Webb v. Sturch et al

Filing 40

OPINION AND ORDER by Judge Frank H. Seay granting 26 Motion to Dismiss. ; denying 28 Motion to Dismiss Party (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
CHRISTOPHER W. WEBB,
Plaintiff,
v.
BILL STURCH, et al.,
Defendants.

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No. CIV 10-459-FHS-SPS

OPINION AND ORDER
This action is before the court on the defendants’ motions to dismiss. The court has
before it for consideration plaintiff’s amended complaint, the defendants’ motions, plaintiff’s
responses and supplements, the defendants’ replies, and a special report prepared at the
direction of the court, in accordance with Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978).
Plaintiff, an inmate in the custody of the Oklahoma Department of Corrections who
is incarcerated at Lawton Correctional Facility in Lawton, Oklahoma, brings this action
under the authority of 42 U.S.C. § 1983, seeking relief for alleged constitutional violations
during his incarceration at the Bryan County Jail in Durant, Oklahoma. The defendants are
Bryan County Sheriff Bill Sturch, Bryan County Jail Administrator John Kidman, Bryan
County Jail Lieutenant Mike Osborne, Bryan County Jail Nurse Cindy Stevens, and Bryan
County Commissioner Monty Montgomery.
As an initial matter, plaintiff has requested this case be certified as a class action
because of the number of individuals involved. Courts are reluctant to certify a class
represented by a pro se litigant, because a layman representing himself is considered “to be
clearly too limited to allow him to risk the rights of others.” Oxendine v. Williams, 509 F.2d
1405, 1407 (4th Cir. 1975). Here, the court finds plaintiff cannot “fairly and adequately
protect the interests of the class,” Fed. R. Civ. P. 23(a)(4), so his request for class
certification is denied.
Plaintiff alleges in his amended complaint that the defendants maliciously risked his

health through contamination of disposable razors. All inmates’ razors were placed in one
ziplock sandwich bag, and the razors were reissued and collected nine times every three
weeks. On October 5, 2009, the defendants started placing Inmate Cangro’s razor in a
separate ziplock bag, after Cangro was taken to the hospital for treatment of a serious illness
related to Hepatitis C. Despite the risk of contamination, jail officials continued to store
razors in a manner that could result in contamination and to reissue the razors to inmates.
On June 28, 2010, the inmates’ razors finally were placed in individual ziplock sandwich
bags, and the individual bags all were placed in one large ziplock bag.
Plaintiff next complains the defendants are not taking preventive measures by giving
tuberculosis shots to inmates upon intake. He claims did not receive the shots until seven to
nine months after his arrival at the jail.
Plaintiff further asserts that for more than a year he was denied pain medication and
lung and blood tests for kidney and liver pains. In addition, his symptoms of vomiting, claycolored feces, fatigue, dark urine, labored breathing, and blood in his spittle were not treated.
He claims Defendant Nurse Stevens told him that because he was indigent, he did not qualify
for medical treatment and would have to pay in advance for medical services. She also
allegedly said plaintiff had no right to “comfort meds,” and she refused to give him copies
of his medical requests or the address for the medical provider to report complaints.
Defendant Stevens has filed a motion to dismiss, alleging plaintiff has failed to
exhaust his administrative remedies. “No action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a prisoner confined
in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). Inmates are required to exhaust available
administrative remedies, and suits filed before the exhaustion requirement is met must be
dismissed. Booth v. Churner, 532 U.S. 731, 740-41 (2001); Yousef v. Reno, 254 F.3d 1214,
1216 n.1 (10th Cir. 2001). “An inmate who begins the grievance process but does not
complete it is barred from pursuing a § 1983 claim under PLRA for failure to exhaust his
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administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002)
(citation omitted). In deciding a motion to dismiss based on nonexhaustion, the court can
consider the administrative materials submitted by the parties. See Steele v. Fed. Bureau of
Prisons, 355 F.3d 1204, 1212 (10th Cir. 2003), abrogated in part on other grounds, Jones
v. Bock, 549 U.S. 199 (2007).
The Bryan County Jail Inmate Grievance Procedures require an inmate to file an
Inmate Grievance Form after first completing a Request to Staff in an effort to resolve an
issue. Defendant Stevens alleges plaintiff never exhausted his administrative remedies with
respect to any of his allegations against her. Plaintiff alleges he did file complaints/
grievances, but the jail administration did not answer them, except to tell him verbally,
“That’s not my department.”

He claims Defendant Stevens avoided answering his

complaints/grievances, so he requested the address for the medical providers in an attempt
to pursue his grievances. Stevens contends her alleged failure to give him the address for
Correctional Healthcare did not affect his ability to file a grievance with the Bryan County
Jail, pursuant to the jail’s internal grievance procedure.
While exhaustion of administrative remedies is mandatory under the Prison Litigation
Reform Act, 42 U.S.C. § 1997e(a), the Tenth Circuit Court of Appeals recently reemphasized
that “[t]he plain language of the PLRA requires prisoners to exhaust only available
remedies.” Tuckel v. Grover, 660 F.3d 1249, 1252 (10th Cir. 2011) (citation omitted)
(emphasis in original). “It follows that if an administrative remedy is not available, then an
inmate cannot be required to exhaust it.” Id. “Where prison officials prevent, thwart, or
hinder a prisoner’s efforts to avail himself of an administrative remedy, they render that
remedy ‘unavailable’ and a court will excuse the prisoner’s failure to exhaust.” Little v.
Jones, 607 F.3d 1245 F.3d 1245, 1250 (10th Cir. 2010). “Based on this principle, . . . district
courts [are obligated] to ensure that any defects in exhaustion are not procured from the
action or inaction of prison officials.” Tuckel, 660 F.3d at 1252 (quotation omitted).
In this instance, the court cannot determine with certainty whether plaintiff actually
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attempted to exhaust his administrative remedies. He claims his grievances were not
addressed, while Defendant Stevens asserts he never initiated the grievance process. Absent
a jail grievance log or other method of determining when grievances were submitted at the
jail, the court cannot find plaintiff has failed to exhaust his available administrative remedies.
Therefore, the court will examine the merits of his claims against Stevens.
Under the Fourteenth Amendment’s due process clause, pretrial
detainees . . . are entitled to the same degree of protection regarding medical
attention as that afforded convicted inmates under the Eighth Amendment.
Thus, [a pretrial detainee’s] inadequate medical attention claim must be judged
against the “deliberate indifference to serious medical needs” test of Estelle v.
Gamble, 429 U.S. 97, 104 (1976). . . .
The analysis under Estelle is two-pronged. The initial question is whether
there is evidence of “serious medical needs.” A constitutional violation only
occurs when a government official's “deliberate indifference” is exhibited
toward such needs.
Frohmader v. Wayne, 958 F.2d 1024, 1028 (10th Cir. 1992) (citations omitted).
Where there is evidence of a “series of sick calls, examinations, diagnoses, and
medication . . . it cannot be said there was a ‘deliberate indifference’ to the prisoner’s
complaints.” Smart v. Villar, 547 F.2d 112, 114 (10th Cir. 1976). As Defendant Stevens
acknowledged in her motion to dismiss, “[a] medical need is considered ‘sufficiently serious’
if the condition ‘has been diagnosed by a physician as mandating treatment or . . . is so
obvious that even a lay person would easily recognize the necessity for a doctor’s attention.’”
Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001). While a difference of opinion
as to the kind and quality of medical treatment necessary under the circumstances fails to
give rise to a cause of action under § 1983, see McCracken v. Jones, 562 F.2d 22, 24 (10th
Cir. 1977), cert. denied, 435 U.S. 917 (1978), and cases cited therein, there is no indication
of whether Defendant Stevens or other medical professionals ever evaluated plaintiff’s
symptoms before allegedly denying him treatment. The special report includes copies of
various medical records, but the court will not search the record to develop evidence not
specifically identified in the briefs. See Roska ex rel. Roska v. Peterson, 328 F.3d 1230,

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1246 n.13 (10th Cir. 2003). Therefore, the court finds Stevens has failed to show plaintiff
did not meet the serious medical needs prong of the Estelle standard. Defendant Stevens’
motion to dismiss is denied.
Defendants Bill Sturch, John Kidman, Mike Osborne, and Monty Montgomery also
have filed a motion to dismiss, asserting among other things, that plaintiff has failed to allege
their personal participation in the alleged constitutional violations. The only individual
action plaintiff has set forth with respect to these defendants is that “[w]hen appealing for
recourse--Lt. Osborne & his colleagues--are known for their famous quotes as--‘thats [sic]
not my department.’”
“Personal participation is an essential allegation in a § 1983 claim.” Bennett v. Passic,
545 F.2d 1260, 1262-63 (10th Cir. 1976) (citations omitted). See also Mee v. Ortega, 967
F.2d 423, 430 (10th Cir. 1992). Plaintiff must show that a defendant personally participated
in the alleged civil rights violation. Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir.
1996). Supervisory status is not sufficient to support liability under § 1983. Id. See also
Polk County v. Dodson, 454 U.S. 312, 325 (1981).
Furthermore, Defendant Montgomery is an independently elected official of Bryan
County, and he has no responsibility for the jail. Under Okla. Stat. tit. 19, § 513, the sheriff
has charge and custody of the jail of his county, and all the prisoners in the jail. See also
Okla. Stat. tit. 57, § 1 (County commissioners are required to inspect the jails in their
respective counties and to examine the health, cleanliness, and discipline conditions of the
jail.). Defendants Sturch, Kidman, Osborne, and Montgomery’s motion to dismiss is granted.
Finally, plaintiff has requested declaratory and injunctive relief to prevent further
harm, and he has asked for a criminal inquest to investigate all the defendants. The record
shows he has been transferred from the Bryan County Jail, so he no longer is subject to the
conditions on which his claims are based. Therefore, his requests for injunctive and
declaratory relief are moot. See Green v. Branson, 108 F.3d 1296, 1300 (10th Cir. 1997).
Furthermore, his request for a criminal investigation of the defendants is not proper for a civil
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rights action under 42 U.S.C. § 1983.
ACCORDINGLY, Defendant Cindy Stevens’ motion to dismiss [Docket No. 28] is
DENIED, and Defendants Bill Sturch, John Kidman, Mike Osborne, and Monty
Montgomery’s motion to dismiss [Docket No. 26] is GRANTED. Plaintiff’s requests for
class certification, declaratory relief, injunctive relief, and a criminal investigation are
DENIED.
DATED this 5th day of March, 2012.

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