Opinion
CIV-21-287-J
02-06-2022
DEKATOR LANE NUNLEY, Plaintiff, v. STEPHENS COUNTY, et al., Defendants.
REPORT AND RECOMMENDATION
GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE.
Plaintiff, a state pretrial detainee appearing pro se and in forma pauperis, brings this civil rights action under 42 U.S.C. § 1983 alleging violations of his Eighth Amendment right to be free from cruel and unusual punishment. He also contends his rights under the Americans with Disabilities Act (“ADA”) have been violated. The matter has been referred to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B).
At all times relevant to this action, Plaintiff has been a pretrial detainee incarcerated in the Stephens County Detention Center. (“SCDC”). As a pretrial detainee, Plaintiff's claims based on alleged deliberate indifference to his serious medical needs actually arise under the Fourteenth Amendment's guarantee of due process rather than the Eighth Amendment's prohibition against cruel and unusual punishment. The Eighth Amendment applies only to claims brought by convicted prisoners. The Tenth Circuit Court of Appeals has, however, joined the Fifth, Eighth and Eleventh Circuit Courts in determining the same two-pronged test applies to medical claims brought pursuant to the Fourteenth Amendment and those brought pursuant to the Eighth Amendment. See Strain v. Regalado, 977 F.3d 984, 989 (10th Cir. 2020).
I. Named Defendants and Claims Presented
Defendants named in this action are Turn Key Health Clinics, LLC (“Turn Key”), Stephens County, Assistant District Attorney Bobby Lewis, and Stephens County District Judge Ken Graham. Plaintiff has also named SCDC officials and employees as Defendants, including Sheriff Wayne McKinney, Undersheriff Bobby Bowen, SCDC Jail Administrator Javier Martinez, and SCDC Assistant Jail Administrator Eva Gray (“SCDC Defendants”).
In Count I of his Amended Complaint, Plaintiff alleges the SCDC Defendants as well as Turn Key nurses are all aware that he suffers from an acute disability, resulting from a condition of dystonia, that leaves him bedridden. Doc. No. 8 at 10. He states that he has muscle spasms and seizures, needs an assistive device to walk, and is sensitive to light. Without alleging any specific supporting facts, Plaintiff alleges he has been the victim of “deliberate indifference” and “sensory deprivation.” Id. at 16. In Count II, Plaintiff contends that Defendant Stephens County and the SCDC Defendants have failed to respond to his needs as a person with a physical handicap by failing to provide him with a time and place for recreational activities and exercise. Id. at 12-13.
Plaintiff has not named any nurse employed by Turn Key as a Defendant.
In Count III, Plaintiff alleges Stephens County and the SCDC Defendants have failed to accommodate his needs as a handicapped person. He contends he needs a cell equipped with hand rails, an appropriate bed, and a shower with hand rails. Id. at 14-15.
Count IV is lodged against the Honorable Ken Graham, Stephens County District Judge, and Bobby Lewis, Stephens County Assistant District Attorney. Plaintiff alleges these Defendants “refused to agree or comply with my release or O.R. Bond to have surgery for my physical handicap.” Id. at 16. Plaintiff allegedly needs surgery to replace the batteries in his implanted deep brain stimulator-a medical device intended to help control the symptoms of dystonia. The deep brain stimulator was apparently implanted before Plaintiff's arrest as he explains that surgery to replace the batteries is necessary every 2 to 4 years. Id.
Plaintiff seeks monetary damages from all Defendants. Four dispositive motions are pending before the Court. II. Standards of Review
The Court will apply the following standards of review where appropriate.
A. Pro Se Complaints
Plaintiff's pro se Complaint must be liberally construed and held to a less stringent standard than pleadings drafted by attorneys. Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007); see also Haines v. Kerner, 404 U.S. 519, 520- 21 (1972) (holding the allegations of a pro se complaint “to less stringent standards than formal pleadings drafted by lawyers”). Nevertheless, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (stating that a court may not “supply additional factual allegations to round out a plaintiff's complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues”). The plaintiff's pro se status does not entitle him to an application of different rules. Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
B. Standard of Review for Motions to Dismiss
To state a claim in federal court, “a complaint must explain what each defendant did to him or her; when the defendant did it; how the defendant's action harmed him or her; and, what specific legal right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). When a defendant moves to dismiss a claim for failure to state a claim upon which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6), “[t]he court's function . . . is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (quotations omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall, 935 F.2d at 1109. To survive a motion to dismiss, a 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To state a “plausible” claim, a plaintiff must plead sufficient facts to allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
But “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Dismissal of a complaint is appropriate if a pleading offers only “labels and conclusions or a formulaic recitation of the elements of a cause of action . . . .” Id. (quotations omitted).
C. Standard of Review for Summary Judgment
“[A] court shall 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). “A dispute is genuine when ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party,' and a fact is material when it ‘might affect the outcome of the suit under the governing substantive law.'” Bird v. W.Valley City, 832 F.3d 1188, 1199 (10th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (alteration omitted)). “In applying this standard, [the court] view[s] the evidence and the reasonable inferences to be drawn from the evidence in the light most favorable to the nonmoving party.” Parker Excavating, Inc. v. Lafarge W., Inc., 863 F.3d 1213, 1220 (10th Cir. 2017) (quotations omitted) III. Defendant Turn Key's Motion to Dismiss
Defendant Turn Key is a private company that provides inmate healthcare services. Autry v. Cleveland Cnty. Sheriff's Dep't, No. CIV-15-1167-D, 2018 WL 719044, at *1 (W.D. Okla. Feb. 5, 2018). Plaintiff identifies Turn Key as the company contractually responsible for providing health care to inmates confined in SCDC. While Plaintiff implicates Turn Key in the first count of the Amended Complaint, he has not alleged any specific facts to demonstrate how Turn Key was deliberately indifferent to his serious medical needs.
Because Turn Key is a private company hired by Stephens County to perform services on its behalf, principles of municipal liability apply to this analysis. See Dubbs, 336 F.3d at 1216 n.13 (applying municipal liability framework to § 1983 claims brought against a private entity acting under color of law). “A municipality may not be held liable under 42 U.S.C. § 1983 simply because it employs a person who violated a plaintiff's federally protected rights.” Jenkins v. Woods, 81 F.3d 988, 993 (10th Cir. 1996) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)); see Dubbs, 336 F.3d at 1216 (“[A] private actor cannot be held liable solely because it employs a tortfeasor-or, in other words, cannot be held liable under § 1983 on a respondeat superior theory.”) (quotations and alterations omitted).
To establish municipal liability, a plaintiff “must allege facts showing: (1) an official policy or custom, (2) causation, and (3) deliberate indifference.” Crowson v. Wash. Cnty. Utah, 983 F.3d 1166, 1184 (10th Cir. 2020) (quoting Quintana v. Santa Fe Cnty. Bd. of Comm'rs, 973 F.3d 1022, 1034 (10th Cir. 2020)); see Sherman v. Klenke, 653 Fed.Appx. 580, 592 (10th Cir. 2016) (applying this rule in the context of a prison healthcare contractor's § 1983 liability). A “policy or custom” can take several forms from a formal regulation or policy statement to a wide-spread informal custom or practice. Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010). “Causation” is established only if the challenged policy or practice is shown to be “closely related to the violation of the plaintiff's federally protected right.” Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 770 (10th Cir. 2013) (quotations omitted). “This requirement is satisfied if the plaintiff shows that ‘the [entity] was the ‘moving force' behind the injury alleged.'” Id. (quoting Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 404 (1997)).
Finally, to establish municipal liability, a plaintiff must show that the policy or custom “was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury.” Schneider, 717 F.3d at 769. This “deliberate indifference standard may be satisfied when the [entity] has actual or constructive notice that its action or failure to act is substantially certain to result in a constitutional violation, and it consciously or deliberately chooses to disregard the risk of harm.” Quintana, 973 F.3d at 1034 (quoting Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998)).
In this case, Plaintiff has failed, in the first instance, to allege that Turn Key had any policy or practice that led to the deprivation of his unspecified “special needs as a handicapped person.” Doc. No. 8 at 11. In Count One, Plaintiff describes the limiting effects of dystonia. He alludes only to his need for a “walker or some type of stabilizing device.” Id. at 10. However, Plaintiff does not allege that he ever sought such a device from any Defendant or that any Defendant refused such an accommodation.
Plaintiff refers vaguely to a “jail policy of the Stephens County Jail set by the Sheriff Wayne McKinney and Under Sheriff Bobby Bowen” and allegedly followed by the SCDC Defendants and Turn Key nurses. Id. at 11. Plaintiff does not, however, identify this policy, nor does he set forth factual allegations describing how the alleged policy led to the violation of his constitutional rights. What is more, he does not attribute any such policy to Turn Key. Thus, Plaintiff has failed to set forth a viable claim against Turn Key and his claim should be dismissed without prejudice. IV. Defendant Stephens County's Motion to Dismiss
In its Motion, Defendant Stephens County contends it is not a properly named Defendant, that Plaintiff has not exhausted administrative remedies, and that Plaintiff has not presented facts demonstrating municipal liability. Plaintiff has not responded to the Motion.
A. Improperly Identified Defendant
In Oklahoma, each organized county can sue and be sued. Okla. Stat. tit. 19, § 1(1). The authority of each county is exercised, however, by its board of county commissioners, and a lawsuit brought against a county must be filed against the board of county commissioners of the county. Okla. Stat. tit. 19, §§ 3, 4. Without question, Plaintiff could amend his pleading to name the “Board of County Commissioners of Stephens County, Oklahoma.” As discussed in further detail herein, however, it is unnecessary to address this issue as Plaintiff's claims against Stephens County, even properly named, should be dismissed for failure to state a claim upon which relief may be granted.
B. Failure to State a Claim
Similar to the analysis above regarding Plaintiff's claim against Turn Key, in order to state a constitutional claim against a county based on deliberate indifference to serious medical needs, a plaintiff must establish (1) the existence of a municipal policy or custom; and (2) a direct causal connection between the policy or custom and the injury alleged. City of Canton v. Harris, 489 U.S. 378, 385 (1989). Plaintiff's allusion to a “jail policy, ” allegedly “set by Sheriff Wayne McKinney and Under Sheriff Bobby Bowen, ” Doc. No. 8 at 11, is insufficient to state a claim against the Board of County Commissioners for Stephens County.
To make out a § 1983 claim under a theory of municipal liability, a plaintiff must plead sufficient facts to identify a municipal “policy statement, ordinance, regulation, or decision officially adopted and promulgated, ” or a municipal custom or practice “so permanent and well settled as to constitute a custom or usage with the force of law” that caused the plaintiff's injury. Monell, 436 U.S. at 690, 691 (quotations omitted); Murrell v. School Dist. No. 1, 186 F.3d 1238, 1249-50 (10th Cir. 1999) (“Acts that do not rise to the level of official policy may nonetheless create liability if they are sufficiently widespread and pervasive so as to constitute a custom.”). Additionally, in the context of a § 1983 claim, the sheriff is legally responsible for the proper management of the jail in his county. Dodds v. Richardson, 614 F.3d 1185, 1203 (10th Cir. 2010). A county may “be liable on the basis that [the sheriff] is a final policymaker with regard to its jail, such that his actions may fairly be said to be those of the municipality.” Layton v. Bd. of Cnty. Comm'rs of Okla. Cnty., 512 Fed.Appx. 861, 871 (10th Cir. 2013) (quotations omitted).
In this case, however, Plaintiff has not stated sufficient facts to identify a custom or a policy regarding medical care promulgated by Sheriff McKinney and Undersheriff Bowen, much less one that led any SCDC Defendant or Turn Key nurse to be deliberately indifferent to Plaintiff's serious medical needs. Thus, no such policy can be attributed to the Board of County Commissioners for Stephens County. The claims against Stephens County should, therefore, be dismissed without prejudice. V. SCDC Defendants' Motion to Dismiss / Motion for Summary Judgment
Plaintiff has sued SCDC Defendants in both their individual and official capacities. These Defendants have filed a joint Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, Doc. No. 30, contending Plaintiff has failed to exhaust his administrative remedies and has failed to demonstrate that any one of them personally participated in any constitutional violation. Plaintiff has not responded.
As previously explained, in Count I, Plaintiff contends the SCDC Defendants, despite being well-aware of his disability, “have failed to comply with my needs as a handicapped person.” Doc. No. 8 at 11. In Count II, Plaintiff alleges the SCDC Defendants have failed to provide him an adequate space for exercise. Id. at 12-14. Finally, in Count III, Plaintiff claims the SCDC Defendants “fail[ed] to comply with my rights as a person with disabilities” by housing him in a regular cell without hand rails, a special bed, or a shower with hand rails. Id. at 12-14.
A. Official Capacity Claims
Under federal law, “an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985); Moss v. Kopp, 559 F.3d 1155, 1168 n.2 (10th Cir. 2009). Thus, bringing “a claim against [a sheriff or correctional officer] in his official capacity . . . is the same as bringing a suit against the county.” Martinez v. Beggs, 563 F.3d 1082, 1091 (10th Cir. 2009); accord Dungee v. Bd. of Cnty. Comm'rs of the Cnty. of Okla., No. CIV-14-232-D, 2014 WL 1878762, at *4 (W.D. Okla. May 12, 2014) (dismissing claims against sheriff in his official capacity as duplicative where county is named as a defendant). Thus, all official capacity claims lodged against the SCDC Defendants should be dismissed as duplicative of the claims against Stephens County. Plaintiff's official capacity claims against the SCDC Defendants should, therefore, be dismissed with prejudice.
B. Individual Capacity Claims
The SCDC Defendants also contend they are entitled to dismissal or summary judgment based on Plaintiff's failure to exhaust his administrative remedies. Because the Court is relying on evidence outside the pleadings, this Motion will be addressed as a Motion for Summary Judgment. Based on the unrefuted evidence offered by the SCDC Defendants, they should be granted summary judgment on the individual capacity claims lodged against them.
Plaintiff was advised that, if a Defendant files a motion that relies on materials not included with the Amended Complaint, the motion would be considered a motion for summary judgment. Fed.R.Civ.P. 12(b)(6), 56; LCvR 56.1.2. Plaintiff was further advised that failure to respond to the Motion within the allotted 21 days could result in the Court deeming the motion confessed. Doc. No. 9. Plaintiff did not respond.
The Prison Litigation Reform Act (“PLRA”) requires a prisoner to exhaust his administrative remedies prior to filing a lawsuit challenging prison conditions. 42 U.S.C. § 1997e(a). Prisoner actions brought under any federal law, including the ADA, must meet the PLRA's exhaustion requirement. Id.; Jones v. Smith, 109 Fed.Appx. 304, 307-08 (10th Cir. 2004). The exhaustion requirement is mandatory, and “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007). “To exhaust administrative remedies[, ] an inmate must properly comply with grievance procedures; substantial compliance is insufficient.” Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007).
Plaintiff's failure to exhaust his administrative remedies prior to initiating this lawsuit is fatal for his ADA claim against all Defendants. Jones, 109 Fed.Appx. at 307-08. Thus, to the extent Plaintiff intended to assert an ADA claim against any Defendant herein, said claims should be dismissed pursuant to 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B).
The grievance procedure for SCDC inmates is a simple, one-step process. Inmates are directed to write out their grievance and place the paper in an unstamped envelope addressed to the jail administrator. Doc. No. 31-3. Although prisoners are not required to submit a request to staff before filing a grievance, Plaintiff states in his Amended Complaint that he sent a “Request to Staff” to the Jail Administrator, Javier Martinez, and the Assistant Jail Administrator, Eva Gray, making them aware of his disability. Doc. No. 8 at 10. Plaintiff has produced no evidence to substantiate his claim. The SCDC Jail Administrator, Javier Martinez, states in his Declaration that “Mr. Nunley has never made any requests to staff or filed any grievances related to his disability.” Doc. No. 28-6 at 3. Defendant Gray makes the same assertion in her Declaration. Doc. No. 28-10 at 2. Plaintiff did not respond to the SCDC Defendants' Motion, and therefore, he does not dispute the veracity of the information in these Declarations. Moreover, Plaintiff has never asserted that he filed a grievance, as contemplated by the SCDC grievance procedure, regarding the issues underlying his claims. Accordingly, based on Plaintiff's failure to exhaust his administrative remedies before he filed this suit, the SCDC Defendants are entitled to summary judgment.
VI. Motion to Dismiss by Bobby Lewis
Defendant Bobby Lewis, identified as the Stephens County Assistant District Attorney, has filed a Motion to Dismiss contending he did not personally participate in any constitutional violation and that he is entitled to prosecutorial or qualified immunity. Defendant Lewis is sued in both his individual and official capacities. Plaintiff has responded “solely to claim number IV (District Judge Ken Graham with Stephens County A.D.A. Bobby Lewis), ” in which he claims Judge Graham and Defendant Lewis violated his constitutional rights based on their failure to agree to “Plaintiff's release or O.R. Bond” so that Plaintiff could have the surgery he allegedly needs. Doc. No. 38.
A. Individual Capacity Claims
Federal law recognizes that prosecutors are immune from liability for actions undertaken pursuant to their function as a prosecutor. Burns v. Reed, 500 U.S. 478, 486 (1991). Plaintiff does not clearly identify what role Defendant Lewis played in the alleged denial of the “O.R. Bond.” It is apparent, however, that anything Defendant Lewis might have said or done in court pertaining to the same would have been within the scope of his duties as a prosecutor, affording him absolute prosecutorial immunity. DiCesare v. Stuart, 12 F.3d 973, 977 (10th Cir.1993)) (“A prosecutor is entitled to absolute immunity when his activities are intimately associated with the judicial phase of a criminal process.”).
B. Official Capacity Claims
Defendant Lewis, in his official role as an assistant district attorney, is considered a state officer. See Okla. Stat. tit. 19, § 215.30(B) (“All appointees and employees of district attorneys . . . shall be deemed to be state officers or employees for all purposes.”). The Court thus considers Plaintiff's claims against Defendant Lewis in his official capacity to be claims against the State of Oklahoma. See Laidley v. McClain, 914 F.2d 1386, 1392 (10th Cir. 1990) (“Because the district attorney is a state officer, the plaintiff's [official capacity] claim is therefore a suit against the state of Oklahoma.”), superseded on other grounds as recognized in Dodger's Bar & Grill, Inc. v. Johnson Cty. Bd. of Cnty. Commr's, 32 F.3d 1436, 1440 (10th Cir. 1994).
Congress has not abrogated Eleventh Amendment immunity by enacting § 1983, and Oklahoma has not waived this immunity. See Quern v. Jordan, 440 U.S. 332, 345 (1979) (no abrogation by Congress); Okla. Stat. tit. 51 § 152.1(B) (no waiver by Oklahoma). Because Defendant Lewis is an employee of the Stephens County District Attorney's Office, the Eleventh Amendment applies to the official-capacity claims for damages. Cleveland v. Martin, 590 Fed.Appx. 726, 730 (10th Cir. 2014). Thus, the official capacity claims lodged against Defendant Lewis should also be dismissed. Moreover, the Court should dismiss all claims against Defendant Lewis with prejudice because any amendment of Plaintiff's Amended Complaint would be futile. See Curley v. Perry, 246 F.3d 1278, 1282 (10th Cir. 2001) (explaining that because no amendment could cure the defect, the district court properly dismissed the complaint with prejudice). VII. Claim Against Judge Graham
Plaintiff has named the Stephens County District Court Judge Ken Graham as a Defendant in this case. Plaintiff challenges Judge Graham's action taken during Plaintiff's state court criminal proceedings to only conditionally grant Plaintiff's motion to be released on his own recognizance so that he could get the surgery he needs.
Specifically, Judge Graham partially granted Plaintiff's motion for bond reduction. A copy of the relevant Court Order is attached to the Special Report. Doc. No. 28-17. The Order provided that Plaintiff would be released on his own recognizance when he presented proof of medical appointments with providers who could replace the batteries in his deep brain stimulator. The Order stated that Plaintiff would be returned to the SCDC after any such procedure was performed.
This Court's docket sheet reflects that Judge Graham was served with process in this matter on June 20, 2021. Doc. No. 14. While Judge Graham has not entered his appearance in this case, the claims against Judge Graham should nevertheless be dismissed on screening.
Federal law requires the Court to screen complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Because Plaintiff is proceeding in forma pauperis, the Court has an ongoing duty to consider the sufficiency of his claims. 28 U.S.C. § 1915(e)(2). The Court must dismiss any frivolous or malicious claim, any claim seeking monetary relief from a defendant who is immune from such relief, or any claim on which the court cannot grant relief. 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B).
A. Individual Capacity Claims
In this case, the Court should dismiss all claims lodged against Judge Graham in his individual capacity. A state judge has absolute immunity from § 1983 liability unless the judge acts in “the clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (articulating broad immunity rule that a “judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority . . . .”). This Court can determine whether Judge Graham was performing a judicial act only by looking to “the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.” Id. at 362. Under Oklahoma law, judicial functions include setting a criminal defendant's bail. Hicks v. Blythe, No. 96-7034, 1997 WL 8844, at *2-3 (10th Cir. Jan 9, 1997).
Because Judge Graham was acting within his jurisdiction in his judicial capacity when he partially granted Plaintiff's motion for bail reduction, he is immune from Plaintiff's personal capacity claims against him. See Sawyer v. Gorman, 317 Fed.Appx. 725, 727-28 (10th Cir. 2008) (Plaintiff's allegations “challenging the imposition of a $25,000 bail . . . clearly implicates actions taken in the judges' judicial capacity, and not in the absence of all jurisdiction.” (alteration omitted); Tucker v. Loftiss, No. CIV-14-1053-R, 2014 WL 7158282, at *2 (W.D. Okla. Dec. 15, 2014) (“Judge Kelly was acting in his judicial capacity, and within his judicial jurisdiction, when he signed Plaintiff's arrest warrant and set his bail.”). The individual capacity claims against Judge Graham should be dismissed with prejudice.
B. Official Capacity Claims
Under the Eleventh Amendment, “‘[s]tates may not be sued in federal court unless they consent to it in unequivocal terms or unless Congress, pursuant to a valid exercise of power, unequivocally expresses its intent to abrogate the immunity.'” Muscogee (Creek) Nation v. Okla. Tax Comm'n, 611 F.3d 1222, 1227 (10th Cir. 2010) (quoting Green v. Mansour, 474 U.S. 64, 68 (1985)). “This prohibition encompasses suits against state agencies . . . [and] [s]uits against state officials acting in their official capacities . . . .” Id. “The Supreme Court has interpreted the Eleventh Amendment to mean ‘States may not be sued in federal court unless they consent to it in unequivocal terms or unless Congress, pursuant to a valid exercise of power, unequivocally expresses its intent to abrogate the immunity.'” Id. (quoting Green, 474 U.S. at 68). Suits against state officials acting in their official capacities fall within the Eleventh Amendment's proscription because “a suit against a state official in his or her official capacity . . . is no different from a suit against the State itself.” Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989). Thus, Plaintiff's official capacity claims against Judge Graham should also be dismissed with prejudice.
RECOMMENDATION
For the reasons stated herein, it is recommended that Defendant Turn Key and Defendant Stephens County's Motions to Dismiss (Doc. Nos. 27, 29) be GRANTED and all claims against them dismissed without prejudice. Additionally, the SCDC Defendants' Motion to Dismiss (Doc. No. 30) should be GRANTED with regard to Plaintiff's official capacity claims and those claims should be dismissed with prejudice. The SCDC Defendants' Motion, construed as a Motion for Summary Judgment (Doc. No. 30), should be GRANTED with regard to Plaintiff's individual capacity claims based on Plaintiff's failure to exhaust his administrative remedies.
Defendant Bobby Lewis' Motion to Dismiss (Doc. No. 32) should be GRANTED and Plaintiff's claims against him should be dismissed with prejudice. Finally, Plaintiff's claims against Defendant Graham should be dismissed with prejudice and Plaintiff's ADA claims should be dismissed without prejudice, pursuant to 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B).
The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by January 10 th, 2022. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States of America, 950 F.2d 656 (10th Cir. 1991) (“Our waiver rule provides that the failure to make timely objection to the magistrate's findings or recommendations waives appellate review of both factual and legal questions.”).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.