Opinion
CIV-21-825-PRW
03-16-2023
MICHAEL VINCENT CISNEROS, Plaintiff, v. SHERIFF'S DEPUTY GOMEZ, et. al., Defendants.
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. Before the Court are Motions to Dismiss filed by Defendant Sheriff P.D. Taylor (Doc. No. 22), Defendant “Oklahoma County Commissioner” (Doc. No. 24), and Defendant Deputy Sheriff Francisco Gomez (Doc. No. 25), to which Plaintiff filed a joint Response. Doc. No. 41. 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, each Motion, converted to a Motion for Summary Judgment, should be granted.
Construing Plaintiff's Amended Complaint liberally, the Court infers that Plaintiff intended to name the Board of County Commissioners of Oklahoma County (“the Board”) as a Defendant.
I. Background
In June 2020, Plaintiff was a pre-trial detainee confined at the Oklahoma County Detention Center (“OCDC”) located in Oklahoma City, Oklahoma. In his Amended Complaint, Plaintiff names the following Defendants: the Board, former Oklahoma County Sheriff P.D. Taylor, Oklahoma County Sheriff's Deputy Francisco Gomez, and John Does 1-50. Doc. No. 16 at 4.
In his Amended Complaint, Plaintiff contends that while he was confined in the OCDC, he was subjected to, inter alia, conditions of overcrowding, understaffing, the presence of bedbugs, and a failure to provide an adequately nutritious diet. Id. at 8, 9-10. Additionally, Plaintiff alleges that in June 2020, Defendant Gomez used excessive force against him. Id. at 11-16. Plaintiff asserts that Defendant Taylor was the final policymaker of the OCDC and is therefore, liable for the conditions of confinement, as well as Defendant Gomez's actions. Id. at 19. Similarly, Plaintiff contends the Board “may be liable for Sheriff [T]aylor's actions as final policy maker.” Id. at 8. By this action, Plaintiff asserts Fourteenth Amendment claims against all Defendants based on the conditions of confinement in the OCDC and his allegations of excessive force against Defendant Gomez.
Because Defendants rely, in part, on evidentiary materials outside of the pleadings regarding Plaintiff's excessive force claims, and Plaintiff was advised of his responsibilities under Fed.R.Civ.P. 12 and 56 in responding to Defendants' Motions, see Doc. No. 27, the Motions will be considered as seeking summary judgment. See Arnold v. Air Midwest, Inc., 100 F.3d 857, 859 n.2 (10th Cir. 1996) (“Notice to the parties is required to prevent unfair surprise when a judge converts a 12(b)(6) motion into a Rule 56 motion.”); Brown v. Zavaras, 63 F.3d 967, 969 (10th Cir. 1995) (explaining that courts may convert motion to dismiss into motion for summary judgment in order to consider matters outside of the pleadings); Wheeler v. Hurdman, 825 F.2d 257, 260 (10th Cir. 1987) (“[W]hen a party [relies on] material beyond the pleadings in support of . . . a motion to dismiss, the prior action on the part of the part[y] puts them on notice that the judge may treat the motion as a Rule 56 motion.”).
II. Standard of Review
A. Summary Judgment
Summary judgment may only be granted when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In considering a motion for summary judgment, the Court reviews the evidence and inferences drawn from the record in the light most favorable to the nonmoving party. Burke v. Utah Transit Auth. & Local, 462 F.3d 1253, 1258 (10th Cir. 2006).
A dispute is “genuine” if a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Material facts are “facts that might affect the outcome of the suit under the governing law ....” Id. “At the summary judgment stage, a complainant cannot rest on mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true.” Burke, 462 F.3d at 1258 (quotations and alteration omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotations omitted).
B. Screening of Prisoner Complaints
A federal district court must review complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity or proceeding in forma pauperis. 28 U.S.C. §§ 1915(e)(2)(B); 1915A(a). At any time during the proceeding, the court must dismiss a complaint or any portion of it presenting claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
In conducting this review, the reviewing court must accept the plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from the allegations, in the light most favorable to the plaintiff. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Although a pro se litigant's pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520 (1972), “[t]he burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The allegations in a complaint must present “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Further, a claim is frivolous “where it lacks an arguable basis either in law or in fact” or is “based on an indisputably meritless legal theory[.]” Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989).
Though the Board and Sheriff Taylor addressed Plaintiff's conditions of confinement claims in their Motions, they did not address all of Plaintiff's allegations in this regard. Thus, for the sake of clarity, the Court will review those claims, as well as Plaintiff's First Amendment claim, pursuant to 28 U.S.C. § 1915(e)(2)(B).
III. Plaintiff's Allegations Regarding Altercation with Defendant Gomez
In his Amended Complaint, Plaintiff alleges that on the day in question, he was in the pod waiting at a table closest to the door because Deputy Reyes had instructed him to do so, and that he would subsequently escort Plaintiff to view discovery. Doc. No. 16 at 11. Plaintiff states that Defendant Gomez asked Plaintiff why he was waiting in that area, and Plaintiff explained. Id. at 12. Defendant Gomez told Plaintiff that he could not go view discovery and Plaintiff responded that Defendant Gomez was violating his rights. Id. Plaintiff contends that he stood still and did not make any movements, though he later acknowledges that by the time the altercation began, he was standing against a stairwell. Id. at 12-13. Defendant Gomez spread his arms open, as if to block Plaintiff, and walked into Plaintiff's body and Plaintiff continued to stand still. Id. at 13. Defendant Gomez “grabb[ed] me and slamm[ed] me on the ground.” Id. at 14; see also Doc. No. 41 at 38. Defendant Gomez “droped [sic] all his weight and knee onto my neck, causing me extreme pain to my neck and in doing so my face was slammed into the concrete floor causing pain to my face Pain level, ‘8' of 1-10.” Doc. No. 16 at 14; see also Doc. No. 41 at 35, 37, 38, 99, 106.
Gome[z] then positioned his body perpindicular [sic] to my body, lifte[d] his body weight and pulled his knee back and thrusted it forward using his body weight into my neck, In only a [sic] Assaultive Manner while using his hands to hold me down like a UFC fighter.Doc. No. 16 at 14.
Plaintiff alleges Defendant Gomez then kneed his neck for a third time, thrusting his knee into Plaintiff's neck again after having withdrawn it. Id. at 15. Plaintiff contends that multiple deputies subsequently informed him that they are trained to not place a knee on an inmate's neck and instead, to stay off and away from the neck area, even when an inmate is resisting. Id. at 16; Doc. No. 41 at 37.
IV. Video Evidence of Altercation Between Plaintiff and Defendant Gomez
Defendants submitted OCDC surveillance video of the altercation that occurred between Plaintiff and Defendant Gomez in June 2020. Doc. No. 28-30. In the video, Plaintiff was sitting on top of a table and had placed a folder on the table beside him. Doc. No. 30 at 1:38:54. Plaintiff held up his right hand toward the staff windows, displaying a commonly used, rude hand gesture utilizing his middle finger. Id. at 1:39:15. Deputy Gomez approached Plaintiff. Id. at 1:39:1720. Plaintiff stood up from the table as the two exchanged words. Id. at 1:39:2123. Defendant Gomez repeatedly motioned for Plaintiff to move to the right side of the pod. Id. at 1:39:24-32. However, Plaintiff continued to move backward, in the opposite direction that Defendant Gomez was indicating. Id. At that point, Defendant Gomez was joined by another guard. Id. at 1:39:29-33.
Defendant Gomez wrapped his right hand around Plaintiff's neck and both he and the other guard wrestled Plaintiff to the ground. Id. at 1:39:35-42. Defendant Gomez's hand remained on Plaintiff's neck while they struggled to place handcuffs on him. Id. at 1:39:35-54. Defendant Gomez also placed his knee on Plaintiff's back while they continued to struggle with Plaintiff. Id. at 1:39:441:40:24. Finally, they were able to handcuff Plaintiff, they pulled him to his feet, and left the pod with him. Id. at 1:40:25-33.
The video indicates that Defendant Gomez never placed his knee on Plaintiff's neck. At one point, Defendant Gomez's knee extended from the middle of Plaintiff's back to over Plaintiff's right shoulder. Id. at 1:39:32-1:40:27. The only time it appears Defendant Gomez may have had his knee on Plaintiff's neck, Defendant Gomez and the other guard were continuing to struggle with Plaintiff and Defendant Gomez shifted from his left to his right knee on Plaintiff's back. During that process, Defendant Gomez's knee may have been on Plaintiff's neck for less than one second. Id. at 1:39:52-1:39:57.
Plaintiff contends that at 1:39:44 of the video, Defendant Gomez dropped his knee on the back of Plaintiff's head. Doc. No. 41 at 30. However, the video shows that Defendant Gomez's hand remained on Plaintiff's neck and Defendant Gomez's knee was on Plaintiff's back and shoulder area. Doc. No. 30 at 1:39:44. While Plaintiff was on the ground and Defendant Gomez's knee was in the middle of his back, Plaintiff turned his head to face the opposite direction and looked at another approaching guard. Id. at 1:40:07-09.
The Court also notes Plaintiff's allegations that other inmates watching the altercation began yelling at Defendant Gomez to remove his knee from Plaintiff's neck. Doc. No. 16 at 15-16; Doc. No. 41 at 37. The view of the pod from the video indicates there were no inmates in the pod area when the altercation began and all cell doors were closed. Doc. No. 30 at 1:39:35-1:40-27.
V. Fourteenth Amendment - Defendant Gomez
Plaintiff asserts a Fourteenth Amendment claim against Defendant Gomez, alleging he used excessive force on Plaintiff by repeatedly placing his knee on and thrusting into Plaintiff's neck. As Plaintiff discusses in his Response, see Doc. No. 41 at 10-12, the United States Supreme Court has explained that the standard for an excessive force challenge is neither singular nor generic, but depends on the “specific constitutional right allegedly infringed by the challenged application of force.” Graham v. Conner, 490 U.S. 386, 393-94 (1989).
In the context of an incarcerated prisoner, the question is whether the governmental action constituted cruel and unusual punishment as forbidden by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986). In the case of a pre-trial detainee, however, it is the “Due Process Clause [that] governs a pretrial detainee's claim ....” Sawyer v. Green, 316 Fed.Appx. 715, 717 n.2 (10th Cir. 2008) (quoting Craig v. Eberly, 164 F.3d 490, 495 (10th Cir.1998)). “[F]ollowing arrest the due process protections of the Fourteenth Amendment are triggered to protect a pretrial detainee from excessive force approaching punishment.” Weimer v. Schraeder, 952 F.2d 336, 340 (10th Cir. 1991) (citing Graham, 490 U.S. at 395 n.10).
During all times relevant to Plaintiff's claims, he was a pre-trial detainee at OCDC. In Kingsley v. Hendrickson, 576 U.S. 389 (2015), the Court held that “the appropriate standard for a pretrial detainee's excessive force claim is solely an objective one” and that therefore “a pretrial detainee can prevail by providing only objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose.” Id. at 396-97.
Thus, to make out a constitutional violation, Plaintiff must demonstrate that the amount of force Defendant Gomez used was “objectively unreasonable.” Id. at 397; see also Brown v. Flowers, 974 F.3d 1178, 1182 (10th Cir. 2020) (same). “The ultimate issue is whether the officers' actions were objective[ly] reasonable in light of the facts and circumstances....This requires knowledge of whether plaintiff was posing an immediate threat to the officers' safety or to institutional order, and whether plaintiff was resisting the orders of the officers.” Williams v. Douglas Cty. Corr. Facility, No. 21-3078-SAC, 2021 WL 3510204, at *3 (D. Kan. Aug. 10, 2021) (citing Graham, 490 U.S. at 396-97).
Plaintiff repeatedly asserts that during his exchange with Defendant Gomez, prior to the physical altercation, he was standing still, not making “any movements that could be seen as resisting,” and was not disobeying orders. Doc. No. 16 at 12, 13. Plaintiff also states that Defendant Gomez never asked him to “cuff up” or get down. Id. at 13. While the video does not include sound that might confirm or contradict Plaintiff's statements in this regard, it does show Defendant Gomez consistently gesturing toward his right while he is talking to Plaintiff and Plaintiff walking backward in the opposite direction. Doc. No. 30 at 1:39:24-32.
Additionally, the video evidence contradicts Plaintiff's version of the altercation between Defendant Gomez and himself. Plaintiff states that Defendant Gomez slammed him to the ground, thrust his knee into Plaintiff's neck at least three times, putting Plaintiff in fear that he would be seriously injured and/or paralyzed, and repeatedly slamming Plaintiff's head into the concrete. Doc. No. 16 at 12-14; Doc. No. 41 at 35, 37, 38, 99, 106. The video reveals that Defendant Gomez brought Plaintiff down to his knees prior to Plaintiff being prone on the ground. Doc. No. 30 at 1:39:35-43. Thus, Defendant Gomez did not slam Plaintiff to the ground.
It also shows that Defendant Gomez held Plaintiff's neck down with his hand while placing one of his knees in the middle of Plaintiff's back. Doc. No. 30 at 1:39:35-1:40:33. As previously noted, Defendant Gomez's right knee may have been on Plaintiff's neck for less than one second while adjusting the knee on Plaintiff's back from left to right. The video reveals that Defendant Gomez never repeatedly thrust his knee into Plaintiff's neck. Finally, Plaintiff states that the consistent pressure Defendant Gomez placed on his neck left him in fear that he was going to suffer paralysis. However, when another guard walked into the pod, Plaintiff was clearly able to turn his neck to the opposite direction to look at him.
In his Response, Plaintiff relies on several cases in which courts have held that an officer uses excessive force when he places pressure on an individual's back who is in a face down prone position after the individual is subdued and/or incapacitated. Doc. No. 41 at 17-18, 22, 23. In Willis v. Oklahoma County Detention Center, No. CIV-18-323-D, 2022 WL 302605 (W.D. Okla. Feb. 1, 2022), this Court recently explained:
In 2008, the Tenth Circuit declared that “it is ‘clearly established that putting substantial or significant pressure on a suspect's back while that suspect is in a face-down prone position after being subdued and/or incapacitated constitutes excessive force.'” Weigel v. Broad, 544 F.3d 1143, 1155 (10th Cir. 2008) (quoting Champion v. Outlook Nashville, Inc., 380 F.3d 893, 903 (6th Cir. 2004)); see also Est. of Booker v. Gomez, 745 F.3d 405, 428 (10th Cir. 2014) (finding that Weigel clearly established a pretrial detainee's right to be free from disproportionate force, including pressure on the detainee's back, when the detainee “is not resisting and . . . is restrained in handcuffs”). Moreover, in McCoy v. Meyers, the Tenth Circuit concluded its precedent “made it clear to any reasonable officer” by
2011 “that the use of force on effectively subdued individuals violates the Fourth Amendment.” 887 F.3d 1034, 1052 (10th Cir. 2018).Id. at *6 (footnote omitted).
Here, however, the surveillance video shows that once Plaintiff was handcuffed, Defendant Gomez and the assisting officer almost immediately brought him to his feet. Doc. No. 30 at 1:40:25-33. Thus, contrary to Plaintiff's assertions, Defendant Gomez did not continue to place pressure on Plaintiff's back once Plaintiff was subdued. Indeed, many courts have found an officer putting his knees on the back of an individual to be objectively reasonable when the individual refuses to comply with orders and resists officers' attempts to restrain him. Lynch v. Bd. of Cty. Comm'rs of Muskogee Cty., No. CIV-16-247-JHP, 2018 WL 1417166, at *5 (E.D. Okla. March 21, 2018) (noting an officer placing his knees on an arrestee's back is objectively reasonable when the arrestee refuses to comply with orders and resists officers' attempts to restrain him) (citing Wells v. City of Dearborn Heights, 538 Fed.Appx. 631, 637-38 (6th Cir. 2013) (holding an officer kneeing a detainee who had failed to respond to commands was objectively reasonable)); Mongeau v. Jacksonville Sheriff's Office, 197 Fed.Appx. 847, 851 (11th Cir. 2006) (finding that an officer's placement of his knee in the back of the arrestee in order to subdue him was objectively reasonable given the arrestee's previous resistance and risk of flight); Goodrich v. Everett, 193 Fed.Appx. 551, 557 (6th Cir. 2006) (finding that a knee in the back of a subject that “was capable of violence and inclined to flee” was reasonable under the circumstances); Jackson v. City of Bremerton, 268 F.3d 646 (9th Cir. 2001) (holding an officer placing his knee on an arrestee's back in order to control a rapidly evolving and escalating situation was reasonable)).
The undisputed facts in the form of the OCDC surveillance video contradicts almost the entirety of Plaintiff's account of the altercation that occurred between Defendant Gomez and himself. Thus, there is no dispute of material fact that Defendant Gomez did not slam Plaintiff's body to the ground, did not repeatedly slam Plaintiff's head on the ground, and did not thrust his knee into Plaintiff's neck three times. Instead, the undisputed facts show Defendant Gomez's actions were objectively reasonable under the circumstances, and therefore did not violate Plaintiff's rights under the Fourteenth Amendment. Accordingly, Defendant Gomez's Motion to Dismiss, converted to a Motion for Summary Judgment, should be granted.
VI. Fourteenth Amendment - Sheriff Taylor
Sheriff Taylor argues that he is entitled to summary judgment on Plaintiff's Fourteenth Amendment claim based on the altercation with Defendant Gomez because Plaintiff has not established an underlying constitutional violation. The Court agrees.
Under § 1983, government officials are not vicariously liable for the misconduct of subordinates. Serna v. Colo. Dep't of Corr., 455 F.3d 1146, 1151 (10th Cir. 2006). A supervisor may be held individually liable for constitutional violations of subordinates, however, where the supervisor fails to adopt or implement policy or training of subordinates to prevent deprivations of constitutional rights. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1241 (10th Cir. 1999). To establish a § 1983 claim against a supervisor for the unconstitutional acts of his subordinates, a plaintiff must first show that the subordinates violated the constitution. Serna, 455 F.3d at 1151. Plaintiff must then show an “affirmative link” between the supervisor and the constitutional violation, i.e., the active participation or acquiescence of the supervisor in the constitutional violation. Id. (citing Holland v. Harrington, 268 F.3d 1179, 1187 (10th Cir. 2001)).
As established above, Plaintiff has not established a genuine issue of material fact regarding whether Deputy Gomez violated his Fourteenth Amendment rights. Sheriff Taylor is, therefore, entitled to summary judgment on Plaintiff's Fourteenth Amendment individual capacity claim.
To the extent Plaintiff asserted claims against Sheriff Taylor in his official capacity, such claims are redundant because they are actually claims against the County itself, and Plaintiff has separately sued the Board. See Center for Bio-Ethical Reform, Inc. v. Los Angeles Cty. Sheriff Dep't, 533 F.3d 780, 799 (9th Cir. 2008) (affirming dismissal of official capacity suit against sheriff where the local government entity was a defendant); Barbar v. Henderson, No. 12-CV-239-JED-PJC, 2014 WL 4064036, at *8 (N.D. Okla. Aug. 15, 2014) (citing Moore v. Bd. of Cty. Comm'rs of Cty. of Leavenworth, 470 F.Supp.2d 1237, 1255 (D. Kan. 2007), aff'd, 507 F.3d 1257 (10th Cir. 2007) (dismissing redundant claims against individuals sued in official capacity where the county board was also sued). Sheriff Taylor is therefore entitled to summary judgment on Plaintiff's official capacity claims.
VII. Fourteenth Amendment - the Board
Municipal liability under § 1983 cannot be based upon the doctrine of respondeat superior or vicarious liability. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694-95 (1978); Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006). Rather, to establish municipal liability under § 1983, a plaintiff must demonstrate: (i) that an officer committed an underlying constitutional violation; (ii) that a municipal policy or custom exists; and (iii) that there is a direct causal link between the policy or custom and the injury alleged. Graves, 450 F.3d at 1218. Further, when a claim is brought against a municipality for failing to train its officers adequately, the plaintiff must show that the municipality's inaction was the result of deliberate indifference to the rights of its inhabitants. Id.
As set forth above, Plaintiff has not established a genuine issue of material fact regarding whether Deputy Gomez violated his Fourteenth Amendment rights. Accordingly, the Board is entitled to summary judgment on Plaintiff's Fourteenth Amendment excessive force claim.
VIII. Fourteenth Amendment - Conditions of Confinement
Plaintiff asserts claims against Sheriff Taylor and the Board alleging that while confined in OCDC, he experienced unconstitutional conditions of confinement. Specifically, Plaintiff alleges that due to overcrowding, he was forced to sleep on a concrete floor without a mattress for two weeks. Doc. No. 16 at 8, 9. He also states that he was exposed to bedbugs, holes in walls allowing inmates to access other cells, broken showers often containing feces, guards placing inmates into cells with fellow inmates who had already assaulted them, inmate on inmate violence, an ineffective grievance process, and “substandard nutritional calories” in the meals provided. Id. at 10, 20, 21, 22, 23, 26, 27. Additionally, Plaintiff alleges, “They shut down the ability to input data to conduct legal research, and often ignored complains of no option for legal research.” Id. at 25. Finally, Plaintiff contends that he was beaten by four to six or ten fellow inmates, but he was too afraid to press charges or report the incident. Id. at 24; Doc. No. 41 at 47, 49, 50, 51, 55, 56-60, 62-65.
The Eighth Amendment requires prison and jail officials to provide humane conditions of confinement guided by “contemporary standards of decency.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). The Supreme Court has acknowledged that the Constitution “does not mandate comfortable prisons, and only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson v. Seiter, 501 U.S. 294, 298 (1991) (citations and quotations omitted). Indeed, prison conditions may be “restrictive and even harsh.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). “Under the Eighth Amendment, jail officials must provide humane conditions of confinement by ensuring inmates receive the basic necessities of adequate food, clothing, shelter, and medical care and by taking reasonable measures to guarantee the inmates' safety.” McBride v. Deer, 240 F.3d 1287, 1291 (10th Cir. 2001) (quotations omitted).
The Constitution guarantees humane conditions of confinement for pretrial detainees through the Due Process provisions of the Fourteenth Amendment. It guarantees humane conditions of confinement for inmates serving a sentence through the Eighth Amendment. The Tenth Circuit has held that the same Eighth Amendment standard for conditions of confinement claims brought by convicted inmates serving a sentence apply to Due Process claims by pretrial detainees. Burke v. Regalado, 935 F.3d 960, 991 (10th Cir. 2019).
The second requirement for an Eighth Amendment violation “follows from the principle that ‘only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.'” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Prison officials must have a “sufficiently culpable state of mind,” and in prison conditions cases that state of mind is “deliberate indifference” to inmate health or safety. Id. “[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. at 837. It is not enough to establish that the official should have known of the risk of harm. Id.
Because the sufficiency of a conditions of confinement claim depends upon “the particular facts of each situation; the ‘circumstances, nature, and duration' of the challenged conditions must be carefully considered.” Despain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001) (quoting Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000)). “While no single factor controls . . . the length of exposure to the conditions is often of prime importance.” Id. As the severity of the conditions to which an inmate is exposed increases, the length of exposure required to make out a constitutional violation decreases. Accordingly, “minor deprivations suffered for short periods would not rise to an Eighth Amendment violation, while substantial deprivations . . . may meet the standard despite a shorter duration.” Id. (quotations omitted).
A. Claims Involving Fellow Inmates
As an initial matter, to the extent Plaintiff is asserting allegations about events or violence that involved other inmates and not himself, Plaintiff does not have standing to assert legal claims based on the same. See Sherratt v. Utah Dep't of Corr., 545 Fed.Appx. 744, 747 (10th Cir. 2013) (“[T]he district court properly dismissed Sherratt's claims alleged on behalf of other prisoners or the general prison population because Sherratt lacked standing to bring them.”); Reynoldson v. Shillinger, 907 F.2d 124, 125 (10th Cir. 1990) (“[T]o the extent a complaint concerns ‘inmates' rather than the plaintiff himself, it is dismissable for failure to allege the plaintiff's standing to proceed.”).
B. Ineffective Grievance Procedure
Similarly, to the extent Plaintiff intends to assert a constitutional claim based solely on what he considers an ineffective grievance procedure, this claim also fails. An inmate has no constitutional right to a grievance procedure and therefore, inadequacies in the grievance procedure, standing alone, do not rise to the level of a constitutional claim. See, e.g., Green v. Corr. Corp. of Am., 401 Fed.Appx. 371, 375 n.4 (10th Cir. 2010) (explaining that prisoner had no constitutional right to use the prison grievance procedure); Sawyer, 316 Fed.Appx. at 717 (holding that jail and sheriff's office authorities' lack of response to prisoner's grievances did not violate the constitution because procedurally, nothing more is required than the plaintiff's ability to raise his constitutional claims in the courts). Walters v. Corr. Corp. of Am., 119 Fed.Appx. 190, 191 (10th Cir. 2004) (explaining prisoner failed to state a claim for § 1983 relief where he alleged a denial of access to state administrative grievance procedures; “the prisoner's right to petition the government for redress is the right of access to the courts, which is not compromised by the prison's refusal to entertain his grievance”) (quoting Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991)).
C. Showers, Lack of Mattress, and Recreation Time
Plaintiff makes several general allegations about his conditions of confinement while at OCDC. He contends he did not have access to clean and/or working showers, nor adequate recreation time. Doc. No. 16 at 10, 21. However, Plaintiff does not indicate the length of time these conditions existed, nor how much, if any, recreation time they were allowed. He also complains that overcrowding resulted in him being without a mattress for two weeks and being forced to sleep on a concrete floor.
Not every hardship suffered during pretrial detention amounts to “punishment” in the constitutional sense. Bell v. Wolfish, 441 U.S. 520, 537 (1979). Here, Plaintiff's allegations are not sufficiently serious to describe a deprivation of constitutional proportions. See Miller v. Aramark, No. 21-3282-SAC, 2022 WL 473971, at *2 (D. Kan. Feb. 16, 2022) (citing Ajaj v. United States, 293 Fed.Appx. 575, 584 (10th Cir. 2008) (holding that a year-long deprivation of outdoor exercise does not violate the Eighth Amendment); Alfred v. Bryant, 378 Fed.Appx. 977, 980 (11th Cir. 2010) (holding that requiring an inmate to sleep in a cell with a broken toilet and no mattress for eighteen days did not violate the Eighth Amendment); Thomas v. Ramos, 130 F.3d 754, 764 (7th Cir. 1997) (explaining that although prison authorities cannot indefinitely prevent an inmate from receiving exercise outside of his cell because of scheduling conflicts, the constitutional rights were not violated where such a conflict occurred for only a few weeks); Hightower v. Vose, No. 95-2296, 1996 WL 516123, at *2 (1st Cir. Sept. 12, 1996) (holding that denial of shower for eight days amounted to a de minimis imposition and thus did not implicate constitutional concerns); Saunders v. Raleigh Cty., No. 5:20-CV-00221, 2020 WL 9348328, at *16 (S.D. W.Va. May 18, 2020) (“To the extent Plaintiff complains of . . . having no bed [and] having to sleep on the concrete floor, such does not constitute a constitutional violation because there is no allegation that Plaintiff suffered any specific injury nor was Plaintiff deprived of an identifiable human need.”); Tucker v. Wall, No. CA 07-406 ML, 2010 WL 322155, at *10 (D.R.I. Jan. 27, 2010) (finding denial of showers and recreation for ten or fourteen days did not violate constitutional rights); O'Mara v. Hillsborough Cty. Dep't of Corr., No. 08-CV-51-SM, 2008 WL 5077001, at *4 (D.N.H. Nov. 24, 2008) (holding that complaint of being denied exercise for thirty days does not state a constitutional claim); Pressley v. Cannon, No. 6:06-cv-2820-GRA, 2007 WL 3003182, at *2, 4-5 (D.S.C. Oct. 10, 2007) (finding the plaintiff's lack of mattress and sleeping on a concrete floor for almost five months did not rise to the level of a constitutional violation). Thus, Plaintiff's Fourteenth Amendment claims based on inadequate showers and recreation time, as well as the lack of a mattress, are not sufficient to establish a plausible claim for relief and should be dismissed.
D. Meals and Bedbugs
Plaintiff also alleges the food served at OCDC was nutritionally inadequate and that the cells were infested with bedbugs. Doc. No. 16 at 10, 20, 21-22. Plaintiff does not offer any elaboration regarding the meals provided, nor does he explain how they were lacking in nutrition. Moreover, Plaintiff does not make any allegations that Defendants were aware of either the substandard meals or the presence of bedbugs. As such, Plaintiff's allegations fail to allege a sufficiently serious deprivation or allege facts showing he was incarcerated under conditions posing a substantial risk of serious harm. Plaintiff has also failed to allege deliberate indifference by Defendants. See, cf., Barney v. Pulsipher, 143 F.3d 1299, 1311-12 (10th Cir. 1998) (“[A] filthy, overcrowded cell and a diet of ‘grue' might be tolerable for a few days and intolerably cruel for weeks or months.” (quotations omitted)); Bell v. English, No. 18-3232-SAC, 2019 WL 194870, at *3 (D. Kan. Jan. 15, 2019) (dismissing the plaintiff's conditions of confinement claim based on his failure to allege “facts showing that Defendants ‘both knew of and disregarded an excessive risk to [his] health or safety' related to his exposure to mold, insects or scabies.” (quoting Weldon v. Ramstad-Hvass, 512 Fed.Appx. 783, 794 (10th Cir. 2013)).
IX. First Amendment
In his Amended Complaint, Plaintiff states, “They shut down the ability to input data to conduct legal research, and often ignored complaints at no option for legal research.” Doc. No. 16 at 25. Inmates have a First Amendment right to “petition the Government for a redress of grievances.” U.S. CONST. amend. I. This right, which is more informally referred to as a “right of access to the courts,” requires States “to give prisoners a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights ....” Bounds v. Smith, 430 U.S. 817, 821, 825 (1977), abrogated on other grounds, Lewis v. Casey, 518 U.S. 343, 350 (1996). The Supreme Court has noted that “[m]eaningful access . . . is the touchstone” of the inmate's right to court access. Bounds, 430 U.S. at 823 (quotations omitted). It held that all states have “affirmative obligations to assure all prisoners meaningful access to the courts.” Id. at 824.
However, to prevail in a challenge based on denial of access to the courts, an inmate must also establish actual injury. Lewis, 518 U.S. at 351. The Court explained that it is not enough to allege shortcomings regarding a prison's legal provisions or personnel actions. Id.
[T]he inmate [] must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim. He might show, for example, that a complaint he prepared was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison's legal assistance facilities, he could not have known. Or that he had suffered arguably actionable harm that he wished to bring before the courts, but was so stymied by inadequacies of the law library that he was unable even to file a complaint.Id.
Here, Plaintiff asserts only general allegations that he did not have adequate, if any, access to legal research. Plaintiff does not identify an actual injury and/or specific litigation in which his ability to pursue legal claims was stymied as a result of these alleged inadequacies. Accordingly, Plaintiff's First Amendment claim should be dismissed based on his failure to state a claim upon which relief could be granted.
X. Inmate Altercation
Plaintiff states that at some point while he was confined at OCDC, he was beaten by either four to six or ten inmates. Doc. No. 16 at 23, 24; Doc. No. 41 at 49. He states that when the guards subsequently saw his injuries, they took him to the hospital to obtain medical treatment. Doc. No. 16 at 24. At that time, Plaintiff informed them that he did not want to press charges or identify his assailants because he was too afraid of retaliation from other inmates. Id. Plaintiff contends this fear was derived from the fact that “guards would notify other inmates who was telling, call them snitches so every one could [hear], leave you on the pod where you [weren't] safe ....” Id.
The precise constitutional amendment Plaintiff intends to implicate with these allegations is unclear. Construing his Amended Complaint liberally, the Court finds his allegations implicate a claim under the Fourteenth Amendment for failure to protect. Hooks v. Atoki, 983 F.3d 1193, 1203-04 (10th Cir. 2020). The Supreme Court has assumed that “prison officials have a duty to protect prisoners from violence at the hands of other prisoners.” Farmer, 511 U.S. at 833 (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)).
[A] failure to meet this duty violates the [Constitution] only when two requirements are met. First, the alleged deprivation must be “sufficiently serious” under an objective standard....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.”Howard v. Waide, 534 F.3d 1227, 1236 (10th Cir. 2008) (quoting Farmer, 511 U.S. at 834 & 837); Requena v. Roberts, 893 F.3d 1195, 1214 (10th Cir. 2018).
A mere showing that an assault occurred and that defendants were negligent is insufficient to state a claim for failure to protect under § 1983. Trotter v. Wade, 94-3475-DES, 1995 WL 472786, at *1 (D. Kan. July 31, 1995) (citing Davidson v. Cannon, 474 U.S. 344 (1986)); see also Hovater v. Robinson, 1 F.3d 1063, 1066 (10th Cir. 1993) (explaining deliberate indifference requires “a higher degree of fault than negligence”). Plaintiff must allege facts showing that “defendants actually knew of but disregarded a serious risk to him, rather than that they should have been aware of possible danger.” Johnson v. Gilchrist, 09-3063-SAC, 2009 WL 1033755, at *4 (D. Kan. April 16, 2009). “The unfortunate reality is that threats between inmates are common and do not, under all circumstances, serve to impute actual knowledge of a substantial risk of harm.” Turner v. Okla. Cty. Bd. of Cty. Comm'rs, 804 Fed.Appx. 921, 926 (10th Cir. 2020) (quoting Marbury v. Warden, 936 F.3d 1227, 1236 (11th Cir. 2019); Prater v. Dahm, 89 F.3d 538, 541 (8th Cir. 1996) (same)). “[S]ubjective awareness of only some risk of harm to a prisoner is insufficient for a deliberate-indifference claim.” Turner, 804 Fed.Appx. at 926 (quoting Marbury, 936 F.3d at 1238). “Rather, ‘officials must possess enough details about a threat to enable them to conclude that it presents a strong likelihood of injury, not a mere possibility.'” Turner, 804 Fed.Appx. at 926 (quoting Marbury, 936 F.3d at 1238).
Plaintiff does not set forth factual allegations indicating Defendants, nor any other individual, knew or should have known prior to his attack that he was in danger. Additionally, though it is not clear this would be sufficient for a constitutional claim, to the extent he contends guards informed inmates of fellow inmates reporting wrongdoing, Plaintiff does not identify these guards, nor does he name them as Defendants in this matter. Even liberally construed, Plaintiff's Amended Complaint does not “identify specific actions taken by particular defendants[.]” Pahls v. Thomas, 718 F.3d 1210, 1226 (10th Cir. 2013) (quotations omitted). In Pahls, the Tenth Circuit reiterated that a plaintiff's “undifferentiated contention that ‘defendants' infringed his rights” is insufficient to state a § 1983 claim because “a plaintiff must show that each defendant acted with the requisite state of mind.” Id. Thus, Plaintiff's claim based on an inmate attack he suffered while at OCDC should be dismissed based on failure to state a claim upon which relief could be granted.
Similarly, in his Amended Complaint, Plaintiff names as Defendants, John Does 1-50, and identifies them only as “Sheriff deputies working in Jail-2019-2020.” Doc. No. 16 at 4. Plaintiff never attributes any actions to a John Doe Defendant in his Amended Complaint. Accordingly, these Defendants should be dismissed based on Plaintiff's failure to state a claim against them upon which relief could be granted.
In his Response, Plaintiff for the first time alleges the pod monitor violated his rights by failing to adequately monitor the pod, allowing Plaintiff to be beaten by other inmates in the surveillance camera blind spots. Doc. No. 41 at 47, 50, 55, 57. While Plaintiff referenced this altercation in his Amended Complaint, this is the first time he asserted these allegations against the pod monitor and expressed an intent to assert a claim against him based on the same. The Court cannot rely on new arguments or facts raised in a response in ruling on a motion to dismiss. See McDonald v. Citibank N.A., No. 21-cv-00427-PAB-NRN, 2021 WL 5736437, at *9 (D. Colo. Dec. 2, 2021) (“A plaintiff [] may not amend his complaint in a response to a defendant's motion to dismiss.”); Warad W., LLC v. Sorin CRM USA Inc., 119 F.Supp.3d 1294, 1305 (D. Colo. 2015) (“[W]hen deciding a Rule 12(b)(6) motion, this Court may not consider new allegations contained in a plaintiff's response.”); In re Qwest Commc'ns Int'l, Inc., 396 F.Supp.2d 1178, 1203 (D. Colo. 2004) (“The plaintiffs may not effectively amend their Complaint by alleging new facts in their response to a motion to dismiss.”). The Court only considers factual allegations and legal claims asserted in the Amended Complaint, which presently does not contain allegations or legal claims against the pod monitor.
XI. State Law Claim
In his Amended Complaint, Plaintiff also asserts a state law claim of fraud. Based on the recommendations herein, the Court should decline to assert supplemental jurisdiction over the same. 28 U.S.C. § 1367(c)(3); see also Smith v. City of Enid, 149 F.3d 1151, 1156 (10th Cir. 1998) (recognizing “[w]hen all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims”).
XII. Motion to Strike
Plaintiff has filed a Motion to Strike in which he requests this Court strike Defendants' Motions to the extent they reference Plaintiff's criminal history. Doc. No. 40. The Court agrees that Plaintiff's criminal history is not relevant to his current lawsuit and therefore, such information, though unnecessarily included in Defendants' Motions, will not be considered in ruling on the same. Accordingly, Plaintiff's Motion to Strike should be denied as moot.
In his Response, Plaintiff for the first time indicates an intent to challenge the state court's jurisdiction over his criminal proceedings, as well as an intent to assert legal claims against OCDC Investigators, Kristen Rangel and Stephen Ponder, and the Oklahoma County District Attorney. Doc. No. 41 at 82, 86, 95, 99, 102-04, 105. As previously noted, Plaintiff cannot assert legal claims for the first time in a response to a dispositive motion. McDonald, 2021 WL 5736437, at *9; Warad W., LLC, 119 F.Supp.3d at 1305; In re Qwest Commc'ns, 396 F.Supp.2d at 1203. Accordingly, these claims are not properly before this Court.
RECOMMENDATION
Based on the foregoing findings, it is recommended the Motions to Dismiss, converted to Motions for Summary Judgment, filed by Defendant Sheriff Taylor (Doc. No. 22), Defendant Board of County Commissioners of Oklahoma County (Doc. No. 24), and Defendant Gomez (Doc. No. 25) be granted regarding Plaintiff's Fourteenth Amendment claim based on excessive force. Additionally, Plaintiff's remaining federal claims, including any claim Plaintiff intended to assert against John Doe Defendants 1-50, should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) based on his failure to state a claim upon which relief could be granted. The Court should also decline to exercise supplemental jurisdiction over Plaintiff's state law claim of fraud. Finally, Plaintiff's Motion to Strike (Doc. No. 40) should be denied as moot.
Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by November 8th, 2022, in accordance with 28 U.S.C. § 636 and F. R. Civ. P. 72. The failure to timely object to this 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 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 are denied.