
ha[ve] caused [Plaintiff] loose[], broken teeth and defendants have not
performed adequate and timely schedules, checkups nor followups. . . . .
I’ve kept ample supplies of toothpaste, and used to floss, until defendants
without warning or notification took all my floss and dental floss picks.
Neither do defendants offer or s[ell] Listerine products to encourage good
dentistry hygienic practices.
I’ve been misle[]d, when they pulled teeth, which their inadequate and
negligent acts and inactions caused me to lose. LCF person[n]el[] informed
me they would get me partials and dentures. 	That’s how I trusted them to
remove some of my teeth, only to be told, that I could not get any partials
or dentures because the ODOC did not have or want to pay the money for
them. Then, even the broken teeth they left me with, they simply would not
pull. It’s with great shame and embarrassment that I face each day, unable
to smile not caring to talk, for how I look. 	And my immediate concern is
that . . . the present condition of my teeth, plaque buildup, could cause
serious medical complications to include strokes, “heart attacks” and “even
death.”
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Compl. 	at 	10. 	Liberally 	construed, 	Plaintiff 	here 	contends 	that 	(1) 	he 	permitted
unidentified LCF personnel to pull some of his teeth, after having been promised he
would receive full or partial dentures; and (2) he has not received adequate dental care
and has been denied the use of dental floss, floss picks, and Listerine products. 	See
Compl. at 10.
As a threshold matter, Plaintiff offers only “collective allegations” and fails to
“make clear exactly who is alleged to have done what to whom,” as required to impose
personal liability under § 1983. 	Pahls, 718 F.3d at 1225 (internal quotation marks
omitted). 	Plaintiff therefore fails to allege any Defendant’s personal involvement or
participation in the alleged deprivation of dental care, as required to state a § 1983 claim.
Even if Plaintiff had adequately alleged a connection to any Defendant, Plaintiff’s
complaints of the denial of dentures and dental care do not rise to the level of a serious
medical need. First, a denial of dentures can constitute a failure to meet a serious medical
need when that allegation is made “in combination with certain other symptoms.”
Kidwell v. Okla. Dep’t of Corr., No. 13-CV-612, 2014 WL 2171647, at *11 (N.D. Okla.
May 23, 2014). The court in Kidwell listed the following examples of adequate denture-
related claims:
Federal courts have found that denial of dentures can rise to a
serious medical need in combination with certain other symptoms. 	See,
e.g., Farrow[ v. West, 320 F.3d 1235 (11th Cir. 2003)] (valid deliberate
indifference claim based on a fifteen-month delay in receiving dentures,
during which time the plaintiff suffered from pain, bleeding, swollen gums,
and periodic weight loss); Wynn v. Southward, 251 F.3d 588 (7th Cir. 2001)
(inmate had a serious medical need for dentures based on claims of an
inability to chew food, significantly impeding his ability to eat, and
suffering bleeding, headaches, and disfigurement); Hunt v. Dental Dept.,
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19
865 F.2d 198, 200 (9th Cir. 1989) (plaintiff’s allegations that his loss of
dentures caused him severe pain, bleeding gums, breaking teeth, and
inability to eat properly were sufficient to state a claim of deliberate
medical indifference under § 1983); Williams v. Mason, 210 F. App’x 389,
390 (5th Cir. 2006) (unpublished) (Court concluded plaintiff may have a
serious medical need for dentures after he complained he suffered cuts and
bleeding, difficulty chewing, digestive difficulties and was denied dentures
and a soft diet); Vazquez v. Dretke, 226 F. App’x 338 (5th Cir. 2007)
(unpublished) 	(plaintiff’s 	allegations 	of 	difficulty 	eating, 	headaches,
disfigurement, severe pain, bleeding in his mouth, and blood in his stool
because he had no dentures were “sufficient to state a claim for a serious
medical need for dentures”); Stone v. Peacock, 2014 WL 172256 (S.D. Ga.
Jan. 15, 2014) (unpublished) (denying qualified immunity where plaintiff
alleged prolonged delay in dentures, during which time he suffered severe
pain, infections, stomach problems and weight loss).
Id. (granting summary judgment to defendants on a denial-of-dentures claim where
plaintiff with one remaining tooth “repeatedly declined a soft diet,” complained only of
digestive issues, and record did not support allegations of deliberate indifference).
Here, Plaintiff does not allege facts that show a similarly serious medical need,
such as that he has requested and been denied a soft diet, is unable to receive adequate
nutrition, 	or 	otherwise 	is 	deprived 	of 	“the 	minimal 	civilized 	measure 	of 	life’s
necessities.” 	Hudson, 503 U.S. at 9 (internal quotation marks omitted). 	Although the
Complaint alleges that Plaintiff lost “over 50” pounds after being transferred to OSP,
Plaintiff does not allege that this weight loss was caused by his lack of dentures. 	See
Compl. at 6, 9. 	And Plaintiff’s speculative concerns about possible future health issues
caused by his dental condition are too vague and unsupported to establish either a
diagnosed or obvious serious medical need. See Mata, 427 F.3d at 751.
Second, as to dental care in general, Plaintiff again fails to connect his various
assertions to a serious medical need. 	Plaintiff offers only vague factual allegations
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20
supporting his conclusory assertion that “defendants have not performed adequate and
timely schedules, checkups nor followups.” 	See, e.g., Compl. at 10 (“Defendants in the
past came up with a novel defense that I . . . had refused or waived treatment. I can’t say
that I recollect such, but I do know that since 1997 I’ve been on scheduled appointment
lists, that most I never had or knew when they were scheduled or rescheduled to.”). And
Plaintiff’s allegations of denial of dental floss, dental floss picks, or Listerine amount
only to a difference in opinion with the treatment that has been prescribed, which is not
actionable under the Eighth Amendment. 	See Gamble, 429 U.S. at 107; Moore v. Neal,
No. 97-1420, 1998 WL 339713, at *2 (10th Cir. June 24, 1998) (“A prisoner who merely
disagrees 	with 	a 	diagnosis 	or 	a 	prescribed 	course 	of 	treatment 	does 	not 	state 	a
constitutional claim.”); Coppinger v. Townsend, 398 F.2d 392, 394 (10th Cir. 1968)
(“The prisoner’s right is to medical care—not to the type or scope of medical care which
he personally desires.”); cf. Moore, 1998 WL 339713, at *1 n.1 (noting the plaintiff’s
concession 	that 	“denial 	of 	dental 	floss, 	by 	itself, 	does 	not 	constitute 	an 	Eighth
Amendment violation”).6
For all of these reasons, Plaintiff cannot pursue this § 1983 claim against any
Defendant and also has failed to plausibly suggest that any Defendant has acted with the
requisite deliberate indifference to a serious medical need. Plaintiff’s Eighth Amendment
6 Plaintiff’s assertion that he was denied dental care and supplies is also undermined by
the Complaint’s description of treatment that he has received. 	See Compl. at 10; 	cf. id.
(“I’ve kept ample supplies of toothpaste . . . .”).
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21
claims based on medical, dental, and vision care should be dismissed without prejudice
pursuant to Federal Rule of Civil Procedure 12(b)(6).
C. Plaintiff’s Retaliatory Transfer Claim
Plaintiff next alleges that he was transferred away from LCF to his current facility,
OSP, as punishment for having reported and complained about the sexual and physical
assault of October 25, 2013. See Compl. at 3, 4, 6 (citing Prison Rape Elimination Act of
2003, 42 U.S.C. §§ 15601-15609). 	Plaintiff alleges that Defendants Rios, Caldwell,
Gibson, Phume, Roody, DeAlmenau, Sessurs, Smith, Alston, Ellington, and Calhoun
“individually and in concert contributed to a grand scheme and conspiracy that involved”
Defendants Johns and Patton “in a fake and bogus allegation that I had killed an inmate,
caused others to overdose and even raped another inmate.” 	Compl. at 	6. 	According to
Plaintiff, these Defendants “masterminded” this “elaborate plot” to effectuate Plaintiff’s
removal from the Protective Custody Unit at LCF for placement into the general
population at the maximum-security facility OSP. 	See id. 	Plaintiff alleges that these
Defendants knew that at OSP “attempts had been made [o]n my life and where staff
carries an old grudge still.” Id.; see also id. at 5 (alleging that attempts were made to kill
Plaintiff when he was housed at OSP at some date between 1986 and 1996). 	Plaintiff
alleges that since he’s been at OSP he has lost over 50 pounds, has had property and his
mail taken and destroyed against his will by prison staff, and now is in mortal danger.
See id. at 6.
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22
Liberally construed, Plaintiff raises three separate claims regarding his transfer
from LCF to OSP: (1) a conspiracy claim under 42 U.S.C. § 1985(3); (2) an Eighth
Amendment failure-to-protect claim; and (3) a First Amendment retaliation claim.
1. 	Conspiracy Claim
“The essential elements of a § 1985(3) claim are: (1) a conspiracy; (2) to deprive
plaintiff of equal protection or equal privileges and immunities; (3) an act in furtherance
of the conspiracy; and (4) an injury or deprivation resulting therefrom.” 	Tilton v.
Richardson, 6 F.3d 683, 686 (10th Cir. 1993) (citing Griffin v. Breckenridge, 403 U.S.
88, 102-03 (1971)); see also 42 U.S.C. § 1985(3) (providing a federal cause of action for
conspiracy to deprive a person of protected rights). To plausibly state a conspiracy claim
upon which relief may be granted, a plaintiff must “allege specific facts showing
agreement and concerted action among” the defendants. 	Hunt v. Bennett, 17 F.3d 1263,
1266 (10th Cir. 1994). 	“Conclusory allegations of conspiracy are insufficient to state a
valid § 1983 claim.” Id. (internal quotation marks omitted).
Plaintiff’s Complaint alleges that Defendants “agreed” and acted “in concert” to
have Plaintiff transferred to OSP and that Plaintiff was in fact transferred from LCF to
OSP. 	While these statements 	conclude 	there was an improper agreement among
Defendants, Plaintiff has alleged no specific facts to actually show any such agreement,
as required to establish that a conspiracy existed. Further, except possibly as a retaliatory
act, as discussed below, the action allegedly taken pursuant to such an agreement—the
transfer of Plaintiff to another facility—does not constitute a deprivation of Plaintiff’s
rights. Hunt, 17 F.3d at 1266; see also Tilton, 6 F.3d at 685-87; Dixon v. City of Lawton,
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23
898 F.2d 1443, 1449 (10th Cir. 1990) (“[T]o recover under a § 1983 conspiracy theory, a
plaintiff must plead and prove not only a conspiracy, but also an actual deprivation of
rights[.]”).
Accordingly, Plaintiff’s conspiracy claim should be dismissed without prejudice in
its entirety for failure to state a claim upon which relief may be granted. See Hunt, 17
F.3d at 1266; Tilton, 6 F.3d at 685-87; see, e.g., Kirby v. Dall. Cnty. Adult Probation
Dep’t, 359 F. App’x 27, 33-34 (10th Cir. 2009) (affirming dismissal of conspiracy claim
against unknown employees of detention center under Rule 12(b)(6) and explaining that
“the liberal pleading standard under the federal rules ‘does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions’” (quoting Iqbal, 556
U.S. at 678-79)).
2. 	Eighth Amendment Failure-to-Protect Claim
In addition to a duty to provide adequate medical care, prison officials “must take
reasonable measures to guarantee the safety of the inmates” and have a duty “to protect
prisoners from violence at the hands of other prisoners.” 	Farmer, 511 U.S. at 832, 833
(internal quotation marks omitted). 	“A prison official’s ‘deliberate indifference’ to a
substantial risk of serious harm to an inmate violates the Eighth Amendment.” Id. at 828.
“Therefore, in 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).
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24
“The subjective component of the deliberate indifference test requires that, before
liability can be imposed, a prison official must both be 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.” 	Verdecia v. Adams, 327 F.3d 1171, 1175 (10th Cir. 2003) (internal
quotation marks omitted).
Plaintiff’s allegations fail to meet both the objective and subjective components of
a failure-to-protect claim. According to his pleading, since being at OSP Plaintiff has lost
weight, had unspecified property and mail destroyed, been denied access to the courts in
an unidentified manner, and now has his life “in danger.” 	See Compl. at 6, 9. 	Plaintiff
does not connect his weight loss with any action taken by an OSP inmate or staff
member, or any OSP-specific conditions, and therefore does not establish that his
conditions of confinement actually “pos[e] a substantial risk of serious harm,” thereby
implicating the Cruel and Unusual Punishment Clause of the Eighth Amendment. 	See
Farmer, 511 U.S. at 834; Benefield, 241 F.3d at 1271. 	Plaintiff’s vague, nonspecific
allegations regarding his property, mail, and court access are insufficient to plausibly
demonstrate “an excessive risk” to his “health or safety” that was disregarded by any
Defendant. 	See Farmer, 511 U.S. at 837; Benefield, 241 F.3d at 1271. 	And Plaintiff’s
bare statement that his life is in danger, even coupled with an assertion that threats were
made against him at OSP decades ago, likewise does 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
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failure-to-protect claim therefore should be dismissed without prejudice for failure to
state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6).
3. 	First Amendment Retaliation Claim
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 constitutional 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 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,
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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)).
With respect to the first element of this claim, Plaintiff alleges that he engaged in
the activity of reporting and complaining about “the PREA sexual and physical assault
and battery staff did to me [o]n October 25, 2013.” 	Compl. at 3. 	Plaintiff does not
specify what he reported, or to whom, or whether he complained internally, externally, or
both, but the Tenth Circuit has indicated that raising even internal complaints can be an
exercise of constitutionally protected conduct. 	See Gee, 627 F.3d at 1189; Fogle v.
Pierson, 435 F.3d 1252, 1263-64 (10th Cir. 2006). 	As to the second element, Plaintiff
alleges that he was transferred to OSP at some unspecified date after January 9, 2014, but
prior to March 25, 2015. 	See Compl. at 1, 6, 17; Gee, 627 F.3d at 1189 (holding that
allegation of transfer to an out-of-state supermax prison described a chilling responsive
action). Finally, Plaintiff specifically alleges that he is only minimum-security status, but
he was sent to the maximum-security OSP facility, and that this transfer was effected to
“punish[] me for reporting the PREA sexual and physical assault and battery” at LCF.
Compl. at 	3, 6; see Gee, 627 F.3d at 1189 (finding the third element of a retaliatory
transfer claim was met where the plaintiff alleged “that Defendants were aware of his
protected activity, that his protected activity complained of Defendants’ actions, and that
the transfer was in close temporal proximity to the protected activity”).
GEO Defendants, while reciting the proper standard for evaluating the viability of
a First Amendment retaliation claim, do not specifically dispute that Plaintiff has pleaded
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such a claim. 	See GEO Defs.’ Mot. at 11-12 (citing Peterson, 149 F.3d 1140). 	Nor do
GEO 	Defendants 	contend 	that 	Plaintiff 	has 	failed 	to 	adequately 	allege 	personal
involvement or participation of those Defendants identified in connection with this claim
in the Complaint, see id. Instead, GEO Defendants inexplicably conflate Plaintiff’s First
Amendment claim with his Eighth Amendment failure-to-protect claim, requesting that
his 	retaliatory 	transfer 	claim 	be 	dismissed 	because 	Plaintiff 	fails 	to 	“meet 	the
requirements of the deliberate indifference test” that is applied on claims for violation of
the Eighth Amendment. See id. This request should be denied.
As 	outlined 	above, 	Plaintiff 	has 	plausibly 	alleged 	an 	independent 	First
Amendment retaliation claim, and Plaintiff is not required meet such Eighth Amendment
requirements on this claim. “While a prisoner enjoys no constitutional right to remain in
a particular institution and generally is not entitled to due process protections prior to
such a transfer, prison officials do not have the discretion to punish an inmate for
exercising his first amendment rights by transferring him to a different institution.”
Frazier v. Dubois, 922 F.2d 560, 561-62 (10th Cir. 1990) (alteration and internal
quotation marks omitted); accord Fogle, 435 F.3d at 1263-64. 	Plaintiff’s allegations
regarding his reporting of the October 25, 2013 assault lack detail but are sufficient to
plausibly state that complaints were made. 	See Fogle, 435 F.3d at 1264. 	And his
remaining allegations “may be improbable, but they are not implausible.” Gee, 627 F.3d
at 1189. Having reviewed these allegations pursuant to the Court’s screening obligation,
Plaintiff has adequately alleged all the elements of a First Amendment retaliatory transfer
claim against Defendants Rios, Caldwell, Gibson, Phume, Roody, DeAlmenau, Sessurs,
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Smith, Alston, Ellington, and Calhoun. 	See 28 U.S.C. § 1915(e)(2)(B)(ii); 42 U.S.C. §
1997e(c)(1). Accordingly, this claim should not be dismissed as to those Defendants.
Defendant Patton separately seeks dismissal of this claim on the basis that Plaintiff
fails to allege this defendant’s personal involvement or participation in the complained-of
transfer. 	See Def. Patton’s Mot. at 9-10. 	Defendant Patton’s argument is well-taken, as
Plaintiff merely alleges that Defendant Patton was “involved” in some way with the
transfer that was undertaken by other, identified Defendants. 	Compl. at 6. 	This claim
should be dismissed without prejudice as to Defendant Patton pursuant to Federal Rule of
Civil Procedure 12(b)(6).
Finally, because Plaintiff’s claim fails to reasonably implicate Defendants GEO,
Taime, Rauche, Wiltshire, Benoit, Hill, Cation, Cantwell, or Johns, this claim also should
be dismissed without prejudice as to those Defendants for failure to state a claim upon
which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); 42 U.S.C. § 1997e(c)(1).
D. Plaintiff’s First Amendment Claim: Refusal to Answer Grievances
Plaintiff alleges that Defendants have violated the First Amendment because they
have “stalled, withheld or refused to answer” grievances. 	Compl. at 8.7 As recognized
by the Tenth Circuit, however,
7 The Complaint states that this claim is “continued in page 3,d,” but no such page
appears in the document. 	See Compl. at 8. 	The undersigned has reviewed the original
paper file for this case and has verified that every page Plaintiff submitted for filing was
scanned in by the Clerk for the U.S. District Court for the Eastern District of Oklahoma
and now appears in the Complaint (docketed in this Court at ECF No. 1).
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there is no independent constitutional right to state administrative grievance
procedures. 	Nor does the state’s voluntary provision of an administrative
grievance process create a liberty interest in that process. See Bingham v.
Thomas, 654 F.3d 1171, 1177-78 (11th Cir. 2011) (observing that inmates
have 	no 	constitutionally-protected 	liberty 	interest 	in 	access 	to 	prison
grievance procedure); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993)
(per curiam) (“A prison grievance procedure is a procedural right only, it
does not confer any substantive right upon the inmates. Hence, it does not
give rise to a protected liberty interest . . . .” (quotation and brackets
omitted)). 	Instead, 	“[w]hen 	the 	claim 	underlying 	the 	administrative
grievance involves a constitutional right, 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.” 	Flick v.
Alba, 932 F.2d 728, 729 (8th Cir. 1991) (per curiam).
Boyd v. Werholtz, 443 F. App’x 331, 332 (10th Cir. 2011); see also Brewer v. Gilroy, 625
F. App’x 827, 838 (10th Cir. 2015) (holding that the plaintiff had “no independent due
process rights” arising from prison employees’ disposition of internal grievances).
Plaintiff’s claim that Defendants have stalled or refused to answer administrative
grievances therefore fails to allege a violation of the First Amendment (or the Fourteenth
Amendment) upon which relief can be granted. 	In addition, Plaintiff fails to provide
sufficient factual support for this claim and does not identify any Defendant personally
involved in the allegedly improper conduct. 	This claim should be dismissed without
prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6).
E. Plaintiff’s Claim Regarding Medical Payments
Plaintiff asserts that when he was incarcerated in the past, he had no prison
payment requirements. 	Compl. at 11. 	Plaintiff thus challenges: (i) “the retroactive
application of any new law or policies that may require me to pay for any medical or
healthcare, for I should be grandfathered under the laws and policies in effect in 1994
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when I came into the prison system”; (ii) the “app[arent]” “‘double billing’ practice, for
taxpayers are paying a daily fee for each incarcerated prisoner that includes housing,
food, and medical.” Compl. at 11.
Plaintiff’s complaint as to a post-1994 imposition of an administrative copay
cannot reasonably allege a constitutional violation. 	Plaintiff appears to argue that the
copay requirement is a violation of the Ex Post Facto Clause, U.S. Const. art. I, § 10, cl.
1.
Article I of the Constitution provides that the States shall not pass ex
post facto laws. 	The ex post facto prohibition forbids the enactment of a
law imposing additional punishment on that prescribed at the time the
offense was committed. 	Weaver v. Graham, 450 U.S. 24, 28 (1981). 	In
order for a law to be ex post facto, (1) it must be retrospective, applying to
events 	occurring 	before 	enactment, 	and 	(2) 	it 	must 	disadvantage 	the
prisoner. Id. at 29. The law, however, need not impair a vested right.
Arnold v. Cody, 951 F.2d 280, 281 (10th Cir. 1991) (citation omitted). “Whether a state
law is properly characterized as falling under the Ex Post Facto Clause . . . is a federal
question we determine for ourselves.” Carmell v. Texas, 529 U.S. 513, 544 n.31 (2000).
Assuming the truth of Plaintiff’s allegations regarding a post-1994 prison or state
administrative policy, Plaintiff has suffered from no retroactive application of criminal
law that implicates the Ex Post Facto Clause. 	In affirming the dismissal of a nearly
identical claim, the Tenth Circuit explained that the “‘prohibition on ex post facto laws
applies only to penal statutes which disadvantage the offender affected by them.’”
Tijerina v. Patterson, 507 F. App’x 807, 809 (10th Cir. 2013) (alteration omitted)
(quoting Collins v. Youngblood, 497 U.S. 37, 41 (1990)). “The Clause prohibits laws that
make a previously innocent act criminal, increase the punishment for a crime after its
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commission, or deprive a defendant of a defense that was available at the time a crime
was committed.” Id. The Tenth Circuit agreed with the district court that prison medical
copays imposed after the plaintiff already was convicted “are not attached to [the
plaintiff’s] criminal conviction but instead are charged for medical services rendered.”
Id. The appellate court held that the challenged medical copay statute “was not intended
to punish” and its requirements did not “transform the law into punishment.” 	Id.
Applying this persuasive reasoning here, the medical copay requirement of which
Plaintiff complains neither “imposes . . . punishment” nor “aggravate[s]” “the conditions
of his punishment,” and “the Ex Post Facto Clause is not implicated.” 	Id. (internal
quotation marks omitted).
Plaintiff’s assertions that inmates are charged for medical services do not plausibly
support an Eighth Amendment claim, because “he has not alleged that he had any serious
medical need that went untreated” due to this copay requirement. 	Canell, 141 F. Supp.
2d at 1057; cf. Cannon v. Mason, 340 F. App’x 495, 499 (10th Cir. 2009) (“The fact the
prison’s policy requires inmates with adequate resources to pay a small cost for their
health care is not unconstitutional.”). 	And Plaintiff is not entitled to seek relief for an
injury allegedly suffered by the taxpayers of Oklahoma by way of his personal 42 U.S.C.
§ 1983 lawsuit. See Swoboda v. Dubach, 992 F.2d 286, 289-90 (10th Cir. 1993).
This claim should be dismissed without prejudice pursuant to Federal Rule of
Civil Procedure 12(b)(6).
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III. 	Plaintiff’s Request for Injunctive Relief
In his Complaint, Plaintiff states that he is seeking a temporary restraining order
and preliminary injunctive relief. See Compl. at 6, 14; see also Pl.’s Resp. to Def. Patton
Mot. at 9. 	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
Defendants have had both notice and an opportunity to respond to Plaintiff’s pleading,
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. 	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
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public interest. 	Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). A preliminary
injunction is 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).
Here, Plaintiff has not even specified what extraordinary relief he seeks to receive
while this lawsuit is pending and therefore has not alleged how he would suffer
irreparable harm absent that relief. 	Nor has Plaintiff, by merely asking for injunctive
relief, shown that the requested injunction is not adverse to the public interest—the
relevant public interest here being deference to prison officials’ proper administration of
their prison facilities. 	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 v. Jones, 494 F. App’x 906, 911-12 (10th Cir. 2012). 	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). Assuming the relief Plaintiff seeks includes transfer
away from OSP, 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”).
For all of these reasons, Plaintiff’s Motion for a Preliminary Injunction should be
denied. See, e.g., Johnson v. Saffle, No. 99-6148, 2000 WL 130726, at *2 (10th Cir. Feb.
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4, 2000) (affirming denial of temporary restraining order in which “the relief requested
was not consistent with the public interest”).
RECOMMENDATION
For the reasons outlined above, the undersigned recommends that Defendant
Patton’s Motion to Dismiss (Doc. No. 49) be granted in its entirety and that GEO
Defendants’ Motion to Dismiss (Doc. No. 68) be granted in part. Specifically:
(i) 	Plaintiff’s 	42 	U.S.C. 	§ 	1983 	claims 	for 	money 	damages 	against
Defendant Patton in his official capacity should be dismissed pursuant
to the Eleventh Amendment;
(ii) 	All claims against Defendants Patton, GEO, Benoit, Cation, Cantwell,
and Johns should be dismissed for failure to state a claim upon which
relief can be granted;
(iii) 	Plaintiff’s Eighth Amendment claims based upon inadequate medical,
dental, and vision care and upon a failure to protect should be dismissed
for failure to state a claim upon which relief can be granted;
(iv) 	Plaintiff’s First Amendment claim based upon Defendants’ failure to
answer grievances should be dismissed for failure to state a claim upon
which relief can be granted;
(v) 	Plaintiff’s conspiracy claim and medical-copayments claim should be
dismissed for failure to state a claim upon which relief can be granted;
(vi) 	Plaintiff’s Eighth Amendment excessive-force claim should not be
dismissed as to Defendants Taime, Rauche, Wiltshire, Hill, and Roody;
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(vii) 	Plaintiff’s First Amendment retaliatory transfer claim should not be
dismissed as to Defendants Rios, Caldwell, Gibson, Phume, Roody,
DeAlmenau, Sessurs, Smith, Alston, Ellington, and Calhoun; and
(viii) 	Plaintiff’s request for preliminary injunctive relief should be denied.
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to file an objection to this Report and
Recommendation 	with 	the 	Clerk 	of 	this 	Court 	on 	or 	before 	March 	28, 2016, 	in
accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. The parties are
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.
ENTERED this 10th day of March, 2016.
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