Opinion
CIV-23-544-R
11-28-2023
ORIN KRISTICH Plaintiff, v. FNU CASADY, et al., Defendants.
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Orin Kristich, a convicted federal prisoner, appearing pro se, and in forma pauperis, has filed an Amended Complaint under 42 U.S.C. § 1983 and Bivens v. Six Unknown named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), alleging violations of state and federal law. (ECF No. 18). United States District Judge David L. Russell has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). A review of the Amended Complaint has been conducted pursuant to 28 U.S.C. § 1915A(a) and 28 U.S.C. § 1915(e)(2)(B). Based on that review, it is recommended that the Court: (1) dismiss the official capacity claims against Defendants Casady, Foster, Crane, and Dickerson, with prejudice; (2) dismiss the individual capacity claims against Defendants Casady, Foster, Crane, and Dickerson without prejudice; (3) dismiss the official capacity claims against Defendants Rios, Unknown United States Marshals, Poynyer, Gutierrez, Stangle, and Wong, with prejudice; (4) dismiss the individual capacity claims against Defendants Rios, Unknown United States Marshals, Poynyer, Gutierrez, Stangle, and Wong, without prejudice; and (5) decline to exercise supplemental jurisdiction over Plaintiff's state law claims.
Plaintiff has also asserted jurisdiction under: “The Ending Qualified Immunity Act,” “The Stripping Doctrine,” 28 U.S.C. § 1332; “Tort Claims Act Sec. 2671-80,” United States Constitution Art. III justiciability/justiciability doctrine; jurisdictional doctrine,” and “Defendants Handbook and Policy.” (ECF No. 18:1). However, the Court will not consider these jurisdictional bases because Mr. Kristich has not explained their applicability to his claims. See ECF No. 18.
I. SCREENING REQUIREMENT
The Court must review each complaint in which a prisoner seeks redress against a governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). The Court likewise must review each case brought by a prisoner with respect to prison conditions and each case in which a plaintiff proceeds in forma pauperis. 42 U.S.C. § 1997e(c)(1); 28 U.S.C. § 1915(e)(2). The Court is required to dismiss the complaint or any portion of the complaint that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B); 42 U.S.C. § 1997e(c)(1).
II. STANDARD OF REVIEW
The Court must accept Mr. Kristich's allegations as true and construe them, and any reasonable inferences to be drawn from them, in the light most favorable to Plaintiff. See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Since Mr. Kristich is proceeding pro se, his complaint must be construed liberally. See id. at 1218. The Court “review[s] the complaint for plausibility; that is, to determine whether the complaint includes enough facts to state a claim to relief that is plausible on its face.” Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009) (quotations and citation omitted). “Plausible” in this context does not mean “likely to be true,” but rather refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct,” then the plaintiff has not “nudged (his) claims across the line from conceivable to plausible.” Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). The plausibility requirement “serves not only to weed out claims that do not (in the absence of additional allegations) have a reasonable prospect of success, but also to inform the defendants of the actual grounds of the claim against them.” Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008).
A complaint fails to state such a claim when it lacks factual allegations sufficient “to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555 (footnote and citation omitted). Bare legal conclusions in a complaint are not assumed to be true; legal conclusions “must be supported by factual allegations” to state a claim upon which relief may be granted. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
“[A] pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. As a result, courts “look to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief.” Kay, 500 F.3d at 1218 (quotation marks and citations omitted).
Whether a complaint contains sufficient facts to avoid dismissal is context-specific and is determined through a court's application of “judicial experience and common sense.” Iqbal, 556 U.S. at 679; see also Gee v. Pacheco, 627 F.3d 1178, 1184-85 (10th Cir. 2010) (discussing Iqba). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege sufficient facts to plausibly show that a person acting under color of state law has violated or is violating a federal right of the plaintiff. 42 U.S.C. § 1983; Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013). The specific factual allegations required depend upon whether the defendant is sued in his or her official or individual capacity, as well as the type of violation alleged.
III. PLAINTIFF'S AMENDED COMPLAINT/NAMED DEFENDANTS
Mr. Kristich, a federal prisoner in the custody of the Bureau of Prisons (BOP), currently resides at Tucson-USP, a federal prison in Tucson, Arizona. See ECF No. 18. However, at some point, while still in the custody of the BOP, Mr. Kristich was housed at Cimarron Correctional Facility (CCF), a private prison operated by CoreCivic, located in Cushing, Oklahoma. In the Amended Complaint, Mr. Kristich sets forth thirteen claims against ten Defendants falling into two groups-employees of the BOP and employees of CCF. See ECF No. 18. The BOP Defendants include: (1) Melissa Rios, Western Regional Director, BOP, residing in Stockton, California; (2) Unknown U.S. Marshals; (3) FNU Poynyer, BOP Health Services Administrator at Tucson-USP; (4) FNU Guitierrez, Warden at Tucson-USP; (5) FNU Stangle, Assistant Warden at Tucson-USP; and (6) FNU Wong, Western Regional Counsel, BOP, residing in Stockton, California. (ECF No. 18:6-7). The CCF Defendants include: (1) FNU Casady, CCF Nurse; (2) FNU Foster, CCF Nurse; (3) FNU Crane, CCF Physician; and (4) FNU Dickerson, CCF Warden. (ECF No. 18:5, 7).
See https://www.corecivic.com/facilities/cimarron-facility (last visited Nov. 7, 2023).
The basis of Plaintiff's Amended Complaint concerns an incident involving a dislocated shoulder which occurred at approximately 4:00 a.m. on December 21, 2021, which he says he was “unable to report” “for around 15 hours due to staff's [sic] failure to perform welfare checks, and lack of any emergency call devices in his cell.” (ECF No. 18:12, 13). Plaintiff states that he suffered “for about 30 hours” “lasting until about 3pm on December 26, 2021” when he was taken to Hillcrest Hospital and treated. (ECF No. 18:12, 13). Following his return from the hospital, Mr. Kristich alleges a lack of aftercare, which he contends has attributed to long-term, ongoing nerve damage. (ECF No. 18:1517).
In addition to allegations of deliberate indifference to his serious medical needs in violation of the Eighth Amendment, Mr. Kristich has also alleged state law violations of intentional infliction of emotion distress pertaining to the alleged lack of medical care. (ECF No. 18:17-18). Additionally, Plaintiff has alleged a Fifth Amendment Due Process violation, a violation of Equal Protection, a First Amendment violation involving his right to “redress the government,” and “Retaliation and Harassment.” (ECF No. 18:19). Regarding these claims, Plaintiff alleges that BOP officials have:
• interfered with his legal mail,
• thwarted his attempts at seeking administrative relief,
• placed him in the segregated housing unit as a form of retaliation;
• “tried to strip [him] ¶ 1800 programs hours,”
• “filed [a] false program review,” and
• maintained Plaintiff at a “high” security level which “plac[es] his life at risk.”(ECF No. 18:20). Plaintiff sues all Defendants in their official and individual capacities and seeks monetary relief. (ECF No. 18:5-7, 10-21).
The nature of the claims, as well as the individuals sued, in what capacity, and what type of relief is asserted, mandate various standards of review. For instance, civil rights violations may be asserted against all of the Defendants, but their status as either state or federal officials, dictate the specific jurisdictional basis of said claims and related applicable rules. Federal officials, for example, can only be sued under Bivens, supra, and Mr. Kristich may sue the state officials under 42 U.S.C. § 1983. See42 U.S.C. § 1983 (providing redress against those persons who, under color of state law, deprive an individual of “any rights, privileges, or immunities secured by the Constitution and laws.”). The undersigned will discuss the various rules and standards as they become relevant.
See Smith v. U.S., 561 F.3d 1090, 1099 (10th Cir. 2009).
“ ‘Section 1983 itself does not create any substantive rights.' ” Brown v. Buhman, 822 F.3d 1151, 1161 n.9 (10th Cir. 2016) (citation omitted). Rather, it “is a remedial vehicle for raising claims based on the violation of [federal] constitutional rights.” Id.
IV. FEDERAL CLAIMS AGAINST DEFENDANTS CASADY, FOSTER, CRANE, AND DICKERSON
In Claims One, Two, Three, Four, Five, Six, Seven, Eight, and Eleven, Plaintiff alleges deliberate indifference to his serious medical needs in violation of the Eighth Amendment against Defendants Casady, Foster, Crane, and Dickerson. See ECF No. 18:917, 19. As stated, these claims are asserted under 42 U.S.C. § 1983, against these Defendants in their individual and official capacities. See supra.
A. Official Capacity Claims
As employees of CCF, a private prison, claims against Defendants Casady, Foster, Crane, and Dickerson in their official capacities cannot stand. See Jones v. Barr, 33 Fed.Appx. 967, 971, n.5 (10th Cir. 2002) ('“the CCA defendants are not state actors, and they do not have an "official capacity.” ”); Alamin v. Patton, No. CIV-13-1001-F, 2016 WL 7217857, at *6 (W.D. Okla. Dec. 13, 2016) ('“As employees of a private prison, they are not state officials, and official capacity claims cannot be asserted against them.”). Thus, the Court should dismiss the claims against Defendants Casady, Foster, Crane, and Dickerson with prejudice. See Borrego v. Core Civic, No. CIV-18-1044-D, 2018 WL 7108068, at *3 (W.D. Okla. Dec. 27, 2018) (dismissing official capacity claims against private prison employees with prejudice), adopted, 2019 WL 303013, at *1 (W.D. Okla. Jan. 23, 2019).
B. Individual Capacity Claims
With that recommendation, what remains are Mr. Kristich's individual capacity claims against Defendants Casady, Foster, Crane, and Dickerson alleging deliberate indifference to Plaintiff's serious medical needs in violation of the Eighth Amendment. See supra. The Court should dismiss these claims.
When a defendant is sued in his or her individual capacity under § 1983, the plaintiff must establish specific elements as to each defendant. First, the plaintiff must establish the defendant's “personal involvement or participation” in the alleged violation of a federal right. Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir. 1996); see also Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). Second, the plaintiff must establish a causal connection between the acts of that particular defendant and the alleged violation of a federal right. See Iqbal, 556 U.S. at 676; Pahls, 718 F.3d at 122528. Finally, the plaintiff must establish that the defendant acted with the state of mind required for the alleged underlying federal rights violation. See Daniels v. Williams, 474 U.S. 327, 330 (1986).
Additionally, deliberate indifference contains both an objective and subjective component. Id. The objective component is satisfied if the deprivation is "sufficiently serious.” Lucas v. Turn Key Health Clinics, LLC, 58 F. 4th 1127, 1136 (10th Cir. 2023) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). A medical need is sufficiently serious "if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Id. (internal citation omitted). The standard for the subjective component is that the official "knows of and disregards an excessive risk to inmate health or safety.” Id. at 1137 (citing Farme, 511 U.S. at 837). The official must be aware of the facts from which the inference of a substantial risk of serious harm could be drawn and also draw that inference. Id.
A plaintiff "need not show that a prison official acted or failed to act believing that harm actually would befall an inmate,” but rather that the official "merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist.” Id. "Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence” such as whether “the risk was obvious.” Id. An official disregards risk when he fails to take reasonable measures to abate the risk. Id. A claim that a course of treatment was inadequate after the exercise of medical judgment, absent an extraordinary degree of neglect does not rise to disregard of serious medical need. Id. (citing Self v. Crum, 439 F.3d 1227, 1232, 1234 (10th Cir. 2006)).
The subjective component of the deliberate indifference test can be satisfied in two ways: failure to properly treat a serious medical condition ("failure to properly treat theory”) or as a gatekeeper who prevents an inmate from receiving treatment or denies access to someone capable of evaluating the inmate's need for treatment ("gatekeeper theory”). Id. The latter theory can apply to medical professionals when the professional knows that his or her role in a medical emergency is solely to refer the patient to another. Id. Even a brief delay in treatment can be unconstitutional. Id.
1. Claim One
In Claim One, Plaintiff alleges a violation of the Eighth Amendment through deliberate indifference to his medical needs "by acting as ‘Gate Keeper' when refusing to open cell door.” (ECF No. 18:9). Presumably these allegations refer to the 15-hour period of time following his injury at 4:00 a.m. on December 25, 2021. See supra. Plaintiff asserts this claim against Defendants Casady, Foster, Crane, and Dickerson. (ECF No. 18:9).Specifically, Mr. Kristich alleges:
Mr. Kristich has also named “Unknown U.S. Marshals” as Defendants to this claim. See ECF No. 18:9. The Court will address these allegations when addressing the claims against the federal defendants. See infra.
• “Nurse Casady showed deliberate indifference to Mr. Kristich's serious medical needs;”
• “Nurse Foster demonstrated extream [sic] negligence in failing to perform any of his functions as a medical professional;” and
• “Dr. Crane showed willful malconduct; only offering a sling to immobilize Kristich's arm rather than attempting to reset the dislocated joint when the door was finally open the next day!”(ECF No. 18:10).
Although Plaintiff has named Defendant Dickerson, he has failed to allege that Defendant Dickerson had personally participated in the alleged deliberate indifference. As a result, the Court should dismiss the individual capacity claim as set forth against Defendant Dickerson in Claim One.
The Court should also dismiss Claim One as to Defendants Casady and Foster, as the allegations against these Defendants are conclusory, consisting of nothing more than “labels” and conclusory allegations. For example, Plaintiff has failed to allege how, exactly, Nurse Casady “showed deliberate indifference to Mr. Kristich's serious medical needs” or Nurse Foster “demonstrated extream [sic] negligence.” See supra, Twombly. Finally, the Court should dismiss Claim One as to Dr. Crane, as Plaintiff has made no allegations that Dr. Crane acted with “deliberate indifference”-i.e.-that in offering a sling to treat Plaintiff's injury, he “kn[ew] [of] and disregard[ed] an excessive risk to [Mr. Kristich's] health or safety.” See supra, Lucas.
Furthermore, as to Defendant Foster, the United States Supreme Court has held that “negligen[ce]” does not violate the Eighth Amendment. Farmer v Brennan, 511 U.S. 825, 860 (1994).
2. Claim Two
In Claim Two, Plaintiff alleges that his “right to adequate medical treatment was violated.” (ECF No. 18:10). Plaintiff asserts this claim against Defendants Casady, Foster, Crane, and Dickerson. (ECF No. 18:9). Specifically, Mr. Kristich alleges: “The above named defendants deprived Mr. Kristich of his right to seek medical treatment, after being made aware of and being told about his medical emergency.” (ECF No. 18:11). The Court should dismiss Claim Two as to these Defendants.
Mr. Kristich has also named “Unknown U.S. Marshals” as Defendants to this claim. See ECF No. 18:10. The Court will address these allegations when addressing the claims against the federal defendants. See infra.
In a case such as this one where Mr. Kristich has brought claims against more than one defendant, “it is particularly important . . . that the complaint make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him.” Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008). Indeed, the Tenth Circuit Court of Appeals has stated that “[m]erely lumping [a defendant] in with fifteen other medical professionals under the generic label 'defendants'. . . does not adequately plead a § 1983 claim against him.” Walker v. Mohiuddin, 947 F.3d 1244, 1250 (10th Cir. 2020). As a result, because Mr. Kristich failed to link any of the Defendants with any of particular violation in Claim Two, the Court should dismiss the allegations in Claim Two as legally deficient. See Nasious v. TwoUnknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th Cir. 2007) (explaining “that, to state a claim in federal court, a complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant did it; how the defendant's action harmed (the plaintiff); and, what specific legal right the plaintiff believes the defendant violated.”).
3. Claim Three
In Claim Three, Plaintiff alleges that his “right to seek medical care was violated.” (ECF No. 18:11). Plaintiff asserts this claim against Defendants Casady, Foster, Crane, and Dickerson. (ECF No. 18:9). Specifically, Mr. Kristich alleges: “The above named defendants deprived Mr. Kristich of his right to access medical care.” (ECF No. 18:11). As stated, lumping in Defendants together fails to state a claim against any of them individually. However, regarding Defendants Casady and Foster, Plaintiff specifically contends:
Mr. Kristich has also named “Unknown U.S. Marshals” as Defendants to this claim. See ECF No. 18:11. The Court will address the allegations when addressing the claims against the federal defendants. See infra.
• Defendant Casady would not ope1n his cell door and
• Defendant Foster never came to check on Plaintiff.(ECF No. 18:12). But the Court should dismiss these allegations against these Defendants, because Mr. Kristich failed to allege that either Defendant had acted with the requisite state of mind to demonstrate deliberate indifference. See supra.
In the “supporting facts” section of this claim, Plaintiff mentions Defendants Dickerson and Crane, but does not allege that they “deprived [Plaintiff] of his right to medical care” or make any allegations which would suggest that they had acted with deliberate indifference to Plaintiff's serious medical needs. Instead, Plaintiff states only that Defendant Dickerson directed Plaintiff to be transported to an outside hospital and Defendant Crane had ordered a sling for Plaintiff. (ECF No. 18:12). Thus, the Court should dismiss the individual capacity claims asserted against Casady, Foster, Crane, and Dickerson as set forth in Claim Three.
4. Claim Four
In Claim Four, Plaintiff alleges “Abuse and Neglect of a Prisoner; by not responding to a medical emergency.” (ECF No. 18:13). Plaintiff asserts this claim against Defendants Casady, Foster, Crane, and Dickerson. (ECF No. 18:9).In support of this claim, Plaintiff states:
Mr. Kristich has also named “Unknown U.S. Marshals” as Defendants to this claim. See ECF No. 18:13. The Court will address these allegations when addressing the claims against the federal defendants. See infra.
Mr. Kristich was locked in a cell in Unit F.C. for over 24 hours after his injury.
For about 15 hours there were no officers making well-fair checks; staff not even serve food on December 25, 2021. After being told about the injury Mr. Kristich was locked in the cell. Leading to extreme pain and suffering for about 30 hours on December 25, 2021 around 4 am (Christmas Day) and lasting until about 3pm on December 26, 2021 when Mr., Kristich was finally treated at the hospital.(ECF No. 18:13). But because Mr. Kristich has failed to specify which Defendant did what to him, precisely, the Court should dismiss the individual capacity claims asserted against Defendants Casady, Foster, Crane, and Dickerson as set forth in Claim Four.
5. Claim Five
In Claim Five, Plaintiff alleges “Extreme pain and suffering.” (ECF No. 18:14). Plaintiff asserts this claim against Defendants Casady, Foster, Crane, and Dickerson. (ECF No. 18:9). In support of this claim, Plaintiff states: “extreme pain and suffering for about 30 hours. Due to being locked in cell with no medical treatment.” The Court should dismiss the individual capacity claims asserted in Claim Five against Defendants Dickerson, Crane, Casady, and Foster because Mr. Kristich has failed to explain exactly how each Defendant was responsible for his “extreme pain and suffering.” See supra, Robbins (noting “it is particularly important . . . that the complaint make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him.”).
Mr. Kristich has also named “Unknown U.S. Marshals” as Defendants to this claim. See ECF No. 18:14. The Court will address these allegations when addressing the claims against the federal defendants. See infra.
6. Claim Six
In Claim Six, Plaintiff alleges “Medical Malpractice leading to long-term nerve damage and/or muscle damage.” (ECF No. 18:14). Plaintiff asserts this claim against Defendants Casady, Foster, Crane, and Dickerson. (ECF No. 18:14). In support of this claim, Plaintiff states:
Mr. Kristich has also named “Defendants Rios, Gutierrez, Stangle, Poyner, and Unknown U.S. Marshals” as Defendants to this claim. See ECF No. 18:14. The Court will address the allegations against these defendants when addressing the claims against the federal defendants. See infra.
Long-term nerve and/or muscle damage (an injury) because medical treatment and aftercare were not forthcoming. Mr. Kristich is still in pain while on nerve pain medication at this time. However, Medical trips that were scheduled by B.O.P. Juchan M.D. and B.O.P. Newland PA-C; have been canceled more than once.... Mr. Kristich needs to see a nerve and muscle specialist and orthopedic specialist. To see if surgery would correct the problem. Medical trips have been cancelled to block any kind of treatment, care and/or determination of all the injuries to Mr., Kristich, his shoulder, and/or his nerve and muscle system. So it's an ongoing issue.(ECF No. 18:15).
The Court should dismiss the individual capacity claims asserted in Claim Six against Defendants Casady, Foster, Crane, and Dickerson because Mr. Kristich has failed to explain exactly how each Defendant was responsible for his “extreme pain and suffering.” See supra, Robbins.
7. Claim Seven
In Claim Seven, Plaintiff alleges “Life Long Pain and Suffering.” (ECF No. 18:15).
Plaintiff asserts this claim against Defendants Casady, Foster, Crane, and Dickerson. (ECF No. 18:9). In support of this claim, Plaintiff states:
Mr. Kristich has also named “Unknown U.S. Marshals, et. al” as Defendants to this claim. See ECF No. 18:15. The Court will address the allegations against these defendants when addressing the claims against the federal defendants. See infra.
Mr. Kristich is still in pain, and suffering to this time table. His pain and suffering could have been prevented with prompt medical attention and
after care. As it is their duity [sic] to responed [sic] to a medical emergency while acting under color of law.(ECF No. 18:15).
Again, the Court should dismiss the individual capacity claims asserted in Claim Seven against Defendants Dickerson, Crane, Casady, and Foster because Mr. Kristich has failed to explain exactly how each Defendant was responsible for his “Life Long Pain and Suffering.” See supra, Robbins.
8. Claim Eight
In Claim Eight, Plaintiff alleges “Crule and Unusual Treatment.” (ECF No. 18:16). Plaintiff asserts this claim against Defendants Casady, Foster, Crane, and Dickerson. (ECF No. 18:9). In support of this claim, Plaintiff states:
Mr. Kristich has also named “Defendants Rios, Gutierrez, Stangle, Poyner, and Unknown U.S. Marshals, et, al” as Defendants to this claim. See ECF No. 18:16. The Court will address the allegations against these defendants when addressing the claims against the federal defendants. See infra.
The defendant's [sic] at CCA knew that Mr. Kristich was in pain with an injury and gave no medical treatment for around 30 hours. The most condemning facts are the lack of emergency call devices in unit F.C., and the lack of treatment. B.O.P. staff have blocked treatment and determination of all injuries in this case to aid the other defendants. When Mr. Kristich was sent to the B.O.P. he was locked in a cell for 21 days, in a sling, no medical treatment or care, and was stripped of pain medications and Ice needed for pain.(ECF No. 18:16-17).
Again, the Court should dismiss the individual capacity claims asserted in Claim Eight against Defendants Casady, Foster, Crane, and Dickerson because Mr. Kristich has failed to explain exactly how each Defendant was responsible for the alleged cruel and unusual treatment. See supra, Robbins.
9. Claim Eleven
In Claim Eleven, Plaintiff alleges “Intentional Infliction of Physical Pain.” (ECF No. 18:19). Plaintiff asserts this claim against Defendants Casady, Foster, Crane, and Dickerson. (ECF No. 18:19). In support of this claim, Plaintiff states:
Mr. Kristich has also named “Unknown U.S. Marshals” as Defendants to this claim. See ECF No. 18:19. The Court will address these allegations when addressing the claims against the federal defendants. See infra.
The above defendants knew that Mr. Kristich was in extream [sic] pain, and demostrated [sic] the physical torture by failing to perform any of their professional functions. They knew or should have known that the only treatment for a dislocated joint is reseting [sic] the joint. They knew or should have known this caused Mr. Kristich extream [sic] pain.(ECF No. 18:19).
Again, Mr. Kristich has lumped all of the named Defendants into Claim Eleven, but has failed to explain what each Defendant did, personally, to violate Plaintiff's constitutional rights. As a result, the Court should dismiss the individual capacity claims asserted in Claim Eleven against Defendants Casady, Foster, Crane, and Dickerson because Mr. Kristich has failed to explain exactly how each Defendant was responsible for the alleged “Intentional Infliction of Physical Pain.” See supra, Robbins.
10. Summary
In Claims One, Two, Three, Four, Five, Six, Seven, Eight, and Eleven, Plaintiff has asserted individual capacity Eighth Amendment claims against Defendants Casady, Foster, Crane, and Dickerson. For the forgoing reasons, the Court should dismiss all of said claims against all of these Defendants, without prejudice.
V. FEDERAL CLAIMS AGAINST DEFENDANTS RIOS, UNKNOWN UNITED STATES MARSHALS, POYNYER, GUTIERREZ, STANGLE, AND WONG
In Claims One, Two, Three, Four, Five, Six, Seven, Eight, Eleven, Twelve, and Thirteen, Plaintiff alleges deliberate indifference to his serious medical needs in violation of the Eighth Amendment; a Fifth Amendment Due Process violation; a violation of Equal Protection; a First Amendment violation involving his right to “redress the government;” and “Retaliation and Harassment.” See ECF No. 18:9-21. These claims are brought against Defendants Rios, Unknown U.S. Marshals, Poynyer, Gutierrez, Stangle, and Wong, and are asserted pursuant to Bivens v. Six Unknown named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). See supra, n.3. Mr. Kristich asserts these claims against these Defendants in their individual and official capacities. See supra.
A. Official Capacity Claims
As stated, Plaintiff has sued Defendants Rios, Unknown U.S. Marshals, Poynyer, Gutierrez, Stangle, and Wong in their official capacities. See supra. However, such official capacity claims may not lie against these Defendants in his or her official capacity. See Simmat v. U.S. Bureau of Prison, 413 F.3d 1225, 1231 (10th Cir. 2005). That is, “[t]here is no such animal as a Bivens suit against a public official tortfeasor in his or her official capacity. Instead, any action that charges such an official with wrongdoing while operating in his or her official capacity as a United States agent operates as a claim against the United States ” Id. at 1231 (quoting Farmer v. Perril, 275 F.3d 958, 963 (10th Cir. 2001)). The doctrine of sovereign immunity, however, precludes a Bivens action against the United States or any agency thereof. See, e.g., Hatten v. Whit, 275 F.3d 1208, 1210 (10th Cir. 2002). The United States is immune from suit unless it expressly consents to be sued. United States v. Testan, 424 U.S. 392, 399, (1976).
In this case, Mr. Kristich has not shown that the United States waived its sovereign immunity by consenting to being sued. Accordingly, the Court should find that Plaintiff's Bivens claims against Defendants Unknown U.S. Marshals, Poynyer, Gutierrez, Stangle, and Wong, in their official capacities, are barred by sovereign immunity and should be dismissed for lack of subject matter jurisdiction. See Hatten v. Whit, 275 F.3d 1208, 1210 (10th Cir. 2002) ('“A Bivens action may not be brought against federal agencies or agents acting in their official capacities.”); Watson v. Hollingswort, 741 Fed.Appx. 545, 550 (10th Cir. 2018) (affirming dismissal of official-capacity Bivens claims for lack of jurisdiction).
Sovereign immunity does not preclude prisoners from seeking injunctive relief against federal officials to enforce their constitutional rights. Simma, 413 F.3d at 1233. However, in this case, Mr. Kristich asks only for monetary damages. See supra.
"Federal courts ‘have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party,' and thus a court may sua sponte raise the question of whether there is subject matter jurisdiction 'at any stage of the litigation.' ” 1mage Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (quoting Arbaugh v. Y& H Corp., 546 U.S. 500, 514 (2006)).
B. Individual Capacity Claims
With the previous recommendation, what remains are Plaintiffs individual capacity claims for monetary damages against the federal Defendants as set forth in Claims One, Two, Three, Four, Five, Six, Seven, Eight, Eleven, Twelve, and Thirteen. In Claims One, Two, Three, Four, Five, Seven, and Eleven, Plaintiff seeks liability against “Unknown U.S. Marshals.” See ECF No. 18:9-11, 13-15, 19. In Claim Six, Plaintiff seeks liability against Defendants Rios, Unknown U.S. Marshals, Poynyer, Gutierrez, and Stangle. (ECF No. 18:14). In Claim Eight, Plaintiff seeks liability against Defendants Rios, Unknown United States Marshals, Gutierrez, Stangle, and Wong. (ECF No. 18:16). In Claim Twelve, Plaintiff seeks liability against Defendants Rios, Poynyer, Gutierrez, Stangle, and Wong. (ECF No. 18:20). And in Claim Thirteen, Plaintiff seeks liability against Defendants Rios, Gutierrez, Stangle, and Wong. (ECF No. 18:21). The Court should dismiss these claims.
The undersigned will not repeat the allegations as set forth by Mr. Kristich in Claims One, Two, Three, Four, Five, Six, Seven, Eight, and Eleven. For Claim Twelve, Plaintiff alleges a violation of the First Amendment, his “right to redress the government” and “Retaliation and Harassment.” (ECF No. 18:18-19). In support of Claim Twelve, Mr. Kristich states:
The above defendants have prevented, thwarted or hindered Mr. Kristich's Administrative remdies [sic] more than once: by way of BP-process, Form 95, and obstruction of legal mail in this Court, and Others. Harassed and retaliated by placing Mr. Kristich in the S.H.U. on three false charges, tried to strip Kristich of 1800 program hours; filed false program review BP-337 and 3238 are being maintained to keep Mr. Kristich at a High placing his life at risk, and effecting his liberty intrest [sic] now and upon release. Further, legal mail in this case and others gets sent back and/or does not reach Mr. Kristich at all; (when it does legal mail is given past the response deadline; (and/or ripped or missing pages) this is going on in the B.O.P. as a custom with regards to persons needing medical treatment or care. “Just ask MPR News!”(ECF No. 18:20).
For Claim Thirteen, Plaintiff states: “Same as (12) claim XII in this amendment. retaliation and harassment; false reports; legal mail sent back and/or ripped or missing pages in this case and other ect.” (ECF No. 18:21).
Personal participation is an essential element of any Bivens claim. See Pahls v. Thomas, 718 F.3d. 1210, 1226 (10th Cir. 2013).To establish personal participation, a plaintiff must show how the defendant caused the deprivation of a federal right. Kentucky v. Graham, 473 U.S. 159, 166, (1985). Here, however, Mr. Kristich has failed to allege that any of the federal Defendants-Defendants Rios, Unknown U.S. Marshals, Poynyer, Gutierrez, Stangle, and Wong-have personally participated in any of the allegations that comprise any of the aforementioned claims asserted against them. See supra. As a result, the Court should dismiss all of the individual capacity claims asserted against Defendants Rios, Unknown U.S. Marshals, Poynyer, Gutierrez, Stangle, and Wong as set forth in Claims One, Two, Three, Four, Five, Six, Seven, Eight, Eleven, Twelve, and Thirteen.
VI. STATE CLAIMS AGAINST ALL DEFENDANTS
In Claims Nine and Ten, Plaintiff has asserted claims for Intentional Infliction of Emotional and Mental Distress-claims which fall under Oklahoma state law. See ECF No. 18:17-18. But because Plaintiff has not asserted a viable federal claim herein, see supra, and has not alleged or established any basis for jurisdiction for these claims other than supplemental jurisdiction, this Court should decline to exercise supplemental jurisdiction over Plaintiff's state law claim. 28 U.S.C. § 1367(c)(3); cf., Smith v. City of Enid ex rel. Enid City Comm'n, 149 F.3d 1151, 1156 (10th Cir. 1998) ("When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims.”).
VII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
The Court should: (1) dismiss the official capacity claims against Defendants Casady, Foster, Crane, and Dickerson, with prejudice; (2) dismiss the individual capacity claims against Defendants Casady, Foster, Crane, and Dickerson without prejudice; (3) dismiss the official capacity claims against Defendants Rios, Unknown United States Marshals, Poynyer, Gutierrez, Stangle, and Wong, with prejudice; (4) dismiss the individual capacity claims against Defendants Rios, Unknown United States Marshals, Poynyer, Gutierrez, Stangle, and Wong, without prejudice; and (5) decline to exercise supplemental jurisdiction over Plaintiff's state law claims. Adoption of this recommendation will moot Plaintiff's Motion for Discovery (ECF No. 19).
One aspect of screening is reviewing whether venue is proper “when the defense is obvious from the face of the complaint and no further factual record is required to be developed.” Trujillo v. William, 465 F.3d 1210, 1217 (10th Cir. 2006) (quoting Fratus v. DeLan, 49 F.3d 673, 674 (10th Cir. 1995)). “[T]he term ‘venue' refers to the geographic specification of the proper court or courts for the litigation of a civil action ....” 28 U.S.C. § 1390(a). The proper venue for Plaintiff's action is in the “judicial district in which any defendant resides” or the “judicial district in which a substantial part of the events or omissions giving rise to the claim occurred.” Id. § 1391(b)(1), (2); see also Anaeme v. Florida, 169 Fed.Appx. 524, 527-28 (10th Cir. 2006) (applying the general venue statute, 28 U.S.C. § 1391(b), to the plaintiff's claims of constitutional violations made under 42 U.S.C. § 1983). In the future, Mr. Kristich is cautioned to consider the appropriate venue when considering, for example, the federal defendants in this case, whom he identifies as either residing in Arizona or California. See supra.
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 December 15, 2023. 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).
VIII. STATUS OF THE REFERRAL
This Report and Recommendation terminates the referral to the undersigned magistrate judge in the captioned matter.