Opinion
Case No. CIV-20-1293-G
04-12-2021
ROB COLLINS, Plaintiff, v. SCOTT CROW, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, an Oklahoma prisoner appearing through counsel, has filed a civil rights complaint claiming he suffered a "deprivation of his civil rights under 42 U.S.C. § 1983, mental and physical anguish, and a significant medical burden." Doc. 1. Plaintiff names as Defendants Scott Crow, "personally, but acting in [his] capacity as Director of the Oklahoma Department of Corrections, and Randy Matthews, personally, but acting in [his] capacity as Facility Director of Clara Waters Community Corrections Center." Id.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
Plaintiff clarifies in his response to the motion to dismiss that he is only suing Defendants in their personal capacities. Doc. 9, at 4.
United States District Judge Charles Goodwin referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 2. Before the Court is Defendants' motion to dismiss the complaint. Doc. 8. Plaintiff has responded, and the matter is at issue. Doc. 9. The undersigned has reviewed the pleadings and recommends the Court deny in part and grant in part the motion to dismiss.
I. Plaintiff's claims.
Plaintiff alleges Defendants violated his Eighth Amendment right to freedom from cruel and unusual punishment when they failed to protect him from contracting the COVID-19 virus and subsequently failed to provide him sufficient medical treatment. Doc. 1, at 1-2. Plaintiff states he has a severe heart condition and has been "referred to the Heart Transplant Center." Id. at 1-2 & Att. 1. He claims Defendants were "aware" of his "extreme medical conditions" but "chose to ignore those concerns and exercise deliberate indifference to the serious medical needs of prisoners." Id. at 4. He seeks monetary damages, compensatory and punitive, for the harm Defendants caused to him "in violation of his federal right to use and enjoy his property." Id.
II. Defendants' motion to dismiss.
Defendants move to dismiss Plaintiff's complaint alleging (1) he has failed to exhaust his administrative remedies, (2) he has failed to state a claim because he does not specify the acts of each Defendant or allege when or how they learned about his medical condition or that they had any personal involvement in his medical care, and (3) they are entitled to qualified immunity because Plaintiff cannot show they violated his constitutional rights. Doc. 8, at 3-10.
Plaintiff responds that he has tried to exhaust his administrative remedies, but prison officials have prevented him from doing so. Doc. 9, at 3-4. He also asserts he has stated a claim for "supervisory liability" against the Defendants through his "various attempts" to put the Defendants on notice "throughout the administrative process," "through their supervisory role," about his serious medical conditions. Id. at 5. He argues that even after he put them "on notice as early as April 2020, just a few weeks into the deadly pandemic, the ODOC and Defendants refused to take proper cautions and care when dealing with [Plaintiff's] health conditions, resulting in [Plaintiff] contracting the deadly COVID-19 virus." Id. Finally, Plaintiff argues the Defendants are not entitled to qualified immunity because they were deliberately indifferent to his medical needs when they refused to provide adequate protection or medical care after learning of his medical condition. Id. at 6-7.
Plaintiff has not sued the Oklahoma Department of Corrections in this suit. See Doc. 1, at 2.
III. Standard of review.
"To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988).
Defendants' request for dismissal under Fed. R. Civ. P. 12(b)(6) requires the Court to examine the well-pleaded allegations in Plaintiff's complaint and determine whether those allegations state a plausible claim for relief. To survive a motion to dismiss, a complaint must contain enough allegations of fact which, when taken as true, "'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A Plaintiff must "nudge" his or her claims "across the line from conceivable to plausible" to survive a motion to dismiss. Twombly, 550 U.S. at 570.
When considering a motion to dismiss, courts look to the complaint and those documents attached or referred to in the complaint, accept as true all allegations in the complaint, and draw all reasonable inferences from the pleading in favor of the plaintiff. Pace v. Swerdlow, 519 F.3d 1067, 1073 (10th Cir. 2008). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556); see also Gee v. Pacheco, 627 F.3d 1178, 1184 (10th Cir. 2010). A court need not accept as true a plaintiff's legal assertions. Iqbal, 556 U.S. at 678. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 679. But "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678.
For Defendants' affirmative defense involving Plaintiff's failure to exhaust administrative remedies, they bear the burden of proof. See Roberts v. Barreras, 484 F.3d 1236, 1241 (10th Cir. 2007).
IV. Discussion.
A. Defendants have not carried their burden of proving Plaintiff failed to exhaust his administrative remedies.
The Prison Litigation Reform Act requires a prisoner to exhaust available administrative remedies before suing over prison conditions. See 42 U.S.C. § 1997e(a). Defendants assert that Plaintiff "has not alleged any facts to suggest that he exhausted his administrative remedies regarding his inadequate medical treatment or care." Doc. 8, at 3. They argue that "[w]ithout any allegations in his Complaint regarding exhaustion, this Court should find that Plaintiff failed to exhaust administrative remedies and dispose of these claims as required." Id. at 4. The Court should reject this argument.
As the Supreme Court held well-over a decade ago, Prisoners need not plead or demonstrate the exhaustion of administrative remedies in a complaint. See Jones v. Bock, 549 U.S. 199, 216 (2007) ("We conclude that failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints."); see also Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2013) ("Failure to exhaust is an affirmative defense; a plaintiff is not required to plead or demonstrate exhaustion in the complaint."). And it is a defendant's burden to prove a prisoner failed to exhaust. Roberts, 484 F.3d at 1241.
Defendants' mere reference to the complaint's lack of factual allegations about exhaustion to support their assertion that Plaintiff failed to exhaust his administrative remedies does not satisfy their burden. See, e.g., Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007) (noting that after Jones "[w]e believe that only in rare cases will a district court be able to conclude from the face of the complaint that a prisoner has not exhausted his administrative remedies and that he is without a valid excuse"). Plaintiff responds to Defendants' assertion by stating that prison officials have thwarted his efforts to exhaust his administrative remedies. Doc. 9, at 3-4. See Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010) ("Where prison officials prevent, thwart, or hinder a prisoner's efforts to avail himself of an administrative remedy, they render that remedy 'unavailable' and a court will excuse the prisoner's failure to exhaust."). Given that this Court is "obligated to ensure that any defects in exhaustion were not procured from the action or inaction of prison officials," and Defendants have submitted no information to dispute Plaintiff's assertion, the undersigned finds no grounds to dismiss Plaintiff's complaint on this basis. See, e.g., Aquilar-Avellaveda, 478 F.3d at 1225-26 ("To determine whether an inmate has exhausted his administrative remedies requires an understanding of the remedies available and thus likely would require information from the defendant as well as the inmate.").
B. Plaintiff has not sufficiently alleged Defendants had knowledge of his medical condition or personally participated in depriving him of his constitutional right to adequate medical care.
Defendants seek dismissal for failure to state a claim because Plaintiff has not alleged that they knew about his serious medical condition or personally participated in depriving him of his constitutional right to adequate medical care. Doc. 8, at 4-9. The undersigned agrees and recommends the Court dismiss the complaint without prejudice.
1. The Eighth Amendment's scope.
Although Plaintiff references the Fourteenth Amendment, the parties address only the rights secured to Plaintiff under the Eighth Amendment and made applicable to the States through the Fourteenth Amendment. Thus, the Court analyzes Plaintiff's claims under the Eighth Amendment's "explicit source of constitutional protection" rather than the "more generalized notion of 'substantive due process.'" Graham v. Connor, 490 U.S. 386, 395 (1989).
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 Tenth Circuit recognizes "two types of conduct which may constitute deliberate indifference in a prison medical case: (1) a medical professional failing to treat a serious medical condition properly; and (2) a prison official preventing an inmate from receiving medical treatment or denying him access to medical personnel capable of evaluating the inmate's condition." Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (citing Sealock v. Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000)).
"The test for constitutional liability of prison officials 'involves both an objective and a subjective component.'" Mata, 427 F.3d at 751 (quoting Sealock, 218 F.3d at 1209). As for the objective component, the "prisoner must first [show] . . . that the deprivation at issue was in fact 'sufficiently serious.'" Id. (quoting Farmer, 511 U.S. at 834). "[A] medical need is 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." Id. (internal quotation marks omitted). "Where 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." Id.
The subjective component requires a plaintiff to show "the prison official's culpable state of mind" and may be satisfied with allegations the official "[knew] of and disregard[ed] an excessive risk to inmate health or safety." Id. So "'the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.'" Id. (quoting Farmer, 511 U.S. at 837 (internal alteration omitted)). "It is not enough to establish that the official should have known of the risk of harm." Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998).
2. Supervisory liability requires an affirmative link between the alleged constitutional deprivation and the supervisor's actions.
Plaintiff argues in his response to the motion to dismiss that he put Defendants "on notice as early as April 2020" about his serious heart condition but Defendants, "through their supervisory role," refused to "take proper cautions and care when dealing with [his] health conditions," which led to him "contracting the deadly COVID-19 virus." Doc. 9, at 5. But "[s]ection 1983 does not authorize respondeat superior liability for a supervisor based solely on the actions of his subordinates." Burke v. Regalado, 935 F.3d 960, 997 (10th Cir. 2019). Thus, to state a claim under this theory, "the defendant's role must be more than one of abstract authority over individuals who actually committed a constitutional violation." Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008).
Personal participation is "an essential" element in a § 1983 action. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). To hold a party personally liable as a supervisor, a plaintiff must establish an "'affirmative link' between the supervisor and the constitutional violation." Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir. 2013) (citing Dodds v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010)). A party may establish this "affirmative link" through showing: "(1) personal involvement; (2) sufficient causal connection, and (3) culpable state of mind." Id. (internal quotations omitted). See also Smith v. Allbaugh, 987 F.3d 905, 911 (10th Cir. 2021) ("To plead supervisory liability against the Defendants for failure to implement/promulgate sufficient policies and procedures that would have prevented the constitutional violation at issue here, [a plaintiff] must allege that (1) the defendant 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." (internal quotation omitted)).
"Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own actions, has violated the Constitution." Iqbal, 556 U.S. at 676. A plaintiff can show personal involvement "by establishing the supervisor promulgated, created, implemented, or possessed responsibility for the continued operation of a policy, or the establishment or utilization of an unconstitutional policy or custom, provided the policy or custom resulted in a violation of the plaintiff's constitutional rights." Burke, 935 F.3d at 997 (internal quotations, citations, and alteration omitted). See Dodds, 614 F.3d at 1199 ("[Section] 1983 allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy the enforcement (by the defendant-supervisor or her subordinates) of which subjects, or causes to be subjected that plaintiff to the deprivation of any rights secured by the Constitution." (internal quotations and ellipses omitted)).
To establish the requisite causal connection, a plaintiff must show those actions "set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of [his] constitutional rights." Schneider, 717 F.3d at 768 (internal quotations omitted). And to establish the requisite state of mind, Plaintiff "must plead sufficient factual allegations to support deliberate indifference on the part of" Defendants. Smith, 987 F.3d at 912.
Plaintiff's allegations in his complaint satisfy none of these pleading requirements.
a. Plaintiff makes no allegation of Defendants' personal involvement in the deprivation of his rights.
Plaintiff cites no policy Defendants promulgated, created, or implemented to address the COVID-19 pandemic or an existing policy they were responsible for that a subordinate used to violate his constitutional rights. Dodds, 614 F.3d at 1199. The most the undersigned can infer from Plaintiff's allegations is that Defendants failed to tailor a response to the pandemic unique to his medical situation, which led him to contract COVID- 19. Doc. 1, at 3-4. Yet Plaintiff makes no specific factual allegations supporting this assertion.
A "plaintiff must plead facts sufficient to support such a claim and may not stand on mere conclusory allegations." Smith, 987 F.3d at 911. The Court cannot "supply additional factual allegations to round out . . . [P]laintiff's complaint or construct a legal theory on . . . [P]laintiff's behalf." Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009) (internal quotation marks and citation omitted). Especially here where Plaintiff has legal counsel. The Court should find Plaintiff's allegations in his complaint do not satisfy the personal involvement prong of a supervisory capacity claim against these Defendants.
b. Plaintiff makes no allegations of causation.
Plaintiff also fails to assert sufficient facts to support a causal link between Defendants' actions and his alleged constitutional deprivation. Although Plaintiff claims Defendants "were aware" of his medical condition, he does not allege that they knew or should have known that their subordinates would violate or had violated his constitutional rights or that they set in motion, either by their action or inaction, a series of events that resulted in the violation of Plaintiff's constitutional rights. See Serna v. Colo. Dep't of Corrs., 455 F.3d 1146, 1151 (10th Cir. 2006) ("In order to establish a § 1983 claim against a supervisor for the unconstitutional acts of his subordinates, a plaintiff must first show the supervisor's subordinates violated the constitution.). At most, Plaintiff's bare assertions hinge on Defendants' supervisory control of the facility. But a plaintiff's allegation of supervisory liability must be based on active unconstitutional behavior not just a mere right to control employees. Serna, 455 F.3d at 1151. Plaintiff's allegations do not meet this standard.
c. Plaintiff does not adequately plead Defendants' state of mind.
Plaintiff alleges that Defendants (collectively) were aware of and chose to ignore his "extreme medical conditions" and he contracted the COVID-19 virus as a result. Doc. 1, at 3-4. To adequately state a claim, "it is particularly important that plaintiffs make clear exactly who is alleged to have done what to whom, as distinguished from collective allegations." Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013) (internal quotation marks and alterations omitted). And "such conclusory allegations, without sufficiently pleaded supporting facts, are insufficient to state a claim." Smith, 987 F.3d at 912.
In his response to the motion to dismiss, Plaintiff claims that his "various attempts" "throughout the administrative process [] put the Defendants on notice, through their supervisory role, of [his] extreme medical conditions." Doc. 1, at 5. But other than attaching to his complaint an April 23, 2020 letter from his doctor addressing "To Whom it May Concern" (Doc. 1, Att. 1), Plaintiff does not specify when, how, or to whom he made his administrative "attempts" to notify Defendants of his condition or to complain about his medical treatment. While he makes a broad assertion that Defendants chose to "exercise deliberate indifference," he cites no specific policies, no specific procedures, and no specifics about any supervision or lack of supervision by these Defendants to support his deliberate indifference claim. Plaintiff thus fails to state a valid claim against these Defendants. See, e.g., Smith, 987 F.3d at 912 (holding that the plaintiff's "broad statement" was "inadequate to demonstrate that [the defendant] knew there were specific policies being violated and failed to enforce them" and was "likewise inadequate to demonstrate awareness of an absence of specific policies to prevent the violation of inmates' constitutional rights").
C. Conclusion.
Defendants have not carried their burden of proving Plaintiff failed to exhaust his administrative remedies. The undersigned therefore recommends the Court deny Defendants' motion to dismiss on this basis. Plaintiff fails to adequately state a claim against these Defendants. The undersigned therefore recommends granting Defendants' motion to dismiss on this basis. Because the undersigned recommends dismissal of the claims against Defendants for failure to state a claim, the undersigned need not consider Defendants' qualified immunity argument at this stage.
Although the Court should freely grant a leave to amend "when justice so requires" under Fed. R. Civ. P. 15(a)(2), Plaintiff, who is represented by counsel, has not moved to amend his complaint to sufficiently plead a supervisory claim against Defendants. --------
V. Recommendation and notice of right to object.
For the reasons discussed above, the undersigned recommends the Court deny in part and grant in part the motion to dismiss and dismiss Plaintiff's complaint without prejudice. The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before April 26, 2021, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises Plaintiff that the failure to file a timely objection to this Report and Recommendation waives the right to appellate review of both the factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.
ENTERED this 12th day of April, 2021.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE