Opinion
CIV-21-573-G
08-13-2021
DENNIS RAY RIGSBY, JR., Plaintiff, v. ADVANCED CORRECTIONAL MEDICAL, et. al, Defendants.
REPORT AND RECOMMENDATION
GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state pre-trial detainee appearing pro se and in forma pauperis, brings this action under 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 Amended Complaint pursuant to 28 U.S.C. § 1915A and 1915(e)(2)(B), the undersigned finds the action should be dismissed based on Plaintiff's failure to state a claim for which relief could be granted.
I. Background Information
Plaintiff is currently confined at the Custer County Jail located in Arapaho, Oklahoma. Plaintiff initiated this action on June 4, 2021. Doc. No. 1. In his initial Complaint, which the Court construed broadly, Plaintiff potentially asserted a Fourteenth Amendment claim based upon inadequate medical care. See generally Doc. No. 1. Plaintiff stated that he has a back injury/condition and indicated that he is not receiving proper medical care for the same. Id. As Defendants, he named Advanced Correctional Medical and Custer County Medical Provider.
The Court recognizes the analysis of Plaintiff's rights as a pre-trial detainee for inadequate medical care claims under the Fourteenth Amendment due process clause is generally the same as that of an inmate under the Eighth Amendment. See Lopez v. LeMaster, 172 F.3d 756, 759 n.2 (10th Cir. 1999) (“In determining whether [a pre-trial detainee's] rights [under the Fourteenth Amendment's due process clause] were violated, [] we apply an analysis identical to that applied in Eighth Amendment cases brought pursuant to § 1983.”), abrogated in part on other grounds, Brown v. Flowers, 974 F.3d 1178, 1182 (10th Cir. 2020). Thus, for the sake of clarity, the Court will refer to Plaintiff's claim regarding inadequate medical care as arising under the Eighth Amendment.
On July 23, 2021, the Court issued an Order explaining certain deficiencies in Plaintiff's Complaint and providing him an opportunity file an Amended Complaint. Doc. No. 12. The Court set forth the elements of a valid constitutional claim based on inadequate medical care and also explained that Plaintiff had to set forth enough factual allegations regarding not only the underlying actions or inactions but who committed the same to state a plausible claim for relief. Id. at 2-5. The Court directed Plaintiff to file an Amended Complaint no later than August 6, 2021. Id. at 5.
On August 11, 2021, Plaintiff filed two documents that, read together, the Court construes broadly as Plaintiff's Amended Complaint. Doc. Nos. 13, 14. Therein, Plaintiff states that he has an old back injury and he wants to be referred to a medical expert in order for them to determine whether it can be corrected. Doc. No. 13 at 3-4; Doc. No. 14 at 1. He states that “Ana” and a male nurse saw him in his cell and that the male nurse told him that they would not provide medical care for his back injury because it was old. Doc. No. 13 at 3-4. Plaintiff complains that Ana is violating his right of access to the courts under the First Amendment because she will not provide him the name of the male nurse. Doc. No. 13 at 4; Doc. No. 1, 3. Plaintiff asserts that he has a right to “real medical care” rather than just the treatment of symptoms. Doc No. 13 at 5; Doc. No. 14 at 1. He asserts that his rights to equal protection of the laws as well as adequate medical care have been violated. Doc. No. 14 at 3, 4.
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. §§ 1915(e)(2)(B), 1915A.
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. Inadequate Medical Care
As explained in the Court's previous Order providing Plaintiff an opportunity to file an amended pleading, a confined individual 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). 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).
The undersigned notes the Supreme Court's decision in Kingsley v. Hendrickson, 576 U.S. 389 (2015), wherein a pretrial detainee alleged that jail officers used excessive force in violation of the Fourteenth Amendment's Due Process Clause. Id. at 393. The Court held that “courts must use an objective standard, ” instead of “a subjective standard that takes into account a defendant's state of mind, ” to decide “whether the force deliberately used is, constitutionally speaking, ‘excessive[ ]' ....” Id. at 396. The Court concluded “that a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable.” Id. at 396-97. The Tenth Circuit has “noted the circuits are split on whether Kingsley alters the standard for conditions of confinement and inadequate medical care claims brought by pretrial detainees.” Sawyers v. Norton, 962 F.3d 1270, 1282 n.11 (10th Cir. 2020) (quotations omitted). Given existing Tenth Circuit precedent, this Court will apply the subjective standard to conditions of confinement claims, including those based upon inadequate medical care. See Parks v. Taylor, CIV-18-968-D, 2020 WL 1271587, at *3 (W.D. Okla. March 17, 2020) (“[A]bsent a Tenth Circuit decision [applying Kingsley to conditions of confinement claims], this Court should continue to apply existing precedent.”); see also Prince v. Sheriff of Carter Cty., No. CIV-18-201-RAW, 2020 WL 5638819, at *5 n.9 (E.D. Okla. Sept. 21, 2020) (same).
In spite of a second opportunity to do so, Plaintiff has not set forth sufficient factual allegations to establish a plausible Eighth Amendment violation. Specifically, the Court cannot conclude that the pain or deprivation Plaintiff is suffering is sufficiently serious to support the objective elemental of his Eighth Amendment claim. Twombly, 550 U.S. at 570. In his Amended Complaint, Plaintiff merely states that he has a back injury, it appears it may be an old injury, and that he wants to see a specialist to see if it can be corrected. Doc. No. 13 at 34; Doc. No. 14 at 1. He also contends that simply because the injury was incurred prior to his incarceration does not mean that he is not entitled to health care. Doc. No. 14 at 4. If this alleged injury is causing Plaintiff severe pain or deprivation, he would likely be correct that he is entitled to medical treatment. Miller, 948 F.2d at 1569. However, Plaintiff does not set forth any factual allegations from which to infer the same. Accordingly, Plaintiff's claim based on inadequate medical care should be dismissed based on his failure to state a claim upon which relief could be granted.
IV. Access to the Courts
Plaintiff states that “Ana” and possibly other officials have interfered with his right of access to the courts based on her refusal to give him the name of the male nurse that he alleges refused to treat his back injury. Doc. No. 13 at 4-5; Doc. No. 14 at 1, 3-4. 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. The inmate must go one step further and demonstrate that the alleged actions or inactions hindered his efforts to pursue a legal claim. See id., cf., (“[An inmate] 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.”).
Here, the only action of which Plaintiff complains is Ana's and/or other individual's alleged refusal to provide him the name of the male nurse who refused him medical care. This clearly did not prevent Plaintiff from accessing the courts to assert a legal claim based on the same as it is the subject of the current lawsuit. Moreover, Plaintiff could have asserted the claim against John Doe until the name was revealed in discovery. The undersigned is recommending dismissal of Plaintiff's claim not because Plaintiff is unable to name the specific Defendant against whom he wishes to assert his claim but because he has not set forth sufficient factual allegations to support the Eighth Amendment's objective element. See, supra. This shortcoming is unrelated to any actions or inactions of prison personnel or programs. Accordingly, Plaintiff's First Amendment claim should be dismissed based upon his failure to state a claim upon which relief could be granted.
V. Equal Protection
Plaintiff additionally asserts a violation of the Fourteenth Amendment's equal protection clause, though his basis for this claim is unclear. Doc. No. 14 at 3-4. He states only that he has a right to the equal protection of the laws. Id. at 3.
The equal protection clause in the Fourteenth Amendment to the United States Constitution declares that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV. The equal protection rule generally provides that similarly situated persons should be treated alike, but allows that different persons may be treated differently within certain constitutional parameters. Plyler v. Doe, 457 U.S. 202, 216 (1982). “General rules that apply evenhandedly to all persons within the jurisdiction unquestionably comply with this principle. Only when a governmental unit adopts a rule that has a special impact on less than all the persons subject to its jurisdiction does the question whether this principle is violated arise.” New York City Transit Auth. v. Beazer, 440 U.S. 568, 587-88 (1979).
Plaintiff's claim fails because he has not alleged that he is treated differently than other inmates with regard to medical care. As noted, the equal protection clause requires that “‘all persons similarly circumstanced shall be treated alike.'” Plyler, 457 U.S. at 216 (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)). Thus, the central requirement of an equal protection claim is that the plaintiff was treated differently than others similarly situated. Plyler, 457 U.S. at 216; Beazer, 440 U.S. at 587-88. Plaintiff has asserted no such allegation. Accordingly, Plaintiff's allegations fail to establish an equal protection violation and his claim should be dismissed. See, cf., Owen v. Medina, No. 12-CV-00094-WJM-CBS, 2012 WL 7800837, at *7 (D. Colo. Dec. 18, 2012) (dismissing an inmate's equal protection claim under 42 U.S.C. § 1983 based on his failure to “allege that Defendants treated him differently than others who were similarly situated ....”); Isham v. Wilcox, No. Civ. 99-886 SC/DJS, 2000 WL 36739905, at *5 (D.N.M. April 24, 2000) (dismissing equal protection claim where the plaintiff did not sufficiently allege that he and another employee “were similarly situated but treated differently”).
RECOMMENDATION
Based on the foregoing findings, it is recommended Plaintiff's action be dismissed without prejudice for failure to state a claim upon which relief can be granted. The dismissal should be counted as a “strike” pursuant to 28 U.S.C. § 1915(g).
Currently, there are four Report and Recommendations, including this one, pending before the United States District Judge Charles B. Goodwin in which Magistrate Judges recommend lawsuits filed by this Plaintiff be dismissed based on his failure to state a claim upon which relief could be granted. See Report and Recommendation (“R&R”), Rigsby v. Ark., No. CIV-21-760 (W.D. Okla. Aug. 4, 2021), Doc. No. 6; R&R, Rigsby v. Okla., No. CIV-21-575-G (W.D. Okla. July 13, 2021), Doc. No. 10; R&R, Rigsby v. Marler, No. CIV-21-316-G (W.D. Okla. June 28, 2021), Doc. No. 8. 28 U.S.C. § 1915(g) provides, “In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” Thus, should District Judge Goodwin ultimately adopt at least three of the pending Report and Recommendations and dismiss Plaintiff's actions based on his failure to state a claim upon which relief can be granted, Plaintiff will no longer be able to initiate a lawsuit without paying the $402.00 filing fee in full unless he can first establish that he is in “imminent danger of serious physical injury.” Id.
Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by September 2nd, 2021, in accordance with 28 U.S.C. § 636 and Fed.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 is denied.