Opinion
CIV-23-733-R
04-30-2024
DEDRICK LEMONT HICKEY, Plaintiff, v. GEO LAWTON CORRECTIONAL REHABILITATION FACILITY et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner appearing pro se and in forma pauperis, has filed an amended complaint under 42 U.S.C. § 1983 alleging officers at the Lawton Correctional Rehabilitation Facility (LCRF) violated his constitutional rights. Doc. 17.United States District Judge David L. Russell has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), and (C). Doc. 19. Plaintiff sues thirteen Defendants, all in their official and individual capacities. Doc. 17, at 3-6.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
These Defendants are: “GEO Lawton Correctional Rehabilitation Facility”; “Comanche County Commissioners”; “Warden David Cole”; “Warden Bowers”; “The GEO Group Inc.”; “Captain Peroe”; Serge[a]nt Lt Brandon”; “Unit Manager West”; “Bonnie Green”; “Serge[a]nt Vallaho”; “Emily Till”; “Ms. Calhoun”; and “Ms. Pantoja.” Doc. 17, at 3-6.
Because Plaintiff fails to state a claim, the undersigned recommends the Court dismiss Plaintiff's claims against: LCRF, the Comanche County Commissioners, the LCRF Defendants in their official capacities, the Plaintiff's due process claim for the loss of his property in claim five, the supervisory claims against Defendants Cole and Bowers, the individual claims against Defendant Calhoun in claims five and six, the individual claims against Defendants Peroe, West, Brandon, Vallaho, and Pantoja in claim five, the individual claims against Defendants Peroe, West, Brandon, and Till in claim six, and the claims against The GEO Group Inc. (GEO) made in claims one through three and claims six and seven.
I. 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). Because Plaintiff is proceeding in forma pauperis, the Court also has an ongoing duty to consider the sufficiency of his claims. See id. § 1915(e)(2); Doc. 6. The Court must dismiss the complaint, or any portion of the complaint, if it “is frivolous, malicious, or fails to state a claim upon which relief may be granted” or “seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B).
“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). The 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) (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. (citing Twombly, 550 U.S. at 556); see also Gee v. Pacheco, 627 F.3d 1178, 1184 (10th Cir. 2010).
This Court construes “[a] pro se litigant's pleadings . . . liberally,” holding them “to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). 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).
This is Plaintiff's second attempt to raise his claims. Magistrate Judge Gary M. Purcell ordered him to file an amended complaint after determining the original complaint was deficient in several respects. See Doc. 7.
II. The amended complaint.
In claim one, Plaintiff complains about his conditions of confinement. He asserts Defendants Peroe, West, Vallaho, GEO, LCRF, Green, and the Comanche County Commissioners violated his First, Eighth, and Fourteenth Amendment rights against “[c]ruel and unusual punishment” by subjecting him to “unhealthy living conditions, below Constitutional minimum standards.” Doc. 17, at 7.
In support of his claim, Plaintiff states that, on May 31, 2023, LCRF officers put him in a holding cell while they readied his transfer to “house two.” Id. at 7-9. He remained handcuffed in a holding cell for “five or six hours” without food or a restroom. Id. at 9. After telling Defendants West and Peroe that he needed to use the restroom and getting no response, Plaintiff urinated in the cell. Id. at 9-10. An officer had to help him pull up his pants because he could not do so on his own with the handcuffs on. Id. at 10. After his time in the holding cell, an officer placed him in a “hard cell” which Plaintiff describes as a cell with a padlock on the door. Id. at 11. Defendant Vallaho was “in charge” of him while he was in the cell and told him that Defendant Peroe had put him there. Id.
Plaintiff stayed in the hard cell from May 31, 2023, until July 11, 2023. Id. During that time Defendant Vallaho allowed Plaintiff to leave the cell “[five] maybe six times” for a shower. Id. Plaintiff states that when he asked Defendant Vallaho for recreation, cleaning supplies, or a bag to wash his clothes, Defendant Vallaho “never assisted” Plaintiff “with any of these basic requirements.” Id. Plaintiff states this “took a toll on [his] mental health” and he felt “overwhelmed and discriminated against.” Id. at 11-12.
Plaintiff left the hard cell and was in a “segregation cell” for a week before he was placed in “house 1.” Id. at 12. On July 24, 2023, Plaintiff sought mental health treatment from Defendant Green. Id. He told Defendant Green that he thought the “staff” was trying to set him up for an attack either from the inmates in house two or by “attack[ing] [him] “themselves.” Id. at 12-13. Defendant Green then “had [him] locked up in a[n] intake cell” after telling the officers that Plaintiff was in fear for his life. Id. at 13. Defendants Vallaho and West put him in the intake cell where Plaintiff stayed from July 24, 2023, until July 31, 2023. Id. Officers allowed him one shower but did not give him recreation time or cleaning supplies. Id.
In claim two, Plaintiff asserts Defendants Peroe, West, Brandon, LCRF, GEO, and Comanche County Commissioners were negligent. Id. at 14. He explains that he was a “non active gang member” and had been since 2012. Id. He states that he put this information in his “new arrival packet” but was still placed “on a security threat group (STG) gang unit within the facility.” Id. When he got to “house two,” he says he told Defendants Brandon and West this information and requested to be moved, but they did nothing about it. Id.
On February 2, 2023, two inmates attacked Plaintiff by punching him. Id. at 15. Plaintiff ran down the stairs to Defendant Brandon while the two inmates pursued him. Id. Plaintiff told Defendant Brandon what was happening, and the two inmates told Defendant Brandon “not to bring [Plaintiff] back to that unit or [he] would be attacked again.” Id. Defendant Brandon took Plaintiff out of the unit and moved him to another part of the facility. Id. But, on March 22, 2023, Defendant Brandon and another officer took Plaintiff back “to the (STG) gang unit House 2 unit A.” Id. Plaintiff reminded Defendant Brandon of his previous attack. Id. Defendant Brandon told Plaintiff that “they would figure it out later but at the moment [he] was being moved back.” Id. at 15-16.
Plaintiff states that, two days later, on March 24, 2023, inmates attacked him again and struck him on the back of his head with an object and knocked him to the ground. Id. at 16. Inmates kicked, stomped, and spit on him while he was “balled up” on the ground until someone yelled “police” and the inmates scattered. Id. After Plaintiff told some officers what had happened, they took him outside the unit and into a holding cell and called for medical attention. Id. Plaintiff states he had cuts on his face and neck and a knot on the back on his head which he thought might be a concussion. Id. A nurse came to look at injuries and gave him pain medication. Id. Defendants Peroe and West then moved Plaintiff to a different part of the facility away from the “gang unit.” Id. at 16-17.
Plaintiff alleges “Discrimination” in claim three. Id. at 18. He claims Defendants Peroe, West, Brandon, Vallaho, Cole, Pantoja, LCRF, GEO, and Comanche County Commissioners are responsible. Id. He states that all the facts listed in his prior two claims should be applied to this claim and he “would like to apply Discrimination to all incidents and claims listed in this action.” Id.
In claim four, Plaintiff states that Defendants Vallaho, Pantoja, Cole, LCRF, GEO, and Comanche County Commissioners twice denied him access to the courts. Id. at 19-24. He complains the state appellate court denied two of his motions “due to lack of appropriate access to courts and not being able to research court rules and file paperwork timely.” Id. at 20-21.
The first occasion occurred between May 31, 2023 and July 11, 2023 when he was housed in the “hard cell.” Id. at 19. Plaintiff states that Defendant Vallaho denied him access to the law library even though Plaintiff told him he was a “pro se [a]ppellant pursuing a direct appeal from judgment and that [he] was on the facility[']s [d]eadliner list.” Id. He also asserts that Defendant Pantoja, who he says was “the law library officer in charge of the law library and the deadliner list,” “neglected to call [Plaintiff] to the law library or bring law library services to [him].” Id. at 20. He explains that although policy requires access to the library at least five hours a week, he was allowed no access to the law library and “library services” only came to the hard cells a total of three times while he was there. Id.
Plaintiff does not indicate the time-period when Defendants denied him access to the courts a second time. He complains though that LCRF's policy of only allowing a prisoner to come to the law library twice a week on certain days for three hours (if you are on the deadline list) with “no exceptions,” caused him to either miss deadlines or file his pleadings prematurely so as not to miss a deadline. Id. at 21-23. He asserts Defendant Pantoja's enforcement of this policy against him “caused [his] appeal brief to be filed prematurely and the amend brief to be denied.” Id. at 23.
