Cathey v. Jones et al

Filing 154

OPINION AND ORDER by Judge Ronald A. White : This action is, in all respects, DISMISSED WITH PREJUDICE for plaintiff's failure to comply with Fed. R. Civ. P. 8(a)(2) and the orders of the court. This dismissal shall count as a STRIKE pursuant to 28 U.S.C. § 1915(g). 132 136] 146 147 (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR T~JLE
EASTERN DISTRICT OF OKLAHOMA
~~
,.:..~
BILL R. CATHEY,
Plaintiff,

v.
JUSTIN JONES, et al.,
Defendants.

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MAR 2 7 2013
WILLIAM B. GU'i''fRIE
U.S.
(:ui;rt
8~ferk, DeputyDistrict ____
Clem

No. CIV 10-220-RAW-SPS

OPINION AND ORDER
This action is before the court on the defendants' motions to dismiss and plaintiffs
motion for partial summary judgment. The court has before it for consideration plaintiffs
second amended complaint, the parties' motions, and their responses.
Plaintiff, an inmate proceeding pro se, is incarcerated at Oklahoma State Penitentiary
(OSP) in McAlester, Oklahoma. The 19 defendants are DOC Director Justin Jones, DOC
Director's Designee Debbie Morton, DOC Medical Director Glenese McCoy, and the
following OSP officials: Warden Randall Workman, Medical Administrator Chester Mason,
H-Unit Manager Tracy Davis, Security Director William Jones, H-Unit Shift Supervisors
Marcella Thompson and Sean Chumley, Assistant Warden Linda Morgan, H-Unit Case
Manager Eric Thomas, Unit Manager Debbie Aldridge, Physician John Marlar, Guard
·Matthew Butzer, Property Room Supervisor Ron Parker, Captain Frank Dedmon, Mail Room
Supervisor David Orman, Terry Crenshaw, and Matthew Knight. 1
On June 23,2010, plaintiff filed a 150-page civil rights complaint with 77 pages of
exhibits, complaining of the conditions of his confinement and disciplinary procedures,

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To the extent the defendants are sued in their official capacities as DOC officials,
plaintiffs claims are barred by the Eleventh Amendment. It is well settled that a damages
suit against a state official in his official capacity is merely another way of pleading an action
against the State. See Kentucky v. Graham, 473 U.S. 159, 165 (1985). See also Will v.
Michigan Dept. ofState Police, 491 U.S. 58, 71 (1988) (state officials sued in their official
capacities are not "persons" for purposes of a § 1983 suit, because the suit is against the
official's office and not against the official).

among other things, at OSP. [Docket No. 1]. He attempted to supplement the complaint by
adding additional claims regarding incidents that occurred after he initiated this action, but
was advised he would have to file a proper amended complaint. [Docket No. 10]. His
amended complaint was 153 pages long with 88 pages of exhibits. [Docket No. 14].
On November 16, 2010, the court entered an Order Staying Proceedings and
Requiring Special Report [Docket No. 65], and plaintiff filed a notice of appeal concerning
the ORSR on December 6, 2010. [Docket No. 66]. The appeal was dismissed for lack of
jurisdiction. Cathey v. Jones, No. 10-7098 (1Oth Cir. Dec. 13, 20 10) [Docket No. 77]. On
January 25,2011, he filed a second notice of appeal concerning the district judge's denial of
his motion to reconsider the ORSR. [Docket No. 79]. On January 31,2011, the district court
struck plaintiffs second notice of appeal, because the order he was seeking to appeal was not
an appealable order. [Docket No. 81].
On March 1, 2011, plaintiff filed a petition for a writ of mandamus to compel the
district court to rule on certain motions in this case. [Docket No. 85]. The Tenth Circuit
found that mandamus was not appropriate, because the case was proceeding. In re Cathey,
No.l1-7012 (lOth Cir. April1, 2012) [Docket No. 93].
On March 29, 2012, the court entered an order dismissing certain claims, denying
plaintiffs motion for a temporary injunction, and directing him to submit a second amended
complaint in conformance with the court's specific instructions. [Docket No. 119 at 13]. He
was advised that Rule 8(a)(2) of the Federal Rules of Civil Procedure requires "a short and
plain statement of the claim showing that the pleader is entitled to relief." !d. at 9. The court
found "[p]laintiff certainly ha[ d] not complied with this requirement, as his amended
complaint [was] unnecessarily lengthy, unfocused, and filled with irrelevant facts and
comments." !d. The court further noted that '[w]hile plaintiff may believe this style of
writing is entertaining or even useful, it actually hinders the court in analyzing his claims."

!d. The instructions for the second amended complaint were as follows:
Plaintiffs future filings in this case should be concise and should raise
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only relevant facts and issues. The second amended complaint may not
include claims that have been dismissed by this Opinion and Order. The
second amended complaint must include all the allegations and supporting
material to be considered by the court, and it may not reference or attempt to
incorporate material from plaintiffs original or first amended complaint. See
Local Rule 9.2(c). Plaintiff is to refrain from including unsupported
speculation, rhetorical questions, and unnecessary or sarcastic comments
in the second amended complaint. He must limit the second amended
complaint to claims that directly concern him and not discuss issues
concerning other inmates. Generalized allegations regarding issues
affecting all inmates will not be considered. He is to avoid lengthy or
irrelevant background information or other excessively long narratives.
The second amended complaint should state the facts of each separate claim
and why he believes his constitutional rights were violated. He should include
relevant dates, if available, for consideration of the claims in light of
Oklahoma's two-year statute oflimitations for civil rights claims. See Meade
v. Grubbs, 841 F.2d 1512, 1522 (lOth Cir. 1988). Any exhibits should be
numbered in the lower right corner of the pages to allow readable scanning in
the court's Electronic Case Management system. Plaintiffs failure to comply
with these directions may result in dismissal of this action for failure to comply
with Rule 8(a)(2).
[Docket No. 119 at 10-11 (emphasis added)].
In addition, plaintiff was advised about the allegations in his amended complaint
regarding other inmates:
[M]any of the allegations in plaintiffs amended complaint concern
incidents or conditions affecting other inmates. . . . [H]is extensive
background material . . . only clutters the amended complaint and makes it
more difficult to determine plaintiffs personal claims. Plaintiff does not have
standing to sue on behalf of other inmates he alleges have been harmed. It is
well-settled that "a section 1983 claim must be based upon the violation of a
plaintiffs personal rights, and not the rights of someone else." ...
[Docket No. 119 at 9-10 (citation omitted) (emphasis in original)]. On April 4, 2012,
plaintiff filed a notice of intent to appeal this order, but it, too, was stricken because it was
not a final, appealable order [Docket Nos. 122 and 123]. On April25, 2012, he again filed
a notice of appeal regarding the March 29, 2012, opinion and order [Docket No. 126]. The
Tenth Circuit affirmed the denial of plaintiffs motion for preliminary injunction and
dismissed the remainder of the appeal for lack of appellate jurisdiction. Cathey v. Jones, No.
12-7031 (lOth Cir. Dec. 11, 2012). [Docket No. 150].

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The defendants have filed motions to dismiss this action, alleging plaintiff has
willfully failed to comply with Rule 8(a)(2) and the court's specific instructions. [Docket
Nos. 132 and 146]. First, the court notes that plaintiffs second amended complaint is far
from concise, as directed by the court. [Docket No. 119 at 10]. He raises 15 grounds for
relief in the 130 pages of the complaint with an additional 167 pages of 160 exhibits.
[Docket No. 125]. Furthermore, in contradiction to the court's order not to include claims
that had been dismissed by the court [Docket No. 199 at 4-5, 10], he again discusses the
dismissed issue of his misconduct arising from an April15, 2010, shakedown. According
to the defendants, plaintiff has failed to comply with all but one of the requirements set forth
by the court:
With the exception of correctly numbering exhibits, Plaintiff flouts each
of the Court's instructions throughout his Second Amended Complaint. For
example, in Ground 7 of Inmate Cathey's Second Amended Complaint
[concerning the alleged seizure of inmates' hot pots after an inmate poured
boiling water on his cellmate], he subjects his readers to unsupported
speculation, rhetorical questions, unnecessary and sarcastic comments, lengthy
and irrelevant background information, [and] excessively long narratives,
[such as the following excerpt from the second amended complaint]:
Spur-of-the-moment decisions almost always have
logical inconsistencies, and [Security Director] William Jones'
decision is no exception. Death row remained exempt. The row
is right across the hall from where the scalding incident
occurred, and surely the killers on death row are not above
pouring boiling water on someone. Exempt also was the rest of
the prison. Those thousand other inmates at a maximum security
prison are capable of throwing boiling water on someone in a
fight. In my fifteen years at OSP I have lost count of the
number of inmates who have been doused with boiling water.
It's a time-honored tradition, and never have hot pots been taken
as a result of such an incident. I suppose we are lucky hot food
wasn't thrown in the victim's face or William Jones would have
taken our vittles. This comment is more than facetious. Every
morning inmates are served coffee, which sometimes is near
boiling hot. This could just as easily be thrown in somebody's
face as water from a hot pot, and work just as well. ...
One inmate (seized by OSP) had just purchased his new
hot pot from the prison two days before it was taken from him.
He was not compensated. This could turn into a profitable
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racket for the prison. Let an inmate buy something, then take it,
but this in fact is what OSP has done with impunity for years.
I have had sweatshirts and shoes and appliances taken from me
for years on just such whim. An inmate below me (seized by
OSP) had his art supplies taken during a routine cell search by
an arrogant guard. . ..
And the real irony is that the above inmate who had his
hot pot confiscated moved to another cell block within a month.
There, he was permitted to purchase a hot pot. Had he been
reformed in a month? Was he cured ofhis craving to throw hot
water on people? The question is rhetorical and the answer is
obvious. He was the same person he had always been, except
that the prison's arbitrary rules allowed him to have a hot pot in
one cell but not in another.
[Docket No. 132 at 4-5 (quoting Docket No. 125 at 51-52)]. The court agrees with the
defendants that Count 7 is representative of plaintiffs willful disregard of the court's order
for filing a second amended complaint.
In support of their motions to dismiss, the defendants cite the Tenth Circuit case of

Steiner v. Concentra, 195 Fed. Appx. 723, 2006 WL 2507590 (lOth Cir. Aug. 31, 2006)
(unpublished op.), cert. denied, 550 U.S. 957 (2007). In that case, Dr. Steiner, a physician
proceeding pro se, sued her former employer Concentra Inc. and various other individuals
and business entities, alleging statutory violations and common law claims arising from her
termination. !d., 195 Fed. Appx. at 724. She initiated her action with a 29-page complaint
naming 17 defendants and alleging retaliatory and discriminatory discharge, but after the
magistrate judge suggested she dismiss several defendants, she took offense and moved for
the magistrate judge's recusal. !d. at 725. The magistrate judge subsequently recommended
that all parties except Concentra be dismissed, and granted Dr. Steiner permission to file an
amended complaint only against Concentra, alleging her discrimination claim. !d. If she
wanted to amend her complaint to add new claims, she was to file a motion to amend with
a proposed amended complaint. !d. Because she was concerned about a filing deadline, Dr.
Steiner tendered a lengthy amended complaint before she received copies of the magistrate
judge's rulings. I d. When she received the magistrate judge's recommendation, she filed her

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objections, beginning a "pattern of attaching a multiplicity of exhibits to her submissions,
such as excerpts from the records of other cases against Concentra, e-mails from workers'
compensation officials, affidavits from former Concentra employees, and printouts from
presentations on HIP AA privacy provisions." !d.
Dr. Steiner's amended complaint was stricken as improper, because the magistrate
judge's recommendation still was pending before the district court.

!d.

When the

recommendation to dismiss all defendants but Concentra was adopted, Dr. Steiner was
granted 11 days to file an amended complaint that complied with the magistrate judge's
proposed restriction. !d. at 725-26. Instead of complying with the district court's order, Dr.
Steiner petitioned the Tenth Circuit Court of Appeals for mandamus relief, which was
denied. !d. at 726. She attempted to appeal the decision, but her case had not been fully
adjudicated. !d. The district court denied Dr. Steiner's request for certification under Fed.
R. Civ. P. 54(b) or for reconsideration of its earlier order. !d.
... Noting that Dr. Steiner "h[ad] done nothing which was ordered" and
that she was tying the "case in more and more procedural knots," the district
court again ordered Dr. Steiner to file an amended complaint in conformity
with its previous decision. It warned her that "[if] she fail[ ed] to do so" within
an additional 11 days, it would "dismiss what remains of [her] case, with
prejudice."
Dr. Steiner filed her second amended complaint within the district
court's time frame but outside the bounds of its instructions. The complaint
named the original array of defendants (minus one individual customer
manager, plus another Concentra-affiliated entity). She expanded the
introductory section, rearranged all her previous claims, added Title VII and
FMLA claims, and incorporated 55 pages of attached exhibits. Con centra filed
a motion to strike or dismiss the complaint.
At the hearing on the motion, the magistrate judge struck the second
amended complaint for failure to comply with previous court orders. He gave
Dr. Steiner one more opportunity to file a short and plain complaint. He
specifically instructed her to name only Con centra as a defendant and to make
only two claims, age discrimination and wrongful termination in violation of
public policy . . . . The magistrate judge also told her ... to file [only one
specific exhibit and] ... again advised Dr. Steiner to retain an attorney.
Two weeks later Dr. Steiner filed a "Motion Directed to the Judge Only
to Reconsider the Magistrate's Order Striking the Plaintiffs Second Amended
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Complaint with New Material Presented." Along with numerous other
exhibits, she attached a proposed third amended complaint. That document
stated that she "hereby incorporates, references and retains, into this . . .
absolutely every word, numbered and unnumbered paragraph, claim, prayer for
relief, and Exhibit in her Second Amended Complaint."
The district court promptly ruled on Dr. Steiner's filing. Stating that
"[t]his is a case where enough is enough," that [p ]laintiff did nothing which
was ordered," and that the second amended complaint was "flagrant" in its
non-compliance with previous orders of the court," the court dismissed the
case with prejudice. As the district court put it,
[Dr. Steiner] has vexatiously and frivolously
multiplied the proceedings. Her actions have prejudiced the
defendant by causing delay and significant attorney fees.
She has interfered with and delayed the judicial process and
caused needless expenditure of judicial resources. Her
actions have been willful, intentional, persistent, and
contemptuous. She has been warned. The ultimate sanction
of dismissal with prejudice is merited.
Id. at 726-27 (citations omitted) (emphasis added).
On appeal, the Tenth Circuit held that "[a] district court may dismiss a case for failure
'to comply with 'the Federal Rules of Civil Procedure] or any other order of the court,' and
the dismissal 'operates as an adjudication upon the merits." !d. at 727 (citing Fed. R. Civ.
P. 41(b)).
But dismissal or other final disposition of a party's claim is a severe
sanction reserved for the extreme case, and is only appropriate where a lesser
sanction would not serve the ends of justice. In applying such a sanction, the
district court must consider: ( 1) the degree of actual prejudice to the opposing
party; (2) the amount of interference with the judicial process; and (3) the
culpability of the litigant. Only when these aggravating factors outweigh the
judicial system's strong predisposition to resolve cases on their merits is
outright dismissal with prejudice an appropriate sanction.
If "a party appears pro se, the court should carefully assess whether it
might appropriately impose some sanction other than dismissal, so that the
party does not unknowingly lose its right of access to the courts because of a
technical violation."
!d. at 727 (citing Reed v. Bennett, 312 F. 3d 1190, 1195 (lOth Cir. 2002). See also Fuentes
v. Chavez, 314 Fed. Appx. 143, 145,2009 WL 458791, at *2 (lOth Cir. 2009) (affirming

dismissal with prejudice of prose prisoner's complaint where, in violation of court orders,
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he continued to submit "rambling, and sometimes incomprehensible" pleadings.).
As with Dr. Steiner, this court finds that even after he was warned, plaintiff "took
willful and contemptuous actions that prejudiced [the defendants] by causing delay and
needless expense, and [he] interfered with the judicial process. Steiner, 723 Fed. Appx. at
727. Plaintiff"refused to comply with clear court orders to eliminate ... excess verbiage and
irrelevant exhibits." !d. In addition, as was the case with Dr. Steiner, plaintiff"delayed and
disrupted the judicial process by [repeatedly] inappropriately seeking interlocutory relief'
from the appellate court. !d. "[A plaintiff's] pro se status does not excuse this type of
conduct." !d. See also Ogden v. San Juan County, 32 FJd 452, 255 (lOth Cir. 1994)
(holding that prose litigants must comply "with the fundamental requirements of the Federal
Rules of Civil and Appellate Procedure").
ACCORDINGLY, this action is, in all respects, DISMISSED WITH PREJUDICE

for plaintiff's failure to comply with Fed. R. Civ. P. 8(a)(2) and the orders of the court. This
dismissal shall count as a STRIKE pursuant to 28 U.S.C. § 1915(g).
IT IS SO ORDERED this

/._JP day ofMarch 2013.

RONALD A. WHITE
UNITED STATES DISTRICT JUDGE

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