Opinion
CIV-23-322-R
09-20-2023
SALVADOR PEREZ, JR., Plaintiff, v. SGT. WALLACE, Defendant.
SECOND SUPPLEMENTAL REPORT AND RECOMMENDATION
GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner appearing pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983. Plaintiff has filed a Motion for Leave to File an Amended Complaint (Doc. No. 34), seeking leave to file a Second Amended Complaint. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends Plaintiff's Motion be denied.
I. Procedural Background and Plaintiff's Allegations
Plaintiff was previously confined at the Lawton Correctional Facility (“LCF”) located in Lawton, Oklahoma. On April 17, 2023, Plaintiff initiated this action asserting claims based on various incidents occurring between March 2020 through August 2023. Doc. No. 1. With regard to claims arising from incidents that occurred prior to April 17, 2021, the Court dismissed the same based on the statute of limitations. Doc. No. 20 at 2-3, 4. Additionally, the Court dismissed the remainder of Plaintiff's claims based on his failure to state a claim upon which relief could be granted. Id. at 3-4. However, the Court provided Plaintiff an opportunity to file an amended pleading “to properly assert claims based on the 2021 use of force, chemical exposure, and inadequate medical care.” Id. at 4.
On August 16, 2023, Plaintiff filed an Amended Complaint. Doc. No. 22. Plaintiff again asserted claims based upon incidents that occurred between March and November 2020. Id. at 1-2, 3, 5. The Court again dismissed those claims as untimely. Doc. No. 32 at 2.
Plaintiff also alleged that from January through August 2021, he repeatedly requested medical attention due to not feeling well but did not receive it. Doc. No. 22 at 4.A nurse did collect a urine sample on August 5, 2021, but Plaintiff never received the results. Id. Plaintiff asserted the LCF Medical Head was responsible for his medical care, or lack thereof. Id. at 4, 5.
As previously explained, the relevant time period for Plaintiff's claims begins on April 17, 2021. See, supra.
Additionally, Plaintiff stated that on May 24, 2021, Defendant Sgt. Wallace physically forced Plaintiff back to his cell, including slamming his face into the floor, which caused facial injuries. Id. at 3, 5. Although other staff and medical nurses subsequently appeared on the scene, Plaintiff was not provided medical care for his injuries. Id. at 3. He again asserted the LCF Medical Head was responsible for his lack of medical care. Id. at 4, 5.
Shortly afterward, Defendant Hood interviewed Plaintiff regarding the incident and told Plaintiff that she would report the same to the Inspector General (“IG”). Id. at 3. Someone from the IG's office arrived at LCF on June 8, 2021, and also interviewed him regarding the incident. Id. However, the IG's office never responded further regarding the incident or an investigation. Id. at 1, 3.
Upon review, the Court dismissed without prejudice Plaintiff's Eighth Amendment claims against Defendants Warden Mark Bowen, whom Plaintiff had also named, and the LCF Medical Head based on Plaintiff's failure to state a claim upon which relief could be granted, including but not limited to failure to allege personal participation. Doc. No. 32 at 2. Finally, the Court ruled Plaintiff's Eighth Amendment claim against Defendant Wallace based on excessive force should proceed. Id.
On September 19, 2023, Plaintiff filed the current request to file a Second Amended Complaint. Doc. No. 34. Through his proposed amendments, Plaintiff again attempts to assert claims against Defendants Major Hood and the LCF Medical Head, whom he has now identified as Defendant Honaker. Doc. Nos 34, 34-1.
II. Analysis
Plaintiff's request to amend is governed by Federal Rule of Civil Procedure 15, which provides that when a party may no longer amend its pleading as a matter of course, “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). Although leave to amend shall be given freely, “the trial court may deny leave to amend where amendment would be futile.” Grossman v. Novell, Inc., 120 F.3d 1112, 1126 (10th Cir. 1997). A proposed amendment is futile if the complaint, as amended, would be subject to dismissal for any reason, including that the amendment would not survive a dispositive motion such as a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. Gohier v. Enright, 186 F.3d 1216, 1218 (10th Cir. 1999).
In the present case, Plaintiff's amendments are an attempt to add factual allegations in order to support an Eighth Amendment claim against proposed Defendants LCF Medical Head Honaker, as well as a claim against Major Hood. Plaintiff previously asserted that between January and August 2021, he requested medical attention due to not feeling well, but did not receive it. Doc. No. 22 at 4. He also stated that following Defendant Wallace's alleged May 24, 2021 assault, he did not receive medical care for his resulting injuries. Id. at 3. He asserted an Eighth Amendment claim against Defendant Honaker based on Plaintiff's contention that as LCF Medical Head, Defendant Honaker was responsible for his medical care.
As previously explained to Plaintiff, a confined individual advancing an Eighth Amendment claim based on inadequate provision of medical care must establish “deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). The “deliberate indifference” standard has two components: “an objective component requiring that the pain or deprivation be sufficiently serious; and a subjective component requiring that the offending officials act with a sufficiently culpable state of mind.” Miller v. Glanz, 948 F.2d 1562, 1569 (10th Cir. 1991). With respect to the subjective component, a prison official does not act in a deliberately indifferent manner unless that official “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
While the Medical Head clearly holds a supervisory position with regard to LCF, a supervisor may only be held liable if he is affirmatively linked to the constitutional violation. “Section 1983 does not authorize liability under a theory of respondeat superior.” Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011). As a result, government officials have no vicarious liability in a § 1983 suit for the misconduct of their subordinates because “there is no concept of strict supervisor liability under section 1983.” Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996) (quotations omitted).
Instead, a supervisor is liable only if he is “personally involved in the constitutional violation, and a sufficient causal connection [] exist[s] between the supervisor and the constitutional violation.” Serna v. Colo. Dep't of Corr., 455 F.3d 1146, 1151 (10th Cir. 2006) (quotations omitted); see also Schneider v. Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir. 2013) (requiring a plaintiff to show an “affirmative link” between the supervisor and the constitutional violation). “Thus, [] Plaintiff must base supervisory liability ‘upon active unconstitutional behavior' and ‘more than a mere right to control employees.'” Davis v. Okla. Cnty., No. CIV-08-550-HE, 2009 WL 2901180, at *4 (W.D. Okla. Sept. 3, 2009) (quoting Serna, 455 F.3d at 1153).
Previously, Plaintiff's sole allegation against Defendant Honaker was that he was “responsible for medical care generally/medical inside prison.” Doc. No. 22 at 4, 5. In his proposed amendments, Plaintiff's only additional allegation is that he informed Defendant Honaker in a May 9, 2021 Request to Staff of his inability to obtain medical attention. Doc. No. 34-1 at 3. However, the necessary affirmative link requires more than “a supervisor's mere knowledge of his subordinate's” conduct. Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 768 (10th Cir. 2013) (quoting Iqbal, 556 U.S. at 677). Three elements are required to establish a § 1983 claim against a defendant based on his supervisory responsibilities: (1) personal involvement, (2) sufficient causal connection, and (3) culpable state of mind. Schneider, 717 F.3d at 768 (citing Dodds, 614 F.3d at 1195). Plaintiff's allegation that he informed Defendant Honaker through a Request to Staff that he could not get medical attention fails to satisfy these elements. As such, Plaintiff's proposed amendment to support an Eighth Amendment claim against Defendant Honaker is futile, as the claim would not withstand a request for dismissal under Federal Rule of Civil Procedure 12(b)(6). Gohier, 186 F.3d at 1218.
Plaintiff also seeks to again add Defendant Hood to his lawsuit, though the claim he intends to assert against her is unclear. He sets forth his allegations involving her under the heading “Use of Force” but does not allege Defendant Hood ever used force against him, excessive or otherwise. Doc. No. 34-1 at 1-2, 4. Instead, he states that he gave documents “concerning [his] safety” to Defendant Hood in late April or early May. Id. at 1. He contends that she responded, “I got you.” Id. He also states that he had a discussion with her on May 13, 2021, regarding the same. Id. He submitted a Request to Staff on May 24, 2021, requesting to meet with Defendant Hood. On that same date, the alleged altercation with Defendant Wallace occurred. Doc. No. 22 at 3, 5.
Plaintiff explains that after the assault, Defendant Hood interviewed him about the incident, during which Plaintiff requested that he be allowed to show her his documentary evidence of staff and inmate conduct and she replied that it was unnecessary and that she would report the incident to the IG. Doc. No. 34-1 at 1. As previously noted, it appears she did so because on June 8, 2021, Plaintiff was interviewed by someone from the IG's office. Id.
In his proposed amendments, Plaintiff complains for the first time in this lawsuit that the interviewing individual was a narcotics agent, and this was insufficient as his allegations against staff were not related to narcotics. Id.
Finally, Plaintiff states that he submitted a Request to Staff or Grievance to Defendant Hood on August 10, 2021, indicating that he did not feel well and asked her to take measures to protect him. Id. Plaintiff was transferred to a different facility ten days later. Doc. No. 1 at 8. Near the end of his proposed amendments,
Plaintiff sets forth a conclusory statement that he will show that “Defendant Hood acted with callous indifference to [] Plaintiff's rights, and abused her official power.” Doc. No. 34-1 at 4.
Plaintiff does not specify a particular constitutional violation that he contends Defendant Hood violated, other than, as noted, a vague reference to use of force. However, Plaintiff does not allege Defendant Hood used force against him. Even construing Plaintiff's proposed amendments broadly, these allegations do not implicate any particular constitutional right, and certainly they do not set forth a plausible claim of a constitutional violation. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (holding that in order to survive a Rule 12(b)(6) motion to dismiss, a plaintiff must set forth “enough facts to state a claim to relief that is plausible on its face.”). Thus, permitting Plaintiff to amend his current pleading to include these allegations would be futile. See Gohier, 186 F.3d at 1218 (explaining that a proposed amendment is futile if the complaint, as amended, would be subject to dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted). Accordingly, Plaintiff's request to amend should be denied.
RECOMMENDATION
Based on the foregoing findings, it is recommended Plaintiff's Motion for Leave to File an Amended Complaint (Doc. No. 34) be denied. Plaintiff is advised of the right to file an objection to this Second Supplemental Report and Recommendation with the Clerk of this Court by October 10th, 2023, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. The failure to timely object to this Second 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 Second Supplemental Report and Recommendation does not dispose of all issues currently referred to the undersigned Magistrate Judge in the captioned matter.