Opinion
CIV-19-184-SLP
07-21-2020
DARYL DEAN WHITEBIRD, Plaintiff, v. TODD GIBSON, et. al. Defendants.
SECOND SUPPLEMENTAL REPORT AND RECOMMENDATION
Plaintiff, a state prisoner appearing pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983. Defendant Masterson has filed a Motion to Dismiss. Doc. No. 68. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, the undersigned recommends the Motion to Dismiss be granted in part and denied in part.
I. Background Information
At all times relevant to the claims asserted herein, Plaintiff was a pretrial detainee confined at Cleveland County Detention Center ("CCDC") located in Norman, Oklahoma. Doc. No. 1 ("Comp."). Following a previous judicial screening of Plaintiff's Complaint, see Doc. Nos. 8, 12, Plaintiff's remaining cause of action is a First Amendment retaliation claim against Lieutenant Harris and Defendant Masterson, a CCDC Jailer. Comp. at 3, 4-6. In support of said claim, Plaintiff asserts that as a result of his attempts to utilize the CCDC grievance system as well as his complaints about it not working properly, Lt. Harris and Defendant Masterson retaliated against him by moving him to lockdown. Id. at 5, 6. Defendant Masterson has filed a Motion to Dismiss arguing Plaintiff has failed to state a claim upon which relief can be granted. Doc. No. 68.
II. Legal Standard
A motion to dismiss may be granted when the plaintiff has "failed to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In applying this standard the court must assume the truth of all well-pleaded factual allegations in the complaint and construe them in the light most favorable to the plaintiff. See Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011); Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005). To survive a motion to dismiss, a complaint must present factual allegations that "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). This review contemplates the assertion of "enough facts to state a claim to relief that is plausible on its face." Id. at 570. Thus, "when the allegations in a complaint, however true, could not raise a [plausible] claim of entitlement to relief," the cause of action should be dismissed. Id. at 558.
A pro se plaintiff's complaint must be broadly construed under this standard. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the generous construction to be given the pro se litigant's allegations "does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). See Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (courts "will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf").
III. Plaintiff's Allegations
In his Complaint, Plaintiff explains that he attempted to use the grievance process through the Legacy kiosk on January 17, 2019, but did not receive a response. Comp. at 4. He filed a paper grievance on January 27, 2019, and two days later, Captain Glasco informed him that he had to use the Legacy kiosk system. Id. at 4-5. On that same date, Lt. Harris returned Plaintiff's paper grievance to him and told him that only grievances submitted through the Legacy kiosk were answered. Id. at 5. Plaintiff subsequently illustrated for Lt. Harris that the Legacy kiosk was not working properly. Id.
On January 31, 2019, Plaintiff submitted a paper grievance to the Jail Administrator complaining about the lack of a law library or access to legal materials though the Legacy kiosk. Id. Lt. Harris hand delivered the grievance response and therein, Lt. Harris stated that Plaintiff had access to the Oklahoma State Courts Network for legal research through Legacy. Id. After Lt. Harris hand-delivered the grievance, Defendant Masterson told Plaintiff to pack his belongings, stating, "Lt. Harris wants you moved to lockdown pod." Id. Plaintiff states that conditions in lockdown pod are less favorable than where he had been housed. Id. Plaintiff contends this move was facilitated by Defendant Masterson and Lt. Harris in retaliation for his submission of grievances. Id. at 5, 6.
In his Response to Defendant Masterson's Motion to Dismiss, Plaintiff expands on these allegations, stating that Defendant Masterson and Lt. Harris moved him to lockdown pod for filing grievances, Defendant Masterson facilitated his move to lockdown, and that Defendant Masterson knew he was being moved in retaliation for filing grievances. Doc. No. 74 at 1, 3. The Tenth Circuit has noted that it is "appropriate for a court to consider additional facts or legal theories asserted in a response brief to a motion to dismiss if they were consistent with the facts and theories advanced in the complaint." Hayes v. Whitman, 264 F.3d 1017, 1025 (10th Cir. 2001); see also Cory v. Newfield Expl. Mid-Continent, Inc., No. CIV-19-221-G, 2020 WL 981718, at *1 n.1 (W.D. Okla. Feb. 28, 2020) (considering additional details the plaintiffs included in their response to a motion to dismiss because said details were "consistent with the facts and theories advanced in the complaint" (quotations omitted)). Plaintiff's additional allegations do not contradict the allegations in his Complaint and therefore, it is appropriate to consider them in ruling on Defendant Masterson's Motion to Dismiss.
IV. First Amendment
Plaintiff alleges Defendant Masterson, as well as Lt. Harris, moved him to lockdown, which has less favorable conditions, in retaliation for his attempts to utilize CCDC's grievance process. Comp. at 5, 6. It is well-settled that prison officials may not retaliate against or harass an inmate due to filing administrative grievances. Gee v. Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010); Williams v. Meese, 926 F.2d 994, 998 (10th Cir. 1991).
Government retaliation against a plaintiff for exercising his or her First Amendment rights may be shown by proving the following elements: (1) that the plaintiff was engaged in constitutionally protected activity; (2) that the defendant's actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the defendant's adverse action was substantially motivated as a response to the plaintiff's exercise of constitutionally protected conduct.Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007).
Defendant Masterson argues Plaintiff's allegations do not satisfy the third element of his retaliation claim, i.e., that Defendant Masterson's actions were motivated by retaliation for Plaintiff's grievances. Shero, 510 F.3d at 1203. Specifically, he argues Plaintiff did not allege Defendant Masterson had a retaliatory motive in moving Plaintiff to lockdown, only that he was following Lt. Harris's order to do so. Doc. No. 68 at 4.
"Mere allegations of constitutional retaliation will not suffice." Frazier v. Dubois, 922 F.2d 560, 562 n.1 (10th Cir. 1991). Thus, Plaintiff had a duty to "allege specific facts showing retaliation because of the exercise of [his] constitutional rights." Id. Here, the undersigned finds Plaintiff has satisfied the third element of his claim at this stage of the proceeding.
As an initial matter, the close temporal proximity between Plaintiff exercising his First Amendment right by filing grievances and his transfer to lockdown plausibly alleges the 'but for' causation required by the third element of a retaliation claim. "The Tenth Circuit has repeatedly recognized that close temporal proximity between protected conduct and the ensuing disciplinary (or otherwise detrimental) action may show that the disciplinary action was substantially motivated by the exercise of a protected right." Mackey v. Watson, No. 17-cv-01341-CMA-STV, 2017 WL 6016351, at *7 (D. Colo. Dec. 5, 2017) (citing Lewis v. Clark, 577 F. App'x 786, 800 (10th Cir. 2014); Gee, 627 F.3d at 1189).
Moreover, specific to Defendant Masterson's request for dismissal, Plaintiff alleges that both Lt. Harris and Defendant Masterson facilitated Plaintiff's move to lockdown because of his filed grievances. Comp. at 6; Doc. No. 74 at 1, 2, 3. Plaintiff specifically notes the "orchestrated appearance" of Lt. Harris and Defendant Masterson when Lt. Harris returned Plaintiff's final grievance and then Defendant Masterson moved Plaintiff to lockdown. Id. at 2. At this early pleading stage, these allegations are sufficient to support Plaintiff's First Amendment claim and therefore, Defendant's request for this claim to be dismissed should be denied.
V. Qualified Immunity
Defendant Masterson, in his individual capacity, raises the defense of qualified immunity. Whether a defendant is entitled to qualified immunity is a legal question. Wilder v. Turner, 490 F.3d 810, 813 (10th Cir. 2007).
Resolution of a dispositive motion based on qualified immunity involves a two-pronged inquiry. First, a court must decide whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right. Second, . . . the court must decide whether the right at issue was clearly established at the time of the defendant's alleged misconduct.Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009) (quotations and citations omitted). Once a defendant invokes qualified immunity, the burden to prove both parts of this test rests with the plaintiff, and a court must grant the defendant qualified immunity if the plaintiff fails to carry his burden. Dodds v. Richardson, 614 F.3d 1185, 1191 (10th Cir. 2010).
The undersigned has previously determined Plaintiff has asserted sufficient allegations to support his First Amendment claim. See, supra. With regard to the second part of the qualified immunity test, Defendant Masterson argues it was not clearly established that "he could not carry out an order from his superior to transfer a violent offender facing multiple serious felony charges to a lockdown pod after he had filed a couple of grievances." Doc. No. 68 at 6-7. However, Defendant Masterson's posture of the issues presented herein is misleading. Plaintiff specifically alleges that he was transferred not because he was a violent offender but in retaliation for the filing of multiple grievances. In this regard, the Court finds Plaintiff's right to be protected against retaliation for the assertion of his constitutional rights was clearly established.
"Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Walker v. City of Orem, 451 F.3d 1139, 1151 (10th Cir. 2006). In Pukey v. Green, 28 F. App'x 736 (10th Cir. 2001), the Tenth Circuit held that placing an inmate in disciplinary segregation in retaliation for having filed grievances is "both an access to courts and a First Amendment violation." Id. at 745-46. Thus, Pukey suggests that by 2001, the Tenth Circuit considered it settled that it was unlawful to transfer an inmate in retaliation for the inmate's filing of grievances. Additionally, in Fogle v. Pierson, 435 F.3d 1252 (10th Cir. 2006), the Tenth Circuit held that allegations that an inmate had been transferred into long-term administrative segregation in response to his "complaints," which the court construed as possibly referring to administrative grievances, about prior placements in administrative segregation stated a claim for relief. Id. at 1263-64. Based on this precedent, the undersigned finds the law was clearly established at the time of the events underlying this action that it was a violation of Plaintiff's First Amendment rights to transfer him to lockdown based on the filing of grievances. Thus, Defendant Masterson is not entitled to qualified immunity and his request for the same should be denied.
VI. Official Capacity Claim
Plaintiff names Defendant Masterson in both his official and individual capacities, seeking monetary damages and "to dissuade these practices in the future." Comp. at 3, 6. Official capacity claims are considered claims for municipal liability and are thus essentially a suit against the county, i.e., Cleveland County. See, e.g., Kentucky v. Graham, 473 U.S. 159, 166 (1985) (noting that an official capacity "suit is, in all respects other than name, to be treated as a suit against the entity."); Myers v. Okla. Cty. Bd. of Cty. Comm'rs, 151 F.3d 1313, 1316 n.2 (10th Cir. 1998).
Construing Plaintiff's Complaint broadly, the undersigned interprets his latter request as seeking injunctive relief.
"In order to state a § 1983 municipal liability claim, a party must allege sufficient facts to demonstrate that it is plausible (1) that the municipal employee committed a constitutional violation; and (2) that a municipal policy or custom was the moving force behind the constitutional deprivation." McDonald v. Arapahoe Cty., No. 17-cv-01701, 2018 WL 571876, *5 (D. Colo. Jan. 26, 2018) (citing Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir. 2004)). A municipal policy or custom can take the form of "(1) a formal regulation or policy statement; (2) an informal custom amoun[ting] to a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law; (3) the decisions of employees with final policymaking authority; (4) the ratification by such final policymakers of the decisions-and the basis for them-of subordinates to whom authority was delegated subject to these policymakers' review and approval; or (5) the failure to adequately train or supervise employees, so long as that failure results from 'deliberate indifference' to the injuries that may be caused." McDonald, 2018 WL 571876, at *5 (quoting Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010)).
Plaintiff has not set forth any allegations in his Complaint that implicate a basis for municipal liability. Indeed, in his Response to Defendant Masterson's Motion to Dismiss, Plaintiff concedes his own presumption that said claim will be dismissed. Doc. No. 74 at 3-4. Accordingly, the Court should grant the request for dismissal of Plaintiff's First Amendment claim against Defendant Masterson in his official capacity.
Defendant Masterson also argues Plaintiff is not entitled to recover punitive damages against him in his official capacity. Doc. No. 68 at 9. However, in light of the recommendation that Plaintiff's official capacity claim be dismissed, it is unnecessary to address this argument.
RECOMMENDATION
Based on the foregoing findings, it is recommended Defendant Masterson's Motion to Dismiss (Doc. No. 68) be GRANTED in part and DENIED in part. Specifically, Defendant Masterson's request for dismissal of Plaintiff's First Amendment claim against him in his individual capacity should be denied. Defendant Masterson's request for dismissal of Plaintiff's First Amendment claim against him in his official capacity should be granted.
The parties are advised of their right to file an objection to this Second Supplemental Report and Recommendation with the Clerk of this Court by August 10th , 2020, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Second 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 Second Supplemental Report and Recommendation does not dispose of all issues referred to the undersigned Magistrate Judge in the captioned matter.
Dated this 21st day of July, 2020.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE