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holding that the "but-for" element was not met where the defendant provided unrebutted evidence that the purportedly retaliatory act of confiscating plaintiff's property was at least in partial response to resolving a bedbug infestation issue raised by the plaintiff himself to prison officials
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CIV-18-1092-D
10-07-2019
MIKE ELLIS, Plaintiff, v. JASON BRYANT, et. al., Defendants.
SUPPLEMENTAL REPORT AND RECOMMENDATION
Plaintiff, a state prisoner appearing pro se, brings this civil rights action under 42 U.S.C. § 1983. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Before the Court is a Motion to Dismiss and/or Motion for Summary Judgment filed by Defendant Joe Gwynn. Doc. No. 22. For the following reasons, it is recommended Defendant Gwynn's Motion be granted. The undersigned further recommends Plaintiff's claim against Defendant Jason Bryant be dismissed pursuant to 28 U.S.C. § 1915A(b).
I. Background
Plaintiff is incarcerated at James Crabtree Correctional Center ("JCCC") located in Helena, Oklahoma. Doc. No. 1 ("Comp.") at 4. Plaintiff's Complaint asserts an Eighth Amendment claim against former JCCC Warden, Jason Bryant, and Unit Manager Joe Gwynn alleging that JCCC was infested with bedbugs and JCCC staff did not take sufficient action to remedy the problem. Id. at 7, 11-12. Additionally, Plaintiff asserts a First Amendment claim against Defendant Gwynn alleging that after Plaintiff complained about the bedbugs to an auditor visiting JCCC, Defendant Gwynn retaliated against him by directing JCCC employees to confiscate Plaintiff's personal property. Id. at 6, 9-11.
Defendant Gwynn has filed a Motion to Dismiss and/or Motion for Summary Judgment arguing that Plaintiff failed to sufficiently allege personal participation in violation of Plaintiff's First Amendment rights and that his allegations do not rise to the level of a First or Eighth Amendment violation. See generally Doc. No. 22. In his Motion, Defendant Gwynn relies on documents and other materials outside of the pleadings. Plaintiff was advised that when a dispositive motion is supported by affidavits and/or other documentary evidence, the motion may be converted to one for summary judgment under Fed. R. Civ. P. 56. Doc. No. 23 at 1. Moreover, in his Response, Plaintiff presented several exhibits relevant to Defendant Gwynn's Motion. Doc. Nos. 24-1, 24-2. Thus, it is evident from Plaintiff's responsive submission that he was on notice to present materials pertinent to Defendant's Motion and that he intended for the Court to consider materials outside the pleadings in ruling on this Motion. Accordingly, the Court will treat the motion as seeking summary judgment. Fed. R. Civ. P. 12(d), 56(c)(1); Whitesel v. Sengenberger, 222 F.3d 861, 866 (10th Cir. 2000) (holding that district court may convert motion to dismiss into motion for summary judgment to consider matters outside the complaint).
II. Standard of Review
A. Summary Judgment
Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In considering a motion for summary judgment, the court must view the facts and inferences drawn from the record in the light most favorable to the nonmoving party. Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1258 (10th Cir. 2006) (quotation omitted). While the court liberally construes a pro se plaintiff's complaint, such a plaintiff must adhere to the same rules of procedure that are binding on all litigants. Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). Thus, strict adherence by a pro se plaintiff to the requirements of Fed. R. Civ. P. 56 is required. With respect to those requirements, the Supreme Court has determined that
the plain language of Rule 56[] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
B. Screening of Prisoner Complaints
A federal district court must review 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). After conducting an initial review, the court must dismiss a complaint or any portion of it presenting claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b).
In conducting this review, the reviewing court must accept the plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from the allegations, in the light most favorable to the plaintiff. Kay, 500 F.3d at 1217. Although a pro se litigant's pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520 (1972), "[t]he burden is on the plaintiff to frame a 'complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The allegations in a complaint must present "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Further, a claim is frivolous "where it lacks an arguable basis either in law or in fact" or is "based on an indisputably meritless legal theory." Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989).
III. Uncontroverted Facts
The undersigned determines the uncontroverted facts herein to be:
1. Plaintiff has been incarcerated at JCCC for over ten years. Doc. No. 24 at 4.
2. Plaintiff alleges that he first noticed bedbugs in JCCC in June 2017. Comp. at 9.
3. Plaintiff notified Joseph Tindale, Case Manager ("CM"), who instructed Plaintiff to take all of his clothes and bedding to laundry and wash them. Id.
4. Plaintiff alleges that over the following month, six other inmates in his living area found bedbugs and CM Tindale also directed them to wash all of their clothes and bedding. Id.
5. In July 2017, Captain Freeh and two other officers sprayed all of the mattresses in Plaintiff's unit with disinfectant in an attempt to get rid of the bedbug infestation. Id. at 10.
6. Defendants never sprayed "bed bug [sic] killer." Id.
7. At some point, Plaintiff notified Defendant Bryant of the bedbug infestation. Id.
8. Plaintiff alleges that on January 31, 2018, he notified an auditor who was visiting JCCC of the bedbug infestation. Id.
9. According to Plaintiff, on February 1st or 2nd, 2018, Defendant Gwynn met with CM Tindale for approximately 20 minutes and as they were exiting CM Tindale's office, Defendant Gwynn pointed at Plaintiff and said, "He's the guy right there." Id.
10. Approximately 20 minutes later, Sgt. Guthrie and Officer Shipley went to Plaintiff's bunk and placed all of his personal property in plastic bags, including his television, radio, beard trimmers, head phones, remote, clock, $75.00 in canteen items, Bible, two padlocks, a power strip, a Gameboy, and a Sony Walkman. Id.
11. Oklahoma Department of Corrections ("ODOC") Case Notes, completed by CM Tindale, dated January 31, 2018, indicate that "numerous inmates" living around Plaintiff had complained about bedbugs, stating that he is the origin of the bedbugs, and he lives in filth and refuses to clean up. Doc. No. 21-12 at 2.
12. CM Tindale also wrote that he spoke with Defendant Gwynn and they decided that all of Plaintiff's belongings would be bagged and taken to laundry, advising laundry to wash everything separately and on high heat. Id. He further stated:
[Plaintiff] was also given a new set of clothing to replace the set he was wearing. Also, his personal property was bagged up in another trash bag and sprayed down with the bleach solution. The personal
property was then taken to the area outside the warehouse and secured in an area. His canteen food items were bagged up in another separate trash bag. They were visually inventoried by the Unit Officer and were disposed of as contaminated. The area, now cleared of property, was cleaned with bleach solution.Id.
13. JCCC staff did not confiscate any other inmate's personal property. Id.; Doc. No. 22 at 11; Doc. No. 24 at 4.
14. On February 5, 2018, Plaintiff submitted a Request to Staff requesting the return of his property. Doc. No. 21-5 at 2.
15. On February 7, 2018, JCCC staff responded to the Request to Staff with the following:
On 1/31/1[8], your personal property and state issue clothing/bedding [were] observed to be infested with, what appeared to be parasitic insects. On Fri., 1/26/18, CM Tindale instructed you to clean your area as the population was complaining of your unsanitary conditions. You responded to him that the insects were not "bothering me". However, staff observed what appeared to be bleeding insect bites on areas of your arms. After no apparent action on your part, a decision was made to have all items in your area bagged and removed from the unit. Your living area, to include the items that were removed, were sprayed with a bleach solution for sanitation purposes. Your signature appears on an Inmate Property Inventory Form dated 1/31/18, thereby indicating a complete inventory of property. On this same date, arrangements were made and completed through Laundry Services, to outfit you with new state issue clothing and a sanitized mattress.
On 2/01/18, you approached me and I informed you that, "The canteen would be disposed of due to contamination." It is since this time that research shows that parasitic insects and their eggs can live up to one year and are prone to live within appliances. Unfortunately, with this
information, the facility cannot return any item that was removed from your area; However, any appliance item that reflects on your inventory shall be replaced with a comparable replacement through Sgt. Mardis.Id.
16. On February 17, 2018, Plaintiff submitted a Grievance to Defendant Bryant requesting reimbursement for all of his property. Id. at 3-4.
17. In Defendant Bryant's response, he stated that he had met with Plaintiff on March 2, 2018, and they had agreed to allow Plaintiff to retrieve and possess his beard trimmers, surge protector, eye glasses, and address book. Id. at 5.
18. Plaintiff has submitted multiple affidavits from fellow inmates indicating that Plaintiff's area was not less clean than other inmates and that the bedbugs were not limited to his area. Doc. No. 24-2 at 3, 5, 6.
19. Plaintiff and the fellow inmates also explain that they were unable to get rid of the bedbugs until a JCCC staff member brought them a solution from home that was specifically for killing bedbugs. Id. at 3-6.
IV. Eighth Amendment
The conditions of a prisoner's confinement are properly subject to scrutiny under the Eighth Amendment's prohibition against "cruel and unusual punishments." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citing Helling v. McKinney, 509 U.S. 25, (1993)). Not only does the Eighth Amendment place constraints on the behavior of prison officials, it also imposes on them the duty to provide humane conditions of confinement, including adequate food, clothing, shelter, and medical care, and the duty to take reasonable measures to guarantee prisoner safety. Farmer, 511 U.S. at 832 (citing Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). The Eighth Amendment does not, however, impose constitutional liability on prison officials for every injury suffered by an inmate. Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008). Rather, the alleged injury or deprivation must be sufficiently serious. Id. The official's act or omission must result in the denial of "the minimal civilized measure of life's necessities." Farmer, 511 U.S. at 834 (quotations omitted).
Additionally, a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement absent a showing of "deliberate indifference" to a substantial risk of serious harm to an inmate. Id. at 828, 834. To establish deliberate indifference, an inmate must show that the prison official (1) was aware of the facts from which an inference of excessive risk to the prisoner's health or safety could be drawn, and (2) actually drew an inference that such potential for harm existed. Farmer, 511 U.S. at 837 (noting that deliberate indifference under the Eighth Amendment occurs only where a prison official subjectively knows of and disregards a substantial risk to the inmate's health or safety).
Plaintiff alleges that JCCC was infested with bedbugs from June 2017 until approximately March 2018. Comp. at 9-12; Doc. No. 24-2 at 3-6. Plaintiff contends Defendants Bryant and Gwynn were aware of the bedbug problem but failed to take any reasonable actions to resolve the same. Doc. No. 24 at 3; Doc. No. 24-2 at 3-6. Plaintiff explains that a maintenance worker told him that JCCC considered the fumigation necessary to kill bedbugs too expensive. Doc. No. 24 at 3. Plaintiff and fellow inmates contend the bedbug infestation was not resolved until a JCCC employee brought them a solution from outside the facility for them to use to clean their cells. Doc. No. 24 at 3; Doc. No. 24-2 at 3-6.
Inexplicably, in his Motion for Summary Judgment, Defendant Gwynn implies that the bedbug infestation did not begin until January 2018. Doc. No. 22 at 9. Indeed, in his Reply, Defendant Gwynn characterizes Plaintiff's indication in his Response that the bedbug infestation began in June 2017 as a new allegation. Doc. No. 25 at 2 ("allegations . . . for what [Plaintiff] now alleges was a bed bug issue that continued approximately ten months." (emphasis provided)). However, Plaintiff clearly stated in his Complaint, which is neither lengthy nor redundant, that he first notified CM Tindale of the bedbug infestation in June 2017 and that the actions taken at that time were not effective to get rid of the same, resulting in his notifying the auditor of the problem in January 2018. Comp. at 9-10. The undersigned suggests defense counsel review complaints or other documents more carefully before filing a dispositive motion in the future.
By this action, Plaintiff's Eighth Amendment claim centers not only on the bedbug infestation but what Plaintiff considers the lack of any viable attempt to resolve the matter. The undersigned notes that several courts have addressed whether the presence of bedbugs rises to the level of a constitutional violation and have largely reached the conclusion that it does not. See Smith v. Whetsel, No. CIV-16-1487-HE, 2017 WL 9483525, at *3 (W.D. Okla. Feb. 27, 2017) ("Plaintiff first alleges he was bitten by bedbugs, and then, because of the bedbug infestation, he was forced to sleep without a mattress while the bedding was being treated. But these allegations do not state a claim of cruel and unusual punishment under the Eighth Amendment."); see also, cf., Slavish v. City of Wilkes-Barre, No. 3:17-CV-1468, 2018 WL 5289500, at *8 (M.D. Pa. June 14, 2018) ("Courts in this district, as well as numerous others, have found that claims based upon bed bugs or other nuisances fail to amount to harms of sufficient seriousness to qualify [as a state created danger]."); Roberts v. Dawalibi, No. 14 C 4719, 2017 WL 926772, at *6 (N.D. Ill. Mar. 8, 2017) (comparing the plaintiff's athlete foot condition to "itchy bedbug bites," the court held that while such conditions are "undoubtedly inconvenient and uncomfortable," they are "common among non-incarcerated citizens and do[ ] not rise to the level of a serious medical need." (quotations omitted)); Hughes v. Miskell, Civ. A. No. 3:CV-10-1443, 2011 WL 7561387, at *10 (M.D. Pa. Jan. 10, 2011), report and recommendation adopted, 2012 WL 928428 (M.D. Pa. Mar. 19, 2012) ("[W]e find that Plaintiff's skin rash and bed bug bites did not constitute serious medical needs" sufficient to demonstrate deliberate indifference); Browning v. Crabtree, No. 10-1414-AC, 2011 WL 310208, at *2 (D. Or. Jan. 27, 2011) (explaining that although bed bug infestation may have been "unfortunate," a plaintiff alleging that he had sustained bedbug bites all over [his] body" did not sufficiently allege a "serious threat" to his health).
In Robinson v. Milwaukee Secure Det. Facility, No. 15-C-263, 2016 WL 3620770 (E.D. Wis. June 29, 2016), the plaintiff raised a very similar Eighth Amendment claim to that raised in the present case. Therein, the plaintiff asserted that jail staff "did not properly treat a bed bug incident in the jail. Instead of following the procedures [] Plaintiff believes were appropriate, the jail staff sanitized only one cell, did not replace the mattresses, and only offered lice shampoo—rather than some bedbug-specific treatment—to inmates who wanted it." Id. at *2. In finding the plaintiff's allegations did not support an Eighth Amendment claim, the court explained:
[T]he injury [the plaintiff] alleges does not rise to the level of cruel and unusual punishment under the Eighth or Fourteenth Amendment. At worst, she alleges she had some bites that caused itching, which was relieved by hydrocortisone cream. Individuals outside of prison are bitten by various insects thousands or millions of times per day, often resulting in skin irritation. Even luxury hotels and apartments have bedbugs, cockroaches, and other pests. Absent any allegation that the itching and bites were severe or anything out of the ordinary, an itch from insect bites does not rise to the level of harm necessary to demonstrate unconstitutional conditions of confinement.Id.
The same rationale applies to Plaintiff's Eighth Amendment claim in the present case. Plaintiff alleges he suffered bites from bedbugs, lost sleep, and experienced fluctuating weight. As to the latter, Plaintiff's medical records reflect that when the bedbug infestation began in June 2017, Plaintiff weighed 200 pounds and when it ended in March 2018, Plaintiff weight 200.6 pounds. Doc. No. 21-7 at 3, 10. Moreover, Plaintiff's weight only fluctuated by approximately six pounds throughout that time period. Id. at 3, 6, 8, 10. Thus, Plaintiff's only injury resulting from the presence of bedbugs is the general irritation from bedbug bites. Said irritation does not constitute a sufficient injury to support an Eighth Amendment claim. Tafoya, 516 F.3d at 916; see also Slavish, Smith, Robinson, Hughes, Browning, supra. Accordingly, Defendant Gwynn is entitled to summary judgment against Plaintiff's Eighth Amendment claim.
To date, it appears Plaintiff has been unable to complete proper service of process on Defendant Bryant. Doc. Nos. 16, 18. For the same reasons as set forth above, Plaintiff's claim against Defendant Bryant should be dismissed for failure to state a claim upon which relief may be granted. 28 U.S.C. § 1915A.
V. First Amendment
Plaintiff also asserts a First Amendment retaliation claim against Defendant Gwynn. Comp. at 9-11. According to Plaintiff, on February 1st or 2nd, 2018, approximately one to two days after he informed an auditor about the bedbug infestation, Defendant Gwynn met with CM Tindale for about 20 minutes and as they were exiting CM Tindale's office, Defendant Gwynn pointed at Plaintiff and said, "He's the guy right there." Id. at 10. Approximately 20 minutes later, Sgt. Guthrie and Officer Shipley confiscated all of Plaintiff's belongings. Id.
"[P]rison officials may not retaliate against or harass an inmate because of the inmate's exercise of his constitutional rights." Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir.1998) (quotations omitted). To establish a First Amendment retaliation claim, a plaintiff must demonstrate three 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).
"[I]t is not the role of the federal judiciary to scrutinize and interfere with the daily operations of a state prison, and our retaliation jurisprudence does not change this role." Peterson, 149 F.3d at 1144; see also Turner v. Safley, 482 U.S. 78, 84-85 (1987). "[A]n inmate is not inoculated from the normal conditions of confinement experienced by convicted felons serving time in prison merely because he has engaged in protected activity." Peterson, 149 F.3d at 1144. Thus, we have determined that a prisoner claiming retaliation "must prove that 'but for' the retaliatory motive, the incidents to which he refers . . . would not have taken place." Id. (quotations omitted). "An inmate claiming retaliation must 'allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights.'" Id. (quoting Frazier v. Dubois, 922 F.2d 560, 562 n.1 (10th Cir. 1990)).
As an initial matter, to the extent Defendant Gwynn implies he did not personally participate in the decision to confiscate Plaintiff's property, the ODOC Case Notes indicate otherwise. As previously noted, CM Tindale stated therein that he informed Defendant Gwynn of the alleged complaints regarding Plaintiff and the bedbug problem, and it was decided that Plaintiff's property would be confiscated. Doc. No. 21-2. Thus, the central question in the present case is whether Plaintiff has established a question of fact as to the motive behind said decision.
To support his contention that his property was confiscated in retaliation for his notification to the auditor, Plaintiff relies on the temporal proximity between the notification and the confiscation, the fact that no other inmate's property was confiscated even though the bedbug problem was not limited to his items and/or area, and Dr. Gwynn's statement approximately 20 minutes before the confiscation while pointing at Plaintiff that "he's the guy right there." In the Motion for Summary Judgment, Defendant Gwynn provides conflicting reasons for the confiscation of Plaintiff's property. He asserts that Plaintiff's property was confiscated as a result of other inmates' complaints regarding bedbugs and Plaintiff's refusal to clean his area. Doc. No. 22 at 9, 11, 14. However, he also asserts that it was Plaintiff's notification to the auditor that raised ODOC's first awareness of the bedbug problem and prompted measures, including the confiscation of Plaintiff's property, to resolve the infestation problem. Id. at 11. Notably, the assertion that ODOC was not aware of the bedbug problem prior to January 2018 is belied by Defendant Gwynn's own reference in his Motion for Summary Judgment to CM Tindale's actions in June 2017 of directing Plaintiff and the other six inmates reporting bedbugs to wash all their clothes and bedding. Doc. No. 22 at 8. It is further belied by the Case Notes indicating Defendant Gwynn and CM Tindale decided to confiscate Plaintiff's property on January 31, 2018, based on inmate complaints. Doc. No. 21-2 at 2.
Nevertheless, keeping in mind the rigorous burden placed on [Plaintiff] to show not only that a retaliatory motive may have played some role in the confiscation of his property but that such a motive was the strict but-for cause of the same, Peterson, 149 F.3d at 1144, the undersigned concludes that he has failed to make the necessary showing on this element to defeat summary judgment.
Plaintiff must prove that "but for" the retaliatory motive, the confiscation of his property would not have taken place. Smith v. Maschner, 899 F.2d 940, 949-50 (10th Cir. 1990). Defendant Gwynn, relying on Case Manager Notes and research related to bedbug infestation, contends that the confiscation of Plaintiff's property, clothing, and bedding, as well as the reissuance of new clothing, a sanitized mattress, and replacement items for his appliances, were an attempt to resolve the bedbug infestation. In light of certain disputes between the parties, this case presents a very close decision, however, it is undisputed that Plaintiff's clothing and cell/bunk area were infested with bedbugs. Under these circumstances, Plaintiff has not established that but for a retaliatory motive on the part of Defendant Gwynn, his property, clothing, and bedding would not have been confiscated. See Peterson, 149 F.3d at 1144 ("[A] plaintiff must prove that 'but for' the retaliatory motive, the incidents to which he refers . . . would not have taken place." (quotations omitted)). Accordingly, the undersigned finds Defendant Gwynn's request for summary judgment against Plaintiff's First Amendment retaliation claim should be granted.
RECOMMENDATION
Based on the foregoing findings, it is recommended Defendant Gwynn's Motion for Summary Judgment (Doc. No. 22) be GRANTED. Additionally, pursuant to 28 U.S.C. § 1915A(b), the undersigned recommends Plaintiff's Eighth Amendment claim against Defendant Bryant be dismissed based on failure to state a claim upon which relief can be granted.
Plaintiff is advised of his right to file an objection to this Supplemental Report and Recommendation with the Clerk of this Court by October 28th, 2019, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Supplemental Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
Dated this 7th day of October. 2019.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE