Opinion
Case No. CIV-18-773-HE
01-15-2020
CLIFFORD HILER, Plaintiff, v. JASON BRYANT, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff Clifford Hiler, a state inmate appearing pro se and in forma pauperis, has filed a lawsuit under 42 U.S.C. § 1983, alleging violations of the Eighth Amendment. (ECF No. 1). This matter has been referred to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). Defendants Jason Bryant, Kelly Curry, and Betsy Hormel have filed a Motion to Dismiss or in the Alternative, Motion for Summary Judgment. (ECF No. 38). The Court should GRANT Defendants' motion.
I. FACTUAL BACKGROUND
Mr. Hiler is an inmate in the custody of the Oklahoma Department of Corrections (DOC), incarcerated at James Crabtree Correctional Center (JCCC). Plaintiff has alleged that Defendants Bryant, Hormel, and Curry have acted with deliberate indifference to his nutritional needs in violation of the Eighth Amendment by "failing to provide [him] a protein alternative when they serve beans, as [he] is alergic [sic] to beans[.]" (ECF No. 1:7). Plaintiff has sued all Defendants in their official and individual capacities and seeks monetary, declaratory, and injunctive relief. (ECF No. 1:4-5, 8-9). Defendants have filed a Motion to Dismiss/Motion for Summary Judgment, arguing, in part, that: (1) Plaintiff's claims for injunctive relief are moot; (2) they are entitled to Eleventh Amendment immunity for the official capacity claims seeking monetary relief; and (3) they are entitled to qualified immunity. (ECF No. 38:10-12). The Court should: (1) dismiss the claims for injunctive and declaratory relief, as moot; (2) dismiss the official capacity claims for monetary damages based on Eleventh Amendment immunity; and (3) grant summary judgment to Defendants on grounds of qualified immunity for the individual capacity claims seeking monetary relief.
Defendants also argue they are entitled to: (1) summary judgment based on Plaintiff's failure to exhaust his administrative remedies; (2) dismissal based on Plaintiff's failure to allege personal participation by any of the Defendants; and (3) summary judgment on the Eighth Amendment claim. See ECF No. 38:6-8, 12-15. The Court need not address these arguments based on the recommended disposition. See infra; see also Sermeno v. Allbaugh, No. CIV-16-1196-C, 2018 WL 2376568, at *1 (W.D. Okla. Apr. 26, 2018), report and recommendation adopted, No. CIV-16-1196-C, 2018 WL 2375695 (W.D. Okla. May 24, 2018) (noting that the Court need not address all arguments raised in a dispositive motion).
The Defendants did not specifically address Plaintiff's claims for declaratory relief. See ECF No. 38. But the same principles in dismissing Plaintiff's claims for injunctive relief, which the Defendants did address, also apply to Mr. Hiler's claims for declaratory relief. See infra.
II. CLAIMS FOR DECLARATORY AND INJUNCTIVE RELIEF
Mr. Hiler has sought declaratory and injunctive relief against all three Defendants. See supra. But when, as here, a favorable judicial decision would not afford Mr. Hiler relief, and Plaintiff's case is not "capable of repetition yet evading review," a federal court has no jurisdiction under Article III to adjudicate a claim. McAlpine v. Thompson, 187 F.3d 1213, 1216 (10th Cir. 1999). The Tenth Circuit has held:
"Article III's requirement that federal courts adjudicate only cases and controversies necessitates that courts decline to exercise jurisdiction where the award of any requested relief would be moot—i.e., where the controversy is no longer live and ongoing."Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1348 (10th Cir. 1994), superseded on other grounds. A claim will be deemed moot unless a " 'proper judicial resolution' " settles " 'some dispute which affects the behavior of the defendant toward the plaintiff.' " Id. (quoting Hewitt v. Helms, 482 U.S. 755, 761 (1987)). Likewise, a plaintiff cannot maintain an action for declaratory and injunctive relief unless he or she can " 'demonstrate a good chance of being likewise injured [by the defendant] in the future.' " Id. at 1348 (quoting Facio v. Jones, 929 F.2d 541, 544 (10th Cir. 1991)) (alteration in original); see also City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) ("[T]he capable-of-repetition doctrine applies only in exceptional situations, and generally only where the named plaintiff can make a reasonable showing that he will again be subjected to the alleged illegality."). As the Supreme Court explained in O'Shea v. Littleton, 414 U.S. 488, 495-496 (1974), "[p]ast 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." Moreover, the narrow capable-of-repetition exception to the mootness doctrine applies only where the following two circumstances are simultaneously present: (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again. See Spencer v. Kemna, 523 U.S. 1, 17 (1998).
On December 10, 2018, Plaintiff filed a Notice of Change of Address indicating that he had been transferred from JCCC to North Fork Correctional Facility (NFCF). (ECF No. 16). Mr. Hiler has failed to demonstrate that there is a reasonable expectation that he will again be subject to the actions of the JCCC Defendants. Therefore, Plaintiff's transfer to NFCF, renders moot his requests for declaratory and injunctive relief related to the conditions of his confinement at JCCC. See Wirsching v. Colorado, 360 F.3d 1191, 1196 (10th Cir. 2004) (inmate's release from prison moots his claims for declaratory and injunctive relief); Love v. Summit County, 776 F.2d 908, 910 n. 4 (10th Cir. 1985) (noting transfer of inmate to different prison renders his § 1983 claim for injunctive relief moot); Big Eagle v. Whetsel, No. CIV-14-342-R, 2014 WL 7335315, at *2 (W.D. Okla. Dec. 19, 2014) (Plaintiff's transfer to a different facility rendered moot his claims for declaratory and injunctive relief asserted against defendants at former facility).
III. OFFICIAL CAPACITY CLAIMS FOR MONETARY DAMAGES
Mr. Hiler has sued all three Defendants in their official capacities, seeking monetary relief. (ECF No. 26:1, 6). The Court should conclude that Defendants are immune from liability on these claims.
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 unless the state consents to suit or Congress unequivocally abrogates the state's immunity. U.S. Const. amend. XI; see Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54-55 (1996). The State of Oklahoma has not waived Eleventh Amendment immunity against § 1983 claims in federal court. See Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006). Nor has Congress abrogated state immunity in any way pertinent to Plaintiff's § 1983 claims. See, e.g., Quern v. Jordan, 440 U.S. 332, 342, 345 (1979).
Eleventh Amendment immunity extends to the states, state officials, and to those governmental entities that are considered "an arm of the state." See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977); Ambus v. Granite Board of Education, 995 F.2d 992, 994 (10th Cir. 1993). Accordingly, the Defendants, who are employees of the DOC, are protected by Eleventh Amendment immunity to the extent Plaintiff seeks monetary damages against them in their official capacities. See Edelman v. Jordan, 415 U.S. 651, 663 (1974) (recognizing application of Eleventh Amendment immunity to official-capacity claim for money damages against state official). Thus, the Court should dismiss these claims, without prejudice, for failure to state a claim upon which relief may be granted. See Shue v. Lampert, 580 F. App'x 642, 644 (10th Cir. 2014) (stating that "[b]ecause the Eleventh Amendment involves sovereign immunity, the official-capacity claims should have been dismissed 'without prejudice' rather than 'with prejudice').
IV. INDIVIDUAL CAPACITY CLAIMS FOR MONETARY RELIEF
With the previous recommendations, what remains are Plaintiff's Eighth Amendment claims against the Defendants, in their individual capacities, for monetary relief. On these claims, the Court should grant Defendants' Motion for Summary Judgment.
A. Standard of Review
Summary judgment is a means of testing in advance of trial whether the available evidence would permit a reasonable jury to find in favor of the party asserting a claim. The Court must "grant summary judgment 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). When considering a motion for summary judgment, the Court views the evidence and the inferences drawn from the record in the light most favorable to the nonmoving party. Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005).
A party that moves for summary judgment has the burden of showing that the undisputed material facts require judgment as a matter of law in its favor. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). To defeat summary judgment, the nonmovant need not convince the Court that it will prevail at trial, but it must cite sufficient evidence admissible at trial to allow a reasonable jury to find in the nonmovant's favor—i.e., to show that there is a question of material fact that must be resolved by the jury. See Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). Parties may establish the existence or nonexistence of a material disputed fact through:
• citation to "depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials" in the record; orFed. R. Civ. P. 56(c)(1)(A)-(B). While the Court construes a pro se litigant's pleadings liberally, all parties must adhere to applicable procedural rules. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007).
• demonstration "that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact."
In assessing Defendants' Motion for Summary Judgment, the undersigned has treated factual allegations in both parties' submissions as affidavit or declaration evidence for summary-judgment purposes to the extent that the facts alleged therein are sworn, or dated and subscribed "as true under penalty of perjury" (e.g., Plaintiff's Complaint), and are "made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4); 28 U.S.C. § 1746; see Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991).
B. The Eighth Amendment Claim
Mr. Hiler alleges that Defendants violated the Eighth Amendment when they refused to serve him "an alternative Protein Source when they serve[d] beans" on the main food line, despite the fact that Plaintiff is allergic to beans. (ECF No. 1:7-9).
1. The Relevant Facts
The relevant undisputed factual record reflects the following:
1. Plaintiff was received into the custody of the Oklahoma Department of Corrections (DOC) on August 29, 2017. (ECF No. 29-1:2).
2. On August 29, 2017, an allergy to beans was documented in Plaintiff's file. (ECF No. 1-1:1; 30-1:15).
3. On March 6, 2018, Plaintiff arrived at JCCC. (ECF No. 29-1:2).
4. DOC Policy states: (1) "[d]iets prescribed due to allergies must be based on a documented need as determined by medical testing or observation by a qualified health care professional (QHCP) and be validated by a QHCP" and (2) "[a]ll medical diets require a medical provider's order documented in the electronic health records" by means of completing the "Oklahoma Department of Corrections Medical Diet Request" form per DOC policy. (ECF No. 29-3:4).
5. On Plaintiff's "Medical Transfer Summary" to JCCC, the August 29, 2017 bean allergy was noted, but the transfer records contained no "Medical Diet Request" form. (ECF No. 30-1:15).
6. In evaluating Plaintiff's complaints related to the bean allergy, JCCC Dr. Willienell Bryant-Pitts noted: (1) "[Plaintiff's] current bean allergy placed 8/29/2017 was made by RN—not confirmed by provider and (2) that
Plaintiff stated he had been treated for alleged allergy at Mercy Hospital in Watonga, Oklahoma. (ECF No. 30-1:5, 6).
7. Upon receipt of records from "Mercy Clinic Watonga," Dr. Pitts reviewed 11 dates of service for Plaintiff from October 15, 2014 through May 24, 2017, none of which documented an allergy to beans. (ECF No. 30-1:6; 30-2:2, 3).
8. Following her review of the Watonga Mercy records, Dr. Pitts stated that she was "removing the bean allergy from [Plaintiff's] problem list." (ECF No. 30-1:6).
9. While incarcerated at JCCC, Plaintiff was not provided with a medical diet to accommodate the alleged bean allergy. See ECF Nos. 1:7-9; 38:15.
2. Qualified Immunity
Defendants move for summary judgment on the basis of qualified immunity to personal liability. See ECF No. 38:10-12. The doctrine of qualified immunity "shields government officials performing discretionary functions from liability if their conduct does not violate clearly established rights of which a reasonable government official would have known." Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006) (internal quotation marks omitted). "When a defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and (2) the constitutional right was clearly established" at that time. Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009) (citing Pearson v. Callahan, 555 U.S. 223 (2009)). In determining whether the plaintiff has met this "heavy two-part burden," the court views the facts in the light most favorable to the plaintiff as the nonmoving party and "resolve[s] all factual disputes and reasonable inferences" in the plaintiff's favor. Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014). However, the "plaintiff's version of the facts must find support in the record" if he or she is to defeat a qualified- immunity defense at the summary-judgment stage of litigation. Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312 (10th Cir. 2009); see also Scott v. Harris, 550 U.S. 372, 380-81 (2007). If the plaintiff satisfies this initial burden, the defendant "bears the normal summary judgment burden of showing that no material facts remain in dispute that would defeat the qualified immunity defense." Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002).
In seeking summary judgment, Defendants assert that Mr. Hiler has failed to show a violation of a constitutional right that was "clearly established" during the relevant time period. (ECF No. 38:10-12). "[B]y asserting the qualified-immunity defense, [Defendants] triggered a well-settled twofold burden that [Plaintiff is] compelled to shoulder": not only does Plaintiff "need to rebut [Defendants'] no-constitutional-violation arguments," Mr. Hiler also must "demonstrate that any constitutional violation was grounded in then-extant clearly established law." Cox v. Glanz, 800 F.3d 1231, 1245 (10th Cir. 2015); accord Estate of Booker, 745 F.3d at 411 (noting that at summary judgment, the court "must" grant qualified immunity unless the plaintiff can meet this two-part burden).
"The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Stewart v. Beach, 701 F.3d 1322, 1330 (10th Cir. 2012) (internal quotation marks omitted). "[A] case directly on point" is not required, but "existing precedent must have placed the statutory or constitutional question beyond debate." Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). For a right to be clearly established there must be either controlling authority (i.e., an on-point Supreme Court or published Tenth Circuit decision) or "a robust consensus of cases of persuasive authority," al-Kidd, 563 U.S. 742 (internal quotation marks omitted), "from other courts [that] ha[ve] found the law to be as the plaintiff maintains," DeSpain v. Uphoff, 264 F.3d 965, 979 (10th Cir. 2001) (internal quotation marks omitted).
The undisputed facts establish that Plaintiff entered JCCC with a documented food allergy to beans, but the allergy had not been confirmed by a medical provider, nor had the required "Medical Diet Request" form been included in Plaintiff's records pursuant to DOC policy. See supra. Upon investigation pursuant to Mr. Hiler's claims that the allergy had been documented in records from an outside provider, no proof was found. See supra. The parties agree that Plaintiff was never provided a medical diet based on the alleged bean allergy. See supra. But Plaintiff has not cited, and the undersigned has not found, a Supreme Court or a published Tenth Circuit decision holding that prison officials violate the Eighth Amendment when they fail to provide an inmate a special diet based on an alleged allergy which had not been confirmed or ordered by a medical provider. In fact, courts have found to the contrary. See, e.g., Johnson v. Swibas, No. 14-CV-02258-REB-KMT, 2017 WL 8894637, at *7 (D. Colo. July 28, 2017), report and recommendation adopted, No. 14-CV-02258-REB-KMT, 2017 WL 4054211 (D. Colo. Sept. 13, 2017) (no Eighth Amendment violation based on plaintiff's claims that prison officials should have changed his diet upon his personal diagnosis of a food allergy, when prison policy specifically required confirmation of a food allergy prior to ordering a change in diet); Barnes v. Huffman, No. 7:06CV00745, 2007 WL 3339311, at *5 (W.D. Va. Nov. 7, 2007), aff'd, 275 F. App'x 260 (4th Cir. 2008) (granting summary judgment on plaintiff's Eighth Amendment claim where the inmate insisted his rash was the result of food allergies but food allergy tests were negative, noting that "Although plaintiff may be dissatisfied with the physician's diagnosis method or failure to prescribe an alternative diet, these complaints amount to nothing more than disagreements between medical staff and an inmate as to proper diagnostic methods and a course of treatment.").
In response to Defendants' assertion of qualified immunity, Plaintiff has cited: (1) a Supreme Court case which held that the Eighth Amendment prohibits "deliberate indifference and cruel and unusual punishment," and (2) a Supreme Court case which held that "the conditions of confinement, either alone or in combination can violate the Constitution when they deprive inmates of 'the civilized measure of life's necessities.' " (ECF No. 48:4). But these cases do not suffice as law that had been "clearly established" at the relevant time as to the particular facts of this case for purposes of rebutting Defendant's qualified immunity argument. See Estate of Vallina v. Petrescu, 757 F. App'x 648, 650 (10th Cir. 2018) (noting that a "general recitation of the deliberate indifference standard cannot provide a source of clearly established law that controls in this case because the statement of law is insufficiently particular to the facts at hand.").
Estelle v. Gamble, 429 U.S. 97, 104-06 (1976).
Rhodes v. Chapman, 452 U.S. 337 (1981).
It was not "beyond debate" that during the relevant period, Defendants' conduct in failing to provide Plaintiff with an "allergy diet" without confirmation of an actual allergy or an order for a special diet from a medical provider, in accordance with DOC policy, violated Plaintiff's due process rights. al-Kidd, 563 U.S. at 741; see supra. And Plaintiff's burden may not be excused or transferred based upon his pro se status in this lawsuit. See, e.g., Stewart, 701 F.3d at 1326, 1327-28, 1330-33 (upholding district court's dismissal based upon qualified immunity due to plaintiff's failure to show that the "more specific" formulation of the First Amendment right pertinent to the facts alleged in pro se complaint was clearly established); Burden v. Wood, 200 F. App'x 806, 808 (10th Cir. 2006) (affirming entry of summary judgment for police officer where pro se plaintiff "made no effort to rebut" the officer's claim of qualified immunity). As a result, Defendants are entitled to summary judgment on grounds of qualified immunity for Mr. Hiler's individual-capacity Eighth claims seeking monetary relief.
Because it is recommended that qualified immunity be granted on the ground that Plaintiff's "purported right was not 'clearly established' by prior case law," the Court need not resolve the separate question of "whether the purported right exists at all." Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012).
V. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the forgoing analysis, the Court should: (1) dismiss the claims for injunctive and declaratory relief, as moot; (2) dismiss the official capacity claims for monetary damages based on Eleventh Amendment immunity; and (3) grant summary judgment to Defendants on grounds of qualified immunity for the individual capacity claims seeking monetary relief.
Plaintiff is hereby advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by February 3, 2020. See 28 U.S.C. § 636(b)(1); and Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VI. STATUS OF THE REFERRAL
This Report and Recommendation disposes of all issues currently referred to the undersigned magistrate judge in the captioned matter.
ENTERED on January 15, 2020.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE