Opinion
CIV-20-221-HE
05-15-2020
TIMOTHY E. McCRARY, Plaintiff, v. MIKE McDOUGAL, et. al., Defendants.
SUPPLEMENTAL REPORT AND RECOMMENDATION
Plaintiff, a state prisoner appearing pro se, brings this action pursuant to 42 U.S.C. § 1983. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Having reviewed the sufficiency of the Complaint pursuant to 28 U.S.C. § 1915A, the undersigned recommends Plaintiff's action be partially dismissed.
I. Factual Allegations
Plaintiff is currently incarcerated at Joseph Harp Correctional Center ("JHCC") located in Lexington, Oklahoma. Doc. No. 1 ("Comp."). In his Complaint, Plaintiff names five Defendants: Mike McDougal, JHCC Health Services Administrator, James Robberson, JHCC physician, Georgia Correctional Industries Department ("GCID"), Cheri Atkinson, JHCC Medical Services Manager, and Carl Bear, JHCC Warden. Id. at 5-6.
By this action, Plaintiff complains the JHCC grievance system is administered in a manner that violates his due process rights by hindering his ability to exhaust his administrative remedies prior to seeking a legal remedy. Id. at 7-10. In his second claim, Plaintiff asserts his First and Fourteenth Amendment rights were violated when Defendant McDougal rejected his Grievance and referred to his religious writing thereon as drawing and doodling. Id. at 8, 11. Finally, Plaintiff contends his Eighth Amendment rights have been violated based upon a denial of adequate medical care. Id. at 12-13.
II. 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. 28 U.S.C. § 1915A(a). After conducting an initial review, 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. §§ 1915A(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).
III. Claim One: Grievance Procedure
Plaintiff contends various Defendants have not properly administered JHCC's grievance process, resulting in the process being an obstacle to the ability to pursue legal remedies. Id. at 7-10. He further asserts this constitutes a violation of his due process rights. Id.
While the administration of JHCC's grievance process may be frustrating, a facility and/or official's failure to administrate it properly does not equate to a constitutional violation. On its own, "there is no independent constitutional right to state administrative grievance procedures." Boyd v. Werholtz, 443 F. App'x 331, 332 (10th Cir. 2011); see also Spry v. McKune, 479 F. App'x 180, 181 (10th Cir. 2012) (affirming district court's dismissal of the plaintiff's due process claim premised upon unavailability of administrative remedy, noting no "protected liberty interest in pursuing formal prison grievance procedures"); Murray v. Albany Cty. Bd. of Cty. Comm'rs, No. 99-8025, 2000 WL 472842, at *2 (10th Cir. Apr. 20, 2000) ("[P]rison grievance procedures do not give rise to a protected liberty interest requiring the procedural protections envisioned by the fourteenth amendment." (quotations omitted)).
Thus, viewing the factual allegations in the light most favorable to Plaintiff, the undersigned finds Plaintiff has not set forth a constitutional violation based on the administration of JHCC's grievance process. Accordingly, Plaintiff fails to state a valid claim for relief and the undersigned recommends the dismissal of Plaintiff's first claim.
IV. Claim Two: Religious Freedom
In his second claim, Plaintiff contends his right to freely exercise his religion has been violated. Comp. at 8. In support, Plaintiff explains that he practices Islam and that "it is recommended to begin a writing with - 'In the name of Allah, the Most Beneficent, the Most Merciful.'" Id. at 11. On October 28, 2019, Plaintiff included said language, written in Arabic, near the top of his Grievance. Doc. No. 1-5 at 2. On December 5, 2019, Defendant McDougal returned the Grievance to Plaintiff unanswered. Doc. No. 1-5 at 1. The Grievance was accompanied by a form that included a checklist of reasons a grievance may be returned to an inmate unanswered. Id. Defendant McDougal checked the box for returning because the Grievance was "submitted out of time from date of incident or date of response to the Request to Staff." Id. Defendant McDougal also checked the box indicating "Drawing, decorating, doodling, and/or comments affixed in the margins of the pages." Id. Though Plaintiff's statement is not written in the margins, it is the only writing on the page not specifically related to the content of the Grievance. Doc. No. 1-5 at 2. Thus, Plaintiff (and the Court) presumes Defendant McDougal intended to reference Plaintiff's Arabic statement.
"It is well-settled that inmates retain protections afforded by the First Amendment, including its directive that no law shall prohibit the free exercise of religion." Kay, 500 F.3d at 1218 (quotations, brackets, and ellipsis omitted). To assert a free-exercise claim under the First Amendment, a prisoner must allege a substantial burden on his or her sincerely held religious beliefs. See id. (addressing sufficiency of allegations under Free Exercise Clause). Further, "the exercise of religion often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation." Yellowbear v. Lampert, 741 F.3d 48, 54 (10th Cir. 2014) (quotations omitted). Under the Religious Land Use and Institutionalized Persons Act, a court must protect "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(A). Courts apply the same rule to First Amendment claims. See Kay, 500 F.3d at 1220 (rejecting rule that prisoner must show religious exercise was "'necessary' to the practice of his religion").
"When a sincere religious claimant draws a line ruling in or out a particular religious exercise, it is not for us to say that the line he drew was an unreasonable one." Yellowbear, 741 F.3d at 55 (quotations omitted); see also Kay, 500 F.3d at 1220 ("Sincerely held is different from central, and courts have rightly shied away from attempting to gauge how central a sincerely held belief is to the believer's religion." (quotations omitted)). Whether Defendant McDougal's rejection of grievances based, at least in part, on the inclusion religious text represents a substantial burden on Plaintiff's religious practice cannot be decided by the Court on § 1915A screening. Thus, Plaintiff's First Amendment claim, as asserted against Defendant McDougal, should proceed at this time.
V. Claim Three: Medical Care
In his final claim, Plaintiff contends Dr. Robberson has not provided adequate care for his medical conditions. The United States Supreme Court has held that an inmate advancing an Eighth Amendment claim based on inadequate provision of medical care must establish "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104 (1976). The "deliberate indifference" standard has two components: "an objective component requiring that the pain or deprivation be sufficiently serious; and a subjective component requiring that the offending officials act with a sufficiently culpable state of mind." Miller v. Glanz, 948 F.2d 1562, 1569 (10th Cir. 1991). The objective component is satisfied where the deprivation is "sufficiently serious." Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001). The deprivation is sufficiently serious if the medical condition complained of 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." Olsen v. Layton Hills Mall, 312 F.3d 1304, 1315 (10th Cir. 2002) (quoting Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999)). With respect to the subjective component, a prison official does not act in a deliberately indifferent manner unless that official "knows of and disregards an excessive risk to inmate health or safety; 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." Farmer v. Brennan, 511 U.S. 825, 837 (1994).
In his Complaint, Plaintiff explains that he suffers from occlusions and in 2017, this resulted in the amputation of his left leg just above his knee. Comp. at 12. In July 2019, Plaintiff had an appointment with Dr. Robberson and informed the doctor that he was experiencing circulatory problems and suffering from pain in his leg. Id. Dr. Robberson would not discuss Plaintiff's April MRI or CT results with Plaintiff and did not respond to Plaintiff's complaints regarding circulation and pain, except to give Plaintiff Tylenol. Id.
In September 2019, Plaintiff saw an oncologist who informed him there was a black spot visible in his April MRI results. Id. The oncologist informed Plaintiff that he would need to have another appointment for an additional test related to the same, but it does not appear this appointment has occurred, nor this test performed. Id. at 12-13. Also in September 2019, Plaintiff was sent to a specialist purportedly for the pain he was experiencing in his leg. Id. at 13. However, the specialist informed Plaintiff that he could only deal with Plaintiff's back and that pain in Plaintiff's leg was not in his field. Id.
Construing Plaintiff's allegations as true and accurate and drawing all inferences in his favor, see Kay, 500 F.3d at 1217, it appears Plaintiff's circulatory problems, pain in his leg, and the black spot that raised the oncologist's concern have not been treated, in spite of multiple requests. Id. The undersigned finds this claim, as asserted against Defendant Robberson, is sufficient to proceed at this stage of the litigation.
VI. Defendants GCID, Atkinson, and Bear
Although Plaintiff named GCID, Atkinson, and Bear as Defendants in this matter, see Comp. at 6, 7, 8, and 12, he does not set forth any actions on their part that may have violated his constitutional rights. Personal participation is necessary for individual liability under § 1983. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976) ("Personal participation is an essential allegation in a [§] 1983 claim."). Plaintiff does not allege these Defendants personally participated in any of the actions or events underlying his claims. Indeed, Plaintiff's only reference to them is to list them as Defendants and to list their names under his individual claims. Comp. at 6, 7, 8, and 12.
While Defendants Bear and Atkinson clearly hold supervisory positions as Warden and Health Services Manager, respectively, a supervisor may only be held liable if he or she is affirmatively linked to the constitutional violation. "Section 1983 does not authorize liability under a theory of respondeat superior." Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011). As a result, government officials have no vicarious liability in a § 1983 suit for the misconduct of their subordinates because "there is no concept of strict supervisor liability under section 1983." Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996) (quotations omitted).
Instead, a supervisor is liable only if he is "personally involved in the constitutional violation, and a sufficient causal connection [] exist[s] between the supervisor and the constitutional violation." Serna v. Colo. Dep't of Corr., 455 F.3d 1146, 1151 (10th Cir. 2006) (quotations omitted); see also Schneider v. Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir. 2013) (requiring a plaintiff to show an "affirmative link" between the supervisor and the constitutional violation). "Thus, [] Plaintiff must base supervisory liability 'upon active unconstitutional behavior' and 'more than a mere right to control employees.'" Davis v. Okla. Cty., et. al., No. CIV-08-0550-HE, 2009 WL 2901180, at *4 (W.D. Okla. Sept. 3, 2009) (quoting Serna, 455 F.3d at 1153). Plaintiff fails to allege any affirmative link between Defendants Bear and Atkinson and the events underlying his claims.
Additionally, Plaintiff fails to explain any relation between Defendant GCID and his asserted claims. Whether GCID is a private entity or the arm of a municipality, it cannot be held vicariously liable for its employees' alleged constitutional violations under § 1983. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978) (establishing municipalities are "included among those persons to whom § 1983 applies"); Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003) ("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." (footnote omitted)); see also Schneider, 717 F.3d at 770 ("[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." (quotations omitted)). Instead, to establish Defendant GCID's liability under § 1983, Plaintiff must establish three basic elements: (1) Defendant GCID had an official policy or custom; (2) that caused a violation of Plaintiff's federal rights; and (3) "was enacted or maintained with deliberate indifference to an almost inevitable" federal rights violation. Id. at 769-71. Plaintiff has not set forth any allegations addressing and/or establishing these elements.
Based on Plaintiff's failure to allege any link between these Defendants and his claims, it is recommended the Court dismiss Defendants GCID, Atkinson, and Bear. Trujillo v. Williams, 465 F.3d 1210, 1227-28 (10th Cir. 2006) (upholding dismissal of Section 1983 claims because the complaint did not indicate personal participation by the named defendants).
RECOMMENDATION
Based on the foregoing findings, it is recommended Plaintiff's Due Process claim (Claim One) based upon JHCC's grievance process be dismissed for failure to state a claim. Additionally, Defendants GCID, Atkinson, and Bear should be dismissed based on the same due to Plaintiff's failure to allege personal participation. Plaintiff's First Amendment claim (Claim Two) and Eighth Amendment claim (Claim Three) asserted against Defendants McDougal and Robberson should proceed.
Plaintiff is advised of the right to file an objection to this Supplemental Report and Recommendation with the Clerk of this Court by June 4 , 2020, in accordance with 28 U.S.C. § 636 and F. R. Civ. P. 72. The failure to timely object to this Supplemental 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 Supplemental Report and Recommendation does not dispose of all issues referred to the undersigned Magistrate Judge in the captioned matter.
Dated this 15 day of May, 2020.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE