Green v. Does et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
MARYLIN MONAE GREEN, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-25-995-R
)
JOHN/JANE DOES, et al., 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
Plaintiff Marylin Monae Green, proceeding pro se and in forma pauperis, seeks civil
rights relief under 42 U.S.C. § 1983, claiming violations of her federal constitutional rights
while in custody of the Oklahoma Department of Corrections (“ODOC”) and incarcerated
at the Oklahoma State Penitentiary (“OSP”). Doc. 1. United States District Judge David
L. Russell referred this matter to the undersigned Magistrate Judge for initial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B)-(C). After an initial review pursuant to 28 U.S.C.
§§ 1915, 1915(A), the undersigned recommends that the 	Court 	dismiss Plaintiff’s
Complaint without prejudice.
I. 	Relevant Background and Plaintiff’s Suit
Plaintiff is an ODOC inmate who has recently been housed at three different state
facilities. In early May 2025, Plaintiff entered ODOC custody at the Lexington Assessment
and Reception Center (“LARC”) in Lexington, Oklahoma, and was soon transferred to the
Oklahoma State Penitentiary (“OSP”) in McAlester, Oklahoma. 	Compl. at 14. Later, in
November 2025, Plaintiff was transferred from OSP to Allen Gamble Correctional Center
in Holdenville, Oklahoma. Doc. 12 (advising Court of change of address). 	She remains
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detained there. 	See ODOC Offender Lookup, at https://okoffender.doc.ok.gov/ (OK
DOC# 744047) (last accessed Feb. 18, 2026).
Plaintiff brings a total of four claims against ten defendants. 	The undersigned
liberally construes Plaintiff’s Complaint to allege the following claims:
• 	Claim 	One: 	Plaintiff 	alleges 	ODOC 	policy 	prevents 	her 	from
communicating 	with 	her 	spouse, 	who 	is 	another 	OSP 	inmate;1
prevents her from getting married; and prevents Defendants from
recognizing her common law marriage. 	Compl. at 13-20; id. at 15
(alleging she is “common law married” and has previously “held each
out as spouses (husband and transgender woman (wife))”. 	Plaintiff
also 	alleges 	retaliation 	for 	filing 	prison 	grievances 	requesting
marriage recognition. Id. at 13. Plaintiff brings these claims against
Defendants 	(1) 	John/Janes 	Does 	at 	LARC 	Records, 	(2) 	David
Louthan, Warden at LARC, (3) John Doe Officer at OSP, and (4)
Amber Robinson, Deputy Warden at OSP, in their individual and
official capacities. Id. at 13, 19-20.
• 	Claim Two: Plaintiff alleges Defendant A. Frye, an ODOC trust fund
official, prevented Plaintiff’s access to courts.2 Id. at 21-23. Plaintiff
also alleges retaliation for her seeking access to the courts. Id. at 22-
23. 	Plaintiff brings these claims against A. Frye in their individual
and official capacities. Id. at 23.
• 	Claim Three: Plaintiff alleges medical deliberate indifference and
retaliation 	for 	her 	filing 	sick 	calls, 	medical 	Requests 	to 	Staff
(“RTSs”), and grievances. Id. at 25-28. Plaintiff brings these claims
against Defendants (1) Cheri Atkinson, an ODOC medical services
manager, and (2) Jarrod Roberts, an ODOC correctional health service
administrator at OSP, in their individual and official capacities. Id. at
9-10, 28.
• 	Claim Four: Plaintiff alleges her conditions of confinement violate her
Eighth Amendment rights. 	Id. at 29-37. She also alleges retaliation
1 Plaintiff is a male-to-female transgender woman.
2 Plaintiff refers to Defendant Frye in different spellings throughout the Complaint. 	The
undersigned uses “Frye” because that spelling is on the Requests to Staff that Plaintiff
attaches to the Complaint. Doc. 1-1 at 4; Doc. 1-2 at 3.
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by Defendants for her filing prison grievances related to her alleged
denial of access to adequate conditions of confinement. 	Id. at 29.
Plaintiff brings these claims against Defendants (1) Amber Robinson,
(2) Sherry Mooney, an OSP unit manager, (3) John/Jane Does
Directors of the ODOC System Canteen Board, and (4) Steven Harpe,
Director of ODOC, in their official capacities. Id. at 29, 37.
• 	Claims One and Four: Plaintiff alleges Defendant John Doe Officer at
OSP (1) threw away her RTSs and grievances, and (2) threatened to
poison her in violation of the Eighth Amendment. 	Id. at 16, 33.
Plaintiff brings these claims against Defendant John Doe Officer at
OSP in his individual and official capacities. Id. at 20, 37.
Plaintiff clarifies in her Prayers for Relief for each Claim that she only seeks
prospective injunctive relief against Defendants in their official capacities and monetary
damages against Defendants in their individual capacities. See id. at 20 (“All prospective
injunctive relief/declaratory is in official capacity.” (citation modified)).
On October 14, 2025, Plaintiff filed a Notice for Three Judge Court, which the
undersigned construes as a Motion for Preliminary Injunction, Motion for Permanent
Injunction, and Motion for Hearing. Doc. 10. The Notice reiterates requests made in her
Complaint. 	See Compl. at 36-37. 	On February 2, 2026, Plaintiff filed a Motion for
Preliminary Injunction and Temporary Restraining Order. 	Doc. 18. 	This Motion again
reiterates the same requests made in the Complaint.
II. 	Screening
When a plaintiff proceeds in forma pauperis, the Court has a duty to screen the
complaint and dismiss any part that is frivolous or malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief against a defendant immune from
such relief. 28 U.S.C. § 1915(e)(2)(B). The Court has the same duty when a prisoner seeks
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relief against a governmental entity or an officer or employee of a governmental entity. 28
U.S.C. § 1915A(a)-(b). As part of this obligation, the Court may consider whether venue
is proper sua sponte “when the defense is obvious from the face of the complaint and no
further factual record is required to be developed.” 	Trujillo v. Williams, 465 F.3d 1210,
1217 (10th Cir. 2006) (citation modified).
“To state a claim under § 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). In evaluating whether a complaint adequately states a claim, the
Court must “accept all well-pleaded allegations as true and construe them in the light most
favorable to the plaintiff.” Requena v. Roberts, 893 F.3d 1195, 1204-05 (10th Cir. 2018)
(citation modified) (discussing standard of review for failure to state a claim under
§ 1915A(b)(1)). “A complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citation modified) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id.
“A pro se litigant’s pleadings are to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). The Court will not, however, provide a plaintiff with arguments or act as
her advocate. Id.
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III. 	Analysis
A. 	Mootness
“Past exposure to illegal conduct does not in itself show a present case or
controversy regarding injunctive relief . . . if unaccompanied by any continuing, present
adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974). “When a prisoner files
suit against prison officials who work in the institution in which he is incarcerated, seeking
declaratory and injunctive relief on the basis of alleged wrongful conduct by those officials,
and then that prisoner is subsequently transferred to another prison or released from the
prison system, courts are presented with a question of possible mootness.” Jordan v. Sosa,
654 F.3d 1012, 1027 (10th Cir. 2011). 	“Where the prisoner’s claims for declaratory or
injunctive relief relate solely to the conditions of confinement at the penal institution at
which the prisoner is no longer incarcerated, courts have concluded that they are unable to
provide the prisoner with effective relief.” 	Id. 	“Consequently, courts have routinely
dismissed such penitentiary-specific conditions-of-confinement claims as moot.” Id.
In Claim One, Plaintiff seeks various forms of injunctive relief3 against Defendants
John/Jane Does of LARC, Louthan, Robinson, and John Doe Officer at OSP, in their
official capacities, including requiring Defendants not to harm or murder her, to recognize
3 Under Eleventh Amendment immunity, “a State cannot be sued directly in its own name
regardless of the relief sought.” 	Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985).
Eleventh Amendment immunity “is not absolute” though. 	Muscogee (Creek) Nation v.
Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012). 	A suit against state officials may proceed
under the exception in Ex parte Young, 209 U.S. 123 (1908). 	A plaintiff under Ex parte
Young 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, 669 F.3d at 1166.
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her marriage to another inmate at OSP, to recognize her right to marry another inmate at
OSP, and to recognize her right to be free from retaliation for filing grievances related to
her purported marriage. Compl. at 19-20. In Claim Three, Plaintiff seeks injunctive relief
against Defendants Atkinson and Roberts to “cease the behavior of the defendants” for
alleged retaliation at OSP. 	Id. at 28. 	In Claim Four, Plaintiff seeks numerous forms of
injunctive relief relating to conditions of her confinement at OSP against Defendants
Robinson, Mooney, Harpe, and John/Jane Does of System Canteen Board, including a
convening a three-judge panel pursuant to 18 U.S.C. § 3626 and a “Prisoner Release
Order.” Compl. at 37.
The Court should dismiss these claims for injunctive relief as moot because Plaintiff
is no longer in custody at either LARC or OSP. 	She is now in custody at Allen Gamble
Correctional Center in Holdenville, Oklahoma. Because Plaintiff is no longer confined at
LARC or OSP, her jail-specific conditions-of-confinement claims seeking prospective
injunctive relief against Defendants John/Jane Does of LARC, Louthan, Robinson, John
Doe Officer at OSP, Atkinson, Roberts, Mooney, Harpe, and John/Jane Does of System
Canteen Board in their official capacities are moot. See, e.g., Davis v. GEO Grp. Corrs.,
Inc., 	No. 	CIV-16-462-HE, 	2018 	WL 	1406588, 	at 	*2 	(W.D. 	Okla. 	Mar. 	7, 	2018)
(recommending dismissal of plaintiff’s claim for injunctive relief “because plaintiff is no
longer housed in a facility owned and operated by [defendants], . . . these defendants cannot
effect the injunctive relief he seeks, and his requests for injunctive relief are moot” (citation
modified)) (R&R), adopted, 2018 WL 1404404 (W.D. Okla. Mar. 20, 2018).
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Thus, Plaintiff’s claims in Claims One, Three, and Four for injunctive relief against
these Defendants in their official capacities should be dismissed without prejudice as moot.
See Brown v. Buhman, 822 F.3d 1151, 1165, 1179 (10th Cir. 2016) (noting that “mootness
deprives federal courts of jurisdiction” and “dismissal for lack of jurisdiction” “must be
without prejudice” (citation modified)). 	Specifically, the following claims should be
dismissed as moot:
• 	Claim 	One 	for 	prospective 	injunctive 	relief 	against 	Defendants
John/Jane Does of LARC, Louthan, Robinson, and John Doe Officer
at OSP, in their official capacities;
• 	Claim Three for prospective injunctive relief against Defendants
Atkinson and Roberts in their official capacities; and
• 	Claim Four for prospective injunctive relief against Defendants
Robinson, 	Mooney, 	Harpe, 	and 	John/Jane 	Does 	of 	the 	System
Canteen Board in their official capacities.
B. 	Merits
In addition to mootness, several of Plaintiff’s claims can also be dismissed on their
merits. With the merits analysis, it is important to note where Plaintiff alleges the conduct
occurred—either (1) in the Western District of Oklahoma, where this Court is the
appropriate venue, or (2) at OSP in McAlester, Oklahoma. “Oklahoma is divided into three
judicial districts”—the Northern, Eastern, and Western Districts of Oklahoma. 28 U.S.C.
§ 116. 	OSP is in McAlester, Oklahoma, in Pittsburg County,4 and Pittsburg County is
located within the judicial district for the Eastern District of Oklahoma. Id. § 116(b).
4 The undersigned takes judicial notice of the location of OSP. See Fed. R. Evid. 201(b);
United States v. Piggie, 622 F.2d 486, 488 (10th Cir. 1980) (“Geography has long been
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The undersigned liberally construes the Complaint to allege conduct by these
Defendants in the Western District of Oklahoma:
• 	John/Jane Does at the LARC;
• 	David Louthan, Warden at LARC;
• 	A. Frye, an ODOC trust fund official in Oklahoma City;
• 	John/Jane Does Directors of the ODOC Systems Canteen Board in
Oklahoma City; and
• 	Steven Harpe, ODOC Director in Oklahoma City.
Compl. at 8-9, 11. Further, the undersigned understands Plaintiff to allege conduct by these
Defendants occurred at OSP, within the Eastern District of Oklahoma:
• 	Amber Robinson, Deputy Warden at OSP;
• 	John Doe Officer at OSP;
• 	Sherry Mooney, an OSP unit manager;
• 	Cheri Atkinson, an ODOC medical services manager; and
• 	Jarrod Roberts, a correctional health services administrator who spoke
to Plaintiff at OSP.
Id. at 10-11, 27-28. 	In Section III(C), the undersigned discusses improper venue and
recommended disposition of claims alleging conduct in the Eastern District of Oklahoma.
1. 	Claim One: Claims against Defendants Louthan and John/Jane
Does of LARC in their official and individual capacities for failure
to recognize Plaintiff’s marriage to another inmate.
As to 	Plaintiff’s 	allegations 	in 	Claim 	One against Defendants 	Louthan and
John/Jane Does of LARC in both their official and individual capacities, the Court should
dismiss this portion of Plaintiff’s claim on the merits for failure to state a claim.
peculiarly susceptible to judicial notice for the obvious reason that geographic locations
are facts which are not generally controversial.”).
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The right to marry is fundamental, though “subject to substantial restrictions as a
result of incarceration.” 	Turner v. Safley, 482 U.S. 78, 94 (1987). 	Further, a prisoner’s
right to incoming and outgoing mail is protected by the First Amendment. Gee v. Pacheco,
627 F.3d 1178, 1188 (10th Cir. 2010). 	A jail regulation relating to inmate marriage or
correspondence “is valid if it is reasonably related to legitimate penological interests.”
Turner, 482 U.S. at 89 (applying a four-factor test to determine whether a regulation is
valid).
More generally, 	a plaintiff must allege sufficient facts to 	demonstrate each
defendant personally participated in the alleged violation, Bennett v. Passic, 545 F.2d 1260,
1262-63 	(10th 	Cir. 	1976), 	by 	“identify[ing] 	specific 	actions 	taken 	by 	particular
defendants,” Pahls v. Thomas, 718 F.3d 1210, 1226 (10th Cir. 2013) (citation modified).
A defendant must have had “direct personal responsibility for the claimed deprivation of a
constitutional right.” Trujillo, 465 F.3d at 1227. Further, “it is well settled that a mere lack
of due care on the part of an official does not rise to the level of a constitutional violation.”
Teaster v. City of Glenpool, Okla., No. 11-CV-257, 2011 WL 2217480, at *3 (N.D. Okla.
June 7, 2011) (citation modified) (citing Daniels v. Williams, 474 U.S. 327, 330-33
(1986)); see also Douglas v. Dixon, No. 19-CV-894, 2021 WL 4597077, at *3 (S.D. Miss.
Oct. 6, 2021) (“Individuals do not have a constitutional right to live a life free from clerical
errors.”).
Plaintiff fails to allege any specific facts against either Defendants Louthan or
John/Jane Does of LARC regarding a failure to recognize her purported marriage to another
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OSP 	inmate, 	allowing 	her 	to 	get 	married 	to 	another 	inmate,5 or 	restricting 	her
communications with her purported husband. 	Plaintiff alleges that on May 6, 2025, she
was subject to a “New arrival interview,” she listed on her “new arrival packet” that her
“spouse” or “common law husband” was “Landon Chase Patterson (AKA Landen Heider
#589465),” and this form was submitted to the LARC Records staff. 	Compl. at 14, 23.
However, 	Plaintiff 	alleges 	that 	when 	she 	was 	transferred 	to 	OSP 	and 	sought 	to
communicate with her purported husband, there was no spouse information listed. 	Id. at
14. 	Plaintiff further states that her case manager later confirmed that the system was
updated but the names were spelled incorrectly. Id.
Exhibits attached to Plaintiff’s Complaint, however, show that on June 6, 2025,
“Landen C. Patterson” is listed as her “Common Law Spouse,” Doc. 1-1 at 3, and on June
16, 2025, “Landon C. Patterson” is listed as her “Common Law Spouse,” Doc. 1-1 at 6. At
most, Plaintiff’s allegations as to Defendants John/Jane Does of LARC involve a clerical
error that was subsequently fixed; Plaintiff does not allege any specific actions by these
Defendants related to a constitutional violation of a failure to recognize her purported
marriage. 	Further, the only allegation against Defendant Louthan was that Plaintiff
submitted a grievance to him. 	Compl. at 14. 	This does not “identify specific actions,”
Pahls, 718 F.3d at 1226, taken by Defendant Louthan against Plaintiff’s right to a
5 It is unclear whether Plaintiff specifically challenges the prison officials’ failure to
recognize an existing common law marriage or whether she alleges she has the right to get
married to another inmate. See Compl. at 14-18. Either way, Plaintiff fails to state a claim
against these Defendants.
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recognition of marriage. Thus, Plaintiff fails to state a claim against Defendants John/Jane
Does of LARC or Louthan under § 1983 in Count One, and those claims should be
dismissed without prejudice.
2. 	Claim Two: Claim against Defendant Frye in their individual and
official capacity for preventing access to courts.
In Claim Two, Plaintiff alleges Defendant A. Frye prevented her access to the
courts. Compl. at 21-23. To state a valid claim for denial of access to the courts, “a prisoner
must demonstrate actual injury from interference with his access to the courts—that is, that
the prisoner was frustrated or impeded in his efforts to pursue a nonfrivolous legal claim
concerning his conviction or his conditions of confinement.” 	Gee, 627 F.3d at 1191.
Liberally construed, Plaintiff alleges Defendant Frye interfered with her access to the
courts because Defendant Frye, a trust fund official, used money deposited in Plaintiff’s
account in late May 2025 to pay down her filing fee obligations, when Plaintiff intended
to use that money to obtain copies of the record from the Eastern District of Oklahoma to
assist with her Tenth Circuit appeal. Compl. at 21; Doc. 1-2 at 3-8. She fails to identify,
however, how Defendant Frye’s conduct frustrated or impeded her efforts to pursue a
nonfrivolous claim about her conditions of confinement or her conviction.
First, the case underlying Plaintiff’s appeal had already been dismissed in the
Eastern District of Oklahoma in March 2025 for failure to state a claim, well before
Plaintiff’s complaints about Defendant Frye’s handling of funds in May 2025. See Marylin
Monae Porter v. Joel McCurdy, et al., No. CIV-23-058-RAW-GLJ, Order, Doc. 152 (E.D.
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Okla. Mar. 13, 2025).6 Second, the only injury Plaintiff alleges is that in her Tenth Circuit
appeal she “filed an opening brief that was speculative and has suffered for it” because she
had “no facts to cite in the record.” Compl. at 22. A review of Plaintiff’s appellate docket
shows the case has proceeded; the last entry was her reply brief filed on September 23,
2025. See No. 25-7020, Doc. 26 (10th Cir. Sep. 23, 2025).7 Plaintiff has made no showing
that she “suffered” on appeal with her efforts to pursue a nonfrivolous claim.
Finally, Defendant Frye was properly deducting the relevant payments from
Plaintiff’s prison account, as a plaintiff’s “Initial Federal [or] State Court Filing Fee
Contribution” and “Monthly Payments [under the Prison Litigation Reform Act]” must be
paid out with priority. 	Doc. 1-2 at 5 (citing 28 U.S.C. § 1915 and Okla. Stat. tit. 57,
§ 566.3); see also Okla. Stat. tit. 57, § 566.3(A)(1) (“The confining agency shall withdraw
monies maintained in the trust account for payment of court fees and shall forward the
monies collected at any time the monies exceed Ten Dollars ($10.00) to the appropriate
court clerk, or clerks if multiple courts are involved, until the actual court costs are paid in
full.”). To the extent Plaintiff asserts Defendant Frye should not have paid her court costs
because Plaintiff had been discharged between incurring the costs and the payment made
6 Plaintiff is a frequent filer of lawsuits alleging harms she has suffered during her
incarceration. 	The undersigned has determined Plaintiff’s relevant dockets based on
attachments to her Complaint. Doc. 1-2 at 1-7.
7 The undersigned takes judicial notice of the docket in Plaintiff’s appeal in the Tenth
Circuit. See United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007) (noting a
court “may exercise [its] discretion to take judicial notice of publicly-filed records in [this]
court and certain other courts concerning matters that bear directly upon the disposition of
the case at hand”).
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by Defendant Frye, “it is an open question in the Tenth Circuit whether the PLRA’s filing
fee requirement applies to a prisoner plaintiff who files an action while incarcerated but is
later released while the case is pending.” 	Bountwell v. Okla. Cnty. Bd. of Comm’rs, No.
CIV-22-539-J, 2022 WL 16954841, at *1 (W.D. Okla. Oct. 7, 2022) (R&R), adopted, 2022
WL 16952028 (W.D. Okla. Nov. 15, 2022).
Accordingly, it was not improper for Defendant Frye to make the payments in
accordance with prison policy and even if it was, Plaintiff’s claims that such payments
violated her constitutional right to access the courts should be dismissed. 	See Miskovsky
v. Jones, No. CIV-08-123-HE, 2009 WL 6707919, at *2 (W.D. Okla. Sep. 28, 2009)
(recommending dismissal of claim alleging “constitutional deprivations stemming from
ODOC officials’ disbursement of funds from [a prisoner’s] prison savings accounts to pay
filing fees in this action” (citing Okla. Stat. tit. 57, § 549(A)(5) and § 566.3(A))) (R&R),
adopted, 2010 WL 3056655 (W.D. Okla. July 30, 2010), aff’d in part, 437 F. App’x 707
(10th Cir. 2011) (holding “even if the court misconstrued Oklahoma law, a violation of that
law by prison officials would not be a ground for relief under § 1983”). Accordingly, this
portion of Claim Two against Defendant Frye should be dismissed.
3. 	Claim Two: Claim against Defendant Frye in their individual and
official capacities for retaliation for filing a lawsuit.
Plaintiff also alleges Defendant Frye’s action of using money intended to purchase
copies from the district court toward partial payment of her filing fee “retaliated against
Plaintiff intentionally so that she couldn’t bring a successful appeal against her employers,
associates, [and] agents.” Compl. at 22. To state a plausible First Amendment retaliation
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claim, a plaintiff must allege: “(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). 	Filing lawsuits is clearly a protected activity. 	Green v.
Johnson, 977 F.2d 1383, 1389 (10th Cir. 1992) (“The constitutional right of access to the
courts 	is 	guaranteed 	by 	the 	Due 	Process 	Clauses 	of 	the 	Fifth 	and 	Fourteenth
Amendments.”).
Here, Defendant Frye was acting pursuant to a court order to pay down Plaintiff’s
filing fee in a prior case. 	Compl. at 21-22. 	“A plaintiff must prove that ‘but for’ the
retaliatory motive, the incidents to which he refers . . . would not have taken place.”
Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (citation modified). Defendant
Frye would have used Plaintiff’s funds to pay her filing fee absent any alleged retaliatory
motive. 	Accordingly, Defendant’s action was necessarily substantially motivated by
something other than Plaintiff’s lawsuit, and this claim should be dismissed. 	See
Miskovsky, 2010 WL 3056655, at *2 (denying plaintiff’s claim against prison official for
disbursement of funds from his prison account pursuant to court order).
4. 	Claim Three: Claims against Defendants Atkinson and Roberts
in their individual and official capacities for denial of sick calls,
medical RTSs, and grievances.
As to allegations in Claim Three against Defendants Atkinson and Roberts in their
individual and official capacities, Plaintiff fails to state a plausible claim. Plaintiff alleges
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she was denied medical treatment or access at OSP to Dr. Paine despite placing multiple
sick calls, RTSs, and grievances for treatments pertaining to hemorrhoids, asthma, and
osteoporosis. Compl. at 25. The undersigned liberally construes Plaintiff’s Complaint to
allege a medical deliberate indifference claim under the Eight Amendment.
“A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to
an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828 (1994).
“A prison official who ‘knows of and disregards an excessive risk to inmate health or
safety’ is deliberately indifferent for these purposes.” 	Benefield v. McDowall, 241
F.3d 1267, 1271 (10th Cir. 2001) (quoting Farmer, 511 U.S. at 837). 	Therefore, “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.” Id. (quoting Farmer, 511 U.S. at 834). “The actual extent of
any physical injury, threats or psychological injury is pertinent in proving a substantial risk
of serious harm.” Id. at 1272.
Plaintiff fails to allege how conduct by Defendant Atkinson and Defendant Roberts
posed “a substantial risk of serious harm” due to their handling of her sick calls to see a
doctor for hemorrhoids, asthma, and osteoporosis. Benefield, 241 F.3d at 1271. Plaintiff
alleges no facts about any harm she has suffered by not seeing a physician for any of her
alleged conditions. “Generally speaking, hemorrhoids do not constitute a serious medical
condition, the delay in treatment of which would amount to a constitutional violation.”
Vigil v. Morgan, No. 13-CV-1976, 2014 WL 2761144, at *4 (D. Colo. June 18, 2014)
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(quoting Youngblood v. Glasser, 2012 WL 4051846, at *8 (N.D.N.Y. Aug. 22, 2012)).
And while a “severe asthma attack, or prolonged, continual difficulty breathing and pain
caused by asthma can certainly qualify as a serious medical condition,” Plaintiff alleges
only that she needed her inhaler, not any specific asthma symptoms to “show serious pain
or anything like a loss of consciousness or other evidence of substantial harm” that would
arise to a constitutional violation. 	Pittman v. Bryant, No. 23-CV-03030, 2025 WL
2410514, at *2 (D. Colo. Mar. 14, 2025) (citing Sealock v. Colorado, 218 F.3d 1205, 1211
(10th Cir. 2000) and Mata v. Saiz, 427 F.3d 745, 753-55 (10th Cir. 2005)).
Finally, while osteoporosis could constitute a serious medical condition, Plaintiff
has not sufficiently alleged that her osteoporosis impacts her daily activities or causes
chronic pain. 	Compare, e.g., Dawson v. Archambeau, 763 F. App’x 667, 673 (10th Cir.
2019) (stating that a serious medical need can include “the presence of a medical condition
that significantly affects an individual’s daily activities; or the existence of chronic and
substantial pain”); Vann v. Broadwell, No. 11-CT-3040, 2014 WL 1267045, at *6
(E.D.N.C. Mar. 26, 2014) (citing cases and assuming that plaintiff’s osteoarthritis
constitutes a serious medical condition because “arthritic conditions which affect daily
activities and cause chronic pain may satisfy the objective prong of the Eighth Amendment
test”), with Witherspoon v. Africa, No. CIV.A. JFM-10-1832, 2010 WL 4183508, at *2 (D.
Md. Oct. 25, 2010) (finding plaintiff’s conditions as alleged, which include documented
osteoporosis, “do not comprise serious medical problems”). 	Accordingly, Claim Three
does not allege a plausible claim against Defendants Atkinson and Roberts for denial of
sick calls, medical RTSs, and grievances.
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5. 	Claim 	Four: 	Claims 	against 	Defendants 	Robinson, 	Mooney,
John/Jane Does Directors of the System Canteen Board, and
Harpe in their official capacities for conditions of confinement
under the Eighth Amendment.
As to allegations in Claim Four against Defendants Robinson, Mooney, John/Jane
Does of the System Canteen Board, and Harpe in their official capacities for prospective
injunctive relief, Plaintiff again fails to state a claim.
Most of what Plaintiff includes in Claim Four she calls “background information.”
See Compl. at 29-33. 	The undersigned, however, construes the Complaint to allege that
Defendants Mooney and Robinson forced her to share a cell with another inmate while
intentionally promoting rape and sexual assault against her for being a transgender woman
of color. Id. at 29. Plaintiff further alleges that when she requested to be moved to another
unit or to segregation, Defendant Mooney told her that OSP was “overcrowded,” there was
no room for her to move, and there is “no funding from the director” to purchase necessities
for “housing” or “hygiene.”8 Id. at 30-31. Plaintiff also claims Defendants John/Jane Doe
Directors of the System Canteen Board and Harpe have the power to increase the budget
and provide more funding to OSP and other prisons to fix the overcrowding issue that has
caused Plaintiff harm. Id. at 34-35.
8 To the extent that Plaintiff claims violations under the Eight Amendment for conditions
of confinement other than overcrowding, she fails to allege how the lack of cleaning
supplies, vermin infestation, or moldy food has harmed Plaintiff. Because Plaintiff states
“no specific facts . . . indicating how the conditions caused [her] injury,” her conclusory
allegations are insufficient to state a claim for relief as to conditions of confinement.
Swoboda v. Dubach, 992 F.2d 286, 289-90 (10th Cir. 1993).
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As relief for this alleged overcrowding, Plaintiff requests that the Court convene a
three-judge panel pursuant to 18 U.S.C. § 3626(a)(3)(B) and seeks a “prisoner release
order” under 18 U.S.C. § 3626(a)(3)(A).9 Plaintiff’s claim, however, fails because she has
not met the requirements to invoke § 3626(a)(3). 	Section 3626 authorizes a three-judge
district court “to order release of prisoners as a remedy to cure a systemic violation of the
Eighth Amendment.” Brown v. Plata, 563 U.S. 493, 500 (2011). This authority, however,
exists only in limited circumstances. First, a court must have “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). 	In
addition, the facility must have “had a reasonable amount of time to comply with the
previous court orders.” Id. § 3626(a)(3)(A)(ii). A request for a prisoner release order can
only be granted by a three-judge court, and it must be accompanied by “a request for a
three-judge court and materials sufficient to demonstrate” the prior orders were insufficient
to rectify the violation of federal rights. Id. § 3626(a)(3)(B), (C). And finally, to enter a
prisoner release order, the three-judge court must find, by clear and convincing evidence,
that “crowding is the primary cause of the violation of a Federal right” and “no other relief
will remedy the violation of the Federal right.” Id. § 3626(a)(3)(E).
9 Plaintiff directs her complaints about overcrowding toward “this unconstitutional issue at
O.S.P.,” Compl. at 34, so her request for prospective injunctive relief is likely moot given
her transfer to another ODOC facility. 	The undersigned addressed her overcrowding
arguments by liberally construing her allegations to relate to ODOC operations statewide.
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“There is no per se Eight Amendment prohibition on double-celling.” Thompson v.
Lengerich, 798 F. App’x 204, 211 (10th Cir. 2019) (citation modified). 	Here, the
undersigned assumes for analysis that Plaintiff has sufficiently alleged the overcrowding
at OSP resulted in her being forced to house with cell mates who have abused or threatened
to abuse her. Compl. at 30. Further, Plaintiff’s requests to be moved to another location
in the prison or even to solitary confinement for her own protection have been denied as a
result of overcrowding. 	Id. at 29-30. 	Plaintiff, however, has not identified a prior court
order that failed to remedy the harm alleged.10 First, § 3626(a)(2) mandates that “in any
civil action with respect to prison conditions,” “injunctive relief must be narrowly drawn,
extend no further than necessary to correct the harm the court finds requires preliminary
relief, and be the least intrusive means necessary to correct that harm.” 	Id. (citation
modified). 	Then, if that court order for “less intrusive relief” has “failed to remedy the
10 Plaintiff alleges “less intrusive relief has failed to remedy overcrowding” by invoking
Battle v. Anderson, 457 F. Supp. 719 (E.D. Okla. 1978). 	Battle was a class action about
Oklahoma 	prison 	conditions, 	which 	resulted 	in 	multiple 	injunctions, 	including 	an
injunction that required Oklahoma to reduce prison populations at certain prisons. Battle
v. Anderson, 447 F. Supp. 516, 526 (E.D. Okla. 1977). 	Plaintiff, however, cannot use
Battle to meet the prior-court-order requirement for seeking relief under § 3626 because
Battle was closed for all purposes in 2001 and all injunctions were dissolved when the court
determined Oklahoma was complying with constitutional requirements. 	See, e.g., Greer
v. Stitt, No. CIV 20-221, 2020 WL 5440507, at *2 (E.D. Okla. Sep. 10, 2020) (“Plaintiff
asks the Court to analyze his claims under that decision and to require Defendants to
comply with the [Battle] orders. That case, however, has been closed for all purposes, and
all injunctions have been dissolved. See [Battle]. Therefore, Plaintiff cannot rely on the
[Battle] injunctions to support his claims.” (citation omitted)); Loftin v. Sampson, No. CIV
09-379, 2011 WL 4553094, at *6 (E.D. Okla. Sep. 29, 2011) (noting the Battle case “was
closed for all purposes in 2001, and all injunctions were dissolved.”). Further, Plaintiff is
no longer incarcerated at OSP. Even if there were injunctions remaining in effect at OSP,
she cannot be released based on conditions of confinement there.
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deprivation,” the prisoner can seek a prisoner release order. Id. § 3626(a)(3). Plaintiff has
not sought preliminary injunction for “less intrusive relief” nor has any prior order for “less
intrusive relief” for Plaintiff “failed to remedy” her harm.11 Rather, Plaintiff has sought to
skip directly to a three-judge panel and prisoner release order. Thus, Plaintiff fails to state
a plausible overcrowding claim related to conditions of confinement claim against these
Defendants.
6. 	Claims One to Four: Claims for retaliation for filing grievances.
Throughout the Complaint, Plaintiff alleges several Defendants retaliated against
her for filing grievances. 	“Prison officials may not retaliate against or harass an inmate
because of the inmate’s exercise of his right of access to the courts.” Gee, 627 F.3d at 1189
(citation modified). 	This includes a prisoner’s right to file administrative grievances.
Williams v. Meese, 926 F.2d 994, 998 (10th Cir. 1991) (ruling that prison officials may not
retaliate 	against 	a 	prisoner 	“for 	exercising 	his 	first 	amendment 	rights” 	by 	“filing
administrative grievances”); see also Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 542 (4th
Cir. 2017) (“Although inmates do not have a constitutional entitlement to and/or due
process interest in accessing a grievance procedure, they have a First Amendment right to
be free from retaliation when they do file.” (citation modified)).
11 Plaintiff has filed a Notice for Three Judge Court, which has been construed to be a
motion seeking a preliminary injunction, a permanent injunction, and a hearing in front of
a three-judge panel. Doc. 10. However, this motion merely reiterates Plaintiff’s requests
made in the Complaint pursuant to 18 U.S.C. § 3626(a)(3)(B), (C)—it does not seek “less
intrusive relief” to remedy Plaintiff’s harm.
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As noted earlier, for a First Amendment retaliation claim, Plaintiff must plausibly
allege (1) she “was engaged in constitutionally protected activity,” (2) Defendant’s actions
caused her “to suffer an injury that would chill a person of ordinary firmness from
continuing 	to 	engage 	in 	that 	activity,” 	and 	(3) 	Defendant’s 	“adverse 	action 	was
substantially motivated as a response to [her] exercise of constitutionally protected
conduct.” 	Shero, 510 F.3d at 1203. 	Generally, to show a retaliatory motive, a prisoner
must indicate “what grievances he had previously filed that provoked this action or their
proximity in time to the alleged retaliatory action.” 	Sherratt v. Utah Dep’t of Corr., 545
F. App’x 744, 747 (10th Cir. 2013). Each allegation of retaliation for filing grievances is
addressed in turn.
a. 	Claims against Defendants Atkinson and Roberts in their
individual and official capacities for retaliation for filing
grievances by denying grievances.
In Claim Three, Plaintiff avers that Defendants Atkinson and Roberts “both
participated in a retaliation to her grievance procedure by denying her sensitive grievance”
on July 10, 2025. Compl. at 27 (referencing Doc. 1-3 at 5). Plaintiff also claims Defendant
Roberts came to her OSP cell and threatened her on July 17, 2025. Id. at 27-28. Defendant
Roberts allegedly threatened Plaintiff that “if she filed another grievance” or “file[d]
another grievance instead of a sick call again,” he was “going to have [Plaintiff] handled.”
Id. at 27. 	Plaintiff also alleges Defendant Roberts stated Defendant Atkinson “was not
going to help or save” Plaintiff because she is “always filing RTSs, grievances, and
appeals.” Id. at 28 (citation modified). Plaintiff then “became afraid to continue with the
grievance process due to this apparency of a conspiracy to kill her.” 	Id. 	Exhibits to the
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Complaint indicate, though, Plaintiff’s RTSs and grievance were denied because she
submitted the wrong form and that she was notified that she submitted the wrong form.
Doc. 1-3 at 1-4. Her Sensitive Grievance was unanswered because it was not properly of
a sensitive nature. Id. at 5.
Plaintiff’s “filing of a grievance qualifies as protected activity under the first
element” for a retaliation claim. 	Johnson v. Whitney, 723 F. App’x 587, 594 (10th Cir.
2018). 	Plaintiff, though, fails to allege plausibly that Defendants Atkinson and Roberts
were substantially motivated by a retaliatory motive to deny her RTSs and grievance.
Plaintiff makes only conclusory allegations that denial of her sick calls and refusal to
respond to her requests or schedule her to see a doctor were in retaliation for her numerous
prior sick calls and RTSs. Compl. at 27-28. Plaintiff provides no specific allegations about
how the denials of her sick calls were based on a retaliatory motive rather than another
reason. 	Also, exhibits with Plaintiff’s Complaint indicate her RTSs and grievance were
denied not due to a retaliatory motive but because they were not submitted through proper
grievance channels. 	See, e.g., Brooks v. Gabriel, 738 F. App’x 927, 933 (10th Cir. 2018)
(holding that plaintiff failed to provide evidence indicating that but for a retaliatory motive
his grievance would not have been denied because the defendant told plaintiff that the
grievance would be routed through normal grievance channels). She offers no evidence to
suggest those normal grievance channels should not have been used.
Further, to the extent Plaintiff separately claims injury from Defendant Roberts’
visit to her cell on July 17, 2025, she fails to allege any personal participation by Defendant
Atkinson or any evidence that Defendant Atkinson knew of Defendant Roberts’ visit to
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Plaintiff’s cell. Plaintiff also fails to allege how Defendant Atkinson’s not helping her or
liking her would “chill a person of ordinary firmness” from filing any more grievances.
Shero, 510 F.3d at 1203. And notably, Plaintiff filed a grievance three days later—on July
20, 2025—about prior RTSs on overcrowding and alleged threats by John Doe Officer at
OSP. 	Doc. 1-1 at 8. 	Accordingly, Plaintiff fails to state a First Amendment retaliation
claim against Defendant Atkinson from the visit by Defendant Roberts on July 17, 2025.
To the extent alleged conduct by Defendant Roberts at Plaintiff’s OSP cell may
survive screening, the undersigned addresses its disposition in Section III(C).
b. 	Claims of retaliation against Defendants Robinson and
Louthan in their individual and official capacities, and
Defendants 	Mooney, 	John/Jane 	Doe 	Directors 	of 	the
System 	Canteen 	Board, 	and 	Harpe 	in 	their 	official
capacities.
In Claim One, Plaintiff alleges that Defendants Robinson and Louthan “interfered
and retaliated against Plaintiff for filing Grievances/RTS (Request to Staffs).” Compl. at
19. 	She also avers her grievances to Defendant Louthan related to recognition of her
marriage “were thrown away at LARC Facility.” Id. at 18. Plaintiff’s allegations against
Defendant Robinson do not contain sufficient factual matter to explain how and why
Defendant Robinson allegedly retaliated against her. 	See Nasious v. Two Unknown
B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007) (“To state a claim in federal court,
a complaint must explain what each defendant did to him or her; when the defendant did
it; how the defendant’s action harmed him or her; and, what specific legal right the plaintiff
believes the defendant violated.” (citation modified)). 	Similarly, Plaintiff states that her
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grievance to Defendant Louthan was “thrown away” but fails to identify who threw it away
or that Defendant Louthan participated in or even knew of the conduct. See Compl. at 18.
Further, to the extent Plaintiff alleges in Claim Four that Defendants Mooney,
John/Jane Doe Directors of the System Canteen Board, or Harpe retaliated against her for
filing grievances, id. at 27-33, the undersigned cannot discern any specific allegations
against these 	Defendants. 	Plaintiff’s “undifferentiated contention that 	‘defendants’
infringed [her] rights,” Pahls, 718 F.3d at 1226, is insufficient to state a retaliation claim
because she fails to allege specific action by the named officials. Plaintiff does not make
particularized 	allegations 	that 	her 	grievances 	substantially 	motivated 	any 	of 	these
Defendants to retaliate against her, except as to Defendant John Doe Officer at OSP, as
discussed below. 	As a result, Plaintiff fails to state a claim for retaliation against
Defendants Robinson, Louthan, Mooney, John/Jane Doe Directors of the System Canteen
Board, or Harpe.
7. 	Claims One and Four: Claims against Defendant John Doe
Officer 	at 	OSP 	in 	his 	individual 	and 	official 	capacities 	for
throwing away RTSs and grievances and threats about food.
Liberally construed, Plaintiff alleges retaliation in Claims One and Four by
Defendant John Doe Officer at OSP in his individual and official capacities for throwing
away her grievances and RTSs. Compl. at 16, 33. Specifically, Plaintiff alleges Defendant
John Doe officer at OSP told her he “threw away” two of Plaintiff’s RTSs related to prison
overcrowding and marriage recognition. 	Id. 	Plaintiff alleges John Doe Officer at OSP
then told her that if she writes more, “remember what happened last time? referencing
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fentanyl and 4 other drugs being placed in Plaintiff’s food Feb. 3-4, 2023 because she filed
a lawsuit.” Id. at 16. Plaintiff claims she “is now fearful for her life.” Id.
To the extent Plaintiff claims under the First Amendment that Defendant John Doe
Officer at OSP retaliated against her for filing grievances, such claims may survive
screening. See, e.g., Richards v. Perttu, 96 F.4th 911, 918-20 (6th Cir. 2024) (ruling a state
prisoner plausibly alleged he suffered an adverse action by claiming he attempted to file
grievances against a prison official but in response to the grievances, the prison official
allegedly destroyed the grievances). The undersigned addresses these claims in the context
of improper venue below in Section III(C).
8. 	Claims One and Four: Claims against Defendant John Doe
Officer 	at 	OSP 	in 	his 	individual 	and 	official 	capacities 	for
threatening Plaintiff about poisoning in violation of the Eighth
Amendment.
As to allegations in Claims One and Four against Defendant John Doe Officer at
OSP in his individual and official capacities as to making threats related to poisoning
Plaintiff’s food, she likely fails to state a claim. Plaintiff alleges she is “fearful of her life”
and “that each day may possibly be her last day” because when she asked him about
throwing away her RTSs, Defendant John Doe officer at OSP referenced prior occasions
where illegal drugs allegedly had been placed in her food to poison her. Compl. at 16.
To the extent Plaintiff alleges these threats under the Eighth Amendment, she fails
to state a claim. Mere verbal threats and harassment, without more, do not state a claim of
constitutional dimension. See McBride v. Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001)
(“Acts or omissions resulting in an inmate being subjected to nothing more than threats
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and verbal taunts do not violate the Eighth Amendment.” (citation modified)); Northington
v. Jackson, 973 F.2d 1518, 1524 (10th Cir. 1992) (noting that among the actions
“necessarily excluded from the cruel and unusual punishment inquiry” are “verbal threats
and harassment”); Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979) (“Verbal
harassment or abuse of the sort alleged in this case [i.e., sheriff threatened to hang prisoner
following prisoner’s request to mail some legal correspondent] is not sufficient to state a
constitutional deprivation under 42 U.S.C. § 1983.”); see also Teague v. Hood, No. 06-cv-
01800, 2008 WL 2228905, at *13 (D. Colo. May 27, 2008) (finding “verbal harassment,
threats, or taunts do not rise to the level of . . . an Eighth Amendment violation” and
collecting cases).
9. 	Conclusion and recommendation for claims alleging conduct in
Western District of Oklahoma.
The undersigned recommends dismissal without prejudice of the following claims
arising from alleged conduct in the Western District of Oklahoma:
• 	Claim One: Claims against Defendants Louthan and the John/Jane
Does of LARC in their official and individual capacities for failure to
recognize Plaintiff’s marriage to another inmate;
• 	Claim Two: Claim against Defendant Frye in their individual and
official capacity for preventing access to courts;
• 	Claim Two: Claim against Defendant Frye in their individual and
official capacities for retaliation for filing a lawsuit;
• 	Claim Four: Claims against Defendants John/Jane Does Directors of
the System Canteen Board and Harpe in their official capacities for
conditions of confinement under the Eighth Amendment; and
• 	Claims One and Four: Claims against Defendant Louthan in his
individual and official capacities, and Defendants Mooney, John/Jane
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Doe Directors of the System Canteen Board, and Harpe in their
official capacities for retaliation for filing grievances.
In the next section, the undersigned addresses remaining claims from alleged
conduct in the Eastern District of Oklahoma.
C. 	Improper Venue
“Venue” is a term that “refers to the geographic specification of the proper court or
courts for the litigation of a civil action.” 	28 U.S.C. § 1390(a). 	Venue for a civil rights
action is often determined by the general venue statute of 28 U.S.C. § 1391(b). The proper
venue is “a judicial district in which any defendant resides, if all defendants are residents
of the State in which the district is located,” or “a judicial district in which a substantial
part of the events or omissions giving rise to the claim occurred.” Id. § 1391(b)(1)-(2).
Plaintiff’s claims about conduct of Defendants Robinson, Mooney, John Doe
Officer at OSP, Atkinson, and Roberts in Claims One, Three, and Four allegedly occurred
at OSP. Additionally, it appears that each Defendant (except for Atkinson) was employed
at the relevant time in the Eastern District of Oklahoma and presumably resides within that
judicial district. While Plaintiff alleges Defendant Atkinson works in Oklahoma City with
ODOC, Plaintiff functionally avers “a substantial part of the events or omissions giving
rise to” Defendant Atkinson’s claims, id. § 1391(b)(2), occurred at OSP in the Eastern
District of Oklahoma. 	Accordingly, the Western District of Oklahoma is the improper
venue for Plaintiff’s claims against Defendants Robinson, Mooney, John Doe Officer at
OSP, Atkinson, and Roberts.
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For a case with improper venue, a district court “shall dismiss, or if it be in the
interest of justice, transfer such case to any district or division in which it could have been
brought.” Id. § 1406(a). A district court has “discretion in making a decision to transfer
an action or instead to dismiss the action without prejudice.” 	Trujillo, 465 F.3d at 1222-
23. “A district court may dismiss claims based on improper venue at the screening stage
where the defense is obvious from the face of the complaint.” 	Kristich v. Casady, No.
CIV-23-544-R, 2024 WL 3814046, at *5 n.3 (W.D. Okla. Aug. 14, 2024) (citing Trujillo,
465 F.3d at 1217). 	Factors that favor a transfer over dismissal include “finding that the
new action would be time barred; that the claims are likely to have merit; and that the
original action was filed in good faith rather than filed after plaintiff either realized or
should have realized that the forum in which he or she filed was improper.” Trujillo, 465
F.3d at 1223 n.16 (citation modified). As part of this process, the Court can take “a peek
at the merits to avoid raising false hopes and wasting judicial resources that would result
from transferring a case which is clearly doomed.” Hough v. Booker, 210 F.3d 1147, 1150
(10th Cir. 2000) (citation modified).
Here, the undersigned recommends dismissing without prejudice Plaintiff’s claims
about OSP conduct against the above-referenced Defendants because the interest-of-justice
factors weigh in favor of dismissal rather than transfer. First, Plaintiff is not time-barred
from filing any new action in the Eastern District of Oklahoma, as the alleged conduct at
OSP occurred after her transfer to that facility in May 2025. See, e.g., Price v. Philpot, 420
F.3d 1158, 1162 (10th Cir. 2005) (explaining that Oklahoma’s two-year statute of
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limitations applies to a civil rights action brought under § 1983). 	As such, Plaintiff has
sufficient time to file any OSP-related claims in the appropriate district court.
Second, for the reasons discussed in Section III(A) and Sections III(B)(4)-(8), most
of the claims alleging constitutional violations at OSP are now moot or are not likely to
have any merit. Even if this Court takes “a peek at the merits,” Hough, 210 F.3d at 1150,
and decides that one or more of Plaintiff’s claims are not meritless, this factor alone does
not require transfer of those claims. See, e.g., Baker v. Chin, No. CIV-23-2103, 2025 WL
721945, at *8-9 (D. Kan. Mar. 6, 2025) (finding “a cursory review of the record indicates
that at least some of plaintiff’s claims are potentially meritorious,” and “this factor favors
transfer rather than dismissal,” but dismissing case because other factors, including the
statute of limitations and judicial economy, “favor dismissal”).
As to the third factor, Plaintiff should have realized that filing a complaint about
alleged OSP conduct in the Western District of Oklahoma was improper. She has recent
litigation history in the Eastern District of Oklahoma and this Court relating to other
allegations against OSP staff members. See, e.g., Marylin Monae Porter v. Joel McCurdy,
et al., No. CIV-23-058-RAW, Order, Doc. 152 (E.D. Okla. Mar. 13, 2025) (granting
defendants’ motion to dismiss claims against OSP employees). Indeed, in that earlier case,
Plaintiff’s action was once before this Court, but this Court transferred the action to the
Eastern District of Oklahoma after Plaintiff filed an amended complaint adding new
defendants employed by OSP. Id., Doc. 86 (transferring Plaintiff’s case from this Court to
Eastern District of Oklahoma); see also Johnson v. Christopher, 233 F. App’x 852, 854
(10th Cir. 2007) (affirming dismissal of a suit filed “in such an obviously improper venue”
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and noting there was “no reason to believe that an injustice will result from the dismissal
as opposed to a transfer by, say, operation of a statute of limitations”).
The three factors set out in Trujillo “are not necessarily exclusive.” 	Grynberg v.
Ivanhoe Energy, Inc., 490 F. App’x 86, 109 (10th Cir. 2012). The Court can also consider
“the interests of judicial economy” and prejudice to Plaintiff. Id. Here, these factors also
favor dismissal rather than transfer. Plaintiff’s action in this Court is only at the screening
stage; no Defendant has been served, and no discovery has started. 	Further, Plaintiff is
currently detained at a different ODOC facility (in Holdenville) in the Eastern District of
Oklahoma, and she continues to file motions seeking injunctive relief about the alleged
OSP conduct and her ongoing ODOC confinement. 	Docs. 10, 18, 19. 	Finally as to
prejudice, this Court granted Plaintiff’s motion to proceed in forma pauperis, and she has
paid only an initial partial filing fee of $4.86 to this Court. Docs. 6, 8. Judicial economy
favors dismissal of this action where Plaintiff can tailor her claims—from this Petition or
from new allegations—in the Eastern District of Oklahoma about alleged OSP conduct or
her current ODOC confinement.
In sum, dismissal without prejudice of Plaintiff’s claims alleging conduct at OSP
would not cause undue prejudice to her and would allow her to refile in the proper judicial
district. 	Several factors favor dismissal: 	(1) a new action would not be time-barred, (2)
many of Plaintiff’s OSP claims appear not to have merit, (3) she did not have a good-faith
basis to bring claims to this Court about OSP conduct, and (4) this action is at an early
screening stage where dismissal and refiling would favor judicial economy and not
prejudice her. Accordingly, the Court should dismiss Claims One, Three, and Four against
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Defendants Robinson, Mooney, John Doe Officer at OSP, Atkinson, and Roberts in their
official and individual capacities without prejudice to refiling in the proper judicial district.
As such, the following claims should be dismissed for improper venue:
• 	Claim One against Defendants Robinson and John Doe Officer at OSP
in their official and individual capacities;
• 	Claim Three against Defendants Atkinson and Roberts in their official
and individual capacities; and
• 	Claim Four against Defendants Robinson, Mooney, and John Doe
Officer at OSP in their official capacities, and against Defendants
Robinson and John Doe Officer at OSP in their individual capacities.
IV. 	Plaintiff’s Motion Seeking Injunctive Relief
On October 14, 2025, Plaintiff filed a Notice for Three Judge Court seeking “a
hearing of this cause and of the preliminary and permanent injunction relief requested
before a three judge court” and for “the Chief Judge of the United States Court of Appeals
for the 10th Circuit be notified” as outlined in 18 U.S.C. § 3626 and 28 U.S.C. § 2284.
Doc. 10. The Notice has been construed as a motion seeking injunctive relief and a hearing.
This construed motion merely reiterates Plaintiff’s requests in Claim Four, which the
undersigned recommends dismissing for various reasons, including improper venue and
failure to state a claim. 	Therefore, the undersigned recommends that Plaintiff’s motion,
Doc. 10, be DENIED as moot.
V. 	Plaintiff’s Second Motion Seeking Injunctive Relief
On February 2, 2026, Plaintiff filed a Motion for Preliminary Injunction and
Temporary Restraining Order seeking the same injunctive relief she is seeking in the
Complaint. 	See Doc. 18 (reiterating allegations made in the Complaint and seeking the
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same injunctive relief). 	Considering the undersigned’s recommendation that the Court
dismiss Plaintiff’s Complaint in its entirety, the Motion for Preliminary Injunction and
Temporary Restraining Order, Doc. 18, should also be DENIED as moot.
VI. 	Recommendation and Notice of Right to Object
After screening Plaintiff’s Complaint, Doc. 1, and consistent with the foregoing
analysis, the undersigned recommends that the Court DISMISS without prejudice all
claims in her Complaint, Doc. 1. The undersigned further recommends Plaintiff’s motions
seeking injunctive relief, Docs. 10 and 18, be DENIED as moot.
Plaintiff is advised of her right to object to this Report and Recommendation. See
28 U.S.C. § 636. Any objection must be filed with the Clerk of this Court by March 11,
2026. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to object timely waives
the right to appellate review of the factual and legal issues addressed in this Report and
Recommendation. 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 this matter.
ENTERED this 18 th day of February, 2026.
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