Mares v. Pueblo County Detention Center et al

Filing 54

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE that the 34 MOTION to Dismiss filed by Fran Lepage be GRANTED. By Magistrate Judge Nina Y. Wang on 8/31/2017. (Attachments: unpublished case law) (nywlc1)

Flowers v. Mullet, Not Reported in F.Supp.3d (2016)
2016 WL 3960910

2016 WL 3960910
Only the Westlaw citation is currently available.
United States District Court,
W.D. Oklahoma.
Neal Flowers, Plaintiff,
v.
Undersheriff Jim Mullet, et al., Defendants.
No. CIV-16-30-C
|
Signed 06/27/2016
Attorneys and Law Firms
Neal Flowers, Wynnewood, OK, pro se.
Jessica L. Dark, Randall J. Wood, Pierce Couch
Hendrickson Baysinger & Green, Oklahoma City, OK, for
Defendants.

REPORT AND RECOMMENDATION
GARY
M.
PURCELL,
MAGISTRATE JUDGE

UNITED

STATES

*1 Plaintiff, a state prisoner appearing pro se and
in forma pauperis, has brought this civil rights action
pursuant to 42 U.S.C. § 1983. In his Complaint filed
January 14, 2016, Plaintiff names three Defendants who
are officials at the Garvin County Detention Center:
“Undersheriff Jim Mullet,” “Sheriff Larry Rhodes,”
and “Jail Administrator Josh White.” Following the
filing of the Complaint, the matter was referred to the
undersigned Magistrate Judge for proposed findings and
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
Before the Court are Defendants Mullet, Rhodes, and
White's Motions to Dismiss the action against them
(Docs. # 20, 21, 22). Although Plaintiff was advised
in the Order entered May 25, 2016 (Doc. # 23), of
his opportunity to respond to Defendants' Motions to
Dismiss under Rule 12(b) and Rule 56, Plaintiff has not
responded within the allotted time period.
The Court's docket in this case reflects that the Court's
Order entered May 25, 2016, was mailed to Plaintiff at
his last known address and that the mail was returned

to the Court with the notation that it was undeliverable
because Plaintiff was no longer in custody and his former
custodian was unable to forward the mail. In light of
the return of the Court's correspondence, it is clear that
Plaintiff has not complied with the Court's procedural rule
requiring him to provide the Court and opposing counsel
with notice of any change in his address. LCvR 5.4.
Defendants have styled their individual motions as a
Motion to Dismiss under Fed. R. Civ. P. 12(b)(6).
However, because Defendants rely, in part, on evidentiary
documents outside of the pleadings in support of their
Motion, and Plaintiff was advised of his responsibilities
under Rules 12 and 56 in responding to Defendants'
Motions, Defendant's Motions will be considered, in part,
as motions seeking summary judgment. See Brown v.
Zavaras, 63 F.3d 967, 969 (10 th Cir. 1995)(courts may
convert motion to dismiss into motion for summary
judgment in order to consider matters outside of the
pleadings).

I. Standard of Review
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). All well-pleaded facts,
as distinguished from conclusory allegations, are accepted
as true, and those facts are viewed in the light most
favorable to the non-moving party. Beedle v. Wilson, 422
F.3d 1059, 1063 (10 th 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 (10 th Cir. 1991). See Whitney v. New Mexico,
113 F.3d 1170, 1173-1174 (10 th Cir. 1997)(courts “will
not supply additional factual allegations to round out

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a plaintiff's complaint or construct a legal theory on a
plaintiff's behalf”). A court evaluating a Rule 12(b)(6)
motion to dismiss may consider the complaint as well as
any documents attached to it as exhibits. Hall, 935 F.2d
at 1112.
*2 “A court shall grant summary judgment if ‘the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as
a matter of law.’ ” Id. (quoting Fed. R. Civ. P. 56(a)).
“A movant is not always required to come forward with
affidavits or other evidence to obtain summary judgment;
once the movant points out an absence of proof on an
essential element of the nonmovant's case, the burden
shifts to the nonmovant to provide evidence to the
contrary.” Hall v. Bellmon, 935 F.2d 1106, 1111 n.5 (10 th
Cir. 1991). A nonmovant can properly oppose summary
judgment with affidavits, but the “affidavits must be based
upon personal knowledge and set forth facts that would
be admissible in evidence; conclusory and self-serving
affidavits are not sufficient.” Id. at 1111.
In considering a motion for summary judgment, the court
reviews the evidence and inferences drawn from the record
in the light most favorable to the nonmoving party. Burke
v. Utah Transit Auth. & Local, 462 F.3d 1253, 1258 (10 th
Cir. 2006)(quotation omitted). A dispute is “genuine” if a
reasonable jury could return a verdict for the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). “Material facts” are “facts which might affect
the outcome of the suit under the governing law.” Id.
“At the summary judgment stage, a complainant cannot
rest on mere allegations, but must set forth by affidavit
or other evidence specific facts, which for purposes of
the summary judgment motion will be taken to be true.”
Burke, 462 U.S. at 1258 (internal quotation marks and
citations omitted). 1 “Where the record taken as a whole
could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986)(quotations omitted).

II. Background
According to the uncontroverted Special Report filed by
Garvin County Detention Center officials, Plaintiff was
detained in the Garvin County Detention Center on drugrelated charges beginning January 4, 2015. Special Report
(Doc. # 19), at 2. Plaintiff filed a previous 42 U.S.C. §

1983 action in this Court on April 14, 2015, against three
Garvin County Detention Center officials concerning the
conditions of his confinement in the jail. Neal Flowers v.
Larry Rhodes, et al., No. CIV-15-396-C. That action was
ultimately dismissed due to Plaintiff's failure to exhaust
available administrative remedies and, alternatively, on
the ground of mootness.
On January 19, 2016, Plaintiff was transported to the
Cleveland County Detention Center pursuant to a writ.
Special Report (Doc. # 19), Ex. 3, at 2. Plaintiff was
released from that facility on May 17, 2016, after posting
bond. Id., Ex. 4 (Appearance Bond).

III. First Amendment Free Exercise of Religion
In his first ground for § 1983 relief, Plaintiff alleges that
he has been denied his “Freedom of Religion” because
“they took my bible.” Although Plaintiff lists all three
Defendants in this claim, Plaintiff's only specific factual
allegation is that “Undersheriff Jim Mullet purposely
[and] deliberatly [sic] took my bible for no reason. I
wrote request of staff to him and Josh White pleading for
my Bible.” Plaintiff does not allege when the Bible was
confiscated or any other circumstances.
Defendant Rhodes and Defendant White have moved
to dismiss Plaintiff's first claim on the ground that
Plaintiff has failed to allege sufficient facts to demonstrate
that either Defendant Rhodes or Defendant White
participated in the alleged conduct. “Because vicarious
liability is inapplicable to ... § 1983 suits, a plaintiff
must plead that each Government-official defendant,
through the official's own individual actions, has violated
the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662,
676 (2009). Thus, “[i]ndividual liability under § 1983
must be based on personal involvement in the alleged
constitutional violation.” Foote v. Spiegel, 118 F.3d 1416,
1423 (10 th Cir. 1997); see Jenkins v. Wood, 81 F.3d
988, 994-995 (10 th Cir. 1996) (“[P]laintiff must show the
defendant personally participated in the alleged violation,
and conclusory allegations are not sufficient to state a
constitutional violation.”)(internal citation omitted).
*3 Although Plaintiff alleges in a conclusory manner
that “[t]hey took my bible,” he specifically alleges that
only Defendant Mullet participated in the conduct alleged
to have violated his First Amendment rights in his first
claim. Plaintiff further alleges that he submitted a request

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to staff to Defendant Mullet and Defendant White,
but “[t]he denial of a grievance, by itself without any
connection to the violation of constitutional rights alleged
by plaintiff, does not establish personal participation
under § 1983.” Stewart v. Beach, 701 F.3d 1322, 1328
(10 th Cir. 2012)(quotation omitted). Defendants Rhodes
and White's Motions to Dismiss the claim against them in
ground one should be granted.
As to the claim in ground one of the Complaint
against Defendant Mullet, it is clearly established that
Plaintiff, as a pretrial detainee, “must be accorded a
reasonable opportunity to pursue his religion” consistent
with the First Amendment's free exercise clause. Mosier v.
Maynard, 937 F.2d 1521, 1525 (10 th Cir. 1991). However,
“[a] prisoner need not be afforded his preferred means of
practicing his religion as long as he is afforded sufficient
means to do so.” Murphy v. Mo. Dep't of Corr., 372 F.3d
979, 983 (8 th Cir. 2004) (citing Hammons v. Saffle, 348
F.3d 1250, 1256 (10 th Cir. 2003)).
The uncontroverted facts show that Plaintiff submitted a
Request to Staff dated January 12, 2016, to Defendant
White, the Jail Administrator of the Garvin County
Detention Center, asking why a Bible had been removed
from his cell. In Defendant White's response dated
January 12, 2016, Defendant White advised Plaintiff that
“[t]he bible was taken by mistake. The jail staff was
shaking down the cell and taking any extra items that
were in the cell. There were several extra bibles that were
believed to be extra and unused. The bible in question was
returned [to Plaintiff].” Special Report (Doc. # 19), Ex.
9. Defendant White avers in his uncontroverted affidavit
submitted with the Special Report that during a search
of Plaintiff's cell sometime in December 2015 or January
2016 jail staff removed an extra Bible from the cell,
but when Plaintiff asked for the Bible to be returned
about a week later Defendant White determined that
the confiscated Bible should be returned to Plaintiff and
a jail official returned the Bible to Plaintiff. Defendant
White further avers that during the time that Plaintiff was
without the confiscated Bible he had at least one other
Bible in his cell. Special Report (Doc. # 19), Ex. 10.
Viewing the uncontroverted facts in the light most
favorable to Plaintiff, there is no material issue for trial,
and Defendant Mullet is entitled to summary judgment
concerning Plaintiff's claim of a First Amendment

deprivation. See, e.g., Tarply v. Allen County, Ind., 312
F.3d 895, 898-99 (7 th Cir. 2002)(holding no violation
of the First Amendment shown where jail prohibited
inmate's access to his own Bible but provided access to
alternative Bible which “offered [the plaintiff] the essential
materials for his religious studies”). Defendant Mullet's
Motion to Dismiss Plaintiff's first claim, construed as a
motion for summary judgment, should be granted.

IV. Retaliation
Plaintiff also alleges as part of his first ground for § 1983
relief that “[t]hey have been harassing and threating [sic]
me since my Case # CIV-396-15-C. Now they are taking
my freedom of religion.” This latter allegation appears to
assert a claim of unconstitutional retaliation.
“[P]rison officials may not retaliate against or harass
an inmate because of the inmate's exercise of his
constitutional rights.” Peterson v. Shanks, 149 F.3d 1140,
1144 (10 th Cir. 1998) (quotations omitted). To establish
a First Amendment retaliation claim, a plaintiff must
demonstrate three 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 (10 th Cir. 2007).
*4 “[I]t is not the role of the federal judiciary to scrutinize
and interfere with the daily operations of a state prison,
and our retaliation jurisprudence does not change this
role.” Peterson, 149 F.3d at 1144. “[A]n inmate is not
inoculated from the normal conditions of confinement
experienced by convicted felons serving time in prison
merely because he has engaged in protected activity.” Id.
Thus, a prisoner claiming retaliation “must prove that ‘but
for’ the retaliatory motive, the incidents to which he refers,
including the disciplinary action, would not have taken
place.” Id. “An inmate claiming retaliation must ‘allege
specific facts showing retaliation because of the exercise
of the prisoner's constitutional rights.” Id. (quoting and
emphasizing Frazier v. Dubois, 922 F.2d 560, 562 n.1
(10 th Cir. 1990)).

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Flowers v. Mullet, Not Reported in F.Supp.3d (2016)
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Plaintiff has not asserted a plausible claim of
unconstitutional retaliation. He has alleged only
conclusions without specific facts showing retaliation
because of the filing of his previous action in this Court.
Therefore, Defendants Rhodes, White, and Mullet's
Motions to Dismiss Plaintiff's retaliation claim should be
granted.

