Ezell v. Wilkinson et al
Filing
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OPINION AND ORDER by Judge Frank H. Seay : granting 41 Motion to Dismiss. (case terminated) ; granting 47 Motion to Dismiss Case for Failure to State a Claim. (case terminated) ; granting 47 Motion for Summary Judgment. (case terminated) ; denying 56 Motion to Reconsider; denying 60 Motion for Miscellaneous Relief; denying 63 Motion for Appointment of Counsel. (acg, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JAMES R. EZELL,
Plaintiff,
v.
TIM WILKINSON, et al.,
Defendants.
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No. CIV-12-133-FHS-SPS
OPINION AND ORDER
This action is before the court on the defendants’ motions to dismiss or for summary
judgment. The court has before it for consideration plaintiff’s second amended complaint,
the defendants’ motions, and plaintiff’s response. Plaintiff is an inmate in the custody of the
Oklahoma Department of Corrections (DOC) who is incarcerated at Davis Correctional
Facility, a private prison in Holdenville, Oklahoma. He brings this action under the authority
of 42 U.S.C. § 1983, seeking relief for alleged constitutional violations during his
incarceration at that facility. The defendants are Tim Wilkinson, DCF Warden; Rebecca
Adams, DCF Grievance Coordinator; Mr. Baird, DCF Unit Manager; William Barlow, DCF
Unit Manager; Carla Hoover, Unit Clerk; Diana Jones; Stacy Young; Debbie Morton, DOC
Director’s Designee; James Baily, DCF Correctional Officer; and Mr. Islnes, DCF
Correctional Officer.1
In his incoherent second amended complaint, plaintiff apparently is claiming he was
placed on grievance restriction and previously had filed grievances against Defendant Islnes
for a racial slur. On March 29, 2012, Isles and Defendant Bailey allegedly threatened to
harm plaintiff’s food. Bailey also called plaintiff a “punkass coward” for filing grievances
and serving papers on Defendant Hoover.
Plaintiff further claims Defendant Adams
attempts to “screen out” his grievances, and Adams allegedly admitted she did not return a
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Defendants Baird and Islnes have not been served.
Grievance Restriction Affidavit.
Plaintiff alleges that on March 29, 2012, Isles refused to accept his mail, telling him
to file a grievance. Isles started passing out clean cloths, but he was throwing them on the
floor. Plaintiff told Isles to hang his cloth on the door handle, but Isles told him to file a
grievance and then threw plaintiff’s cloth on the floor. Isles told plaintiff, “I have to feed
you, watch your food, snitch.” At pill call plaintiff told the nurse and then went on suicide
watch because of the threats.
Plaintiff’s grievance restriction required all pages of his affidavit to be notarized by
Unit Clerk Hoover. Although unclear, it appears plaintiff is claiming that a delay in
notarization denied his access to the grievance process. He alleges that on April 19, 2012,
he was denied personal copies of the notarized affidavit required for his grievance because
of his grievance restrictions. Plaintiff reported the situation to Unit Manager Foster who
delayed the copies by redirecting the request in an attempt to default the grievances against
Defendants Islnes and Bailey. Then, Defendant Adams intentionally tried not to follow
policy. As of April 26, 2012, Defendant Debbie Morgan had not responded to plaintiff’s
grievance appeal.
Standard of Review
To survive a motion to dismiss, a complaint must set forth factual allegations
sufficient to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff need not
detail factual allegations in the complaint, but must provide the grounds of entitlement to
relief, which entails more than labels and conclusions, and “a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555. When considering a
motion to dismiss, courts look to the complaint and those documents attached to or referred
to in the complaint, accept as true all allegations contained in the complaint, and draw all
reasonable inferences from the pleading in favor of the pleader. Pace v. Swerdlow, 519 F.3d
1067, 1072 (10th Cir. 2008); Alvarado v. KOB–TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir.
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2007). A court, however, is not bound to accept as true a plaintiff’s legal assertions. Iqbal,
556 U.S. at 678.
Although the court is required to exercise a liberal interpretation of plaintiff’s
pleadings, Haines v. Kerner, 404 U.S. 519 (1972), the court need not assume the role of
advocate for plaintiff, and he must present more than conclusory allegations to survive a
motion to dismiss for failure to state a claim, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). “[C]onclusory allegations without supporting factual averments are insufficient to
state a claim upon which relief can be based.” Id. (citing cases). “[A] pro se plaintiff
requires no special legal training to recount the facts surrounding his alleged injury, and he
must provide such facts if the court is to determine whether he makes out a claim on which
relief can be granted.” Id.
Defendant Debbie Morton
Defendant Debbie Morton has filed a motion to dismiss or for summary judgment
(Docket No. 47), asserting, among other things, that plaintiff has not alleged her personal
participation. “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, “a denial of a
grievance, by itself without any connection to the violation of constitutional rights alleged
by the plaintiff, does not establish personal participation under § 1983.” Gallagher v.
Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (citations omitted). Because plaintiff has
failed to allege Defendant Morgan’s personal participation, the claim against her must be
dismissed.
Defendants Barlow, Hoover, Adams, Jones, Wilkinson, Bailey, and Young
The remaining served defendants also have filed a motion to dismiss (Docket No. 41),
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alleging plaintiff has failed to properly exhaust the administrative remedies for his claims.
“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 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).
According to DOC Policy OP-090124, “Inmate/Offender Grievance Process,” an
inmate first must attempt to resolve his complaint informally. If that is unsuccessful, he may
submit a Request to Staff (RTS). If the complaint still is not resolved, he then may file a
grievance. If the grievance also does not resolve the issue, the inmate may appeal to the
Administrative Review Authority or the Chief Medical Officer. The administrative process
is exhausted only after all of these steps have been taken.
According to the defendants, the contract between DOC and CCA/DCF additionally
requires DCF to maintain a grievance policy through which the inmates can address issues
pertaining to their confinement at DCF that are not necessarily applicable to the DOC, such
as inmate property or staff issues. CCA/DCF Grievance Policy 14-5 also requires an inmate
first to attempt resolution of an issue through informal procedures before filing a formal
grievance. If the grievance fails to resolve the issue, the inmate should submit an appeal to
the warden for final resolution.
The record shows that plaintiff was issued a Grievance Restriction Warning by
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Defendant Debbie Morton, DOC Administrative Review Authority Manager, on December
30, 2011. The Warning advised plaintiff that his grievance was being returned unanswered
because of his “Repeated submission of [G]rievances/Appeals with continued procedural
error.” The warning further stated:
I am issuing a restriction warning for the misuse of the grievance process. Per
OP-090124 entitled Inmate/Offender Grievance Process, Section IX, states in
part, “The appropriate reviewing authority or medical deputy director may
determine there is abuse or misuse of the grievance process, and may restrict
the inmate’s/offender’s capacity to submit a grievance. The abuse may be, but
is not limited to: a.) grievances intended to harass another; b.) the continual
and repeated submitting of frivolous grievances; c.) the repeated submitting
of grievances or “Requests to Staff” about an issue previously addressed
by staff in their written responses; d.) grievances about de minimis (small,
trifling, no available remedy) issues; e.) repetitive grievances by multiple
inmates/offenders about the same issue; f.) an inmate/offender using letters and
failing to bring complaints by formal grievance; and g.) continued procedural
defects, such as submitting additional pages, after having been previously
warned.” Continued abuse at any level of the grievance process as explained
in section IX of OP=090124, will result in restrictions being imposed.
Consider yourself warned.
(Docket No. 41-3 at 2) (emphasis in original).
Despite the warning, plaintiff filed an untimely grievance on January 3, 2012. The
next day Defendant Morton sent plaintiff a letter advising he had been placed on a 12-month
grievance restriction because of his refusal to follow the grievance process. (Docket No. 413 at 4). The grievance restriction required him to follow the steps outlined in Section IX of
OP-090124, before submitting a grievance at any level. Id. The defendants point out that
despite being on grievance restriction, plaintiff was not denied access to the grievance
process. Instead, the restriction only increased the number of steps required to reduce
frivolous and abusive filings.
According to the defendants’ administrative records, plaintiff filed three grievance on
May 1, 2012: Grievance No. 2012-1001-00318-G, complaining that Officer Islnes had failed
to respond to a March 29, 2012, Request to Staff regarding laundry; Grievance No. 20121001-00319-G, complaining that Officer Bailey had failed to respond to a Request to Staff
addressing plaintiff’s allegation that Bailey had disrespected him; and Grievance No. 20125
1001-00320-G, concerning an alleged denial of legal copies. All three grievances were
returned unanswered on May 1, 2012, with notations that plaintiff had failed to attempt an
informal resolution, he was on grievance restriction, and the proper documentation had not
been included. Plaintiff resubmitted the grievances on May 8, 2012, and they again were
returned unanswered on May 9, 2012, because plaintiff was on grievance restriction, proper
paperwork was not included, and the resubmitted grievances were untimely. Therefore,
plaintiff did not exhaust his administrative remedies for these claims.
ACCORDINGLY, Defendant Debbie Morgan’s motion to dismiss (Docket No. 47)
is GRANTED for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6), and Defendant
Morgan is DISMISSED WITH PREJUDICE. Defendants William Barlow, Carla Hoover,
Rebecca Adams, Diana Jones, Tim Wilkinson, James Bailey, and Stacy Young’s motion to
dismiss (Docket No. 41) is GRANTED for plaintiff’s failure to exhaust his administrative
remedies, pursuant to 42 U.S.C. § 1997e(a), and Defendants Barlow, Hoover, Adams, Jones,
Wilkinson, Bailey, and Young are DISMISSED WITHOUT PREJUDICE. All other pending
motions are DENIED. This dismissal shall count as a STRIKE, pursuant to 28 U.S.C. §
1915(g).
DATED this 30th day of September, 2013.
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