Opinion
CIV-21-26-SLP
04-23-2021
ROBERT STEVEN CONNOLLY, II, Plaintiff, v. TURN KEY HEALTH, et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Plaintiff, a pro se prisoner housed at the Stephens County Jail, filed a complaint under 42 U.S.C. § 1983. Doc. 1. United States District Judge Scott L. Palk has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), and (C). Doc. 4. Plaintiff brings four unrelated claims under 42 U.S.C. § 1983, all against Defendants in their official capacities. Docs. 1, 6. The undersigned recommends dismissing three of those claims as described below, for failure to state a claim upon which relief may be granted.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
Plaintiff stated three claims in his complaint, Doc. 1, and then twice attempted to amend his complaint to state several additional claims, Docs. 6, 10. The Court liberally construed his filings and allowed him to amend “as a matter of course” under Fed.R.Civ.P. 15(a)(1) and considers only Plaintiff's additional claim about law library access. See Doc. 6 (library access claim); Doc. 13 (Order).
I. Screening.
Federal law requires the Court to screen complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss the complaint, or any portion of the complaint, if it is “frivolous, malicious, or fails to state a claim upon which relief may be granted” or seeks monetary relief from a defendant who is immune from such relief. Id. §§ 1915A(b), 1915(e)(2)(B).
“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). The complaint must contain sufficient factual matter, accepted as true, to “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 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.” Id. (citing Twombly, 550 U.S. at 556); see also Gee v. Pacheco, 627 F.3d 1178, 1184 (10th Cir. 2010).
This Court construes “[a] pro se litigant's pleadings. . . liberally, ” holding them “to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). The Court, however, may not serve as Plaintiff's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
II. Plaintiff's claims.
In his first claim, Plaintiff alleges that Nurse Practitioner Malichi-LNU, an employee of the contractor Turn Key Health, “‘saw' [Plaintiff] multiple times for a chronic bilateral ear ailment” that caused “ear pain, fluid, [and] swelling.” Doc. 1, at 6-7. “These visits were over video visit hence [Defendant Malichi-LNU] relied on the nurse to inspect the ear canal and relay the finding.” Id. at 7. Plaintiff alleges “[t]his is malpractice, ” and Defendant Malichi-LNU “prescribed the same treatment over and over again, ” but “[h]is diagnosis never fixed it.” Id. at 6-7.
Turn Key Health is a private contractor that provides inmate healthcare services. See Autry v. Cleveland Cty. Sheriff's Dep't, 2018 WL 719044, at *1 (W.D. Okla. Feb. 5, 2018); Sawyers v. West, 2018 WL 7288532, at *5 (W.D. Okla. Dec. 21, 2018).
In his second claim, Plaintiff alleges he was “deprived . . . of the right to competent medical care for a valid medical issue, ” after Nurse Casey-LNU terminated Plaintiff's “soft-food diet” prescribed after a medical procedure during which he was “sedated and [a] camera, tube and rod were inserted into [his] throat.” Id. at 8. Plaintiff names as Defendants for this claim Defendant Casey-LNU and Stephens County Jail. Id.
In his third claim, Plaintiff alleges that he “has been confined in Stephens County Jail for 2 years” and that during that time he has been “deprived of sunlight, fresh air and recreation time.” Id. at 9. This, he alleges, “is long-term [sensory]-deprivation and a violation of basic human rights.” Id. Plaintiff names as Defendants Stephens County Jail and Undersheriff Bobby Bowen. Id.
Finally, in his fourth claim, Plaintiff alleges that he is “unable to proactively research case law to help build [his] defense” or “to ensure [his] confinement is in accordance with the law, ” because “Stephens County Detention Center does not provide a law library.” Doc. 6, at 1. Further, he alleges “this is ostensibly in accordance with the Oklahoma State law stating ‘Jails do not have to provide them if access to a lawyer is made available.'” Id. Plaintiff names as Defendant Stephens County Jail. See id.
III. This Court must dismiss all but the library-access claim because Plaintiff has failed to allege Defendants were acting pursuant to policy or custom.
A municipality or a county can only be held liable for constitutional violations committed pursuant to official policy or custom. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978) (“[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.”); Cox v. Glanz, 800 F.3d 1231, 1254 (10th Cir. 2015) (applying Monell to a county). An entity working on a county's behalf to perform a county function (such as the Turn Key Health Defendants providing medical care to inmates at the Stephens County Jail) can be liable for the same types of Monell violations. See Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003); Smedley v. Corr. Corp. of Am., 175 Fed.Appx. 943, 945-46 (10th Cir. 2005). And a suit under § 1983 against an employee in their official capacity is “another way of pleading an action against the county or municipality they represent.” Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010).
To state a § 1983 claim against a county or its employees in their official capacities, a plaintiff must identify “‘a government's policy or custom' that caused [him] injury.” See Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769 (10th Cir. 2013) (quoting Monell, 436 U.S. at 691-92). “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. As well, a plaintiff must establish “a direct causal link between the policy or custom and the injury alleged, ” Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006), and must also show “that the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury, ” Schneider, 717 F.3d at 769.
These requirements apply to claims against private entities contracting with a municipality. See Dubbs, 336 F.3d at 1216 (“Although the Supreme Court's interpretation of § 1983 in Monell applied to municipal governments and not to private entities acting under color of state law, caselaw from this and other circuits has extended the Monell doctrine to private § 1983 defendants.”). And they apply to claims for both monetary and injunctive relief. See Fuerschbach v. Sw. Airlines Co., 439 F.3d 1197, 1210 (10th Cir. 2006) (“[A] municipality can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where ‘the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.'”).
Plaintiff names all Defendants in their official capacities. Docs. 1, 6. However, in his first three claims, Plaintiff fails to identify a policy or custom maintained by the Stephens County Jail or Turn Key Health that caused his alleged injuries.
In his first claim, Plaintiff states Defendant Malichi-LNU failed to cure his “chronic bilateral ear ailment” after conducting several visits over video. Doc. 1, at 6-7. Plaintiff does not allege that he was seen over video pursuant to a policy or custom maintained by either Stephens County Jail or its private medical contractor Turn Key Health.
In his second claim, Plaintiff alleges that Defendant Casey-LNU terminated his soft-food diet, thereby “depriv[ing] [him] of the right to competent medical care for a valid medical issue.” Id. at 8. Plaintiff does not specify whether Defendant Casey-LNU is an employee of Stephens County Jail or Turn Key Health. But in either case, to establish liability Plaintiff must allege that they acted pursuant to a custom or policy. Cf. Dubbs, 336 F.3d at 1216 (explaining that Monell has been extended to private § 1983 defendants). Plaintiff alleges that he was prescribed a soft-food diet after a one-time medical procedure and that Defendant Casey-LNU decided to terminate the diet. Plaintiff does not specify why Defendant Casey-LNU allegedly made the decision, or whether it was pursuant to a policy or custom maintained either by Turn Key or Stephens County Jail. Plaintiff also names Stephens County Jail as a defendant to this claim; his allegations against the jail fall short for the same reason.
Finally, in Plaintiff's third claim, he alleges “depriv[ation] of sunlight, fresh air and recreation time” during his two years' confinement in Stephens County Jail. Doc. 1, at 9. As in his first two claims, he does not state whether the alleged deprivation resulted from a custom or policy maintained by Stephens County Jail or whether Defendant Undersheriff Bobby Bowen was enforcing such a custom or policy.
Because Plaintiff has failed to allege a custom or policy caused his injuries, see Monell, 436 U.S. at 691-92, the undersigned recommends dismissal of these three claims for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B). Compare Parks v. Cornell Corr. of Okla., 2009 WL 2579047, at *1 (W.D. Okla. Aug. 20, 2009) (adopting recommendation to dismiss inmate's claim for lack of medical care “because [plaintiff] failed to allege that his asserted injuries were caused by an unconstitutional policy or custom”), with Bowlds v. Turn Key Health, 2019 WL 6652084, at *2 (W.D. Okla. Dec. 6, 2019) (declining to dismiss inmate's claim for failure to allege policy or custom caused him injury, where plaintiff alleged medical care was delayed ninety days and “provider informed the Plaintiff that regardless to his pain, ‘Policy,' required that the Plaintiff complete three ‘treatments' of two medications before being considered to see a dentist”).
To the extent Plaintiff seeks damages against individual State actors in their official capacities, the Eleventh Amendment precludes relief. Kentucky v. Graham, 473 U.S. 159, 169 (1985) (The Eleventh Amendment “bar remains in effect when State officials are sued for damages in their official capacity.”); Duncan v. Gunter, 15 F.3d 989, 991 (10th Cir. 1994) (“Neither states nor state officers sued in their official capacity are ‘persons' subject to suit under section 1983.”).
IV. Recommendation and notice of right to object.
The undersigned recommends the following claims be dismissed without prejudice:
(1) Plaintiff's claim that Defendant Malichi-LNU committed “malpractice” by conducting medical visits over video;
(2) Plaintiff's claim that he did not receive “competent care for a valid medical issue” due to Nurse Casey-LNU terminating his soft-food diet; and
(3) Plaintiff's claim that he is being “deprived of sunlight, fresh air and recreation time, ” in violation of “basic human rights.” Accordingly, the undersigned recommends that the Court retain Plaintiff's claim that he is “unable to proactively research case law to help build [his] defense” due to lack of library access. See Doc. 6.
The undersigned advises Plaintiff of his right to object to this Report and Recommendation by May 14, 2021, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to make timely objection waives his right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation does not terminate the referral to the undersigned Magistrate Judge in this matter.