Opinion
CIV-22-317-D
09-07-2022
MIGUEL ADRIAN ADAMS, Plaintiff, v. THE GEO GROUP INC., et al., Defendants.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE.
Plaintiff Miguel Adams, appearing prose, brings this action under 42 U.S.C. § 1983, alleging civil rights violations. (ECF No. 28). Chief United States District Judge Timothy D. DeGiusti has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). The Court has reviewed the First Amended Complaint pursuant to 28 U.S.C. § 1915A(a). Based on that review, it is recommended that the Court: (1) dismiss, without prejudice, the individual capacity claims against Defendants GEO and Bowen, (2) Dismiss with prejudice the claim against Defendant Walker, Ferguson and Ferguson; and (3) conclude that Plaintiff has stated Eighth Amendment claims against Defendants and Honickner; Achidi and Smith in their individual capacities.
I. SCREENING REQUIREMENT
The Court must review each complaint in which a prisoner seeks redress against a governmental entity, officer, or employee pursuant to 28 U.S.C. § 1915A(a). See also 28 U.S.C. § 1915 (pertaining to cases in which a prisoner proceeds in forma pauperis). The Court is required to dismiss the complaint or any portion of the complaint that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §§ 1915A(b); 1915(e)(2)(A)-(B); see also Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007) (indicating that court uses same analysis for complaint's sufficiency whether performed sua sponte or pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)).
II. STANDARD OF REVIEW
The Court must accept Mr. Adams' allegations as true and construe them, and any reasonable inferences to be drawn from them, in the light most favorable to Plaintiff. See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Since Mr. Smith is proceeding pro se, his complaint must be construed liberally. See id. at 1218. The Court “review[s] the complaint for plausibility; that is, to determine whether the complaint includes enough facts to state a claim to relief that is plausible on its face.” Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009) (quotations and citation omitted). “Plausible” in this context does not mean “likely to be true,” but rather refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct,” then the plaintiff has not “nudged (his) claims across the line from conceivable to plausible.” Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). The plausibility requirement “serves not only to weed out claims that do not (in the absence of additional allegations) have a reasonable prospect of success, but also to inform the defendants of the actual grounds of the claim against them.” Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008).
A complaint fails to state such a claim when it lacks factual allegations sufficient “to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555 (footnote and citation omitted). Bare legal conclusions in a complaint are not assumed to be true; legal conclusions “must be supported by factual allegations” to state a claim upon which relief may be granted. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
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).
III. PLAINTIFF'S ALLEGATIONS
While an inmate at Lawton Correctional and Rehabilitation Facility (LCRF), Mr. Adams alleges he was the victim of cruel and unusual punishment in the form of deliberate indifference to his chronic diverticulitis-a serious medical need. (ECF Nos. 28:5, 16-24). As Defendants, Mr. Adams names: (1) The GEO Group, corporate owner of LCRF (GEO); (2) Mark Bowen, warden of LCRF; (3) Nurse Smith, employee (or former employee) of LCRF; (4) Nurse Achidi, employee of LCRF; and (5) FNU Honickner, identified as “medical administrator” at LCRF. (ECF No. 28:1, 2, 3, 5, 7).
In support of his Eighth Amendment claim, Mr. Adams alleges that on April 26, 2021, he informed Defendant Achidi that he was suffering stomach pain and requested that she check his vitals and take his temperature. An elevated temperature could have indicated the presence of an infection related to his diverticulitis. (ECF No. 28:14-15). Mr. Adams contends that Defendant Achidi declined the requests, left Plaintiff's cell, and returned two hours later after being told by a correctional officer that Plaintiff was still in extreme pain. (ECF No. 28:20). Upon her return, Mr. Adams states that Nurse Achidi again declined Plaintiff's request to take his vitals, stated that Plaintiff would have to die before he received medical attention, whereupon she left, with Mr. Adams still suffering in extreme pain. (ECF No. 28:15).
Mr. Adams alleges that on July 27, 2021, he advised Defendant Smith that he was suffering severe stomach pain and asked her to check his vitals and take his temperature to check for an infection. (ECF No. 28:16-17). According to Plaintiff, Defendant Smith declined the request, left Plaintiff's cell, and never came back, despite numerous requests. (ECF No. 28:17). The following morning, Plaintiff was still suffering stomach pain and went to medical to seek relief. (ECF No. 28:). While there, Mr. Adams states that Defendant Smith told him that he had “never turned in a sick call slip,” there was “nothing she could do for him,” and the situation was not considered an “emergency sick call matter.” (ECF No. 28:17). Plaintiff again requested that Nurse Smith check for an infection, and she did. Defendant Smith told Plaintiff he had a temperature of 100 degrees, which Plaintiff believed showed an infection that warranted further medical attention. (ECF No. 28:17). According to Plaintiff, however, Nurse Smith “refused to help and call the doctor,” and sent Plaintiff back to his cell. (ECF No. 28:18).
Later that morning, Mr. Adams states that he was rushed back to medical with a temperature “around 100 to 104.” (ECF No. 28:18). Plaintiff was subsequently taken to a hospital outside the facility where he received antibiotics for 6 days and was scheduled for surgery. (ECF No. 28:18).
In an unrelated claim, Mr. Adams has named as a defendant Walker, Ferguson & Ferguson, a law firm which represented defendants named in a previous lawsuit filed by Mr. Adams.
Plaintiff sues each Defendant in his or her individual capacity and seeks monetary relief. (ECF No. 28).
IV. DEFENDANT WALKER, FERGUSON & FERGUSON
Mr. Adams contends he is entitled to monetary damages from the law firm of Walker, Ferguson & Ferguson. According to Mr. Adams, this law firm violated his rights under the Health Insurance Portability and Accountability Act (HIPAA) by accessing and filing his medical records without his permission in Case No. CIV-21-297-D.
The Tenth Circuit Court of Appeals instructs that HIPAA does not create a private right of action for alleged disclosures of confidential medical information. See Wilkerson v. Shinseki, 606 F.3d 1256, 1267 n.4 (10th Cir. 2010) (“Any HIPAA claim fails as HIPAA does not create a private right of action for alleged disclosures of confidential medical information.”). Thus, the claim against this firm should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(2) for failure to state a claim upon which relief may be granted. The dismissal should be with prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (“A dismissal with prejudice is appropriate where a complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend would be futile.”).
V. DEFENDANTS GEO and BOWEN
Mr. Adams has sued Mark Bowen, Warden of LCRF, and GEO, LCRF's corporate owner, in their individual capacities. But Plaintiff's claim of liability against these two Defendants appears to be based solely on Mr. Adams' belief that they maintained some sort of supervisory control over the actions of GEO employees.
For example, Mr. Adams attempts to impose liability on Geo, stating, “The GEO Group Inc are [sic] to be held responsible for their employees [sic] wrongful action. The GEO care is owned by GEO Group Inc. It is there [sic] medical providers to prisoners incarcerated in GEO Groups Facilities.” (ECF No. 28:13).
Mr. Adams' theory fails for two reasons. First, as a private entity, GEO lacks a traditional individual capacity. See Smith v. Lawton Corr. Facility, No. CIV-18-110-C, 2018 WL 1406592, at *3 (W.D. Okla. Mar. 7, 2018), report and recommendation adopted, No. CIV-18-110-C, 2018 WL 1403911 (W.D. Okla. Mar. 20, 2018). Second, a private actor such as GEO cannot be held liable under § 1983 based solely on the actions of its employees. See Smedley v. Corrections Corp, of America, 175 Fed.Appx. 943, 946 (10th Cir. 2005) (citing Monel v. Dept of Soc. Servs. of N.Y., 436 U.S. 658, 691 (1978)). To establish GEO's liability under § 1983, Plaintiff must establish three basic elements: (1) GEO has an official policy or custom; (2) that caused a violation of Plaintiff's federal rights; and (3) “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).
Mr. Adams attempts to demonstrate that Geo, through its employees, has violated a “policy” set forth in its agreement with its shareholders:
The GEO Group Inc. has purposely neglected the numerus complaints of said Defendant(s) and neglected there [sic] own policy they have with their shareholders. This policy will show that they are entitled and to be held responsible for there [sic] employees [sic] action if they have violated any inmate or detainee human rights. The policy the GEO Group Inc. has with there [sic] shareholders is Global Human Rights Policy “Respect for our Inmates and Detainees including (1) how the company ensures that its employees are aware of, and know how to apply the company's commitment to inmate/detainee human rights; (2) metrics used to assess human rights performance, including any process for independent outside verification of such metrics; and (3) how the company remedies shortcomings in human rights performance.(ECF No. 28:13). This “policy” contained in a shareholder agreement did not lead to any Eighth Amendment violation by any Geo employee and certainly was not enacted or maintained with deliberate indifference to an almost inevitable federal rights violation. To the contrary, Geo represents to its shareholders that “human rights” of inmates would be protected. Thus, all claims against Geo should be dismissed without prejudice.
Likewise, to the extent that Plaintiff alleges liability against Defendant Bowen in a supervisory capacity, Mr. Adams must allege that Defendant Bowen: (1) promulgated, created, implemented, or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm and (3) acted with the state of mind required to establish the alleged constitutional deprivation. Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010).
Mr. Adams states that Defendant Bowen should be liable based on his position as Warden. In support of his claim, Plaintiff cites the same “policy” in the shareholder agreement:
Defendant Mark Bowen was hired/appointed by Defendant[] Geo Group Inc. as warden over there [sic] facility Lawton Correctional Rehabilitation Facility. Defendant Mark Bowen job is to ensure that the safety of the public, staff and offenders are being enforce. This Defendant has neglected his duties by allowing numerous violations of offender human rights being violated by his correctional officers and medical staff by ignoring numerous complaints against his staff. This Defendant Mark Bowen has also violated the GEO Group Inc. Global Human Rights Policy “Respect for our Inmates and Detainees” have with there [sic] shareholders[.](ECF No. 28:14). As discussed supra at 7, the “policy” upon which Mr. Adams relies did not lead to any Eighth Amendment violation by any employee of LCRC and was not enacted by Defendant Bowen. Thus, the claims against Defendant Bowen should be dismissed without prejudice.
VI. DEFENDANT HONICKNER
To succeed on a § 1983 claim, a plaintiff must show “the violation of a right secured by the Constitution and law of the United States,” and that the violation “was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Because § 1983 is a vehicle for imposing personal liability on government officials, the Court must pay “careful attention to particulars, especially in lawsuits involving multiple defendants.” Pahls v. Thomas, 718 F.3d 1210, 1225-26 (10th Cir. 2013). "[I]t is particularly important” that plaintiffs “make clear exactly who is alleged to have done what to whom, . . . as distinguished from collective allegations.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011) (alteration in original) (internal quotations and citations omitted). Conclusory allegations of involvement do not suffice. See Iqbal, 556 U.S. at 676 ("Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”).
Plaintiff identifies Defendant Honickner as “Medical Administrator.” (ECF No. 28:7); (ECF No. 28:16). Mr. Adams states:
Defendant Honickner was hired/appointed by Defendants Geo Group Inc. to be the overseer of Geo Care at [LCRF] to make sure that the medical staff attend to offenders['] medical needs and to handle any medical complaint against there [sic] medical staff.(ECF No. 28:16). At first blush, it appears that Mr. Adams' claims against defendant Honickner are also based on supervisory capacity. However, Mr. Adams further states that Defendant Honickner denied a “grievance requesting relief to be sent to the hospital to have surgery.” Id. Plaintiff states that surgery was scheduled only after he successfully appealed to the Administrative Review Authority. Id.
The denial of a grievance, alone, is insufficient to state a constitutional claim. Here, however, Mr. Adams has alleged “a factual basis to support an 'affirmative link'” between Defendant Honickner's denial of his grievance and the denial of the surgery he needed. See Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (allegation related solely to denial of grievances with no factual basis to support affirmative link between denial of grievance and constitutional violation does not state a claim). Accepting Mr. Adams' allegations as true, he has stated a plausible claim against Defendant Honickner based on deliberate indifference to his serious medical need: the denial of a grievance that resulted in delay of medical treatment while Plaintiff was left to endure pain. See discussion infra.
VII. DEFENDANTS ACHIDI AND SMITH
The remaining two claims are Mr. Adams' individual capacity claims against Nurses Achidi and Smith, alleging deliberate indifference to Plaintiff's serious medical needs in violation of the Eighth Amendment. The Court should conclude that Plaintiff has stated a claim against these Defendants.
The Eighth Amendment “imposes duties on [prison] officials, who must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must 'take reasonable measures to guarantee the safety of the inmates[.]'”” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-527 (1984)). A "prison official's 'deliberate indifference' to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” Id. at 828; see also Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) ("A prison official's deliberate indifference to an inmate's serious medical needs is a violation of the Eighth Amendment's prohibition against cruel and unusual punishment.”). "The test for constitutional liability of prison officials 'involves both an objective and a subjective component.'” Mata, 427 F.3d at 751 (quoting Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000)).
Objectively, the harm complained of must be sufficiently "serious” to merit constitutional protection, and subjectively, the defendant must be aware of a substantial risk to plaintiff's health or safety and act in purposeful disregard of that risk. Martinez v. Beggs, 563 F.3d 1082, 1088-89 (10th Cir. 2009); see also Farmer, 511 U.S. at 834 (explaining that an Eighth Amendment violation occurs when an official's conduct (1) causes an injury that, objectively, is “sufficiently serious,” i.e., an injury that equates to the “denial of the minimal civilized measure of life's necessities”; and (2) that official had a “sufficiently culpable state of mind.” (internal quotation marks omitted)).
As for medical care, a medical need is considered sufficiently serious “if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Hunt v. Uphof 199 F.3d 1220, 1224 (10th Cir. 1999) (quoting Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980)). But “[w]here the necessity for treatment would not be obvious to a lay person, the medical judgment of the physician, even if grossly negligent, is not subject to second-guessing in the guise of an Eighth Amendment claim.” Mata, 427 F.3d at 751. And “a delay in medical care only constitutes an Eighth Amendment violation where the plaintiff can show the delay resulted in substantial harm.” Id. (internal quotation marks omitted). “The substantial harm requirement may be satisfied by lifelong handicap, permanent loss, or considerable pain.” Id. (internal quotation marks omitted).
The subjective component is met if a prison official “knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. "[T]he 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.” Id. "Unlike the objective component, the symptoms displayed by the prisoner are relevant to the subjective component of deliberate indifference.” Martinez, 563 F.3d at 1089. "Finally, the subjective component requires the prison official to disregard the risk of harm claimed by the prisoner.” Id.
Here, Plaintiff has alleged that he suffers from chronic diverticulitis which has been diagnosed and treated by a physician. See supra. The Court should conclude that these allegations meet the objective element of the Eighth Amendment test. The Court should also conclude that Plaintiff has satisfied the subjective component of the Eighth Amendment test by alleging that Nurses Achidi and Smith declined to take his vitals or otherwise determine whether Plaintiff was suffering an intestinal infection, and instead left him to suffer in “extreme pain” without seeking further medical attention and ultimately resulting in Plaintiff's hospitalization. See supra. Accordingly, the Court should conclude that Plaintiff has stated an Eighth Amendment individual capacity claim against these Defendants, limited to the recovery of monetary damages.
VIII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
The Court should: (1) dismiss, with prejudice, the claim against Defendant Walker, Ferguson & Ferguson; (2) dismiss, without prejudice, the remaining claims against Defendants GEO and Bowen; and (3) conclude that Plaintiff has stated individual capacity Eighth Amendment claims against Defendants Honickner, Achidi and Smith.
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 September 26, 2022. 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).
IX. STATUS OF THE REFERRAL
This Report and Recommendation disposes of all issues currently referred to the undersigned magistrate judge in the captioned matter.