Opinion
CIV-22-780-R
12-18-2023
RAHEEM LA'MONZE PLATER, Plaintiff, v. CHRISTINE TOPPING, et al., Defendants.
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Raheem La'monze Plater, a state inmate appearing pro se and in forma pauperis, has filed a Second Amended Complaint and Brief in Support under 42 U.S.C. § 1983. (ECF Nos. 19 & 20). Defendants GEO Group, Inc. (GEO), Christine Topping, Case Manager Rowley, and Case Manager Garrett (Defendants) have filed a Motion to Dismiss/Motion for Summary Judgment and Brief in Support. (ECF No. 35). Plaintiff has filed a Response (ECF Nos. 37, 38, 47), Defendants have filed a Reply (ECF No. 43), and Plaintiff has filed a Sur-reply (ECF No. 45).
Following a review of the parties' pleadings, the undersigned recommends the Court: (1) dismiss the claims against GEO for failure to state a claim; (2) grant summary judgment to Defendant Garrett; (3) dismiss the claim against Defendant Topping for failure to state a claim; (4) reject Defendant Rowley's argument for dismissal and/or summary judgment; and (5) conclude that Plaintiff has stated an individual capacity claim for deliberate indifference against Defendant Rowley, limited to the recovery of monetary damages.
I. PLAINTIFF'S SECOND AMENDED COMPLAINT
Mr. Plater is a convicted prisoner who presents two claims based on events which allegedly occurred while housed at Lawton Correctional Facility (LCF), a private prison owned and operated by GEO. In Claim One, Mr. Plater alleges deliberate indifference to his serious medical needs (mental health) in violation of the Eighth Amendment. See ECF Nos. 19:1, 8-9 & 20-1:2-6. In Claim Two, Plaintiff alleges a failure to protect him from harm (a sexual assault), in violation of the Eighth Amendment. See ECF Nos. 19:1, 9, 10 & 20-1:6-8); see also ECF No. 19:1 (“The instant pleading contains only two separate and district claims. One for failure to protect Plaintiff from sexual assault[.] . . . The second Claim is for deliberate [in]difference to [Plaintiff's] PTSD[.]”).
In the Amended Complaint, Plaintiff also cites the Fourteenth Amendment in support of his deliberate indifference claim. See ECF No. 19:9. However, the Fourteenth Amendment applies only to claims involving deliberate indifference alleged by pre-trial detainees. See Lucas v Turn Key Heath Clinics, LLC, 58 F.4th 1127, 1136 (10th Cir. 2023). Because Mr. Plater is a convicted prisoner, the undersigned will consider the claim as asserted under the Eighth Amendment only. See Strain v. Regalado, 977 F.3d 984, 989 (10th Cir. 2020).
For Claim One, Plaintiff seeks monetary relief and asserts liability against Defendant GEO, as well as Defendants Topping and Rowley, in their individual capacities. (ECF No. 19:8-9). For Claim Two, Mr. Plater seeks monetary relief and asserts liability against Defendant GEO and Defendant Garrett, in her individual capacity. (ECF No. 19:9-10).
II. DFEFENDANTS' MOTION/STANDARDS OF REVIEW
Defendants have filed a Motion to Dismiss/Motion for Summary Judgment and Brief in Support. (ECF No. 35).
A. Standard of Review for Motion to Dismiss
In ruling on a Motion to Dismiss, the court “must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to . . . [P]laintiff.” Thomas v. Kaven, 765 F.3d 1183, 1190 (10th Cir. 2014) (citation omitted). To survive dismissal, Plaintiff's “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroftv. Iqbal, 556 U.S. 662, 678 (2009) (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). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility....” Iqbal, 556 U.S. at 662 (internal quotation marks and citation omitted).
A complaint fails to state 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. Iqbal, 556 U.S. at 662.
“[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). 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 Iqbal).
B. Standard of Review for a Motion for Summary Judgment
Summary judgment is a means of testing in advance of trial whether the available evidence would permit a reasonable jury to find in favor of the party asserting a claim. The Court must grant summary judgment when “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). When considering a motion for summary judgment, the Court views the evidence and the inferences drawn from the record in the light most favorable to the non-moving party. Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir.2005). While the Court construes a pro se litigant's pleadings liberally, such a litigant nevertheless is held to the same rules of procedure as are binding on other litigants. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007).
A party that moves for summary judgment has the burden of showing that the undisputed material facts require judgment as a matter of law in its favor. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If this burden is met, the non-movant must come forward with specific facts, supported by admissible evidence, which demonstrate the presence of a genuine issue for trial. Comm. for First Amendment v. Campbel, 962 F.2d 1517, 1526 n.11 (10th Cir. 1992). Although all facts are construed in favor of the non-movant, he still has a responsibility to “go beyond the pleadings and designate specific facts so as to make a showing sufficient to establish the existence of an element essential to [his] case in order to survive summary judgment.” Johnson v. Mullin, 422 F.3d 1184, 1187 (10th Cir. 2005) (alteration in original) (internal quotation marks omitted). A pro se non-movant must “identify specific facts that show the existence of a genuine issue of material fact.” Munoz v. St. Mary-Corwin Hosp., 221 F.3d 1160, 1164 (10th Cir. 2000) (internal quotation marks omitted). Conclusory allegations are insufficient to establish an issue of fact that would defeat the motion. Llewellyn v. Allstate Home Loans, Inc., 711 F.3d 1173, 1180 (10th Cir. 2013).
Parties may establish the existence or nonexistence of a material disputed fact through:
• citation to “depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials” in the record; or
• demonstration “that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”Fed. R. Civ. P. 56(c)(1)(A)-(B).
C. Defendants' Motion
As stated, Defendants have filed a Motion to Dismiss/Motion for Summary Judgement and Brief in Support. (ECF No. 35). However, in “Proposition I,” titled “Standard of Review,” Defendants only provide the standard of review for a Motion for Summary Judgment. See ECF No. 35:2-3. “Proposition II”, on the other hand, states: “Plaintiff's Claim of Deliberate Indifference Fails to Establish a Cause of Action[.]” (ECF No. 35:3). Defendants' terminology in this proposition suggests an argument for dismissal-i.e.-that Plaintiff has failed to state a claim for deliberate indifference. But in the body of “Proposition II,” Defendants: (1) argue that Mr. Plater failed to allege that the Defendants had acted with deliberate indifference (which would suggest that Defendants are seeking dismissal) and (2) cite evidence which they contend would defeat Mr. Plater's claim as a matter of law (which would suggest that Defendants are seeking summary judgment). (ECF No. 35:4-6).
Defendants' third proposition, also titled “Proposition II” states: “Plaintiff fails to State a Cause of Action in his Claim 2 and Summary Judgment.” (ECF No. 35:6). Once again Defendants' proposition is confusing, as they contend that Mr. Plater “wholly fails to state a cause of action,” followed by an argument that Plaintiff has failed to support his claim with evidence, which, Mr. Plater would not have to do in order to state a cause of action. See supra.
Defendants are reminded of the difference between moving for dismissal and moving for summary judgment. The former is based on whether the Plaintiff's allegations could plausibly support a legally recognized cause of action-i.e.-deliberate indifference to serious medical needs in violation of the Eighth Amendment. The latter, however, involves examining evidence to determine whether either party is entitled to judgment as a matter of law, which may be granted in the absence of disputed material facts.
Based on the somewhat unclear nature of Defendants' Motion, the Court will consider both standards of review in adjudicating the same.
III. CLAIMS AGAINST DEFENDANT GEO
Plaintiff seeks liability against Defendant GEO in both its individual and official capacities. (ECF No. 19:5). But as a private entity, GEO lacks a traditional individual or official capacity. See Adams v. GEO Group, No. CIV-22-317-D, 2022 WL 5027844, at *3 (W.D. Okla. Sept. 7, 2022), report and recommendation adopted, No. 22-317-C, 2022 WL 5027659 (W.D. Okla. Oct. 4, 2022). Even so, Defendant GEO may be sued under a theory of municipal liability. See Monel v. Dept of Soc. Servs. of the City of N.Y., 436 U.S. 658, 690-91 (1978) (establishing that municipalities are “included among those persons to whom § 1983 applies”); Smedley v. Corrections Corp. of America, 175 Fed.Appx. 943, 946 (10th Cir. 2005) ("it is now well settled that Monel also extends to private defendants sued under § 1983”).
To establish Defendant GEO's liability under § 1983, Plaintiff must allege: (1) Defendant GEO has an official policy or custom; (2) that caused a violation of Plaintiff's federal rights; and (3) that "was enacted or maintained with deliberate indifference to an almost inevitable” federal rights violation. Schneider v. City of Grand Junction Police Dept 717 F.3d 760, 769-71 (10th Cir. 2013).
In his “failure to protect” claim, Mr. Plater states that he expressed a fear of being sexually assaulted by his cellmate and requested a cell move. (ECF No. 20-1:7-8). In response to his request, Plaintiff states that a “No Happy Moves” policy or custom prevented him from moving cells and resulted in him being sexually assaulted. (ECF Nos. 20-1:7-8; 37:4). Mr. Plater describes the policy as: “unless and until anything actually happened to Plaintiff he could not acquire a cell move[.]” (ECF No. 20-1:8); see ECF No. 20-1:7 ("The policy 'No happy moves' is direct evidence establishing causation for injury to rights under the Cruel and Unusual Punishments Clause of the Eighth Amendment by exhibiting deliberate indifference to the substantial risk of sexual assault and harassment.”) (internal quotation marks omitted).
Plaintiff's reference to “Doc. 13” is a typographical error. Mr. Plater is quoting his Amended Complaint, ECF No. 12, at p. 11. See ECF No. 15:1-2.
In the Amended Complaint, Plaintiff asserted a “failure to protect” claim against GEO, and the undersigned recommended dismissal of the same based on Mr. Plater's failure to identify a custom or policy of GEO which had caused him harm. See ECF Nos. 12 & 13. In his objection to the recommendation, Plaintiff stated:
Clearly the Magistrate is recklessly disregarding Doc. 12 filed 10/26/22 p. 11/13 which explicitly comports with the three elements to establish liability to GEO under § 1983.
Doc. 132 explicitly states: “Plaintiff advised Case Manager Garret [sic] and Unite Manager Romon Reyes on or about 9/30/20- 10/10/20 of homosexual activity occurring in cell and requested a cell move. Defendants utilized unofficial policy or custom of “No Happy Moves” is reckless disregard of sexual assault.
Clearly (1) The 'official policy or custom' of No Happy Moves requiring a traumatic event to transpire in deliberate indifference to the (2) Eighth Amendment violation of failure to protect (3) is proximate cause, affirmative link, or nexus to the 'almost inevitable' federal rights violation.” (ECF No. 15:2).(ECF No. 15:1-2).
In ruling on the recommendation, and considering Plaintiff's objection and citation to a “No Happy Moves” policy or custom, Judge Russell stated:
Although Plaintiff uses the terms “policy or custom” his allegations are too conclusory to state a claim against GEO Group for Claim II.
An official policy or custom may take one of the following forms:
(1) a formal regulation or policy statement; (2) an informal custom amounting to a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law; (3) the decisions of employees with final policymaking authority; (4) the ratification by such final policymakers of the decisions - and the basis for them - of subordinates to whom authority was delegated subject to these policymakers' review and approval; or (5) the failure to adequately train or supervise employees, so long as that failure results from deliberate indifference to the injuries that may be caused.
Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010) (quotation and alteration marks omitted). Merely referencing an alleged “no happy moves” policy or custom without reference to facts to support any of the above theories is insufficient. Additionally, the term “no happy moves” is not inherently descriptive.(ECF No. 18:3). In the Second Amended Complaint, Plaintiff does not offer any substantively different description of the “No Happy Moves” policy than he did in either the Amended Complaint or in his objection to the Report and Recommendation. Compare ECF Nos. 12 & 15 with ECF No. 19. Thus, based on its previous ruling, the Court should dismiss the “failure to protect” claim against GEO.
In his deliberate indifference claim, Mr. Plater argues that Defendants Rowley and Topping were deliberately indifferent to his post-traumatic stress disorder (PTSD) by disregarding/refusing Plaintiff's request to transfer from a cell where he alleges he was sexually assaulted. (ECF Nos. 19:8-9; 21:4, 6). Although he names GEO as a Defendant to this claim, Mr. Plater fails to cite any policy or custom attributable to GEO which caused the alleged constitutional deprivation. See ECF Nos. 19, 20-1.
Accordingly, the Court should dismiss, without prejudice, the deliberate indifference claim against Defendant GEO.
IV. PLAINTIFF'S FAILURE TO PROTECT CLAIM
Mr. Plater alleges that Defendant Garrett violated the Eighth Amendment by failing to protect him from a sexual assault. (ECF Nos. 19:1, 9-10; 20-1:6-8). Defendant Garrett argues that the claim should be dismissed, and/or alternatively, that she is entitled to summary judgment. (ECF No. 35:6-9). The Court should find that Defendant Garrett is entitled to summary judgment.
Under the Eighth Amendment, prison officials have a duty to “provide humane conditions of confinement,” including “tak[ing] reasonable measures to guarantee the safety of . . . inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation marks omitted). This duty includes “a duty to protect prisoners from violence at the hands of other prisoners.” Id. at 833 (ellipsis and quotation marks omitted). The test for whether a failure to meet this duty violates the Eighth Amendment has two prongs. First, the alleged deprivation must be “sufficiently serious” under an objective standard. Id. at 834. In cases involving a failure to prevent harm, this means that the prisoner must show that the conditions of her incarceration present an objective “substantial risk of serious harm.” Id.; see also Requena v. Roberts, 893 F.3d 1195, 1214 (10th Cir. 2018). Second, the prisoner must show that prison officials had subjective knowledge of the risk of harm. In other words, an official “must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837; see also Requena at 1214.
As stated, Plaintiff alleges that Defendant Garrett failed to protect him from a sexual assault after he had made her aware of a threat concerning the same. (ECF Nos. 19:1, 9-10; 20-1:6-8). Initially, the undersigned notes that Mr. Plater offers two different timelines regarding the events underlying this claim. On one hand, Plaintiff states that “[f]rom about 9/15/20 until 10/11/20,” he “advised Case Manager Garret [sic] . . . of ongoing homosexual activity between his cellmate [and another inmate].” (ECF No. 20-1:8). But elsewhere in the Second Amended Complaint, Mr. Plater states: “[o]n or about 9/15/21-10/11/21 Case Manager Garrett was made aware of aggressive behavior of Plaintiff's cellmate and homosexual activity in fear of becoming a victim of sexual assault.” (ECF No. 19:9); see also ECF No. 20-1:7 (noting that he had discussed the matter with Defendant Garrett in 2021). Likewise, Plaintiff alleges that the sexual assault which forms the basis of his claim occurred “[o]n or about 10/05/202010/12/2020” and/or “between 9/15/21 and 10/21/21.” (ECF No. 20-1:7-8). The timing of the alleged assault, however, is irrelevant to determining whether Plaintiff has adequately stated a claim for “failure to protect” and/or whether Defendant Garrett is entitled to summary judgment on this claim.
As stated, Plaintiff expressed his fear of a sexual assault to Defendant Garrett and sought a cell transfer, but was allegedly told by Defendant Garrett that GEO's “No Happy Moves” policy/custom “mandate[d] Plaintiff experience actual harm; the potential threat of harm [wa]s insufficient for a cell move.” (ECF No. 20-1:7). As a result, Plaintiff states that he remained in his cell and indeed, was sexually assaulted. (ECF No. 20-1:7-8).
To the extent Defendant Garrett seeks dismissal of Plaintiff's claim, see ECF No. 35 (“Plater's [failure to protect] claim wholly fails to state a cause of action against Case Manager Garrett”), the Court should disagree, based on the Tenth Circuit Court of Appeals' decision in Requena v. Roberts, supra. In Requena, the plaintiff-inmate believed he was in physical danger from other inmates and he expressed his concern to his unit team manager, and requested to be transferred. Requena, 893 F.3d at 12131214. The inmate was not immediately transferred, however, and was subsequently beaten by other inmates. Id. at 1214. The inmate asserted a “failure to protect” claim against the unit team manager and other prison officials to whom he had also allegedly expressed his fears of injury. Id. Noting that the district court had improperly dismissed the claim, the Tenth Circuit stated:
It appears [plaintiff] has adequately pled an Eighth Amendment claim against [prison officials] with regard to the June 30 beating. [The officials] were allegedly aware of [plaintiff's] fear of retaliation by members of the Native American callout but did nothing and he was subsequently beaten by two members of the callout.Id. Here, Plaintiff has sufficiently alleged both components of the Eighth Amendment claim. First, Mr. Plater's allegations that he was fearful of being sexually assaulted by his cellmate “present an objective substantial risk of serious harm.” See supra. And under Requena, the Court should conclude that Mr. Plater has sufficiently alleged that Defendant Garrett had subjective knowledge of the risk of harm to Plaintiff. As a result, the Court should deny Defendant Garrett's request to dismiss Plaintiff's “failure to protect” claim for failure to state a claim.
To the extent that Defendant Garrett seeks summary judgment on this claim, the Court should agree. Although Defendant Garrett's arguments are somewhat disjointed, the undersigned finds merit in Defendant Garrett's argument that “No evidence with any such event is present to support that claimed assault[.]” (ECF No. 35:7). To be sure, whether an assault actually occurred is material to adjudicating Defendant Garrett's liability for a failure to protect. Even so, Defendant Garrett cites no evidence in support of her statement, contrary to the fact to the federal rules mandate that “[a] party asserting that a [material] fact cannot be or is genuinely disputed must support the assertion by:
• citing to “depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials” in the record; or
• demonstrating “that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”Fed. R. Civ. P. 56(c)(1)(A)-(B). However, elsewhere in the motion, counsel cites to a Prison Rape Elimination Action (PREA) investigation “which resulted in a finding that Plater's claim of sexual abuse was not substantiated based on a preponderance of the evidence gathered during the investigation (see Exhibit 3 to Special Report).” (ECF No. 35:3). Indeed, “Exhibit 3” to the Special Report is a report following a PREA investigation involving Mr. Plater which, although somewhat confusing, concerns the incident which forms the basis of Mr. Plater's claim. Ultimately, following detailed investigation, the report deemed Plaintiff's allegations “unsubstantiated.” See ECF No. 34-3.
The report is somewhat confusing because it found that Mr. Plater had stated: (1) that the incident occurred “in Unit 6 cell 205” (when, in the Second Amended Complaint, he alleged that the incident occurred in “House 6 Pod A Cell 209,” see ECF No. 20-1:7) and (2) that the sexual assault had occurred “on or about August or September of 2020, see ECF No. 34-3:1, and/or “on or about February 2021,” see ECF No. 34-3:3. But it is clear that the report concerned the allegations which form Mr. Plater's current claim because: (1) other evidence submitted by Defendants shows that on August 31, 2020, Plaintiff was moved to 6 pod A Cell 209 where he remained until October 12, 2020, when he moved to 6 Pod A cell 212, and (2) the report states that “Mr. Plater has not been involved in any PREA allegations at LCRF” other than the incident which was the subject of the report. See ECF No. 34-3:2, 25; 34-5:7.
In Oakleaf v. Frawner, No. 15-cv-0220 RB/SMV, 2016 WL 9777162 (D. N.M. June 2, 2016), an inmate-plaintiff alleged that the defendant prison official had failed to protect her from being assaulted. Oakleaf v. Frawner, 2016 WL 9777162 at *3. The allegation of assault was investigated, with the ultimate finding being that the plaintiff's claim was unsubstantiated. Id. at *4. Ultimately, the Court concluded that the evidence entitled the defendant to summary judgment, stating:
[T]he objective prong is not met because there is no indication that there was a substantial risk to Plaintiff. After all, Defendants have presented their reports concluding that Plaintiff was never assaulted, and other than her amended complaint, which vaguely alleges that she was “a victim of sexual assault,” Plaintiff does not dispute their conclusion.Id. at *5. Here too, Defendant Garrett has presented evidence that Mr. Plater's allegations were found to be unsubstantiated, and other than his allegations in the Second Amended Complaint, Plaintiff offers no evidence or allegations “beyond the pleadings” to dispute the findings from the investigation. See supra, Johnson v. Mullin. Because Mr. Plater has presented nothing more than conclusory allegations in response to Defendant's evidence that the assault was unsubstantiated, see ECF No. 37, the Court should find that Defendant Garrett is entitled to summary judgment on the failure to protect claim. Without evidence that an assault occurred, Plaintiff cannot sustain his claim that Defendant Garrett had failed to protect him from the same.
V. PLAINTIFF'S DELIBERATE INDIFFERENCE CLAIM
In Claim One, Mr. Plater alleges that that Defendants Topping and Rowley violated his Eighth Amendment rights by exhibiting deliberate indifference to his PTSD. (ECF Nos. 19:1, 9-10; 20-1:2-6). These Defendants have requested dismissal and/or summary judgment. See ECF No. 35. The Court should dismiss the claim against Defendant Topping and conclude that Plaintiff may proceed against Defendant Rowley.
The Eighth Amendment protects against the infliction of cruel-and-unusual punishments. See U.S. Const. amend. VIII. The Eighth Amendment's prohibition against cruel-and-unusual punishment encompasses prison officials' deliberate indifference. See Howard v. Waid, 534 F.3d 1227, 1235 (10th Cir. 2008) (citing Estelle v. Gambl, 429 U.S. 97, 105 (1976). Deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment. See Estele v. Gambl, 429 U.S. at 104-05. Prison doctors in their response to the prisoner's needs, or prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed, may manifest deliberate indifference. See id.
Determining the sufficiency of an Eighth Amendment claim for deliberate indifference involves a two-pronged inquiry, comprised of an objective component and a subjective component. See Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006). With respect to the objective component, a medical need is classified as 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.” Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980) (internal quotation and citation omitted). The question is not limited to whether the inmate's symptoms render a medical need sufficiently serious, but also extends to whether the potential harm to the inmate is sufficiently serious. See Mata v. Sai, 427 F.3d 745, 752 (10th Cir. 2005). Under the subjective component, the defendant must have a sufficiently culpable state of mind. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). See also Self v. Crum, 439 F.3d at 1230-31. In other words, the plaintiff must establish that the defendant “knew he faced a substantial risk of harm and disregarded that risk, by failing to take reasonable measures to abate it.” Hunt v. Uphof, 199 F.3d 1220, 1224 (10th Cir. 1999) (internal citation and quotation omitted). With regard to the subjective component, the question for consideration by the Court is “ 'were the symptoms such that a prison employee knew the risk to the prisoner and chose (recklessly) to disregard it?' ” Martinez v. Begg., 563 F.3d 1082, 1089 (10th Cir. 2009)(quoting Mata v. Sai, 427 F.3d at 753). An official responds to a known risk in an objectively unreasonable manner if he knows of ways to reduce the harm, but knowingly or recklessly declines to act. See Howard v. Waid, 534 F.3d at 1239-40. Prison officials violate the Eighth Amendment when they are deliberately indifferent to the serious medical needs of prisoners in their custody. See id.
Plaintiff contends that Defendants Rowley and Topping violated the Eighth Amendment by exhibiting deliberate indifference to his PTSD, which he had allegedly been diagnosed with on June 6, 2022, as a result of having been sexually assaulted. (ECF No. 20-1:2, 6). According to Plaintiff, on June 10, 2022, he submitted a request to staff to Defendant Topping, requesting to be transferred from his cell in order to “remov[e] him from the psychological triggers of sexual assault.” (ECF No. 20-1:6); see ECF No. 20-1:25 (request to staff). On June 14, 2022, Ms. Topping replied and explained to Plaintiff that pending the conclusion of his PREA investigation, he would have the opportunity to move housing. (ECF No. 20-1:25). Mr. Plater alleges that Defendant Topping's refusal to move Plaintiff at the time of his request constituted deliberate indifference in violation of the Eighth Amendment. (ECF No. 20-1:6).
On June 27, 2022, as a result of Plaintiff's continued complaints to be transferred, Mr. Plater states that a “Ms. Ghanam” emailed Defendant Rowley, Plaintiff's case manager, and requested that he be moved from “House 6” to “House 5” due to his PTSD. (ECF No. 20-1:2, 4, 6). Plaintiff alleges that Defendant Rowley “recklessly disregarded” the request and transferred another inmate instead of Plaintiff. (ECF Nos. 19:9, 20-1:4). Mr. Plater alleges that Defendant Rowley's actions constituted deliberate indifference to his PTSD because as a result of not being transferred, he was “forced. . . to remain in the exact House and Pod he has been assaulted in.” (ECF No. 20-1:4).
In “Proposition II” of the Motion to Dismiss/Motion for Summary Judgment, titled “Plaintiff's Claim of Deliberate Indifference Fails to Establish a Cause of Action as to These Defendants,” Defendants Rowley and Topping argue:
• “LCRF personnel followed appropriate protocols after Plater's initial complaint of a PREA violation by conducting a PREA interview by qualified medical personnel and initiated an investigation which resulted in a finding that Plater's claim of sexual abuse was not substantiated based on a preponderance of the evidence gathered during the investigation;”
• Following the sexual assault, Plaintiff “has received multiple mental health exams, counseling, and treatment;”
• “There are no records which indicate a lack of treatment or indifference, but instead the records contained in the Special Report show that repeated efforts were made to provide Plater with appropriate treatment, both before and after his claim of a PREA violation;” and
• “Plater has been repeatedly examined and treated for medical condition by Dr. Weaks and Dr. Ashan Khan, all in accordance with ODOC policy.”(ECF No. 35:4-6). Although Plaintiff had argued that Dr. Weaks had failed to provide him with proper mental health care, see ECF No. 19:9; 20-1:5, Dr. Weaks was terminated as a party prior to Defendants' Motion having been filed, and the undersigned finds these arguments non-responsive to Plaintiff's claims against Defendants Topping and Rowley. See supra.
At the close of “Proposition II,” Defendants state: “Plaintiff's further claim concerning denial of his requests for transfer from time to time in Claim 1 is addressed below in response to Claim 2, and, likewise, without factual support or merit.” (ECF No. 35:6). A review of Defendants' second “Proposition II,” finds two paragraphs regarding Mr. Plater's housing:
Inmate housing decisions are governed by OP-030102 (Exhibit 3 hereto) and are at the discretion of appropriate staff and are determined through initial assignment and reception and by his facility clarification committee action. As demonstrated by the evidence concerning cell assignments and transfers included in Exhibit 5 to the Special Report, housing for inmate Plater followed ODOC procedures. . . .
[A]s indicated in Exhibit 5 to the Special Report, Plater has been frequently moved from one cell and cell block to another while incarcerated at LCRF and has at times been placed in the Restricted Housing Unit (RHU) due to his refusal to accept cell reassignments.(ECF No. 35:7, 9).
Ultimately, Defendants state:
Claims 1 and 2 of Plaintiffs Amended Complaint, taken in the best light, fail to state legitimate causes of action against these Defendants and further, based on the undisputed facts set forth herein and as a matter of law, Judgment should be granted in favor of the Defendants as provided by Rule 56 of the Rules of Civil Procedure.(ECF no. 35:9). Again, the undersigned finds Defendants' argument non-responsive to Plaintiff's allegations, as Defendants fail to discuss the components of an Eighth Amendment claim and/or cite evidence which would defeat the same. In Estate of Beuford v. Mesa County, Colorado, 35 F.4th 1248 (10th Cir. 2022), the decedentinmate's estate brought a 1983 claim against prison officials alleging, in part, that officials who were responsible for administering the plaintiff's mental health care had been deliberately indifferent to the inmate's mental health needs by failing to transfer him to another facility to ensure he received proper psychiatric care. Id. at 1270. The district court granted summary judgment to the defendant-prison officials, stating:
Both defendants explained that inmates were considered for transfers or referrals when they exhibited certain behaviors that posed a risk to themselves or others. But in their view, [the plaintiff] never exhibited such behaviors. Given this explanation, a reasonable jury could not infer conscious disregard for [the plaintiff's] serious medical needs.Estate of Beauford v. Mesa Cnty., Colorado, 35 F.4th 1248, 1271 (10th Cir. 2022).
Here, Plaintiff has alleged that Defendant Rowley was informed of his diagnoses of PTSD and his “need to be removed from House 6 into House 5” due to “exacerbated symptoms” of his PTSD which stemmed from him having to remain in the House and Pod where the sexual assault allegedly occurred. See ECF No. 19:9, 20-1:4; 37:1-2. According to Plaintiff, Defendant Rowley “recklessly disregarded” an email request for Plaintiff to move cells due to “factors consistent with psychological triggers of PTSD and PREA.” (ECF No. 37:1-2). Although Plaintiff does not describe his “psychological triggers,” at this juncture, the Court should conclude that Plaintiff's allegations state a claim of deliberate indifference to his serious mental health needs. Although Defendant Rowley has submitted evidence of Plaintiff's cell transfers, and argues that the transfers “followed ODOC procedures,” such evidence is not responsive to Plaintiff's allegations of deliberate indifference. In Beauford, the Tenth Circuit affirmed the district court's finding that the defendants were entitled to summary judgment, because they had presented evidence that the plaintiff had not exhibited behaviors which would have warranted a transfer. See supra. Here, however, evidence that Plaintiff's intra-facility cell transfers “followed ODOC protocol” falls short of what the Court relied on in Beauford, and the Court here should reject Defendant Rowley's request for summary judgment.
On the other hand, the Court should dismiss the claim against Defendant Topping for failure to state a claim. According to Plaintiff, Defendant Topping “refused to transfer Petitioner to House 5 from 6, citing policy to ‘await conclusion of investigation.' ” (ECF No. 19:9). In support of his claim against Defendant Topping, Mr. Plater submits a request to staff which he states “requested] removal from the psychological triggers of sexual assault.” (ECF No. 20-1:6). But an examination of the document says nothing about PTSD and/or psychological triggers. Instead, the request to staff states:
In light of being in possession of evidence of inadequate assistance to my requests I have been advised by your PREA Administrator I am still awaiting exhaustion of a “PREA Investigation.” Based on the circumstances surrounding my claim, it does not follow that an investigation still exists; it has been 30 days. I have been advised I must endure 90 days total, until the completion of your investigation, while still housed in the exact location where the assault occurred.(ECF No. 20-1:25-26).
Based on the forgoing, the Court should conclude that Plaintiff has failed to state a claim against Defendant Topping for deliberate indifference in violation of the Eighth Amendment. Although Mr. Plater states that his request to Defendant Topping was in order to “remove him from psychological triggers” from PTSD, Plaintiff has neither alleged that Defendant Topping was aware of his PTSD or any “psychological triggers” resulting therefrom, nor does his evidence represent that this Defendant had any knowledge of the same. As a result, the Court should conclude that Plaintiff has failed to state a claim for deliberate indifference against Defendant Topping and dismiss the same.
VI. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based on the forgoing, the Court should: (1) dismiss the claims against GEO for failure to state a claim; (2) grant summary judgment to Defendant Garrett; (3) dismiss the claim against Defendant Topping for failure to state a claim; (4) reject Defendant Rowley's argument for dismissal and/or summary judgment; and (5) conclude that Plaintiff has stated an individual capacity claim for deliberate indifference against Defendant Rowley, limited to the recovery of monetary damages.
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 November 27, 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).
VII. STATUS OF THE REFERRAL
This Report and Recommendation does not dispose of all issues currently referred to the undersigned magistrate judge in the captioned matter.