In his fifth claim, Plaintiff states that all Defendants, except Defendant Green, are liable for inadequate medical care, cruel and unusual punishment, and negligence. Id. at 24-26. He explains that he “got into a fight” with another inmate on September 11, 2023. Id. at 25. He fractured his “pinky [finger] knuckle” during the fight but when it was x-rayed the next day by two unidentified “x-ray techs” they “never said anything was wrong with [him].” Id. He asserts that for “two and a half weeks [they] knew about the fracture but showed deliberate indifference to [his] serious medical needs.” Id. He states that the “nurses and staff often complained about being short of staff and inmates were often left untreated with serious medical needs.” Id.
Plaintiff was transferred to another facility on September 28, 2023. Id. Plaintiff claims that, after his transfer, “the doctor at the new facility after x raying [his] hand explained that [his] pinky should have been put in a splint immediately after the discovery of the fracture.” Id. Plaintiff claims he has suffered permanent damage to his finger and now has arthritis pain. Id. at 26. He asserts that “[t]he [l]ab techs at Lawton Correctional Facility, Emily Till, medical worker or someone dropped the ball on this one and as a result [his] life has changed concerning mobility of his right hand.” Id.
As part of this claim, Plaintiff also asserts his property was “lost and[/]or stolen” during his transfer between facilities. Id. at 27. He alleges Defendants did not follow Oklahoma Department of Corrections' policy “OP-030120A” because they did not inventory his property or allow him to review and sign an inventory form before he was transferred. Id. As a result, he lost a television, an ice chest, and a “surge protector/ electrical power bar” and his “beard trimmers [were] damaged.” Id. 27-28. He claims to have filed a grievance which Defendant Calhoun responded to but did not return his property. Id. at 28.
In claim six, Plaintiff alleges Defendants Bowers, Peroe, West, Brandon, Calhoun, Till, LCRF, GEO, and Comanche County Commissioners caused him “[p]ersonal [i]njury.” Id. at 29. He states that on September 28, 2023, he approached Defendant Bowers but before Plaintiff “could say anything,” Defendant Bowers “started accusing [Plaintiff] of lying on Mr. Bowers.” Id. at 30. When Defendant Bowers told Plaintiff that he “was the wrong one to mess with,” Plaintiff “started to walk away . . . to avoid a conflict.” Id. Plaintiff heard “foot steps pursuing [him] [and] when [he] turned around” he saw Defendant Bowers “reaching for [his] neck in a[n] aggressive manner with a frown on his face.” Id. “Out of reflex,” Plaintiff “struck [Defendant Bowers] in the jaw in self defense.” Id. Defendant Bowers tackled Plaintiff to the ground “and started trying to pop [his] right eye out of the socket.” Id. Plaintiff then felt other officers punching him and one pepper-sprayed him. Id. Defendant Bowers was still on top of Plaintiff and put his hands in Plaintiff's mouth and pulled Plaintiff's jaws apart. Id. at 30-31. The “altercation ended shortly after that when someone [tried] to pull [Defendant Bowers] off” of Plaintiff. Id. at 31. Officers took Plaintiff to a shower to wash the pepper spray off his face and out of his eyes but did not allow him to take off his clothes or handcuffs. Id. They then took Plaintiff to a holding cell for several hours where he stayed until a transport officer came to take him to another facility. Id. While in the holding cell his eyes and body stung from the remains of the pepper spray. Id. Plaintiff states that “the altercation” caused him to lose “partial vision in his right eye” and a request to see the eye doctor at his new facility is “still pending.” Id. at 32.
In his final claim, Plaintiff claims the actions of Defendants Bowers, Till, Peroe, West, Brandon, Vallaho, Cole, LCRF, GEO, Comanche County Commissioners, and “medical staff Jane Does [and] John Does” have caused him “pain and suffering.” Id. He states that the “incidents in the personal injury claim, the liability claim and the negligence claim” should be applied to the pain and suffering claim as co claims appropriately applied.” Id. at 33.
As relief for all his claims, Plaintiff seeks $2,000,000 in compensatory and punitive damages. Id. Plaintiff also indicates that he names “The GEO Group Inc., Comanche County Commissioners and Warden David Cole” as Defendants on all his claims “due to being ow[n]er, operat[o]r, and overseer of the facility.” Id.
III. Analysis.
A. Plaintiff fails to state a claim against Defendant “GEO Lawton Correctional Rehabilitation Facility.”
Plaintiff names “GEO Lawton Correctional Rehabilitation Facility” and iterations thereof, as a Defendant in this matter. Doc. 17, at 3. In doing so, he is seemingly referring to either or both LCRF and The GEO Group, Inc.-the private corporation that owns and operates LCRF. See, e.g., Jaquez v. Lawton Corr. Facility, No. CIV-11-1066-F, 2013 WL 5972413, at *1 (W.D. Okla. Nov. 8, 2013) (“Lawton Correctional Facility is a private prison facility owned and operated by Geo Group, Inc.”). LCRF though, is merely “the name of a detention facility which lacks the capacity to be sued.” Carey v. Lawton Corr. Facility, No. CIV-07-944-F, 2008 WL 200053, at *3 (W.D. Okla. Jan. 24, 2008). It is not a “person” or “legally created entity” with an identity separate from The Geo Group, Inc. Aston v. Cunningham, 2000 WL 796086, at *4 n.3 (10th Cir. Jun. 21, 2000). So, dismissal of LCRF as a Defendant in this suit is required. See id. (“Dismissal against [Salt Lake County jail] was also required because a detention facility is not a person or legally created entity capable of being sued.”); Carey, 2008 WL 200053, at *3.
Lawton Correctional and Rehabilitation Facility is a private prison in Lawton, Oklahoma under contract with the Oklahoma Department of Corrections. See https://oklahoma.gov/doc/facilities.html (last visited Mar. 13, 2024). It is owned and operated by The GEO Group, Inc. See https://www.geogroup.com/FacilityDetail/FacilityID/61 (last visited Mar. 13, 2024). The Court may take judicial notice of this information depicted on the public websites of these entities. See O'Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007) (“It is not uncommon for courts to take judicial notice of factual information found on the world wide web.”).
B. Plaintiff fails to state a claim against Defendant Comanche County Commissioners.
Plaintiff names the Comanche County Commissioners as Defendants in each of his claims. He explains that he includes them as Defendants because they are “ow[n]er[s], operator[s], and overseer[s] of the facility.” Doc. 17, at 33. But LCRF is not a county facility. Rather, it is a privately owned facility operating under a contract with the Oklahoma Department of Corrections. See supra III.A. at n.4. The Court should thus dismiss the Comanche County Commissioners as Defendants in this matter for failure to state a claim.
C. Plaintiff fails to state a claim against the LCRF employees in their official capacities.
Plaintiff sues the LCRF employees in their official capacities. Doc. 17, at 3-6. The Court should dismiss the official-capacity claims against these Defendants.
Employees of a private prison are not state actors, and official capacity claims cannot be asserted against them. See Jones v. Barry, 33 F. App'x. 967, 971 at n.5 (10th Cir. 2002) (“[T]he [private prison] defendants are not state actors, and they do not have an ‘official capacity' as that term is used under the Eleventh Amendment.”). The Court should dismiss these official-capacity claims with prejudice. See Miskam v. Sherrod, No. CIV-14-646-HE, 2015 WL 4717105, at *3 (W.D. Okla. Aug. 7, 2015) (“Plaintiff's claims against the [private prison] defendants in their official capacities seeking monetary relief are dismissed with prejudice.”).
D. Plaintiff fails to state a due process claim for the deprivation of his property.
Construing Plaintiff's amended complaint liberally, he has asserted a Fourteenth Amendment Due Process claim based on the deprivation of his property. Doc. 17, at 27-29. He alleges prison officials did not follow Oklahoma Department of Corrections' policy when they transferred him to another facility without his property and without itemizing his property on an inventory form for him to review. Id. at 27. As a result, he arrived at his new facility without his television, ice chest, or surge protector. Id. He did receive his beard trimmers, but they were damaged. Id. at 27-28. When he filed a grievance with LCRF, Defendant Calhoun responded that “[he had not] had a tv since 7-25-23, [he] never owned a[n] ice chest, [his] trimmers w[ere] already broken [,and] [his] remote and gloves were not in [his] property.” Id. at 28; see also id. Att. 2, at 3.
Plaintiff does not allege the absence of an adequate state remedy for the deprivation of his property. So he fails to adequately state a due process claim.
“[N]either negligent nor intentional deprivations of property under color of state law that are random and unauthorized give rise to a § 1983 claim where the plaintiff has an adequate state remedy ....” Gillihan v. Shillinger, 872 F.2d 935, 939 (10th Cir. 1989), overruled on other grounds by Clark v. Wilson, 625 F.3d 686, 691 (10th Cir. 2010); see also Hudson v. Palmer, 468 U.S. 517, 533 (1984) (holding that the “unauthorized intentional deprivation of property” by a state employee “does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available”). Plaintiff alleges his property was negligently lost or stolen after prison officials failed to follow established procedures during his transfer. But, “[i]nsofar as the prison officials merely acted with simple negligence, that would not be enough to raise due process concerns.” Buchanan v. Oklahoma, 398 Fed.Appx. 339, 342 (10th Cir. 2010). Because Plaintiff claims his loss of property was random or unauthorized, he “must allege facts sufficient to show the lack of an adequate state remedy.” Johnson v. Whitney, 723 Fed.Appx. 587, 593 (10th Cir. 2018).
The State of Oklahoma provides post-deprivation remedies for illegal loss of property through the state court system as well as the prison administrative grievance process. See, e.g., Buchanan, 398 Fed.Appx. at 342 (“Even if [plaintiff's] property-related claims did raise due process concerns, unauthorized deprivations of a prisoner's property do not violate due process where state post-deprivation remedies are available, and Oklahoma law provides such remedies.”). Plaintiff does not allege these remedies are either unavailable to him or are inadequate. So he fails to state a due process claim for the loss of his personal property while in prison. The undersigned therefore recommends the Court dismiss this claim without prejudice.
E. Plaintiff fails to state a claim against Defendants Cole and Bowers in their supervisory capacities.
“Individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation.” Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997). “Supervisory status alone does not create § 1983 liability.” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009).
Plaintiff names Defendant Cole, who he identifies as the “Warden” of the LCRF, in claims three, four, five, and seven. Doc. 17, at 3, 18, 19, 24, 32. He names Defendant Bowers, who he identifies as an “AFA Assistant Warden,” in claim five. Id. at 24. In none of these claims does he allege these Defendants had any personal involvement in the described incidents. Instead, he claims, at least with respect to Defendant Cole, that his status as an “ow[n]er, operat[o]r, and overseer” of the facility makes him liable. Id. at 33.
Plaintiff names Defendant Bowers in claims six and seven as well. But in those claims he alleges Defendant Bowers personally participated in an assault against him which caused him permanent injury and “pain and suffering.” Doc. 17, at 29-33. Those claims should remain.
“A § 1983 defendant sued in an individual capacity may be subject to personal liability and/or supervisory liability.” Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011). But “a supervisor may only be held liable if he is affirmatively linked to the constitutional violation.” Hickey v. Okla. Cnty. Det. Ctr., No. CIV 20 1291-R, 2022 WL 1221645, at *5-6 (W.D. Okla. Feb. 23, 2022), adopted, 2022 WL 945319 (W.D. Okla. Mar. 29, 2022); see Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”). “Section 1983 does not authorize liability under a theory of respondeat superior.” Brown, 662 F.3d at 1164.
To impose supervisory liability, “a plaintiff must first establish that a subordinate violated a constitutional right.” Wise v. Caffey, 72 F.4th 1199, 1210 (10th Cir. 2023). A plaintiff must then “establish three elements to hold a supervisor liable personally: (1) personal involvement; (2) causation; and (3) state of mind.” Id.; see also Serna v. Colo. Dep't of Corrs., 455 F.3d 1146, 1151 (10th Cir. 2006) (holding a supervisor is liable only if he or she was “personally involved in the constitutional violation, and a sufficient causal connection [] exist[s] between the supervisor and the constitutional violation” (internal quotation marks omitted); Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir. 2013) (requiring a plaintiff to show an “affirmative link” between the supervisor and the constitutional violation). A plaintiff must base supervisory liability “upon active unconstitutional behavior and more than a mere right to control employees.” Serna, 455 F.3d at 1153 (internal quotation marks omitted).
Plaintiff's claims against Defendants Cole and Bowers turn on their alleged supervisory role at the jail. But Plaintiff does not allege any causal connection between the alleged unconstitutional behavior of other LCRF employees and Defendant Cole's or Defendant Bowers' own actions. The undersigned therefore recommends the Court dismiss all of Plaintiff's claims against Defendant Cole in his individual capacity and dismiss Defendant Bowers in his individual capacity from claim five based on a lack of personal participation in the alleged constitutional violations. Iqbal, 556 U.S. at 676; Serna, 455 F.3d at 1153.
F. Plaintiff fails to state a claim against several Defendants in their individual capacities.
1. Defendant Calhoun.
Plaintiff names Defendant Calhoun, who he identifies as a “property officer,” in claims five and six. Doc. 17, at 6, 24, 27-29, In claim five, he asserts Defendant Calhoun denied his grievance concerning his lost property. Id. at 28. He does not allege Defendant Calhoun played any other role in the events surrounding the loss of his property or in the altercation he describes in claim six.
Defendant Calhoun's denial of the grievance, by itself, does not establish her personal involvement in the alleged deprivation of Plaintiff's property. See, e.g., Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (“[A] denial of a grievance, by itself without any connection to the violation of constitutional rights alleged by plaintiff, does not establish personal participation under § 1983.”). And Plaintiff “has no independent due process rights that arise out of [a prison official's] disposition of internal grievances.” Brewer v. Gilroy, 625 Fed.Appx. 827, 838 (10th Cir. 2015); see also Boyd v. Werholtz, 443 F. App'x. 331, 332 (10th Cir. 2011) (“[T]here is no independent constitutional right to state administrative grievance procedures.”). So Plaintiff's claims against Defendant Calhoun individually in claim five should be dismissed for failure to state a claim.
Plaintiff names Defendant Calhoun in his claim six for “personal injury” but does not allege she personally participated in the altercation between Plaintiff and Defendant Bowers or its aftermath. See, e.g., Foote, 118 F.3d at 1423. He also does not allege she played some supervisory role which might subject her to liability. See Serna, 455 F.3d at 1153. “Because vicarious liability is inapplicable to . . .§ 1983 suits, a plaintiff must plead that each . . . defendant, through [that defendant's] own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. Plaintiff does not do so here. So the Court should dismiss Plaintiff's individual claim against Defendant Calhoun in claim six based on a lack of personal participation in the alleged constitutional violations.
2. Defendants Peroe, West, Brandon, Vallaho, Pantoja, and Till.
Plaintiff names Defendants Peroe, West, Brandon, Vallaho, and Pantoja in claim five. Doc. 17, at 24. He also names Defendants Peroe, West, and Brandon, along with Defendant Till in claim six. Id. at 29. But in neither of these claims does Plaintiff allege these Defendants personally participated, either in a direct or supervisory way, in the acts.
For individual liability to attach, a “plaintiff must show the defendant personally participated in the alleged violation.” Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996). Collective allegations are insufficient. See Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013) (“Because § 1983 . . . [is a] vehicle[] for imposing personal liability on government officials, we have stressed the need for careful attention to particulars, especially in lawsuits involving multiple defendants. ‘[I]t is particularly important' that plaintiffs ‘make clear exactly who is alleged to have done what to whom, . . . as distinguished from collective allegations.'” (quoting Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)).
Plaintiff has failed to identify specific actions taken by these particular Defendants to make out a viable § 1983 claim. Pahl, 718 F.3d at 1226. So the Court should dismiss the individual claims against Defendants Peroe, West, and Brandon in claims five and six, as well as the individual claims against Defendants Vallaho and Pantoja in claim five, and the individual claim against Defendant Till in claim six.
G. Plaintiff fails to adequately allege Monell liability against Defendant GEO in claims one through three, part of claim five, and claims six and seven.
Plaintiff names GEO as a Defendant in every one of his claims. Doc. 17. He does so because it owns and operates LCRF. Id.
“Under Monell, a plaintiff may sue local governing bodies directly for constitutional violations pursuant to the body's policies.” Lucas v. Turn Key Health Clinics, LLC, 58 F.4th 1127, 1144 (10th Cir. 2023) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978)). Municipal or “Monell” liability “has been extended to ‘private entities acting under color of state law.'” Id. (quoting Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003)). But a private actor like Defendant GEO cannot be held liable under § 1983 solely based on the actions of its employees. See Smedley v. Corrs. Corp. of Am., 175 Fed.Appx. 943, 946 (10th Cir. 2005) (“[A] private actor . . . ‘cannot be held liable solely because it employs a tortfeasor-or, in other words . . . cannot be held liable under § 1983 on a respondeat superior theory.'” (quoting Monell, 436 U.S. at 691)).
To establish Defendant GEO's liability, Plaintiff must allege an official policy or custom that violated Plaintiff's federal rights and “was enacted or maintained with deliberate indifference to an almost inevitable” federal rights violation. Schneider, 717 F.3d at 769. “[P]olicies meeting this standard [are] those arising from ‘a formal regulation or policy statement, an informal custom that amounts to a widespread practice, decisions of municipal employees with final policymaking authority, ratification by final policymakers of the decisions of subordinates to whom authority was delegated, and the deliberately indifferent failure to adequately train or supervise employees.'” Hinkle v. Beckham Cnty. Bd. of Cnty. Comm'rs, 962 F.3d 1204, 1239-40 (10th Cir. 2020) (quoting Pyle v. Woods, 874 F.3d 1257, 1266 (10th Cir. 2017)).
After identifying an official policy or custom, a plaintiff must then establish that the policy or custom either (1) directly violated a federal right of the plaintiff, or (2) was the “moving force” behind an employee's violation of a federal right of the plaintiff. Id.; see Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006) (holding a plaintiff must establish “a direct causal link between the policy or custom and the injury alleged”). “The causation element is applied with especial rigor when the municipal policy or practice is itself not unconstitutional, for example, when the municipal liability claim is based upon inadequate training, [and] supervision.” Schneider, 717 F.3d at 770 (internal quotation marks omitted).
Plaintiff alleges in claims one, two, and three that different LCRF officers discriminated against him and knowingly put him in danger by housing him in the gang unit even after other inmates had attacked him, left him in a “hard cell” for over a month while ignoring his requests for showers, recreation, and cleaning supplies, left him handcuffed in a holding cell without the ability to use the restroom, and ignored his requests for mental health treatment after telling an officer that other officers were discriminating against him and might be setting him up for an attack. Doc. 17, at 7-18. In none of these claims does Plaintiff identify an official policy or custom or allege that any official policy or custom caused or was the moving force behind the officers' actions.
In claims six and seven, Plaintiff claims Defendant Bowers unlawfully attacked him and injured his eye. Id. at 29-32. Other officers pepper-sprayed him during the encounter and left him in a holding cell with the spray still stinging his face and body for several hours. Id. at 30-32. He claims he has a permanent injury to his eye and has pain and suffering resulting from the altercation. Id. at 32-33. Plaintiff does not identify an official policy or custom or allege that any official policy or custom was the moving force behind the officers' actions.
Plaintiff's allegations in claims one through three and claims six and seven are insufficient to establish Defendant GEO's Monell liability. So the Court should dismiss it as a Defendant from those claims.
The Court should decline to dismiss Defendant GEO from claims four and part of claim five. Liberally construing Plaintiff's claims, the undersigned finds that Plaintiff has identified a policy (law library rules) in claim four which he asserts was the cause of his denial of access to the courts. And in claim five, he asserts Defendant's GEO's custom of not hiring enough medical staff to adequately treat the prisoners' health needs caused him permanent physical injury. So these claims should survive this Court's screening of Plaintiff's amended complaint.
The remaining part of claim five involves Plaintiff's deprivation of property claim which the undersigned has recommended the Court dismiss in its entirety for failure to state a claim.
IV. Recommendation and notice of right to object.
The undersigned recommends the Court dismiss Plaintiff's claims against:
• LCRF;
• the Comanche County Commissioners;
• the LCRF Defendants in their official capacities;
• the Plaintiff's due process claim for the loss of his property in claim five;
• the supervisory claims against Defendants Cole and Bowers;
• the individual claims against Defendant Calhoun in claims five and six;
• the individual claims against Defendants Peroe, West, Brandon, Vallaho, and Pantoja in claim five;
• the individual claims against Defendants Peroe, West, Brandon, and Till in claim six;
• and the claims against Defendant GEO made in claims one through three and claims six and seven.
Remaining are Plaintiff's allegations of unconstitutional conditions of confinement and cruel and unusual punishment against individual Defendants West, Peroe, Vallaho, Green, and Brandon in claims one and two, denial of access to the courts against Defendants GEO, Vallaho, and Pantoja in claim four, denial of adequate medical care against Defendants GEO and Till in claim five, and allegations of Defendant Bowers' excessive use of force in claim six.
Claim three simply alleges “discrimination” against all defendants as part of his other claims-not as a standalone claim. Doc. 1, at 18.
Like claim three, Plaintiff does not bring standalone allegations in claim seven. Rather, he alleges “pain and suffering” due to Defendants' alleged conduct as set forth in his other claims. Doc. 1, at 32-33.
The undersigned advises Plaintiff of his right to object to this Report and Recommendation by May 21, 2024, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to make a timely objection waives his right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation does not terminate the referral to the undersigned Magistrate Judge in this matter.