Williams v. Ezell et al
Filing
153
OPINION AND ORDER by District Judge James H. Payne : Granting 89 112 defendant's Motion to Dismiss and defendant's Motion for Summary Judgment. Denying 102 plaintiff's Motion for Preliminary Injunction. Denying 149 plaintiff's Motion to Compel (acg, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
MARIO WILLIAMS,
)
)
Plaintiff,
)
)
vs.
)
)
ROBERT EZELL, Warden,
)
et al.,
)
)
Defendants. )
Case No. CIV-11-195-JHP
OPINION AND ORDER
This matter comes before the Court on Defendants’ (Ezell, Martin, Cotton, Miller,
Barneck, Morgal, Williamson, Stevens, Yandale, Barlow, Robinson, Morgan, Rogers, and
Hosum) Motion to Dismiss, or in the alternative for Summary Judgment (Dkt. # 112);
Defendant Morton’s Motion to Dismiss/Motion for Summary Judgment (Dkt. # 89);
Plaintiff’s Motion for Preliminary Injunction (Dkt. # 102); and Plaintiff’s Motion to Compel
Discovery (Dkt. # 149). For the reasons set forth herein, the Court hereby grants Defendants’
motions to dismiss or alternatively, motions for summary judgment, and denies plaintiff’s
motion for a preliminary injunction and plaintiff’s motion to compel discovery.
Procedural Background
Plaintiff, an inmate in the Oklahoma Department of Corrections (hereinafter “DOC”)
currently housed at the Davis Correctional Facility, in Holdenville, Oklahoma, brought this
action pursuant to 42 U.S.C. § 1983, seeking compensatory and punitive damages of
$200,000.00 from each defendant in their individual and official capacity (Dkt. # 1) Plaintiff,
appearing pro se, was granted leave to proceed in forma pauperis. On July 12, 2012, the
plaintiff was granted leave to file his amended complaint. In his amended complaint, the
plaintiff alleges he was attacked on September 29, 2009 by six (6) correctional officers in
retaliation for asserting his First Amendment right to file inmate grievances. Plaintiff claims
excessive force was used in extracting him from his cell, including the use of pepper spray
and the twisting of his limbs and then he was placed naked in a disciplinary unit without
being allowed to decontaminate and that he was not seen by medical staff for six (6) days.
Further, plaintiff alleges he went on a food strike from September 29, 2009 until October 6,
2009 and even though he told the correctional officers, the medical staff still refused to see
him. According to plaintiff, only after he sent a letter to DOC complaining about his
treatment was he seen by medical staff. On October 8, 2009, plaintiff asserts he was seen by
medical staff but they were indifferent to his pain and suffering; but he was finally allowed
to shower, given clothes, mattress, hygiene items and writing material from other inmates
eight hours later.
On October 16, 2009, plaintiff complains that he was given six false misconducts in
retaliation and to cover the use of excessive force when he was removed from his cell. On
October 19, 2009, plaintiff states that he was found guilty of five of those misconducts.
Plaintiff asserts the misconducts were not given for anything that he had done prior to the cell
extraction; rather, they were given, according to the plaintiff, simply in retaliation for filing
informal grievances.
2
Additionally, plaintiff asserts that the defendants violated his Eighth and Fourteenth
Amendment rights simply because he tried to informally resolve his complaints with Chief
Cotton. Furthermore, plaintiff claims he has been denied medical services since the cell
extraction on September 29, 2009. Finally, plaintiff alleges Defendant Morton violated his
Fourteenth Amendment rights, on or about July 15, 2011, because she did not properly
review his misconduct appeals.
Further, in an affidavit, plaintiff makes numerous allegations of actions taken against
him by Davis staff in retaliation for his exercise of his First Amendment rights. These
include housing orders where he was reportedly assigned to room with a homosexual and/or
assignment to a cell with someone who refused to let him have the bottom bunk; denied
property and showers while in segregation in February, 2011 for refusing to room with
inmates who were assigned to room with him; denied outside exercise while in segregation;
issued misconduct reports which were falsified; he was required to use a shower that had
blood on it; and denial of outside recreation and showers on numerous occasions.
On September 20, 2011, the magistrate judge stayed these proceedings and ordered
the preparation of a special report, pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir.
1978). On November 16, 2011, the special report was filed. Thereafter, on April 17, 2012,
because the special report on file indicated that the court had to consider a special report filed
in an earlier case to decide some of the allegations in this lawsuit, the magistrate judge
ordered the preparation of an amended special report to contain all relevant documents
3
concerning all of the allegations in plaintiff’s complaint. On May 31, 2012, the Amended
Special Report was filed herein and a supplement thereto was filed on June 11, 2012.
On June 11, 2012, Defendant Morton filed a Motion to Dismiss/Motion for Summary
Judgment and Brief in Support (Dkt. # 89). The plaintiff filed a response to said motion on
June 20, 2012 (Dkt. # 96). Thereafter, on June 22, 2012, Defendants Ezell, Martin, Cotton,
Berneck, Hosum, Rogers, Morgan, Robinson, Morgal, Yandale, Barlow, Miller, Williamson,
and D. Stevens filed a Motion to Dismiss or in the alternative for Summary Judgment and
Brief in Support (Dkt. # 112). On July 12, 2012, the plaintiff filed an Amended Complaint
and on July 20, 2012, the plaintiff filed his response to the Defendants Motion to Dismiss or
in the alternative for Summary Judgment (Dkt. # 134). Thereafter, on September 19, 2012,
Defendants Jim Kieth and Nurse Laird, where were not served until August 27, 2012 and
September 4, 2012, respectively, were allowed to join in the previously filed motion to
dismiss, or alternatively, motions for summary judgment - Dkt. # 112.1 While the Amended
Complaint was filed after the Amended Special Report, it appears that the Amended Special
Report adequately addresses all of the allegations contained with the Amended Complaint.
Undisputed Facts2
Plaintiff is currently housed at Davis Correctional Facility, Holdenville, Oklahoma
pursuant to a contract between Corrections Corporation of America, Inc., (“CCA”) and the
1
See, minute order entered on September 19, 2012 (Dkt. # 148).
2
The following facts are either undisputed–i.e., not specifically controverted by Williams in accordance with Local
Civil Rule 56.1(c)–or are described in the light most favorable to Williams. Immaterial facts are omitted.
4
Oklahoma Department of Corrections (“DOC”). CCA owns and operates the Davis
Correctional Facility. Plaintiff is serving a life sentence without the possibility of parole.
Dkt. # 81-9, and is therefore, not eligible to earn good time credits toward a reduction in his
sentence.3 Defendants Ezell, Martin, Cotton, Miller, Barneck, Morgal, Williamson, Stevens,
Yandale, Barlow, Robinson, Morgan, Rogers, and Hosum were at all times relevant to the
Plaintiff’s allegations employees of CCA, working at the Davis Correctional Facility.
Defendant Keith was employed by CCA as the facility warden of Davis Correctional Facility
during some of the relevant time periods contained within plaintiff’s amended complaint.
Defendant Laird was employed by CCA in the medical unit of the Davis Correctional
Facility during some of the relevant time periods contained within plaintiff’s amended
complaint. Defendant Morton is employed as the Manager of the Administrative Review
Authority of the DOC.
DOC has a written policy governing inmate grievances, entitled “Offender Grievance
Process” - OP-090124. See, Dkt. 82-3. This policy outlines the steps that an inmate must
follow in order to exhaust his administrative remedies. Additionally, CCA has a procedure
in place to deal with inmate grievances, entitled “Inmate/Resident Grievance Procedures” Policy No. 14-5. See, Dkt. 82-4.
Both DOC and CCA grievance policies require an inmate to first attempt to informally
resolve any complaints by talking with appropriate staff. Under the DOC policy, an offender
must first try to resolve his complaint informally by talking with appropriate staff within
3
See, OKLA. STAT. tit. 57, § 137 (2012).
5
three days of the incident. Dkt. # 82-3 at p. 6.4 If not resolved, the inmate must submit a
“Request to Staff” stating “completely but briefly the problem.” Id. This written request
must be submitted within seven calendar days of the incident. Id., at p. 7. If the complaint
is not resolved informally, the offender may obtain and complete the “Offender Grievance
Report Form” and submit it along with the “Request to Staff” form used in the informal
resolution process with the response, to the reviewing authority. Id. DOC policy requires
this grievance form to be submitted “within 15 calendar days of the incident, or the date of
the response to the “Request to Staff” form, whichever is later.” Id. An appeal under this
procedure is taken to the Oklahoma Department of Corrections.
Under CCA’s policies, inmates are required to initiate the informal grievance process
by filing an 14-5A Informal Resolution form. This form must be submitted within seven (7)
calendar days of the alleged incident through the facility mail, or in person, to the appropriate
unit staff. Dkt. # 82-4 at p. 7. In the event the inmate is not satisfied with the response, he
has five (5) calendar days to submit a formal grievance to the Grievance Officer. The inmate
must attach a copy of the 14-5A to any formal grievance. Id., at p. 8. If the inmate is not
satisfied with the response of the Grievance Officer, he may appeal the decision to the
Warden. Id., at p. 11. See also, Dkt. 82-7, Affidavit of Grievance Coordinator at Davis
Correctional Facility.
Additionally, both DOC and CCA have procedures in place for Emergency
Grievances. These procedures allow inmates to bypass the informal resolution process when
4
All page number references are to the CM/ECF page numbers contained at the top of the court documents.
6
a substantial risk of personal injury or other irreparable harm exists. Under DOC’s policy,
an inmate may submit a grievance directly to the reviewing authority anytime the complaint
is of a sensitive nature or where substantial risk of personal injury or other irreparable harm
exists. The inmate is required to use an “Offender Grievance Report Form” (DOC
090124A). Dkt. # 82-3, at p. 13. Upon receipt of a grievance marked “emergency” or
“sensitive”, the reviewing authority only has twenty-four (24) hours to ascertain if the
grievance is in fact an emergency or sensitive grievance and if the grievance is deemed an
emergency, the reviewing authority must provide an expedited response within 48 hours of
receipt, excluding weekends and holidays. Id., at p. 14. Additionally, an expedited response
is required where an appeal is taken. Id. Where, however, the reviewing authority finds that
the grievance is not of an emergency or sensitive nature, the grievance must be returned to
the inmate with notification of the decision that the standard grievance procedure must be
followed to resolve the issues. Id.
Under CCA’s policies, an inmate has to use a 14-5B Inmate/Resident Grievance form
to file an emergency grievance, place the grievance in a sealed envelope and place it in the
grievance mailbox or give it to unit staff. Dkt. # 82-4, at p. 9. If it becomes necessary to file
an emergency grievance on a weekend, the sealed envelope is to be given to the Shift
Supervisor. Id. Again, emergency grievances are reviewed by the grievance office to
ascertain if the grievance is of an emergency nature. If the grievance is determined to be an
emergency, it is logged in the 14-5D Facility Grievance Log or put in the data base and
immediately forwarded to tn individual authorized to serve as Administrative Duty Officer.
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Any response must be documented on page 2 of the form and submitted to the inmate for
signature at the time of presenting the response t the inmate. The inmate is then given a
complete copy of the emergency grievance and any corresponding attachments at the time
of presenting the response. Id.
Furthermore, both DOC and CCA policies provide a mechanism to deal with
excessive grievances.
Specific rules govern why, how and how long the grievance
restrictions will last. See, Dkt. # 82-3, at pp. 14-16 and Dkt. # 82-4, at pp. 5-6.
During his incarceration at Davis Correctional Facility, the plaintiff has filed sixteen
documented grievances. The special report establishes that no grievance was filed in
accordance with either DOC or CCA regarding use of excessive force following the
September 29, 2009 cell extraction. Further, Plaintiff previously filed a lawsuit in this Court
on December 1, 2009, in which he made most of the same allegations made in this lawsuit.5
The earlier lawsuit, Case No. CIV-09-00468-FHS-SPS, was dismissed, on August 24, 2010,
for failure to exhaust his administrative remedies. On January 12, 2011, the Tenth Circuit
Court of Appeals affirmed this court’s dismissal for failure to exhaust. Williams v.
Corrections Corp. of America, Inc., 407 Fed.Appx. 301, 2011 WL 94699 (10th Cir. 2011).
Plaintiff did, however, file an appeal with DOC Administrative Review Authority
regarding four misconduct convictions in 2009 which he received as a result of the events
5
In the earlier lawsuit, the plaintiff claimed his First and Fourteenth Amendment rights were violated when Defendants
denied him access to the facility’s grievance procedures and he alleged he was being subjected to excessive force and denied
medical care in violation of the Eighth Amendment. Finally, the plaintiff asserted the Defendants had violated his Fourteenth
Amendment rights by retaliating against him for filing grievances.
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which led to his cell extraction on September 29, 2009. In his appeal of the misconducts,
plaintiff stated that the offenses had been falsified to cover up the use of excessive force on
him in September 29, 2009. Plaintiff did not, however, ever file any type of grievance which
specifically alleged that he had been subjected to excessive use of force or denied medical
treatment following the same.
Out of the sixteen grievances filed by plaintiff, two of those grievances involved
denial of responses to informal grievances by staff and those grievances were granted and
a response was provided to plaintiff. See, Grievance No. 2010-265 and 2010-266, at Dkt. #
82-5, at pp. 6-25.
A grievance, submitted in September, 2011, requesting an investigation into why
inmates on Echo Unit were not being provided showers and sanitation/personal hygiene
according to state and federal laws, was granted. The investigation revealed that the water
supply was shut off at the facility without advance notice of the water stoppage.
Additionally, the warden noted that the plaintiff was requesting that showers be provided
three (3) times per week, with no more than two (2) days apart. The warden granted the
plaintiff’s request to have a shower three times (3) times per week; but denied his request that
the showers be provided with no more than two (2) days apart. See, Grievance No. 20111001-00137-G, Dkt. # 82-6, at pp. 1-6.
None of plaintiff’s other grievances were granted. Rather, eight of those grievances
were filed as “emergency grievances,” but were determined not to be emergencies. Plaintiff
did not resubmit any of those grievances under the standard grievance procedure. See,
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Grievance Nos. 10-2077 (Dkt. # 82-8, pp. 2-5)6, 2010-282 (Dkt. # 82-5, pp. 26-27), 11-1220
(Dkt. # 82-8, pp. 6-9), 11-1361 (Dkt. # 82-8, pp. 10-13), 2011-0109 (Dkt. # 82-5, pp. 42-44),
2011-1001-00123-G (Dkt. # 82-5, pp. 47-50), 2011-1001-069-G (Dkt. # 82-6, pp. 7-20), and
2011-1001-00155-G (Dkt. # 82-6, pp. 21-29). In two instances plaintiff appealed the
decision finding the grievance was not an emergency and that decision was affirmed. See,
Grievance Nos. 2011-1001-0069-G (Dkt. # 82-6, pp. 12-20) and 2011-1001-0155-G (Dkt.
# 82-6, pp. 21-29). Following those decisions, plaintiff did not resubmit his grievance.
In four other grievances, plaintiff did not submit evidence of any attempts at informal
resolution with his grievance, so the grievances were returned unanswered. Plaintiff never
resubmitted these grievances. See, Grievance Nos. 2010-118 (Dkt. # 82-5, pp. 2-5); 2011004 (Dkt. # 82-5, pp. 32-34); 2011-005 (Dkt. # 82-5, pp. 38-41); and 2011-031 (Dkt. # 82-5,
pp. 42-44).
The final grievance filed by plaintiff was filed under DOC policies and related to
medical services. Once the grievance was denied, plaintiff did not file any appeal with the
Chief Medical Officer of DOC. See, Grievance No. 2010-304 (Dkt. # 82-5, pp. 28-30).
Legal Analysis
A. Standard for dismissal
Title 42 U.S.C. § 1983 provides a federal remedy against any person who, acting
under color of state law, deprives another of his federal rights. Conn v. Gabbert, 526 U.S.
6
Instead of resubmitting this grievance, plaintiff filed a separate grievance with Davis Correctional Facility. See,
Grievance No. 2010-282, Dkt. # 82-5. Pp. 26-27.
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286, 290 (1999). Two prima facie elements must be alleged in a 1983 complaint: 1) the
defendant deprived the plaintiff of a right secured by the ‘Constitution and laws’ of the
United States and 2) the defendant acted ‘under color of law.’ Adickes v. S.H. Kress & Co.,
398 U.S. 144, 150 (1970). Federal Rule of Civil Procedure 8(a)(2) sets up a liberal system
of notice pleading in federal courts requiring only that the complaint include a short and plain
statement of the claim. Robbins v. Oklahoma, 519 F.3d 1242, 1246 (10th Cir. 2008).
A civil rights claim should be dismissed only where it appears that the plaintiff could
prove no set of facts entitling him to relief. Meade v. Grubbs, 841 F.2d 1512, 1516 (10th Cir.
1988) (citing Owens v. Rush, 654 F.2d 1370, 1378-79 (10th Cir. 1981)). In reviewing a claim
for dismissal under Fed.R.Civ.P. 12(b)(6), all of the factual allegations in the complaint must
be presumed true and construed in the light most favorable to the plaintiff. Hall v. Bellmon,
935 F.2d 1106, 1109 (10th Cir. 1991). A pro se litigant’s pleadings are held to less stringent
standards than those drafted by lawyers and the court must construe them liberally. Haines
v. Kerner, 404 U.S. 519, 520-21 (1972). At the same time, the district court can not assume
the role of advocate for a pro se litigant and should dismiss claims that are supported by
vague or conclusory allegations. Hall, 935 F.2d, at 1110. Where a court considers matters
outside the pleadings, such as those contained within a special report, a Rule 12(b)(6) motion
to dismiss “must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P.
12(d).
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B. Standard for summary judgment
Summary judgment is appropriate where there is no dispute of material facts and the
moving party is entitled to judgment as a matter of law. Fed.R.Civ.P.56. When presented
with a summary judgment motion, this Court must determine whether there “are any genuine
factual issues that properly can be resolved only by the finder of fact because they may
reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). When evaluating a motion for
summary judgment, this Court must examine the factual record and reasonable inferences
therefrom in the light most favorable to the party opposing summary judgment. Gray v.
Phillips Petroleum Co., 858 F.2d 610, 613 (10th Cir. 1988). The party opposing summary
judgment, however, “may not rest upon mere allegations or denials of his pleading but . . .
must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477
U.S. at 248, 106 S.Ct. at 2510 (quoting First National Bank of Arizona v. Cities Service Co.,
391 U.S. 253, 288, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).
To survive a motion for summary judgment on a claim of retaliation for exercise of
his constitutional rights, a plaintiff “must prove that ‘but for’ the retaliatory motive, the
incidents to which he refers . . . . would not have taken place.” Peterson v. Shanks, 149 F.3d
1140, 1144 (10th Cir. 1998) (citation omitted). “[A]n inmate is not inoculated from the
normal conditions of confinement . . . merely because he has engaged in protected activity.”
Id. “An inmate claiming retaliation must ‘allege specific facts showing retaliation because
of the exercise of the prisoner’s constitutional rights.’” Id.
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Furthermore, there are no state laws or prison regulations creating either a right or
expectation for a prisoner to remain in a particular prison or classification to which he has
been assigned, and no due process hearing is required in conjunction with transfer to a
segregation unit.
As long as the conditions or degree of confinement to which the prisoner is
subjected is within the sentence imposed upon him and is not otherwise
violative of the Constitution, the Due Process Clause does not in itself subject
an inmate’s treatment by prison authorities to judicial oversight. The Clause
does not require hearings in connection with transfers whether or not they are
the result of the inmate’s misbehavior or may be labeled as disciplinary or
punitive.
Montanye v. Haymes, 427 U.S. 236, 242 (1976), 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976).
Such transfers are within the discretion of the corrections officials. See also, Meachum v.
Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) and Twyman v. Crisp, 584 F.2d
352, 355-356 (10th Cir. 1978).
C. Failure to exhaust administrative remedies
The Prison Litigation Reform Act of 1996 (“PLRA”) provides in part: “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
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the PLRA for failure to exhaust his 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).
Based upon the undisputed factual background, it is clear Plaintiff did not properly
exhaust his administrative remedies as to his claims of excessive force on September 29,
2009, nor his claims of denial of medical care in October, 2009. According to the records,
Plaintiff first complained he was being subjected to “staff retaliation” on March 25, 2010.
The grievance does not, however, indicate why staff was retaliating against the plaintiff and
it does not appear to be even remotely related to the cell extraction incident of September 29,
2009. Other grievances claim the staff denied him certain things like recreation in retaliation
for his filing a civil suit against staff. These allegations are, however, conclusory and there
is no evidence to support them. Despite plaintiff’s allegations that he has been harassed or
retaliated against for exercising his Constitutional rights, the Plaintiff has not provided any
evidence to support his allegations that the misconducts were issued solely in retaliation.
Rather, the special report clearly establishes that DOC’s Administrative Review Authority
(Defendant Morton) reviewed Plaintiff’s misconduct records and found there was sufficient
evidence to support each misconduct charged.
Moreover, an affidavit from Chief Cotton indicates Plaintiff refused to comply with
a lawful order to close his food port door. Plaintiff does not dispute this fact; rather, he
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claims he was trying to informally resolve some issue by disobeying Cotton’s direct orders.
As the Supreme Court made clear in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96
L.Ed.2d 64 (1987), however, “it 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, supra. Additionally, a review of the video surveillance of the
cell extraction which occurred on September 29, 2009, clearly establishes that Plaintiff
refused to comply with orders from the prison S.O.R.T. team assembled to remove him from
his cell even though he was given many opportunities to comply before any force was used
to gain his compliance. Also, despite allegations to the contrary, the video shows the
plaintiff was allowed to decontaminate shortly after the incident and was not placed into an
administrative segregation unit without any clothes. Based upon the video of the cell
extraction, this court finds Plaintiff has not established that the misconducts were issued for
retaliatory reasons. Additionally, this court finds plaintiff has failed to exhaust his claims of
excessive force and denial of medical care or any other constitutional claims and has failed
to state a claim upon which relief may be granted for retaliation. As a result, this court
hereby grants Defendants’ (Ezell, Martin, Cotton, Miller, Barneck, Morgal, Williamson,
Stevens, Yandale, Barlow, Robinson, Morgan, Rogers, Hosum, Keith, and Laird) Motion for
Summary Judgment (Dkt. # 112).
D. Denial of due process claim
Count Four of Plaintiff’s Amended Complaint alleges that Defendant Morton denied
him due process by failing to grant an appeal of four misconducts alleging assault on officers.
15
Plaintiff seeks both compensatory and punitive damages against Defendant Morton.
Defendant Morton is immune from suit in her official capacity since a suit against her is in
fact a suit against the state itself. Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099,
3105, 87 L.Ed.2d 114 (1985). Nothing within the Amended Complaint suggests that
Defendant Morton personally participated in depriving the plaintiff any of his constitutional
rights.
While plaintiff alleges that Defendant Morton refused to overturn the warden’s
decision thereby depriving him of due process, the documents provided to the court establish
otherwise. Plaintiff’s misconducts do not appear, under Oklahoma law, to implicate a liberty
interest protected by due process. Despite the sanction imposed language on the disciplinary
hearing report,7 the Oklahoma statutes clearly indicate that the plaintiff is not entitled to good
time or “earned” credits. See, OKLA. STAT. tit. 57, § 137 (2012). Furthermore, in accordance
with Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), in order to
comply with due process in disciplinary proceedings, an prisons administrative procedures
need only provide advance written notice of the claimed violation, a written statement of
factual findings, and a right to call witnesses and present documentary evidence if not unduly
hazardous to institutional safety or correctional goals. The documents contained within the
amended special report and those attached to Defendant Morton’s motion establish that the
plaintiff was provided due process prior to his disciplinary proceedings. Plaintiff was not
entitled to a due process hearing prior to his placement in the segregation unit. As a result,
7
See, Dkt. #s 81-1 and 89-2.
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the court hereby grants Defendant Morton’s Motion for Summary Judgment (Dkt. # 89) for
failure to state a claim for relief.
E. Motion to Compel Discovery
Finally, plaintiff’s motion to compel discovery (Dkt. # 149) is denied. The magistrate
judge attempted to assist plaintiff in obtaining service on unserved defendants by requiring
the attorney for DOC to provide the last known addresses of unserved defendants to the
United States Marshal. See, Dkt. # 129. Following receipt of those addresses, the United
States Marshal again attempted to serve those defendants (Wakefield, Hernandez, Swayzie,
and Karr). The summons were, however, returned unexecuted, because the marshal could
not locate the individuals at the addresses provided. See, Dkt. #s 139, 140, 141 and 143. It
is not the responsibility of the Davis Correctional Facility to assist the plaintiff in obtaining
service on former employees.
F. Motion for Preliminary Injunction
Based upon the record herein, plaintiff has failed to establish that he is entitled to a
preliminary injunction. Therefore, his motion (Dkt. # 102) is denied.
Conclusion
For the reasons set forth herein, the Court hereby grants the Defendants’ Motions for
Summary Judgment (Dkt. #s 112 and 89); denies Plaintiff’s Motion to Compel Discovery
(Dkt. # 149); and denies Plaintiff’s Motion for Preliminary Injunction (Dkt. # 102).
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ACCORDINGLY, IT IS HEREBY ORDERED that:
1.
Defendants’ Motions for Summary Judgment (Dkt. #s 112 and 89) are granted and
Plaintiff’s civil rights complaint (Dkt. # 131) is dismissed with prejudice as to all
named defendants for failure to exhaust administrative remedies, failure to state a
claim for relief for retaliation, and for failure to state a claim for relief on his due
process claim against Defendant Morton.
2.
Plaintiff’s Motion to Compel Discovery (Dkt. # 149) is denied.
3.
Plaintiff’s Motion for Preliminary Injunction (Dkt. # 102) is denied.
4.
A separate judgment shall be entered in favor of the defendants and against plaintiff.
5.
Plaintiff remains obligated to pay in monthly installments the $350.00 filing fee
incurred in this matter.
It is so ordered on this 27th day of March, 2013.
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