Opinion
CIV-21-316-G
06-28-2021
DENNIS RAY RIGSBY, JR., Plaintiff, v. FNU MARLER, et al., Defendants.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE.
Plaintiff, a state pre-trial detainee appearing pro se and in forma pauperis, has filed this action pursuant to 42 U.S.C. § 1983. (Doc. 1). United States District Judge Charles Goodwin referred this matter to the undersigned Magistrate Judge for initial proceedings under 28 U.S.C. § 636(b)(1)(B). (Doc. 4). Plaintiff raises claims under the Eighth and Fourteenth Amendments. Having conducted a preliminary review of the pleadings pursuant to 28 U.S.C. § 1915A(a) and 28 U.S.C. § 1915(e)(2)(B), the undersigned recommends that the Court dismiss some of the claims based on Eleventh Amendment immunity and dismiss the remaining claims for failure to state a claim on which relief can be granted.
I. Plaintiff's Complaint.
Plaintiff has filed a Complaint against four defendants in both their individual and official capacities: “Dr. Marlar” and Dr. LNU, both at the Oklahoma State Penitentiary in McAlester, Oklahoma (“OSP”); “Dr. Pain” of Corrections Corporation of America at the Cimarron Correctional Facility (“CCF”) in Cushing, Oklahoma; and the State of Oklahoma and/or the Oklahoma Department of Corrections' OSP. (Doc. 1, at 4-5). Plaintiff indicated in his Complaint that he asserts jurisdiction pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). (Id. at 2). However, because Plaintiff is in state custody and not federal custody, the undersigned liberally construes his Complaint as asserting jurisdiction pursuant to 42 U.S.C § 1983. See Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013) (stating § 1983 “provides a cause of action against state officials who violate constitutional or other federally protected rights” whereas Bivens “provides a private action for damages against federal officers who violate certain constitutional rights”) (internal quotation marks omitted).
Plaintiff lists one claim: “medical negligence, cruel and unusual punishments inflicted due to the fact [Plaintiff] was released to the public with cognitive/not able to access [his] memory and a accident happened.” (Doc. 1, at 8). In support of this claim, Plaintiff states that as a prisoner at the OSP, he told a doctor he was experiencing “cognitive issues” and that he had a back injury. (Id. at 9-10). Plaintiff alleges Dr. Marlar stated that he did not “have the authority to get [Plaintiff] a MRI.” (Id. at 10). Plaintiff also states that the law library staff did not adequately help Plaintiff because “[his] memory/thinking did not work 100% due to [his] injury they would not get [him] help for.” (Id.) The undersigned liberally construes the Complaint as alleging a violation of the Eighth and Fourteenth Amendments through deliberate indifference to the serious medical needs of inmates. See Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“[D]eliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain.”) (internal quotation marks omitted); Lance v. Morris, 985 F.3d 787, 793 (10th Cir. 2021) (“The Fourteenth Amendment's Due Process Clause entitles pretrial detainees to the same standard of medical care that the Eighth Amendment requires for convicted inmates.”).
As relief, Plaintiff requests that:
• the name of the State of Oklahoma be changed to Ruth;
• “when a inmate/prisoner tells a doctor they are having cognative/thinking problems . . . to not den[y] [their] right to true medical;”
• $20,000 dollars be given “to all brothers and sisters, children and grandchildren of Judy Ruth Mullin” and $20,000 to any grandchildren in the next 20 years;
• all inmates be given “true ‘counsel' to complete the inmate grievance process;”
• forms be made for inmates to “fillout to request counsel for [their] amendment 1 right to petition the government;” and
• Plaintiff be provided a specialist for spinal cord/back injuries. (Doc. 1, at 9-11).
II. Duty to Screen Complaints.
Federal law mandates the screening of each complaint in a civil action filed by a prisoner seeking redress from a governmental entity or an officer or employee of a governmental entity and each case in which the plaintiff proceeds in forma pauperis. 28 U.S.C. §§ 1915A(a), 1915(e)(2). The court must dismiss a complaint or any portion of it that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. Id.
The court's review of a complaint under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii) mirrors that required for reviewing a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. See Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007). The court must accept Plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from them, in the light most favorable to Plaintiff. Id. at 1217. The court “review[s] the complaint for plausibility; that is, to determine whether the complaint includes enough facts to state a claim to relief that is plausible on its face.” Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009) (citation omitted). A complaint fails to state such a claim when it lacks factual allegations sufficient “to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (footnote and citation omitted). Bare legal conclusions in a complaint, however, are not assumed to be true; legal conclusions “must be supported by factual allegations” to state a claim upon which relief may be granted. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
“[A] pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Whether a complaint contains sufficient facts to avoid dismissal is context-specific and is determined through a court's application of “judicial experience and common sense.” Iqbal, 556 U.S. at 679; see also Gee v. Pacheco, 627 F.3d 1178, 1184-85 (10th Cir. 2010) (discussing Iqbal). “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall, 935 F.2d at 1110. 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).
III. Plaintiff's Claims Against the State of Oklahoma and/or the OSP Are Barred by Eleventh Amendment Immunity.
Plaintiff's claims against the State of Oklahoma and/or the OSP are barred by the Eleventh Amendment, which prohibits “suits in federal court against a nonconsenting state brought by the state's own citizens.” Williams v. Utah Dep't of Corrs., 928 F.3d 1209, 1212 (10th Cir. 2019); Fields v. Oklahoma State Penitentiary, 511 F.3d 1109, 1113 (10th Cir. 2007) (holding the Eleventh Amendment bars claims against the OSP) (citing Eastwood v. Dep't of Corr. of State of Okl., 846 F.2d 627, 631-32 (10th Cir. 1988) (“We conclude that the [Oklahoma Department of Corrections] is an arm of the state and should be entitled to absolute immunity.”)). Exceptions exist if a state waives its Eleventh Amendment immunity and consents to suit, see Alden v. Maine, 527 U.S. 706, 755 (1999), or Congress abrogates it, see Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 363 (2001). However, neither exception applies to Plaintiff's case. Oklahoma has not consented to be sued in federal court, and Congress has not abrogated state sovereign immunity by creating a private right of action under § 1983. Berry v. Oklahoma, 495 Fed.Appx. 920, 921-22 (10th Cir. 2012) (citing Okla. Stat. tit. 51, § 152.1); Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989). Thus, Plaintiff's claims against the State of Oklahoma and/or the OSP should be dismissed.
IV. Plaintiff's Claims for Monetary Damages Against the OSP Doctors in Their Official Capacities Are Barred By Eleventh Amendment Immunity.
Plaintiff has indicated that two of the Defendants, Dr. LNU and Dr. Marlar, are employed by the OSP. To the extent that Plaintiff seeks monetary damages against these state employees in their official capacities, those claims should be also dismissed pursuant to Eleventh Amendment immunity. Williams, 928 F.3d at 1212 (holding that “immunity extends to arms of the state and to state officials who are sued for damages in their official capacity”). However, “a plaintiff may bring suit against individual state officers acting in their official capacities if the complaint alleges an ongoing violation of federal law and the plaintiff seeks prospective relief.” Id. at 1214. Thus, Plaintiff's claims against the OSP doctors in their official capacities that seek prospective injunctive relief, along with Plaintiff's claims against the OSP doctors in their individual capacities, are not subject to the Eleventh Amendment bar. However, as set forth below, they should be dismissed for failure to state a claim.
The undersigned notes that even if Plaintiff had stated cognizable claims for injunctive relief against the OSP doctors or Dr. Pain of the Cimarron Correctional Facility, they would likely be moot, as Plaintiff's filings with the court indicate he is currently housed in Custer County Jail. See Jordan v. Sosa, 654 F.3d 1012, 1027 (10th Cir. 2011) (“When a prisoner files suit against prison officials who work in the institution in which he is incarcerated, seeking declaratory and injunctive relief on the basis of alleged wrongful conduct by those officials, and then that prisoner is subsequently transferred to another prison or released from the prison system, courts are presented with a question of possible mootness.”).
V. Plaintiff's Remaining Claims Should be Dismissed for Failure to State A Claim.
Plaintiff's remaining claims should be dismissed for failure to state a claim upon which relief can be granted. As a threshold matter, Plaintiff's Complaint does not comply with Federal Rule of Civil Procedure 8, which requires that a pleading state “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The court “will not supply additional factual allegations to round out a plaintiff's complaint.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). “Rule 8 serves the important purpose of requiring plaintiffs to state their claims intelligibly so as to inform the defendants of the legal claims being asserted.” Mann v. Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007). See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th Cir.2007) (“[T]o be sure, a failure to satisfy Rule 8 can supply a basis for dismissal: Rule 41(b) specifically authorizes a district court to dismiss an action for failing to comply with any aspect of the Federal Rules of Civil Procedure.”). In a § 1983 case, “it is particularly important . . . that the complaint make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her.” Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008). Indeed, for a defendant to be liable for any civil rights violation, the defendant must have had direct personal responsibility for the claimed deprivation. See Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir. 2006) (citing Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993) (“affirming district court's dismissal where plaintiff failed to allege personal participation of the defendants”) (internal quotation marks omitted)).
Plaintiff's Complaint fails to articulate how his constitutional rights have been violated generally, let alone by actions attributable to any of the individual Defendants he names. The only Defendant against whom Plaintiff makes a specific allegation is Dr. Marlar. (Doc. 1, at 10). And Plaintiff merely states that Dr. Marlar said he did not have the authority to order an MRI for Plaintiff. (Id.) The Complaint provides no details suggesting either that Plaintiff presented to Dr. Marlar with a serious medical need or that Dr. Marlar displayed deliberate indifference to any such need. Plaintiff fails to state how he has suffered as the result of Dr. Marlar not ordering an MRI. Thus, Plaintiff has failed to plead a claim against Dr. Marlar that would provide Dr. Marlar with fair notice as to how he has allegedly violated Plaintiff's constitutional rights. Likewise, Plaintiff's Complaint utterly fails to provide any factual information regarding his claims against Dr. LNU or Dr. Pain. Plaintiff has thus failed to include “enough facts to state a claim to relief that is plausible on its face.” Young, 554 at 1256. For these reasons, the official capacity and individual capacity claims that Plaintiff asserts against Dr. Marlar, Dr. LNU, and Dr. Pain that survived the Eleventh Amendment bar should be dismissed for failure to state a claim.
To the extent that Plaintiff's Complaint raises deficiencies in the prison grievance procedure or inaction by the law library staff (Doc. 1, at 10), he also fails to allege specific actions by specific individuals.
VI. Recommendation and Notice of Right to Object.
For the reasons stated, the undersigned recommends that the court dismiss the following claims under Eleventh Amendment immunity: Plaintiff's claims against the State of Oklahoma and/or the OSP and the claims for monetary damages against Dr. Marlar and Dr. LNU in their official capacities. The undersigned further recommends that Plaintiff's remaining claims - the claims against Dr. Marlar and Dr. LNU in their official capacities for prospective injunctive relief, the claims against Dr. Marlar and Dr. LNU in their individual capacities, and the claims against Dr. Pain - be dismissed for failure to state a claim upon which relief can be granted. Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of Court by Monday, July 19, 2021, in accordance with 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b)(2). Plaintiff is further advised that failure to timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. 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 and terminates the referral unless and until the matter is re-referred.