Opinion
Case No. CIV-18-555-C
09-27-2018
PAUL CRUZ, JR., Plaintiff, v. JAY DRAWBRIDGE, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, appearing pro se, seeks injunctive and monetary relief under 42 U.S.C. § 1983 from Defendant Jay Drawbridge, Chaplain II at the James Crabtree Correctional Center in Helena, Oklahoma where Plaintiff currently resides. Doc. 1.
Citations to a court document are to its electronic case filing designation and pagination. Quotations are verbatim unless indicated. --------
Plaintiff sues Defendant in his individual and official capacities, id. at 1, for alleged violations of Plaintiff's Fourteenth Amendment rights to due process and equal protection. Id. at 2, 5. United States District Judge Robin J. Cauthron has referred this matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4. The undersigned recommends dismissal of Plaintiff's complaint for failure to state a claim.
I. Plaintiff's Claims.
A. Fourteenth Amendment right to due process.
Plaintiff first alleges "Defendant Drawbridge is liable to the Plaintiff . . . because he maliciously subjected [Plaintiff] to a punishment that was not allowed by D.O.C. policy, and was in violation of the Kosher contract that [Plaintiff] agreed to, all in violation of the Fourteenth Amendment right to due process." Doc. 1, at 2. Plaintiff alleges that "[o]n May 15, 2018 I was told that I was being kicked off Unit 6 upon the direct order of Defendant Drawbridge because I had purchased some Non-Kosher candy off the Canteen." Id. Plaintiff states that Unit 6 is a "'Preferred Living"' unit "consisting of only Inmates who are Level 4, and who have maintained good behavior for at least one (1) year." Id. at 3.
Plaintiff states he "knew that he could be subjected to the suspension of his Kosher Meals when he bought the [non-Kosher] candy," but that he "was never advised, nor does DOC Policy allow him to be punished with anything other than suspension of his Kosher Meals as a result of his buying Non-Kosher candy." Id. at 4. Plaintiff alleges this is an "outrageous and unfair punishment by Defendant Drawbridge," and that "[a]t all times, Defendant Drawbridge was acting vindictively towards Inmates on the Kosher Diet Program because he is being sued by Inmate Chad Reed . . . in the Western District of Oklahoma." Id; see also id. at 3 (alleging Defendant "unilaterally changed POLICY and was moving Inmates off Unit 6 for Kosher violations").
Plaintiff alleges this move "represents a quantum change in conditions of confinement because of the Lack of Security Supervision," that he has "suffered from sleep deprivation for the last two weeks because of the outrageous noise levels on the Unit at ALL hours of the night," and that "[a]s a direct result of the Unlawful move . . . [he] has and continues to suffer from fear and anguish at the thought of being assaulted at anytime." Id. at 3-4.
Plaintiff seeks "an award of damages against Defendant Drawbridge for his intentional violation of my by Constitutional Rights to due process . . . ." Id. at 4.
B. Fourteenth Amendment right to equal protection.
Plaintiff next alleges that "Defendant Drawbridge is liable to the Plaintiff . . . because he maliciously subjected me to a different punishment than he did other inmates that were similarly situated who were in violation of the Kosher contract all in violation of the Equal Protection clause of the Fourteenth Amendment." Id. at 5. Plaintiff's Equal Protection claim relates to the same facts surrounding his transfer from Unit 6 to Unit 4 for violation of his Kosher contract. See id. at 5 ¶ 22. Plaintiff alleges that "[a]t all times [he] was similarly situated with the other Inmates who were punished for violating there Kosher Contract," that "[a]ll other inmates signed, and agreed to the terms and conditions of the Kosher Contract," that "[a]ll other inmates violated their Kosher Contract just like me," but that Plaintiff "was subjected to a different, unauthorized punishment for violating the Kosher Contract, than the inmates who live in the other Housing Units." Id. at 5.
Plaintiff seeks "an award of damages against Defendant Drawbridge for his intentional violation of my by Constitutional Right to the Equal Protection of the law protected by the Equal Protection Clause of the Fourteenth Amendment . . . ." Id.
II. Screening.
Federal law requires the court to screen complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In addition, because Plaintiff is proceeding in forma pauperis, the court has an ongoing duty to consider the sufficiency of his claims. See id. § 1915(e)(2).
To survive this review, Plaintiff must plead "enough facts to state a claim that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In applying this standard, the court must assume the truth of all well-pleaded factual allegations in the complaint and construe them in the light most favorable to Plaintiff. See Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011). "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, 48-49 (1988) (citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). The court must dismiss any frivolous or malicious claim, any claim asking for monetary relief from a defendant who is immune from such relief, or any claim on which the court cannot grant relief. 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B).
The court liberally construes a pro se litigant's pleadings and holds them "to a less stringent standard than formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The court, however, may not serve as Plaintiff's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
III. Analysis.
A. Individual capacity claims.
1. Plaintiff fails to state a claim upon which relief may be granted under the Fourteenth Amendment right to due process.
Plaintiff states he "knew that he could be subjected to the suspension of his Kosher Meals when he bought the [non-Kosher] candy," but that he "was never advised, nor does DOC Policy allow him to be punished with anything other than suspension of his Kosher Meals as a result of his buying Non-Kosher candy." Doc. 1, at 4. Plaintiff attaches to his complaint an example of an ODOC "Kosher/Halal Diet Request Form," which states that "3rd and subsequent Violations" of the contract may result in a "1 year suspension of the religious diet." Id. Ex. 1. Plaintiff claims Defendant violated his Fourteenth Amendment right to due process when Defendant moved Plaintiff out of Unit 6 for violating his Kosher contract, a punishment that is not explicitly listed on the Kosher/Halal Diet Request Form. Doc. 1, at 2-4.
"A liberty interest may arise from the Constitution itself, by reasons of guarantees implicit in the word 'liberty[]' or it may arise from an expectation or interest created by state laws or policies." Wilkinson v. Austin, 545 U.S. 209, 221 (2005). In the prison setting, inmates are generally subject to various restrictions. "Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, a 'retraction justified by the considerations underlying our penal system.'" Wolff v. McDonnell, 418 U.S. 539, 555 (1974) (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)). However, the revocation of certain rights and privileges does not mean "[t]here is [an] iron curtain drawn between the Constitution and the prisons of this country." Id.
In identifying state-created liberty interests, the court considers "the nature of the deprivation" rather than "the language of a particular [prison] regulation." Sandin v. Conner, 515 U.S. 472, 481 (1995). "'[P]rotected liberty interests are at issue in the prison setting only when an inmate is subjected to (1) conditions that 'impose[] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life' or (2) disciplinary actions that 'inevitably affect the duration of his sentence.'" Harrison v. Morton, 490 F. App'x 988, 994 (10th Cir. 2012) (quoting Sandin, 515 U.S at 484, 487)).
Here, "failure to follow ODOC policy does not equate a constitutional violation." Hostetler v. Green, 323 F. App'x 653, 657 (10th Cir. 2009) (citation omitted). A transfer in housing is not an "atypical and significant hardship," nor does Plaintiff allege this punishment affected the duration of his sentence. Plaintiff has no protected liberty interest created by the ODOC Kosher/Halal Diet Request Form and the undersigned finds Plaintiff suffered no constitutional violation when he received a punishment not included on the diet request form. Liberally construing his complaint, it is of no matter that Plaintiff had only violated his Kosher contract—prisoners have no protected liberty interest in freedom from transfer to a less comfortable housing unit. See Hewitt v. Helms, 459 U.S. 460, 468 (1983), abrogated on other grounds by Sandin, 515 U.S. 472. Plaintiff fails to state a valid claim for relief and the undersigned recommends the dismissal of Plaintiff's Fourteenth Amendment due process claim.
2. Plaintiff fails to state a claim upon which relief may be granted under the Fourteenth Amendment right to equal protection.
Plaintiff next alleges that "Defendant Drawbridge is liable to the Plaintiff . . . because he maliciously subjected me to a different punishment than he did other inmates that were similarly situated who were in violation of the Kosher contract all in violation of the Equal Protection clause of the Fourteenth Amendment." Doc 1, at 5. Plaintiff's Equal Protection claim relates to the same facts surrounding his transfer from Unit 6 to Unit 4 for violation of his Kosher contract. See id. at 5 ¶ 22. Plaintiff alleges that "[a]t all times [he] was similarly situated with the other Inmates who were punished for violating there Kosher Contract," that "[a]ll other inmates signed, and agreed to the terms and conditions of the Kosher Contract," that "[a]ll other inmates violated their Kosher Contract just like me," but that Plaintiff "was subjected to a different, unauthorized punishment for violating the Kosher Contract, than the inmates who live in the other Housing Units." Id. at 5.
Plaintiff seeks "an award of damages against Defendant Drawbridge for his intentional violation of my by Constitutional Right to the Equal Protection of the law protected by the Equal Protection Clause of the Fourteenth Amendment . . . ." Id.
To state an equal protection claim, Plaintiff must allege that he has intentionally been treated differently than similarly situated individuals. See Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir. 1998). Plaintiff must further allege facts plausibly showing that he is a member of a protected class, or that he asserted a fundamental right, or that any distinction in his treatment compared to other prisoners' treatment was not reasonably related to a legitimate penological purpose. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); SECSYS, LLC v. Vigil, 666 F.3d 678, 688 (10th Cir. 2012) ("[The Equal Protection Clause] seeks to ensure . . . that those who appear similarly situated are not treated differently without, at the very least, a rational reason for the difference.") (internal quotation marks omitted); Brown v. Zavaras, 63 F.3d 967, 971 (10th Cir. 1995).
Plaintiff's complaint contains no facts to establish "above a speculative level" that Plaintiff was intentionally treated differently from others similarly situated to him. Twombly, 550 U.S. at 553; Barney, 143 F.3d at 1312. Apart from suggesting Defendant was "acting vindictively" toward Plaintiff, Plaintiff makes no allegation that Defendant Drawbridge "intentionally" treated him differently than other inmates who violated the Kosher contract. Doc. 1, at 4, 5 ¶ 22. Further, Plaintiff does not assert that he is a member of a protected class, or that he asserted a fundamental right when he knowingly violated his Kosher contract.
To state a valid equal protection claim, he must allege that "the distinction between himself and other inmates was not reasonably related to some legitimate penological purpose." Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994). Plaintiff must allege that he was treated differently than other inmates as well as allege facts sufficient to "overcome a presumption of government rationality." Brown, 63 F.3d at 971. Here, while Plaintiff maintains he was treated differently than other inmates who also violated their Kosher contracts and questions Defendant's ability to punish him in this manner pursuant to DOC policy, he does not challenge the legitimate penological purpose behind his transfer of housing units.
"Plaintiff['s] allegations are merely conclusory in that they do not allege the factual basis for an equal protection claim, and even pro se litigants must do more than make mere conclusory statements regarding constitutional claims." Brown, 63 F.3d at 972. Plaintiff therefore fails to state a cognizable equal protection claim against Defendant, and this claim should be dismissed without prejudice. See 28 U.S.C. § 1915(e)(2)(B)(ii).
3. Plaintiff fails to state a claim upon which relief may be granted under the Eighth Amendment.
The undersigned liberally construes certain factual allegations in Plaintiff's complaint to allege a claim under the Eighth Amendment. Plaintiff claims that his transfer between housing units in the prison "represents a quantum change in conditions of confinement because of the Lack of Security Supervision, and the Malcontent, Unrepentant, Violent Inmates house therein." Doc. 1, at 3. Plaintiff claims the "[c]onditions of confinement are exacerbated due to DOC's overcrowding and the Inmate's knowledge that no-matter how bad a behavior they engage in, there is no room in Segregated Housing, nor any other facility to be moved to." Id. Plaintiff claims he has "suffered from sleep deprivation for the last two weeks because of the outrageous noise levels on the Unit at ALL hours of the night," and that "[a]s a direct result of the Unlawful move . . . [he] has and continues to suffer from fear and anguish at the thought of being assaulted at anytime." Id. at 3-4.
The Eighth Amendment requires jail officials "to provide humane conditions of confinement by ensuring inmates receive the basic necessities of adequate food, clothing, shelter, and medical care and by taking reasonable measures to guarantee the inmates' safety." Barney, 143 F.3d at 1310. To hold a jailer personally liable for violating an inmate's right to humane conditions of confinement, a plaintiff must satisfy two requirements, consisting of an objective and subjective component. See id.
The objective component requires that the alleged deprivation be "sufficiently serious." Wilson v. Seiter, 501 U.S. 294, 298 (1991). Although what constitutes cruel and unusual punishment under the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society," Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (internal quotation omitted), the Constitution "does not mandate comfortable prisons," id. at 349. To the contrary jail conditions may be "'restrictive and even harsh'" without violating constitutional rights. Barney, 143 F.3d at 1311 (quoting Rhodes, 452 U.S. at 347). Indeed, "only those deprivations denying the minimal civilized measure of life's necessities . . . are sufficiently grave to form the basis of an Eighth Amendment violation." Wilson, 501 U.S. at 298 (internal citation omitted).
The subjective component requires the jail official to have a "sufficiently capable state of mind." Id. at 297. In the context of prison-conditions claims, the required state of mind is one of "'deliberate indifference' to inmate health and safety." Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson, 501 U.S. at 302-03). In other words, the jailer is liable only if he or she "knows of and disregards an excessive risk to inmate health and 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 he must also draw the inference." Id. at 837.
Plaintiff's allegations are insufficient to demonstrate the objective component of a valid conditions of confinement claim. An inmate is required to "show that conditions were more than uncomfortable, and instead rose to the level of conditions posing a substantial risk of serious harm' to inmate health or safety.'" White v. Whetsel, 17 F. App'x 839, 841 (10th Cir. 2001) (quoting Despain v. Uphoff, 264 F.3d 965, 973-74 (10th Cir. 2001)). Plaintiff's allegations of sleep deprivation, noise levels, and his bare claims of fear of violence do not rise to this level. At bottom, Plaintiff's allegations are insufficient to state a § 1983 claim for relief.
B. Official capacity claims.
Plaintiff has also sued Defendant in his official capacity seeking injunctive relief and actual, compensatory, and punitive damages. See Doc. 1 at 1. 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).
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 [s]tate." 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). Nor has Congress abrogated state immunity through enactment of 42 U.S.C. § 1983. See Berry, 495 F. App'x at 921-22. Thus, the State of Oklahoma's Eleventh Amendment immunity from suits seeking money damages in federal court remains intact.
Here, the relevant state agency is ODOC, Defendant's employer at the time of the events giving rise to this lawsuit. "ODOC is . . . shielded by sovereign immunity because it is an arm of the state." Id. at 922 (citing Eastwood v. Dep't of Corr. of Okla., 846 F.2d 627, 631-32 (10th Cir. 1988)). ODOC's immunity therefore extends to Plaintiff's § 1983 claims against Defendant to the extent he is sued in his official capacity for damages. See Cleveland v. Martin, 590 F. App'x 726, 730 (10th Cir. 2014). Eleventh Amendment immunity protects Defendant, as an employee of ODOC acting in his official capacity, to the extent damages are sought by Plaintiff under § 1983. See id.; Eastwood, 846 F.2d at 632. Accordingly, Plaintiff's claims seeking monetary relief from Defendant in his official capacity are barred by the Eleventh Amendment and should be dismissed without prejudice.
Liberally construing Plaintiff's complaint to allege an ongoing violation of federal law, and to seek prospective relief, Plaintiff fares no better. A suit against a public official in his or her official capacity is, in reality, a suit against the official's office. See Kentucky v. Graham, 473 U.S. 159, 165 (1985); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n.55 (1978); Barney, 143 F.3d at 1307. A municipality may be held liable under § 1983 when a plaintiff shows "the existence of a municipal policy or custom" and "a direct causal link between the policy or custom and the injury alleged." Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993) (discussing Monell, 436 U.S. at 694). To bring a claim for a subordinate municipal actor's role, the plaintiff must allege: "(1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation." Dodds v. Richardson, 614 F.3d 1185, 1199-1200 (10th Cir. 2010).
Apart from an unsupported reference to Defendant's "unilaterally change[ in] POLICY," Doc. 1, at 3, Plaintiff's complaint fails to allege any municipal liability against Defendant. A municipality cannot "be held liable where there was no underlying constitutional violation by any of its officers." Hinton, 997 F.2d at 782. Because the undersigned finds that the evidence fails to establish a constitutional violation, Defendant cannot be held liable under § 1983. Plaintiff failed to sufficiently allege a § 1983 cause of action against Defendant in his official capacity.
C. Availability of grievance procedures.
Plaintiff contends his Request to Staff was returned "unanswered." Doc. 1, at 6 & Ex. 2. He argues ODOC policy does not allow for a Request to Staff to be returned unanswered, so "Defendant made the Grievance Procedures Unavailable for the Claims" Plaintiff raises. Doc. 1, at 6. Because the undersigned finds Plaintiff has not stated a § 1983 claim upon which relief may be granted, the court need not address the availability of grievance procedures or any exhaustion issues.
IV. Recommendation and notice of right to object.
The undersigned recommends the dismissal without prejudice of Plaintiff's action under 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1), for failure to state a § 1983 claim upon which relief may be granted.
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before October 18, 2018, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises Plaintiff that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. 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 captioned matter.
ENTERED this 27th day of September, 2018.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE