Opinion
CIV-21-835-R
05-02-2022
DENNIS RAY RIGSBY, JR., Plaintiff, v. SHELLIE SIMMIONS, et al., Defendants.
REPORT AND RECOMMENDATION
AMANDA MAXFEILD GREEN UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner proceeding pro se and in forma pauperis (without prepayment of fees), has filed this action pursuant to 42 U.S.C. § 1983. (Docs. 1, 10). The matter was referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 5). The undersigned has reviewed the Complaint (Docs. 1, 10) pursuant to 28 U.S.C. § 1915A(a) and 28 U.S.C. § 1915(e)(2)(B). As explained fully below, it is recommended that the Court dismiss Plaintiff's claims against Defendant Custer County Sheriff's Office and Defendant Turn Key Health, and the official capacity claim against Defendant Shellie Simmions. Further, the undersigned recommends the Court deny Plaintiff's motion for preliminary injunctive relief. (Doc. 11).
I. Overview of Complaint
Plaintiff was charged in Custer County District Court on June 8, 2020, with one count of first-degree murder. See Oklahoma State Courts Network, Case No. CF-2 123, District Court of Custer County. On November 18, 2021, Plaintiff was convicted by a jury and later sentenced to life without parole. Id. He is currently incarcerated at the Davis Correctional Facility in Holdenville, Oklahoma. See Oklahoma Department of Corrections OK Offender, https://okoffender.doc.ok.gov/ (OK DOC# 473003).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=custer&number=CF-2020-00123 (Docket Sheet) (last visited May 2, 2022). The undersigned takes judicial notice of the docket sheet and related documents in Plaintiff's state criminal proceedings. See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising discretion “to take judicial notice of publicly-filed records in [this] court and certain other courts concerning matters that bear directly upon the disposition of the case at hand”) (citation omitted).
In his Complaint, Plaintiff claims that he received inadequate medical care in violation of his Fourteenth and Eighth Amendment rights. (Doc. 1, at 11). Specifically, Plaintiff claims that, on August 5, 2021, he was taken to the “bookings medical room” at the Custer County Jail where he had a “video chat” with Shelly Simmions, a nurse practitioner employed by Turn Key Health. (Id. at 12, 17). During that consultation, he told Simmions about a back injury and she “refused [him] care to get it diagnosed to see if it [could] be corrected” and told him to “not work out” and “to get medical care when [he] get[s] out[.]” (Id. at 17). Plaintiff brings his claim against Shellie Simmions in both her individual and official capacities, Turn Key Health, and the Custer County Sherriff's Office. (Id. at 11; Doc. 10, at Ex. 1). For relief, Plaintiff seeks $8,120.00 in damages, “to be sent to a specialist for [his] back injury to get it diagnosed and to know if it can be fixed[, ]” an MRI for his back, and reimbursement of his filing fees. (Doc. 1, at 17).
II. The Court's Duty to Screen Prisoner 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. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or any portion of it that is frivolous or malicious, fails to state a claim on 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) 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. 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. See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). 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) (internal quotation marks and 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); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (noting that although courts construe pro se pleadings liberally, courts “will not supply additional factual allegations to round out a plaintiff's complaint”). 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. The Court Should Dismiss Plaintiff's Claims Against Defendants Custer County Sherriff's Office and Turn Key Health, and the Official Capacity Claim Against Defendant Simmions.
A. The Custer County Sheriff's Office Is Not A Suable Entity Under § 1983. Plaintiff has named the Custer County Sherriff's Office as a defendant in this action. (Doc. 1, at 1, 6). Section 1983 creates a private right of action “against any person who, under color of state law, deprives another individual of ‘any rights, privileges or immunities secured by the Constitution and laws.'” Ripley v. Wyo. Med. Ctr., Inc., 559 F.3d 1119, 1121-22 (10th Cir. 2009) (quoting 42 U.S.C. § 1983). But “an Oklahoma ‘sheriff's department' is not a proper entity for purposes of a § 1983 suit.” Reid v. Hamby, 1997 WL 537909 at *6 (10th Cir. Sept. 2, 1997) (unpublished). “[T]he county, rather than the sheriff's department, is the proper governmental defendant in a § 1983 action.” Id. “In Oklahoma, suits against a county are brought against the board of county commissioners.” Id. (citing Okla. Stat. tit. 19, § 4). Thus, Plaintiff's claim against the Custer County Sherriff's Office should be dismissed.
B. Plaintiff Has Failed to Allege Sufficient Facts to State a Municipal Liability Claim Against Turn Key Health.
Plaintiff has also named Turn Key Health, an entity providing medical care to inmates at the Custer County Jail, and Shelly Simmions, an employee of Turn Key Health, as defendants to his claim. (Doc. 1, at 1, 4, 6). A municipality or a county can 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 Defendant Turn Key Health, can be liable for the same types of Monell violations. See Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003); Lee v. Turn Key Health Clinics, LLC, 2020 WL 959243, at *6 (N.D. Okla. Feb. 27, 2020) (analyzing municipal liability claims against Turn Key Health). A suit under § 1983 against an employee in his or her 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 establish municipal liability under § 1983, a plaintiff must first identify an official policy or custom of the municipality, whether enacted or maintained by its legislative body or an authorized decisionmaker. Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769-70 (10th Cir. 2013). “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.
After identifying such an official policy or custom, the plaintiff must then establish that the policy or custom either: (1) directly violated a federal right of the plaintiff, or (2) was the “moving force” behind a county employee's violation of a federal right of the plaintiff. Id. Finally, a plaintiff must “show that the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury.” Id. at 769, 770-71. Thus, for each claim of municipal liability, the plaintiff must establish three elements: (1) official policy or custom, (2) causation, and (3) requisite state of mind. Id. at 769.
Here, Plaintiff has not identified an official policy or custom established by Defendant Turn Key Health in support of his allegation. Rather, Plaintiff appears to dispute the handling and outcome of his specific medical consultation. Such an allegation does not suffice to establish municipal liability upon Defendant Turn Key Health. The Court should therefore dismiss Plaintiff's claim against Defendant Turn Key Health and Plaintiff's official capacity claim against Defendant Simmions, employee of Defendant Turn Key Health.
IV. The Court Should Deny Plaintiff's Motion for Preliminary Injunctive Relief. (Doc. 11).
Plaintiff also filed a request “[t]o motion the courts to order Plaintiff right to medical . . .” (Doc. 11, at 1). In his request, Plaintiff states that he “comes in writing in pain, and can almost not walk[, ]” and asserts that “Turn Key Health will not give [him] the help; need to see if something can be done to not be in pain and suffer.” (Id.) Liberally construed, Plaintiff is seeking preliminary injunctive relief.
“A preliminary injunction is an extraordinary remedy that may only be awarded upon a clear showing that the [movant] is entitled to such relief.” N.M. Dep't of Game & Fish v. U.S. Dep't of the Interior, 854 F.3d 1236, 1245 (10th Cir. 2017). To obtain a preliminary injunction, the movant must establish: (1) he is “substantially likely to succeed on the merits;” (2) he “will suffer irreparable injury if the injunction is denied;” (3) the threatened injury to him “outweighs the injury the opposing party will suffer under the injunction;” and (4) “the injunction would not be adverse to the public interest.” Id. at 1246. See also Wiechmann v. Ritter, 44 Fed.Appx. 346, 347 (10th Cir. 2002) (noting that the requirements for a TRO and preliminary injunction are the same). An injunction is characterized as “mandatory” if - as Plaintiff requests - it requires the non-moving party “to take affirmative action.” Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010). Such a request is “generally disfavored” and requires a “heightened showing of the four factors.” Id. (internal quotation marks and brackets omitted). A preliminary injunction “grant[s] intermediate relief of the same character as that which may be granted finally.” De Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945). Thus, when the movant seeks intermediate relief beyond the claims in the complaint, the court has no authority to enter a preliminary injunction.
Plaintiff's Complaint involves an alleged constitutional violation that occurred during Plaintiff's pre-trial incarceration at the Custer County Jail. (Doc. 1, at 12-13, 17). Plaintiff has since been transferred to the Davis Correctional Facility in Holdenville, Oklahoma. See Oklahoma Department of Corrections OK Offender, https://okoffender.doc.ok.gov/ (OK DOC# 473003).
The Tenth Circuit has held that “[w]hen 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, ” this raises the issue of mootness. Jordan v. Sosa, 654 F.3d 1012, 1027 (10th Cir. 2011). In that situation, “courts have concluded that they are unable to provide the prisoner with effective relief, ” and have dismissed the claims as moot. Id. In a moot case a plaintiff no longer suffers a redressible injury. Prison Legal News v. Fed. Bureau of Prisons, 944 F.3d 868, 880 (10th Cir. 2019).Rigsby v. Quatar, 2021 WL 4774955, at *2 (W.D. Okla. Oct. 13, 2021) (quoting Bertolo v. Shain, 2020 WL 2365245, at *7 (D. Colo. Feb. 27, 2020), report and recommendation adopted sub nom. Bertolo v. Raemisch, 2020 WL 1502295 (D. Colo. Mar. 30, 2020), appeal dismissed, 2020 WL 9264916 (10th Cir. Oct. 30, 2020)). To the extent that Plaintiff seeks injunctive relief from Turn Key medical providers at the Custer County Jail, his claims are moot.
Alternatively, to the extent that Plaintiff's health care continues to be managed by Turn Key employees at his current institution and he seeks mandatory preliminary injunctive relief from his current providers, that request must also be denied. The movant for preliminary injunctive relief “must establish a relationship between the injury claimed in the party's motion and the conduct asserted in the complaint.” Little, 607 F.3d at 1251 (internal quotation marks omitted). Neither the complaint nor the motion for a preliminary injunction alleges a “system-wide denial” of the sort of medical care Plaintiff seeks. See id. Indeed, as discussed above, Plaintiff complains about the handling of his particular medical concerns. Even if Plaintiff's new allegations would support relief against his new providers, the new claims cannot form the basis for injunctive relief in this lawsuit. See id. (affirming district court's denial of motion for preliminary injunction against prison officials at different institution for similar conduct as that forming the basis of complaint against officials at previous institution).
V. Recommendation and Notice of Right to Object.
In accordance with the foregoing analysis, the undersigned recommends that the Court dismiss Plaintiff's claims against Defendant Custer County Sheriff's Office and Defendant Turn Key Health, and the official capacity claim against Defendant Shellie Simmions. Further, the undersigned recommends the Court deny Plaintiff's motion for preliminary injunctive relief. (Doc. 11).
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before May 23, 2022, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff 9
that failure to file a timely objection to this Report and Recommendation waives his 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 does not terminate the referral in the present case.