V. Deliberate Indifference to Serious Medical Needs
In his third ground for § 1983 relief (set forth in ground two
of the Complaint), Plaintiff alleges he has been subjected
to an Eighth Amendment violation due to “deliberate
medical neglect.” He alleges in support of this claim that
“Dr. Whitehouse has perscribed [sic] me 3 perscription
[sic] and Sheriff Larry Rhodes, Jim Mullet [and] Josh
White has [sic] kept them from me. I need my medication.
Josh keep saying he's gotta talk to Jim Mullet [and] that's
been over 4 weeks ago.” Plaintiff also alleges “I have
drainage, headaches, my breathing at night is bad, can't
breath [sic] need my inhaler.”
“Although the Due Process clause governs a pretrial
detainee's claim of unconstitutional conditions of
confinement, the Eighth Amendment standard provides
the benchmark for such claims.” Craig v. Eberly, 164
F.3d 490, 495 (10th Cir. 1998)(citation omitted). See City
of Revere v. Mass. General Hospital, 463 U.S. 239, 244
(1983)(due process protections for detainees are “at least
as great as the Eighth Amendment protections available
to a convicted prisoner”).
“To succeed on an Eighth Amendment claim, ...,
a plaintiff is required to identify ‘acts or omissions
sufficiently harmful to evidence deliberate indifference to
serious medical needs.’ ” Callahan v. Poppell, 471 F.3d
1155, 1160 (10 th Cir. 2006)(quoting Estelle v. Gamble,
429 U.S. 97, 106 (1976)). See also Farmer v. Brennan, 511
U.S. 825, 828 (1994)(holding “prison official's ‘deliberate
indifference’ to a substantial risk of serious harm to an
inmate violates the Eighth Amendment”); Mata v. Saiz
427 F.3d 745, 751 (10 th Cir. 2005)(Eighth Amendment is
violated if prison officials show “deliberate indifference to
an inmate's serious medical needs”).
The test for a “deliberate
indifference” claim under the Eighth
Amendment has both an objective
and a subjective component. The

objective component of the test
is met if the harm suffered is
sufficiently serious to implicate the
Cruel and Unusual Punishment
Clause. The subjective component
is met if a prison official knows of
and disregards an excessive risk to
inmate health or safety.
Kikumura v. Osagie, 461 F.3d 1269, 1291 (10 th
Cir. 2006)(quotations and citations omitted).There are
two types of conduct that may constitute deliberate
indifference to a serious medical need. “First, a medical
professional may fail to treat a serious medical condition
properly.” Sealock v. Colo., 218 F.3d 1205, 1211 (10 th
Cir. 2000). Second, a prison official may “prevent an
inmate from receiving treatment or deny him access to
medical personnel capable of evaluating the need for
treatment.” Id. See also Self v. Crum, 439 F.3d 1227,
1231 (10 th Cir. 2006). When the harm is alleged to have
resulted from a delay in medical care, the harm must
be “substantial,” such as that resulting in a permanent
disability or in substantial pain. Al–Turki v. Robinson,
762 F.3d 1188, 1193 (10 th Cir. 2014); see also Sealock,
218 F.3d at 1210 (“[N]ot every twinge of pain suffered as
the result of delay in medical care is actionable.”); Mata,
427 F.3d at 753 (reiterating requirement for “significant,
as opposed to trivial, suffering”). But “a prisoner who
merely disagrees with a diagnosis or a prescribed course
of treatment does not state a constitutional violation.”
Perkins v. Kansas Dep't of Corr., 165 F.3d 803, 811 (10 th
Cir. 1999).
*5 Because Defendants are not medical professionals
who provided medical care to Plaintiff, it is the second type
of claim that applies as to Defendants.
The Special Report includes an affidavit authored by
Defendant Mullet concerning Plaintiff's claims. Plaintiff
has not controverted the averments set forth in this
affidavit, in which Defendant Mullet avers that
[w]hen Plaintiff was first prescribed
allergy medications, the medications
were picked up by the jail
staff. The costs associated with
these prescriptions were removed
from Plaintiff's commissary books
to pay for the pre-existing [sic]

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medications.... Around July of
2015, Mr. Flower's mother visited
at the jail and asked me why
money was being taken from
Plaintiff's books. I informed her that
money was withdrawn as payments
for his medications. Ms. Flowers
instructed me to not withdraw
money from Plaintiff's books [and]
rather, for Plaintiff to advise her
when they were ready and she would
pick up the prescriptions at the
pharmacy and bring them to the
jail ... I informed Mr. Flowers on
several occasions in 2015 that his
medications were available to pick
up at the pharmacy by his family.
His family never picked up the
medications at the pharmacy.
Special Report (Doc. # 19), Ex. 6.
The uncontroverted Special Report includes a copy of
a Request to Staff submitted by Plaintiff on August 17,
2015, to Defendants White and Mullet. In this request,
Plaintiff stated that he needed medical treatment for
“asthma” as he was having difficulty breathing “at night.”
Id., Ex. 13. Defendant White responded to this Request to
Staff the following day and advised that an appointment
had been made for Plaintiff with Dr. Whitehouse. On
August 21, 2015, Plaintiff was transported to the office
of Dr. Whitehouse for outpatient medical treatment for
“Allergic Rhinitis.” He was prescribed an aerosol inhaler,
a generic nasal spray (fluticasone), a topical cream, and
an over-the-counter allergy medication (Claritin® or its
generic equivalent, loratadine). Id., Ex. 15. The jail's
medication records show Plaintiff was given fluticasone
and loratadine on a daily basis beginning August 22,
2015, through the end of October 2015, and fluticasone on
fourteen days during the month of November 2015. Id.,
E's. 18, 19, 23, 29.
The uncontroverted Special Report includes a copy of
Plaintiff's Request to Staff dated November 16, 2015, in
which Plaintiff again complained of allergies and asthma
symptoms, “especially at night.” Id., Ex. 26. A note from
an unidentified source appearing on this Request to Staff
indicates Plaintiff's allergy and asthma medications were
filled at a pharmacy and the prescriptions were ready for
Plaintiff's family to pick up. Id., Ex. 27. In response to

another Request to Staff completed by Plaintiff and dated
November 18, 2015, in which Plaintiff again requests his
“medication,” Defendant Mullet responded that Plaintiff
had “pre existing conditions” and that jail officials would
be willing to help Plaintiff contact his family or physician
for “help in this area.” Id., Ex. 28.
The uncontroverted Special Report includes a discharge
summary indicating that on December 22, 2015, Plaintiff
was transported to Dr. Whitehouse's office for treatment,
and he was seen by a physician's assistant in the office.
Plaintiff was prescribed the same three medications for
asthma and allergic rhinitis. Id., Ex. 31.
*6

The uncontroverted Special Report includes a

Request to Staff form dated January 12, 2016, 2 two
days before Plaintiff filed his Complaint in this action.
In this Request to Staff directed to Defendants White
and Mullet, Plaintiff states, “It's been over 4 weeks] since
I went to doctor and was prescribed medication. Josh
White stated he had to talk with Jim Mullet.... Need a
answer about my medication?” Special Report (Doc. #
19), Ex. 33. In response to this Request to Staff, Defendant
Mullet responded on January 13, 2016, that Plaintiff's
“last appointment was 12/22/15. The [allergy medications
were] called in to Reaves [Pharmacy]. They are there
waiting for your family to pay and pick them up.” Id.
In the unique circumstances presented by this case, it
appears that Plaintiff's family convinced jail officials
to allow them to obtain Plaintiff's allergy and asthma
medications and take those medications to the jail
to be distributed to Plaintiff. Plaintiff alleges a four
week delay in providing him with three prescription
medications, and it is presumed Plaintiff is referring to
the allergy and asthma medications prescribed for him at
Dr. Whitehouse's office in December 2015. There is no
assertion or evidence that jail officials prevented Plaintiff's
family from providing the prescribed medications.
Although jail officials may have negligently delayed
Plaintiff's receipt of his prescribed allergy and asthma
medications, there is no disputed material issue for trial
concerning the issue of delay in providing Plaintiff with
his prescribed allergy and asthma medications. Plaintiff
alleges that when he requested that the jail provide him
with those medications Defendant White indicated he
would speak with Defendant Mullet concerning Plaintiff's
request.

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The uncontroverted facts show that Plaintiff was
prescribed the allergy and asthma medications on
December 22, 2015, and he was transferred to another jail
facility on January 19, 2016. Plaintiff states that in the
absence of his prescribed allergy and asthma medications
for this approximately four week period he suffered sinus
drainage, headaches, and difficulty breathing “at night.”
Plaintiff's vague allegations of symptoms do not evidence
substantial harm resulting from the approximately four
week delay in providing Plaintiff with his prescribed
allergy and asthma medications. Therefore, Defendants
Rhodes, White, and Mullet's Motions to Dismiss,
construed as motions for summary judgment, should be
granted.

Kansas City, 857 F.2d 690, 695 (10 th Cir. 1988). For
a municipality to be liable under § 1983 for the acts
of its employees, a plaintiff must prove: “(1) that a
municipal employee committed a constitutional violation,
and (2) that a municipal policy or custom was the moving
force behind the constitutional deprivation.” Becker v.

Based on the foregoing findings, it is recommended
that (1) Defendants Rhodes and White's Motions to
Dismiss Plaintiff's claim of a First Amendment violation
be GRANTED and this claim against Defendants
Rhodes and White be dismissed without prejudice under
Rule 12(b)(6) for failure to state a claim upon which
relief may be granted; (2) Defendants Rhodes, White,
and Mullet's Motions to Dismiss Plaintiff's claim of
unconstitutional retaliation be GRANTED and this
claim against Defendants Rhodes, White, and Mullet
be dismissed without prejudice under Rule 12(b)(6) for
failure to state a claim upon which relief may be granted;
(3) Defendant Mullet's Motion to Dismiss, construed
as a motion for summary judgment, be GRANTED as
to Plaintiff's claim of a First Amendment violation and
judgment be entered in favor of Defendant Mullet and
against the Plaintiff on this claim; (4) Defendants Rhodes,
White, and Mullet's Motions to Dismiss, construed as
motions for summary judgment, be GRANTED as to
Plaintiff's claim of deliberate indifference to his medical
needs and judgment be entered in favor of Defendants
Rhodes, White, and Mullet and against the Plaintiff
on this claim; and (5) Defendants Rhodes, White, and
Mullet's Motions to Dismiss should be GRANTED as
to Plaintiff's claims against Defendants in their official
capacities and those claims should be dismissed without
prejudice under Rule 12(b)(6) for failure to state a claim
upon which relief may be granted.

Baseman, 709 F.3d 1019, 1025 (10 th Cir. 2013)(internal
quotation marks omitted). Accord, Myers v. Oklahoma
County Bd. of County Camrose, 151 F.3d 1313, 1320

The parties are advised of their respective right to file an
objection to this Report and Recommendation with the

(10 th Cir. 1998)(“[I]t order to hold a municipality [or
county] liable for an employee's constitutional violations,
a plaintiff must show not only that a constitutional
violation occurred, but also that some [county] policy or
custom was the moving force behind the violation.”).

Moore v. United States, 950 F.2d 656 (10 th Cir. 1991);

VI. Official Capacity
Plaintiff asserts in his Complaint that he is suing
Defendants in both their individual and official capacities.
Plaintiff's claims against Defendants in their official
capacities are essentially claims against Garvin County,
which employs the Defendants. See Watson v. City of

*7 Plaintiff has not alleged that Garvin County
maintains an official policy, or even a custom or practice,
that caused the alleged conduct alleged in the Complaint.
Therefore, Plaintiff has failed to state a claim for relief
under 42 U.S.C. § 1983 against Defendants in their official
capacities. The cause of action against Defendants in their
official capacities should therefore be dismissed under
Rule 12(b)(6).

Clerk of this Court by July 18 th , 2016, 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.
cf. Marshall v. Cater, 75 F.3d 1421, 1426 (10 th 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.
ENTERED this 27 th day of June, 2016.

RECOMMENDATION

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All Citations
Not Reported in F.Supp.3d, 2016 WL 3960910

Footnotes

1
2

In a prisoner civil rights case such as this one, the plaintiff's complaint is treated as an affidavit if it alleges facts based
on the plaintiff's personal knowledge and has been sworn under penalty of perjury. Hall, 935 F.2d at 1111.
Plaintiff actually dated the form “1-12-15.” However, it appears that Plaintiff mistakenly dated the form as having been
submitted in January 2015, when it was actually submitted in January 2016.

End of Document

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