Opinion
CIV-21-877-G
01-10-2022
OTIS MAYS, Plaintiff, v. GRADY COUNTY JAIL, et. al., Defendants.
SUPPLEMENTAL REPORT AND RECOMMENDATION
GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE.
Plaintiff, a federal prisoner appearing pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights while he was confined in the Grady County Jail. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Having reviewed the sufficiency of the Amended Complaint pursuant to 28 U.S.C. § 1915A, the undersigned recommends Plaintiff's claims against certain Defendants be dismissed without prejudice.
I. Background
Plaintiff initiated this action on September 1, 2021, by filing a letter requesting “a TRO or an injunction” directing officials at the Grady County Jail to permit him to type a petition that he alleged he must file in his pending appeal in the United States Court of Appeals for the Eighth Circuit, Case No. 20-1359. Doc. No. 1. Plaintiff further alleged the Eighth Circuit directed him to type the petition, but that officials with, or employees of, the Grady County Jail repeatedly told him that he is only allowed “to hand write it.” Id. at 1-2. Plaintiff also represented that he had an immediate deadline and that the Eighth Circuit advised he would not receive any further extensions. Id. at 3.
On September 27, 2021, Plaintiff filed a Notice of Change of Address with the Court indicating he had been transferred to Sherburne County Jail located in Elk River, Minnesota. Doc. No. 11. Because Plaintiff was no longer confined at the Grady County Jail and his claims and/or requests for relief were based upon seeking injunctive relief, the undersigned issued a Report and Recommendation that Plaintiff's action be dismissed as moot. Doc. No. 15. Plaintiff filed an objection to the Report and Recommendation (Doc. No. l9), and also filed miscellaneous documents indicating that he might have other claims he would like to assert against Grady County Jail officials unrelated to his original claims but instead, related to a disciplinary report issued against him while confined there. Doc. No. 16.
United States District Judge Charles Goodwin issued an Order on December 13, 2020, in which he adopted the previously issued Report and Recommendation dismissing Plaintiff's pending claims. Doc. No. 24. However, rather than dismissing this action in its entirety and allowing Plaintiff to file a separate lawsuit for any speculative claims he may or may not choose to assert, Judge Goodwin “re-refer[red] this matter to allow consideration of [any future] claims, should Plaintiff wish to properly plead them.” Id. at 3. As a result, the undersigned directed Plaintiff to file an Amended Complaint no later than January 4, 2022. Doc. No. 25.
Plaintiff did so on January 3, 2022. Doc. No. 32. Though by no means a model of clarity, in the Amended Complaint, Plaintiff names 26 Defendants and purports to assert claims under the First, Third, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. Plaintiff has named the following Defendants: Forsythe, Lt. Lancey, Carpenter, Tucker, Nye, Wiate, Sheldon, Maples, Pinya, K., Hanson, Correction Officer (“CO”) Lance, Wright, Horton, Riley, Fuller, John Doe #1, John Doe #2, Transport Officer Lance, CSA Lancey, Malikai, Asian Nurse, Jane Doe #3, Jane Doe #4, Jane Doe #5, Jane Doe #6, John or Jane Doe Nurse. Doc. No. 32 at 1-4, 5.
For the sake of clarity, the Court notes that Plaintiff did not name a Jane Doe #1 or #2.
Plaintiff supports his claims with varying allegations. First, Plaintiff reasserts his First Amendment claim discussed above. It is not clear whether he is seeking damages for this claim, or merely injunctive relief. Thus, the undersigned has addressed the merits of the claim herein. Second, Plaintiff alleges that certain Defendants unlawfully denied him necessary seizure medication for two to four days after he arrived at the Grady County Jail. Third, Plaintiff states that pursuant to Grady County Jail policy, he was accused of violating a facility rule by being disrespectful to staff, found guilty, and sanctioned with lockdown without being provided a disciplinary hearing.
Fourth, Plaintiff contends that Defendant Forsythe created or allowed a policy providing that his personal books were unlawfully confiscated upon Plaintiff being transferred from Grady County Jail. Fifth, Plaintiff explains that due to his risk of seizures, he was supposed to be assigned to a bottom bunk. Certain Defendants either refused or failed to provide him with the sam e, res ulti ng in his experiencing a seizure while he was on a top bunk. When this occurred, Plaintiff fell off the top bunk, suffering serious injuries. Finally, Plaintiff alleges that when he was attempting to secure a bottom bunk assignment, certain Defendants used excessive force against him.
II. Screening of Prisoner Complaints
A federal district court must review complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A. The court must dismiss a complaint or any portion of it at any time if it determines the claims are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. Id.
In conducting this review, the reviewing court must accept the plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from the allegations, in the light most favorable to the plaintiff. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Although a pro se litigant's pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 520 (1972), “[t]he burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The allegations in a complaint must present “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Further, a claim is frivolous “where it lacks an arguable basis either in law or in fact” or is “based on an indisputably meritless legal theory[.]” Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989).
III. First Amendment Claims
Plaintiff asserts a First Amendment claim against Defendants Lt. Lancey, Carpenter, Tucker, Nye, Wiate, Sheldon, Maples, Pinya, K., Hanson, John Doe #2, Transport Officer Lance, CSA Lancey, Wright, Horton, and Riley. Doc. No. 32 at 2-3, 4-5. Specifically, he states the following:
On __ I was provided with an order from the 8th Circuit court of appeals ordering me to type my appeal petition & also telling me I had a deadline given to me by the 8th circuit courts of appeal to have my petitions filed by September 3rd 2021 & that i would not be given anymore extensions. I showed this order to defendants Lancey, Tucker, Nye, Wiate, Sheldon, Maples, Pinya, K., Hanson, Wright, Horton Riley, Lance, & others whom all denied me to follow the court order for me to TYPE my petition. Which caused me to miss my deadline & not be able to be heard on my En-Banc petition. I also filed multiple grievances both paper copy's & electronic ones but all where [sic] denied or just not responded to.Id. at 4-5. A review of the Eighth Circuit docket for Petitioner's case and application of the requirements for a First Amendment claim reveal that Plaintiff's version of these events is not entirely accurate and his claim is without merit.
Inmates have a First Amendment right to “petition the Government for a redress of grievances.” U.S. Const. amend. I. This right, which is more informally referred to as a “right of access to the courts, ” requires States “to give prisoners a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights . . . .” Bounds v. Smith, 430 U.S. 817, 821, 825 (1977), abrogated on other grounds, Lewis v. Casey, 518 U.S. 343, 350 (1996). The Supreme Court has noted that “[m]eaningful access . . . is the touchstone” of the inmate's right to court access. Bounds, 430 U.S. at 823 (quotations omitted). It held that all states have “affirmative obligations to assure all prisoners meaningful access to the courts.” Id. at 824.
However, to prevail in a challenge based on denial of access to the courts, an inmate must also establish actual injury. Lewis, 518 U.S. at 351. The Court explained that it is not enough to allege shortcomings regarding a prison's legal provisions or personnel actions. Id. The inmate must go one step further and demonstrate that the alleged actions or inactions hindered his efforts to pursue a legal claim. See id., cf., (“[An inmate] might show, for example, that a complaint he prepared was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison's legal assistance facilities, he could not have known. Or that he had suffered arguably actionable harm that he wished to bring before the courts, but was so stymied by inadequacies of the law library that he was unable even to file a complaint.”).
On February 10, 2020, the United States District Court for the District of Minnesota convicted Plaintiff, following a guilty plea, of Receipt of Child Pornography and Wire Fraud. Judgment in a Criminal Case, United States v. Mays, No. 19-cr-75-ECT-HB (D. Minn. Feb. 10, 2020), Doc. No. 87. Represented by counsel, Plaintiff filed an appeal with the Eighth Circuit Court of Appeals. Criminal Case Docketed, United States v. Mays, No. 20-1333 (8th Cir. Feb. 19, 2020). The Eighth Circuit ultimately affirmed in part and vacated in part the judgment of the Minnesota District Court, remanding the matter back to the district court to allow the court to address one aspect of Plaintiff's sentence. Judgment, United States v. Mays, No. 20-1033 (8th Cir. April 6, 2021).
Following this ruling, Plaintiff's counsel withdrew, and he filed his own motion seeking an extension of time to file a petition for rehearing. Motion Requesting the Enlargement of Time, United States v. Mays, No. 20-1033 (8th Cir. May 7, 2021). The court granted Plaintiff's request and after additional extensions, Plaintiff filed a petition for rehearing and for rehearing en banc. Petition for Rehearing, United States v. Mays, No. 20-1033 (8th Cir. July 14 2021). However, almost two weeks later, Plaintiff submitted a document to the court stating that the file-stamped copy of his petition for rehearing that he received back from the court indicated the court had erroneously divided his petition, filing a petition with attachments. Plaintiff explained that it should have been filed as one document. He requested an extension of time to file an amended petition for rehearing and requested that he be allowed to file a typed copy of the same. Motion for Extension of Time to Revise Petition for Rehearing and Submit Typed Copy, United States v. Mays, No. 20-1033 (8th Cir. July 26, 2021). The court granted Plaintiff's request stating, “Appellant's motion for an extension of time to revise petition for rehearing and submit a typed copy is granted. The revised petition is due on August 19, 2021.” Order, United States v. Mays, No. 20-1033 (8th Cir. July 29, 2021).
On August 9, 2021, Plaintiff submitted another motion for extension of time explaining that inmates in his facility were currently being held in quarantine and therefore, he did not have access to a law library or typewriter. Motion for Extension of Time to File Petition for Rehearing, United States v. Mays, No. 20-1033 (8th Cir. August 9, 2021). Plaintiff's request was granted, and the court stated that no further extensions would be granted. Order, United States v. Mays, No. 20-1033 (8th Cir. August 12, 2021). Nevertheless, Plaintiff filed additional requests for extension, explaining that he was confined in Grady County Jail, was only allowed out of his cell for one hour each day, and that the facility did not have a typewriter and/or officials would not allow him access to the same. Motion for Extension of Time to File Revised Petition for Rehearing, United States v. Mays, No. 20-1033 (8th Cir. August 19, 2021); Motion for Extension of Time to File Petition for Rehearing, United States v. Mays, No. 20-1033 (8th Cir. Sept. 2, 2021). The Court denied each request. Order, United States v. Mays, No. 20-1033 (8th Cir. August 25, 2021); Order, United States v. Mays, No. 20-1033 (8th Cir. Sept. 3, 2021).
Plaintiff filed his amended petition for rehearing, which was handwritten and over 80 pages in length, on September 8, 2021. Amended Petition for Rehearing, United States v. Mays, No. 20-1033 (8th Cir. Sept. 8, 2021). On September 16, 2021, Plaintiff requested leave to amend his amended petition for rehearing in order to add an additional thirteen pages of handwritten argument. Motion to Amend Petition for Rehearing, United States v. Mays, No. 20-1033 (8th Cir. Sept. 16, 2021). The court granted Plaintiff's request. Order, United States v. Mays, No. 20-1033 (8th Cir. Sept. 29, 2021). On October 8, 2021, the court denied Plaintiff's request for rehearing, stating, “The petition for rehearing en banc is denied as overlength. The petition for rehearing by the panel is also denied.” Order, United States v. Mays, No. 20-1033 (8th Cir. Oct. 8, 2021).
It is clear from the Eighth Circuit record that the court never required Plaintiff to submit his petition for rehearing as a typed document. Plaintiff simply submitted such a request to the court and the court allowed the same. Therefore, when Plaintiff submitted a handwritten petition for rehearing, the court accepted it as such. More significantly, Plaintiff was never denied the opportunity to file his petition for rehearing. He filed an amended petition for rehearing and the court denied it because it was “overlength, ” not because it was handwritten.
Thus, Plaintiff's claim that Defendants in any way denied his access to the courts is without merit and indeed, based on the Eighth Circuit record, is frivolous. Although Plaintiff would have preferred to file a typed petition, it was not required. Certainly, Defendants' actions did not prevent Plaintiff from pursuing a legal claim. Accordingly, Plaintiff's First Amendment claim against Defendants Lt. Lancey, Carpenter, Tucker, Nye, Wiate, Sheldon, Maples, Pinya, K., Hanson, John Doe #2, Transport Officer Lance, CSA Lancey, Wright, Horton, and Riley should be dismissed.
IV. Defendants Riley and Malikai
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to contain “(1) a short and plain statement of the grounds for the court's jurisdiction . . .; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought.” Fed.R.Civ.P. 8(a). To avoid a dismissal for failure to state a claim, a complaint must set out factual allegations that “raise a right to relief above the speculative level[.]” Twombly, 550 U.S. at 555.
“Rule 8 serves the important purpose of requiring plaintiffs to state their claims intelligibly so as to inform the defendants of the legal claims being asserted.” Mann v. Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007). It “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). That is, from the allegations in a complaint, a defendant must be able to learn “what each defendant did to [the 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.” Nasious v. Two Unknown B.I.C.E. Agents at Arapahoe Cty. Justice Ctr., 492 F.3d 1158, 1163 (10th Cir. 2007).
Pro se litigants are not excused from complying with these minimal pleading demands. “This is so because 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). However, the Court cannot “supply additional facts, . . . [or] construct a legal theory for plaintiff that assumes facts that have not been pleaded.” Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989).
Plaintiff asserts that Defendant Riley notified Defendant Nye “about the bunk issue as well as the other inmates in the dorm unit ganging up on me about my request to have them move another inmate off a bottom bunk so I may be placed on a bottom bunk & not on a top bunk. He was also present when the med passer said I needed to be moved from a[] top bunk to a bottom bunk due to my seizures.” Doc. No. 32 at 3. He essentially repeated this same set of facts later in the Amended Complaint. Id. at 6-7. Thus, with regard to Plaintiff's bunk assignment, Defendant Riley's actions were limited to removing Plaintiff from a dangerous situation and informing Defendant Nye that Plaintiff was requesting a bottom bunk due to seizures. Based on these allegations, Plaintiff purports to assert First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment claims against Defendant Riley. However, Plaintiff's allegations against Defendant Riley do not support any claim of a constitutional violation.
As discussed below, Plaintiff's claim against Defendant Riley related to the unlawful denial of seizure medication should proceed at this time.
Similarly, Plaintiff's only allegations against Defendant Malikai consist of the following: “Malikai is the Medical Provider at the Grady County law enforcement center. He is the one that I seen regarding the injuries I sustain from falling off the top bunk during my seizure.” Doc. No. 32 at 3. These allegations do not indicate any wrongdoing on the part of Defendant Malikai. Moreover, although Plaintiff describes the injuries he received as a result of falling off the top bunk during his seizure, he does not indicate that he received inadequate medical care for the same. Id. at 7. Accordingly, Defendant Malikai should be dismissed from this lawsuit.
V. Third Amendment
Plaintiff asserts a Third Amendment claim against Defendants Forsythe, John Doe #1, John Doe #2, and Defendant Wiate in relation to the alleged denial of a disciplinary hearing prior to being placed in lock down as a result of violating a jail rule. Doc. No. 32 at 5. The Third Amendment provides, “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” Plaintiff's allegations do not implicate the rights set forth in the Third Amendment and this claim should be dismissed. U.S. Const. amend. III.
VI. Fourth, Fifth, and Sixth Amendments
Plaintiff asserts Fourth, Fifth, and Sixth Amendment claims against Defendants John Doe #2, Jane Does #3-6, Riley, Horton, Hanson, Pinya, Maples, Sheldon, and Nye based on an alleged failure to provide Plaintiff with seizure medication for two to four days following his arrival at the Grady County Jail and failure to provide him a bottom bunk based on his seizure condition, resulting in his experiencing a seizure, falling out of a top bunk, and suffering multiple injuries. Doc. No. 32 at 4, 6-8. He also asserts Fourth, Fifth, and Sixth Amendment claims against Defendants Forsythe, John Doe #1, John Doe #2, and Defendant Wiate in relation to the alleged denial of a disciplinary hearing prior to being placed in lock down as a result of violating a facility rule. Id. at 5.
The Fifth Amendment provides:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
U.S. Const. amend. V. Plaintiff's allegations do not implicate the Fifth Amendment and therefore, these claims should be dismissed.
Plaintiff's claim under the Sixth Amendment also fails. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. The only allegations even tangentially related to the Sixth Amendment are those concerning an alleged denial of a disciplinary hearing. However, the protections of the Sixth Amendment are limited to criminal prosecutions and do not extend to such disciplinary hearings. Little v. City of N. Miami, 805 F.2d 962, 968 (11th Cir. 1986); Molina v. Diaz, No. EDCV 20-00518-SVW (AS), 2021 WL 6125847, at *6 (C.D. Cal. Dec. 28, 2021) (“Because a prison disciplinary proceeding is not a criminal proceeding, the Sixth Amendment is inapplicable to any of Plaintiff's allegations.” (citing Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (“Prison disciplinary proceedings are not a part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings do not apply.”)). Thus, Plaintiff's Sixth Amendment claims should also be dismissed.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” U.S. Const. amend. IV. It also commands that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Id. Plaintiff's allegations regarding medication, bunk placement, and the denial of a disciplinary hearing do not implicate an unlawful search and seizure. Id. at 4, 5. Thus, Plaintiff's Fourth Amendment claims based on the above-referenced allegations should be dismissed.
VII. Remaining Claims
Plaintiff's Eighth Amendment denial of adequate medical care claim against Defendants Jane Does #3-6, John Doe #2, Riley, Horton, Hanson, Pinya, Maples, Sheldon, Nye, CO Lance, Wright, Asian Nurse, and John or Jane Doe Nurse based on allegations that they failed to timely provide him with his seizure medication should proceed at this time. Doc. No. 32 at 3, 4, 5. Similarly, an Eighth Amendment claim based on the failure to provide Plaintiff a bottom bunk should proceed against Defendants Jane Does #3-6, John Doe #2, Horton, Hanson, Pinya, Maples, Sheldon, Nye, CO Lance, Wright, Asian Nurse, and John or Jane Doe Nurse.
Additionally, Plaintiff's Fourteenth Amendment due process claim against Defendants Forsythe, John Does #1-2, and Wiate related to an alleged denial of disciplinary proceedings before placing Plaintiff in lockdown as a sanction for violating a jail rule should also proceed. Id. at 1, 5. Plaintiff's Fourteenth Amendment due process claim against Defendant Forsythe should proceed related to the confiscation of Plaintiff's books upon transfer. Id. at 1, 5. Finally, Plaintiff's Fourth and Eighth Amendment claims against Defendants Nye, Pinya, and Fuller based on allegations of an unreasonable search and seizure and excessive force should proceed at this time. Id. at 3, 6-9.
The Court's recommendation that certain claims should proceed at this time is not a finding that the claims have merit and/or entitle Plaintiff to relief. 28 U.S.C. § 1915A provides that a complaint should be dismissed if it is clear from the face of it that the claims therein are frivolous, malicious, or fail to state a claim upon which relief could be granted. The Court's recommendation that the claims proceed at this time means only that it is not clear from the face of the Complaint that the claims must be dismissed.
RECOMMENDATION
Based on the foregoing findings, it is recommended Plaintiff's First Amendment claim be dismissed as frivolous. Additionally, Plaintiff's Third, Fifth, and Sixth Amendment claims should be dismissed without prejudice for failure to state claim upon which relief could be granted. Plaintiff's Fourth and Eighth Amendment claims against Defendant Riley based on an unreasonable search and seizure and excessive force should be dismissed without prejudice. Finally, Plaintiff's Eighth Amendment claim against Defendant Malikai should be dismissed.
As a result of these recommendations, Defendants Lt. Lancey, Carpenter, Tucker, K., Transport Officer Lance, CSA Lancey, Hanson, and Malikai should be dismissed from this lawsuit.
Plaintiff is advised of the right to file an objection to this Supplemental Report and Recommendation with the Clerk of this Court by January 31 st, 2022, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Supplemental Report and Recommendation does not dispose of all issues referred to the undersigned Magistrate Judge in the captioned matter.