Opinion
CIV-23-36-D
03-10-2023
ANTONIO HOOKS, Plaintiff, v. ABDEL AHMED, M.D., et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Plaintiff, an Oklahoma inmate appearing pro se, filed an amended complaint under 42 U.S.C. § 1983. Doc. 12. Plaintiff names as defendants Abdel Ahmed, M.D. of “Dean Mcgee,” Janet Morrow with “vital records” at the Oklahoma State Department of Health (OSDH), John Suter with “Risk Management” at the Office of Management and Enterprise Services, “Gentner Drummond,” and “vital records birth certificate processor/check cashier” at the OSDH. Id. at 1, 4. Chief United States District Judge Timothy D. DeGiusti has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 10. For the reasons discussed below, the undersigned recommends dismissing the amended complaint.
Plaintiff is incarcerated at the Davis Correctional Facility in Holdenville, Oklahoma. Doc. 1, Att. 1.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
The Oklahoma State Department of Health and the Office of Management and Enterprise Services are state agencies. See https://oklahoma.gov/health.html (last visited Mar. 1, 2023); https://oklahoma.gov/omes.html (last visited Mar. 1, 2023). Gentner Drummond is the Oklahoma Attorney General. See https://www.oag.ok.gov/ (last visited Mar. 1, 2023). The Court may take judicial notice of this information depicted on the public websites of these state agencies. 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.”).
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). The Court must dismiss the amended complaint, or any portion of the amended 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.” Id. § 1915A(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).
The Court construes “pro se plaintiffs' pleadings liberally.” Johnson v. Reyna, 57 F.4th 769, 775 (10th Cir. 2023). If the Court “‘can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail,' [it] should do so.” Id. (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). The Court “will often excuse pro se plaintiffs' failure to cite proper legal authority, confusion of various legal theories, poor syntax and sentence construction, and unfamiliarity with pleading requirements.” Id. (internal quotation marks omitted). The Court may not, however, serve as Plaintiff's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
II. Plaintiff's claims.
In his first claim, Plaintiff alleges Janet Morrow, John Suter, Gentner Drummond, and the “vital records application processor/check cashier,” all in their individual and official capacities, violated his Eighth and Fourteenth Amendment rights. Doc. 12, at 6. He states:
The Court takes judicial notice that Defendant Morrow is the Capital Assets Management Administrator at the Oklahoma Office of Management and Enterprise Services. See https://oklahoma.gov/omes/about/divisions.html#cam (last visited Mar. 1, 2023); see also O'Toole, 499 F.3d at 1225.
The Court takes judicial notice that Defendant Suter is the Executive Director of the Oklahoma Office of Management and Enterprise Services. See https://oklahoma.gov/omes/about/administration.html (last visited Mar. 1, 2023); see also O'Toole, 499 F.3d at 1225.
The Court takes judicial notice that “Vital Records” is a department of the OSDH. See https://oklahoma.gov/health/services/birth-and-death-certificates.html (last visited Mar. 1, 2023); see also O'Toole, 499 F.3d at 1225.
Plaintiff alleges these Defendants are all employed and/or reside in Oklahoma City, Oklahoma. Doc. 12, at 4.
I request in June 21 to reverse the adoption from Antonio DeWayne Hooks back to Antonio DeWayne Kennedy also sent money to do so, in August or June of 2022 I paid to add my real father to my original birth certificate [C]lerance R. Day . . . of Cherokee County, so I can get on role with Cherokee nation the same as my family on my father side. I wrote to risk management to correct vital records and make them correct vital records [and] do the actions I payed for. Risk management no. 2220031119 2320031119[.] My claim was denied by risk management. My money wasn't returned or anything. This is a cruel and unusual. I payed for this action so this is a violation of my due process[.] Vital records can't take my money and not give me the service I paid for.Id. Plaintiff explains that he sent money from his trust account “to OSDH vital records” “back in June 21 and August of 22[.]” Id. at 7. But the “requested actions” “still haven't been done and completed!” Plaintiff also “feel[s] this is a violation of [his] 1st Amendment freedom of speech of Cherokee and to learn Cherokee culture and language.” Id. He asks this Court to order Defendants Morrow and Suter to “not deny” his claim, “to not cash the check until the requested action takes place,” and to “correct the issue with vital records” by “revers[ing] the adoption back to Antonio DeWayne Kennedy and add[ing] [his] father Clerance R. Day.” Id. He seeks $100,000 in damages from each Defendant and wants the “Attorney General” “to make it a felony charge when records don't get proceed in timely manner.” Id.
In his second claim, Plaintiff alleges Dr. Abdel Ahmed of “Dean Mcgee” violated his Eighth Amendment rights through “medical deliberate indifference” and his Fourteenth Amendment right to “due process” on December 14, 2022. Id. He explains:
Plaintiff does not state a location of employment or residence for Defendant Ahmed. Doc. 12, at 7. The Court judicially notices the public website of the Dean McGee Eye Institute which states the entity has locations in Oklahoma City and Lawton, Oklahoma. See https://dmei.org/about/locations/ (last visited Feb. 21, 2023); see also O'Toole, 499 F.3d at 1225.
I went to dean Mcgee for a eye glass prescription not for a exam. I have been going through exam since 2017 so they already have all results for prescription. Abdel Ahmed MD started running a light across my eyes after he placed a solution in my eyes. Keep going from one eye to the other eye really irritating my eyes this
procedure I have been going through since 2017 this wasn't done like this and it wasn't reason to be doing this again we had already been doing this, and you already have the results from this. I'm not a lab rat only thing that should have been checked on the above date was check for my prescription my vision, 2020, 2019 vision not my eye reaction to a light. This was extra and irritating.Id. Plaintiff asserts that he went to see Dr. Ahmed for an “eye glasses prescription nothing more nothing less.” Id. at 8. He asserts he did not need Dr. Ahmed to examine his eyes “with a light and any solution” and that Dr. Ahmed's actions, over and above having Plaintiff look at an eye chart, put Plaintiff “through unnecessary pain” because the results from “all the other” procedures were already “in the computer.” Id. Plaintiff seeks monetary damages of $75,000 from Dr. Ahmed and $50,000 from Dean Mcgee and an order that they “don't continue repeated unnecessary repeated procedure when Dean Mcgee already has the results.” Id.
III. Discussion.
A. Claim I.
1. The Eleventh Amendment bars Plaintiff's official capacity claims against the state officials and employees that Plaintiff sues in Claim I.
In Claim I, Plaintiff sues state officials Janet Morrow, John Suter, Gentner Drummond, and the “vital records application processor/check cashier” in their official capacities for cruel and unusual punishment and a denial of his due process rights. Doc. 12, at 6. He seeks monetary damages and asks this Court to order state officials to do what he “original[ly] requested” and “paid for” and reverse his adoption and change his father's name on his birth certificate so he can “get on role with Cherokee nation.” Id. at 7. But this Court lacks jurisdiction over these claims.
“The Eleventh Amendment is a jurisdictional bar that precludes unconsented suits in federal court against a state and arms of the state.” Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013) (internal quotation marks omitted). Claims against a state official in his or her official capacity are construed as claims against the state and, so, are barred by the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159, 169 (1985) (holding that a suit against an individual acting in an official capacity is properly treated as a suit against the state itself and “the Eleventh Amendment bars a damages action against a State in federal court”). “This immunity applies ‘whether the relief sought is legal or equitable.'” Miller v. Okla. Dep't of Hum. Servs., No. CIV-22-507-D, 2022 WL 16541217, at *2 (W.D. Okla. Oct. 28, 2022) (quoting Papasan v. Allain, 478 U.S. 265, 276 (1986)); see also Steadfast Ins. Co. v. Agricultural Ins. Co., 507 F.3d 1250, 1252 (10th Cir. 2007) (“Eleventh Amendment immunity applies regardless of whether a plaintiff seeks declaratory or injunctive relief, or money damages.”); Higganbotham v. Oklahoma, 328 F.3d 638, 644 (10th Cir. 2003) (“The Eleventh Amendment expressly applies to suits seeking injunctive and declaratory relief.”).
When Eleventh Amendment immunity applies, the Court lacks subject matter jurisdiction to consider the claims. And “[t]he party asserting jurisdiction” can overcome this bar only by “proving that sovereign immunity has been waived.” Impact Energy Res., LLC v. Salazar, 693 F.3d 1239, 1244 (10th Cir. 2012) (internal quotation marks and alteration omitted).
Exceptions to immunity exist where a state consents to suit in federal court or where Congress has abrogated a state's sovereign immunity. Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012). But Oklahoma has not consented to be sued in federal court, nor did Congress abrogate the state's sovereign immunity by creating a private right of action under § 1983. See Berry v. Oklahoma, 495 Fed.Appx. 920, 921-22 (10th Cir. 2012) (citing Okla. Stat. tit. 51, § 152.1 and Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989)); see also Will, 491 U.S. at 71 (holding that “neither a State nor its officials acting in their official capacities are ‘persons' under § 1983”).
The Court lacks subject matter jurisdiction to consider Plaintiff's claims against Defendants Morrow, Suter, Drummond, and “vital records application processor/check cashier” in their official capacities. The Court should therefore dismiss these claims without prejudice. Cf. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006) (“[W]here the district court dismisses an action for lack of jurisdiction . . . the dismissal must be without prejudice.”).
2. This Court lacks jurisdiction to compel a state official or employee to act.
Plaintiff requests that this Court compel the state agency Defendants to “not deny” his claim for an amended birth certificate, “to not cash the check until the requested action takes place,” and to “correct the issue with vital records” by “revers[ing] the adoption back to Antonio DeWayne Kennedy and add[ing] [his] father Clerance R. Day.” Doc. 12, at 7. He also requests this Court compel the “Attorney General” “to make it a felony charge when records don't get proceed in timely manner.” Id.
Because Plaintiff asks the Court to order these Defendants to perform certain duties, the Court liberally construes them as mandamus requests. See, e.g., Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1234 (10th Cir. 2005) (“Mandamus is the traditional writ designed to compel government officers to perform nondiscretionary duties.”). But this Court has original jurisdiction to issue a writ of mandamus only against an employee or official of the United States, not against state employees or officials. See 28 U.S.C. § 1361 (“The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”). This Court has no supervisory control over state employees, nor does it have jurisdiction to compel a state employee to act. See, e.g., Sockey v. Gray, 159 Fed.Appx. 821, 822 (10th Cir. 2005) (“Federal courts are without jurisdiction to grant a writ of mandamus against state and local officials.”). The Court should therefore deny Plaintiff's mandamus requests for a lack of jurisdiction.
3. Plaintiff fails to state a claim against Defendants Morrow, Suter, and Drummond in their individual capacities for violating his rights.
“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 [or she] 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). “Section 1983 does not authorize liability under a theory of respondeat superior. ” Brown, 662 F.3d at 1164. So state officials have no vicarious liability in a § 1983 suit for the misconduct of their subordinates because “there is no concept of strict supervisor liability under section 1983.” Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996); see Iqbal, 556 U.S. at 676 (holding “that Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior”).
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.” Serna v. Colo. Dep't of Corr., 455 F.3d 1146, 1151 (10th Cir. 2006) (internal quotation marks omitted); see also Schneider v. 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).
Plaintiffs claims against Defendants Morrow and Suter turn on their alleged supervisory roles over “risk management” at the Office of Management and Enterprise Services. Doc. 12, at 1, 4, 6-7. Notwithstanding that the Vital Records Department is part of a different state agency (see infra § II at n.6), Plaintiff does not allege that either Defendant was aware of or personally participated in handling his vital records request or that they had any authority to “reverse” his adoption based on his vital records request. Doc. 12, at 7. The undersigned therefore recommends dismissal of Plaintiffs claims against Defendants Morrow and Suter in their individual capacities based on a lack of personal participation in the alleged constitutional violations. See, e.g., 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.”).
The undersigned recommends the Court also dismiss Plaintiff's claim against Defendant Drummond for a lack of personal participation. Plaintiff alleges no personal involvement by Defendant Drummond in the alleged violations of his constitutional rights. Instead, he asks the Court to compel Defendant Drummond to “make it a felony charge when records don't get proceed in timely manner.” Doc. 12, at 7. But, as already explained, this Court does not have supervisory control over state officials and cannot compel a state official to act. Sockey, 159 Fed.Appx. at 822. As Plaintiff does not allege Defendant Drummond had any personal involvement in violating Plaintiffs constitutional rights, the Court should dismiss his claims against Defendant Drummond in his individual capacity for failure to state a claim. Iqbal, 556 U.S. at 676.
4. Plaintiff fails to state a claim against the vital records department's “application processor/check cashier” for violating his constitutional rights.
Plaintiff complains that he sent money “to OSDH vital records” to add his “real father” to his birth certificate and to “correct vital records” but “the requested actions” still haven't been done and completed.” Doc. 12, at 6-7. He asserts he “payed for this action so this is a violation of [his] due process rights.” Id. at 6. Assuming Plaintiff is alleging the application processor/check cashier was not authorized to take his money without first completing his “requested actions,” the undersigned recommends the Court dismiss this claim for failure to state a claim.
“[A]n 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 postdeprivation remedy for the loss is available. Hudson v. Palmer, 468 U.S. 517, 533 (1984). To adequately state a property deprivation claim, Plaintiff must plead the inadequacy or unavailability of a postdeprivation remedy. See Durre v. Dempsey, 869 F.2d 543, 548 (10th Cir. 1989) (explaining that the complaint “must allege facts sufficient to show deprivation, in this case the lack of an adequate state remedy”). He has not done so here.
Plaintiff claims he wrote to “risk management” and that office denied his claim but did not return his money. Doc. 12, at 6. The state provides an appeal process when “[r]equests for amendments] are not accepted by the registrar.” See https://oklahoma.gov/health/services/birth-and-death-certificates/amendments.html (last visited Mar. 2, 2023) (“Requests for amendment which are not accepted by the registrar e.g. ineligible applicant or lack of supporting evidence may be appealed by filing a petition with the Administrative Hearing Clerk pursuant to OAC 310:2 and seek a final decision by an Administrative Law Judge granting the relief requested.”). But Plaintiff does not claim that he either took advantage of the appeal process that the state provides or that the state deprived him of that opportunity. He thus fails to adequately plead a deprivation of due process in connection with the loss of his money. See Hudson, 468 U.S. at 533 (“For intentional, as for negligent deprivations of property by state employees, the state's action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy.”).
To the extent Plaintiff attempts to plead Defendant “application processor/check casher” otherwise violated his constitutional rights, he fails to state a claim. “Personal participation is an essential allegation in a § 1983 claim.” Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). “[I]t is incumbent upon a plaintiff to ‘identify specific actions taken by particular defendants' in order to make out a viable § 1983 . . . claim.” Pahls v. Thomas, 718 F.3d 1210, 1226 (10th Cir. 2013) (quoting Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 532 (10th Cir. 2011)). Yet Plaintiff generally alleges that “risk management” denied his requests to reverse his adoption and amend his birth certificate, not the person who cashed his check. See Doc. 12, at 6 (“My claim was denied by risk management.”). And, while Plaintiff makes a general allegation that the state employee's action of not returning his money was “cruel and unusual” and limited his right to “learn Cherokee culture and language,” he does not actually state a cognizable First or Eighth Amendment claim against this Defendant. See, e.g., Farmer v. Brennan, 511 U.S. 825, 832 (1994) (“In its prohibition of ‘cruel and unusual punishments,' the Eighth Amendment places restraints on prison officials ....” (emphasis added)); cf. Iqbal, 556 U.S. at 678 (stating a complaint will not “suffice if it tenders naked assertions devoid of further factual enhancement” (internal quotation marks omitted)). The undersigned therefore recommends the Court dismiss Plaintiff's claims against this Defendant for failure to state a claim.
Plaintiff also asks the Court to order “vital records to not cash the check until the requested action takes place.” Doc. 12, at 7. So, it is unclear from the amended complaint whether Plaintiff has yet lost any of his property.
B. Claim II.
1. Plaintiff has not alleged Defendant Ahmed is a state actor.
To state a § 1983 claim, a plaintiff must allege a person acting under color of state law violated his constitutional rights. West, 487 U.S. at 48; see Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995) (“[T]he only proper defendants in a [§] 1983 claim are those who represent the state in some capacity ....” (citation and internal brackets omitted)). “[A] person acts under color of state law only when exercising power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” Polk County v. Dodson, 454 U.S. 312, 317-18 (1981) (internal quotation marks and citation omitted).
The under-color-of-state-law element is jurisdictional. Id. at 315. And it “‘excludes from its reach merely private conduct, no matter how discriminatory or wrongful.'” Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1143 (10th Cir. 2014) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)). This Court “cannot enforce a federal constitutional right as against a private actor.” Wideman v. Watson, 617 Fed.Appx. 891, 893 (10th Cir. 2015) (citing Hill v. Kemp, 478 F.3d 1236, 1256 (10th Cir. 2007)).
In Claim II, Plaintiff seeks to hold Defendant Ahmed accountable under § 1983 for violating his Eighth Amendment rights during an eye examination. Doc. 12, at 7-8. He seeks monetary damages from both Defendant Ahmed and his employer. Id. at 8. But Plaintiff does not expressly plead that Defendant Ahmed acted under color of state law and his status as a medical doctor does not designate him as a state actor. See, e.g., Adkins v. Koduri, 755 Fed.Appx. 751, 753 (10th Cir. 2018 (“[A] doctor is not a state actor.”); see also Florence v. Peterson, 268 Fed.Appx. 737, 738 (10th Cir. 2008) (holding that the plaintiff's allegations that the defendants were medically licensed in Colorado was “insufficient to establish the requisite nexus between the state and private conduct”). Nor does Plaintiff allege that the Dean McGee Eye Institute is a state facility or that state actors control the medical decisions made there. Cf. Florence, 268 Fed.Appx. at 738 (“We have previously held that even when a private hospital is subject to ‘intricate state regulation,' the hospital's action is not state action.” (quoting Ward v. St. Anthony Hosp., 476 F.2d 671, 675 (10th Cir. 1973))).
To state a claim Plaintiff “must show the involvement of the state in the activity causing the alleged injury.” Florence, 268 Fed.Appx. at 738 (internal quotation marks omitted). Plaintiff makes no claims of state involvement and offers no reasons why Defendant Ahmed was acting as an agent of the state during Plaintiff's eye examination. As Plaintiff's “allegations do not permit the inference that [Defendant Ahmed] is a state actor,” the undersigned recommends the Court dismiss this claim for lack of subject matter jurisdiction. Adkins, 755 Fed.Appx. at 753. See Wideman, 617 Fed.Appx. at 893 (“Absent an allegation of action under color of state law, Wideman's § 1983 cause of action is ‘so patently without merit as to justify the court's dismissal for want of jurisdiction.'” (quoting McKenzie v. USCIS, 761 F.3d 1149, 1156 (10th Cir. 2014))).
IV. Recommendation and notice of right to object.
For the reasons discussed above, the undersigned recommends the Court dismiss Plaintiff's amended complaint. Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before March 31, 2023, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). Plaintiff is further advised that the failure to file a timely objection to this Report and Recommendation waives the right to appellate review of both the 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.