Opinion
CIV-21-385-JD
08-20-2021
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Michael J.P. Brown, a pretrial detainee, appearing pro se, and in forma pauperis, has filed a Complaint under 42 U.S.C. § 1983. (ECF No. 1). United States District Judge Jodi W. Dishman has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). A review of the Complaint has been conducted pursuant to 28 U.S.C. § 1915A(a) and 28 U.S.C. § 1915(e)(2)(B). Based on that review, it is recommended that the Court: (1) dismiss, without prejudice, any official capacity claim for monetary damages and (2) conclude that Plaintiff has stated a Fourteenth Amendment claim against Defendant Rohrbough in his individual capacity, limited to the recovery of monetary damages.
I. SCREENING REQUIREMENT
The Court must review each complaint in which a prisoner seeks redress against a governmental entity, officer, or employee and each case in which a plaintiff proceeds in forma pauperis. 28 U.S.C. § 1915A(a). 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); see also Kay v. Bemis, 500 F.3d 1214, 121718 (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. Brown's 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. Brown 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 (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/NAMED DEFENDANTS
Mr. Brown, a pretrial detainee in the Stephens County Detention Center (SCDC), has filed a Complaint alleging that SCDC detention officer Barry Rohrbough failed to protect him from an assault by another inmate. (ECF No. 1:6-8).
According to Plaintiff:
6 days prior to 04Apr2021 [he] was moved to E-Pod from Quarantine. [He] told Barry Rohrbough [he] couldn't live in E-Pod because of racial politics by a Blood Gang Member and Frequently Violent Inmate named Marquez King who was the shot-caller of E-Pod[.] . . . Upon informing Barry Rohrbough that I couldn't go to E-Pod because of me being a Caucasian, Barry says ‘[I] am not running a fucking thing . . . and ‘[I'll] go wherever the fuck [he] tells me to go.' I specifically asked to go to C-Pod and he said no because ‘[He] is running the show and not [me].' On 04Apr2021 3 gang members entered cell E-1 with me and beat me to the ground and then kicked me to force me to leave. I have one black eye, cuts, and bumps all over my head. The Jail Staff knew better but allowed Barry to place me in a known dangerous situation. They attacked me for 180 seconds of violence I knew and the jail knew would happen.(ECF No. 1:7-8).
Mr. Brown sues Defendant Rohrbough in his official and individual capacities and also names Stephens County as a Defendant. (ECF No. 1:4, 6, 7). Plaintiff requests only monetary relief. (ECF No. 1:7).
IV. CLAIM FOR FAILURE TO PROTECT
In his sole claim, Plaintiff seeks monetary damages against both Defendants for failure to protect him from the assault. See supra.
A. Official Capacity Claims Under 42 U.S.C. § 1983
If a defendant is sued under § 1983 in his or her official capacity, the suit is generally treated as one against the governmental entity that the defendant represents. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). Here, the relevant entity is Stephens County, thereby implicating municipal liability. To establish municipal liability under § 1983, a plaintiff must first identify an official policy or custom of the municipality, whether enacted or maintained by its legislative body or an authorized decisionmaker. Schneider v. City of Grand Junction Police Dept, 717 F.3d 760, 769-70 (10th Cir. 2013). “A challenged practice may be deemed an official policy or custom for § 1983 municipal-liability purposes if it is a formally promulgated policy, a well-settled custom or practice, a final decision by a municipal policymaker, or deliberately indifferent training or supervision.” Id. at 770.
After identifying such an official policy or custom, the plaintiff must then establish that the policy or custom either: (1) directly violated a federal right of the plaintiff, or (2) was the “moving force” behind a county employee's violation of a federal right of the plaintiff. Id. Finally, a plaintiff must "show that the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury.” Id. at 769, 770-71. Thus, for each claim of municipal liability, the plaintiff must establish three elements: (1) official policy or custom, (2) causation, and (3) requisite state of mind. Id. at 769.
Here, Mr. Brown has not identified an official policy or custom established by Stephens County in support of his allegations against Defendant Rohrbough. See ECF No. 1. As a result, the Court should dismiss any official capacity claim against that Defendant as well as any municipal liability claim against Stephens County.
“A § 1983 action appropriately is pleaded against a municipality either by naming the municipality itself or by naming a municipal official in his or her official capacity.” Pendleton v. Board of County Commissioners for Oklahoma County, 2019 WL 4752269, at *8 (W.D. Okla. Sept. 30, 2019). Here, although the Court arguably could dismiss the official-capacity claims against Defendant Rohrbough as duplicative of those asserted against Stephens County, the Court need not make the distinction, as dismissal is appropriate as to both Defendants based on Mr. Brown's failure to allege a violation of County policy.
B. Individual Capacity Claims Under 42 U.S.C. § 1983
With the recommended dismissals, what remains is Plaintiff's individual capacity claim against Defendant Rohrbough for failure to protect him from the assault.
When a defendant is sued in his or her individual capacity under § 1983, the plaintiff must establish specific elements as to each defendant. First, the plaintiff must establish the defendant's “personal involvement or participation” in the alleged violation of a federal right. Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir. 1996); see also Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). Second, the plaintiff must establish a causal connection between the acts of that particular defendant and the alleged violation of a federal right. See Iqbal, 556 U.S. at 676; Pahls, 718 F.3d at 122528. Finally, the plaintiff must establish that the defendant acted with the state of mind required for the alleged underlying federal rights violation. See Daniels v. Williams, 474 U.S. 327, 330 (1986).
Because Mr. Brown was a pretrial detainee when the allegations against Defendant Rohrbough occurred, the Fourteenth Amendment's Due Process Clause governs his claims alleging a failure to protect. See Turner v. Oklahoma County Board of County Commissioners, 804 Fed.Appx. 921, 925 (10th Cir. 2020) (citing Burke v. Regalado, 935 F.3d 960, 991 (10th Cir. 2019)). “To prevail on a failure to protect claim, an inmate must show (1) that the conditions of his incarceration present an objective substantial risk of serious harm and (2) 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.” Requena v. Roberts, 893 F.3d 1195, 1214 (10th Cir. 2018) (brackets and internal quotation marks omitted), cert. denied, ___ U.S. ___ (2019).
Here, Mr. Brown has alleged: (1) that the conditions of being placed in E-Pod were such that he would likely suffer harm as the victim of racial prejudice, and (2) he informed Defendant Rohrbough of the harm to befall him if he were to be placed in E-Pod. See supra. According to Plaintiff, despite the warning, Defendant Rohrbough placed him in EPod, where he was assaulted. See supra. At this stage and based on these allegations, the Court should conclude that Plaintiff has stated a claim for failure to protect under the Fourteenth Amendment against Defendant Rohrbough in his individual capacity, for monetary damages.
V. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
The Court should: (1) dismiss, without prejudice, any official capacity claim for monetary damages against Defendant Rohrbough, (2) dismiss, without prejudice, any claim against Stephens County, and (3) conclude that Plaintiff has stated a Fourteenth Amendment claim against Defendant Rohrbough in his individual capacity, 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 September 7, 2021. 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).
VI. STATUS OF THE REFERRAL
This Report and Recommendation does not terminate the referral.
ENTERED.