Baker v. Wilkinson et al

Filing 52

OPINION AND ORDER by District Judge James H. Payne : This Court hereby grants Defendants motion to dismiss for failure to exhaust 28 . Plaintiffs Motions for: (1) Temporary Restraining Order and Preliminary Injunction 37 ); (2) to Supplement titled Motion for Expansion of Record 42 ; and (3) Motion to Produce Contract 44 ) are DENIED. (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA

CHRISTOPHER OLEN BAKER,

)
)
Plaintiff,
)
)
)
vs.
)
)
TIM WILKINSON, et al.,
)
)
Defendants. )

Case No. CIV-13-140-JHP-SPS

OPINION AND ORDER
This matter before the Court on Defendants’ (Wilkinson, Miller, Castro, and Larimer)
Motion to Dismiss (Dkt. # 28). On September 12, 2013, the Plaintiff filed a response to said
motion (Dkt. # 32). On October 14, 2013, the Defendants filed a reply (Dkt. # 39). For the
reasons set forth herein, the Court hereby grants Defendants’ motions to dismiss.
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 reinstatement of pre 12/01/12 medications,
examination by a neurologist and access to a medical doctor to address his medical issues
(Dkt. # 1). Plaintiff alleges a violation of his Eighth Amendment rights claiming deliberate
indifference and medical malfeasance. Plaintiff’s chief complaint is that he is no longer
allowed to see a medical doctor. Rather, his medical issues are handled by a Board Certified,

Advanced Registered Nurse Practitioner. Plaintiff disagrees with the medications he has
been provided, claiming the defendants are trying to kill him. Plaintiff complains following
a traumatic experience with a CCA officer in October, 2012, he experienced an increase in
seizure frequency and intensity. In December 2012, Plaintiff states he went for his six month
medication renewal. At that time, Plaintiff was seen by Defendant “Nurse Castro who
informed him he would no longer be seen by Dr. Reiheld, only her.” Dkt. # 1, at p. 4. On
February 13, 2013, Plaintiff was again seen by Nurse Castro and he was informed that “she
would be removing him from his medications to try him on a new, untested, or authorized
medication, and that he would be locked in a medical cell for transition.” Id. According to
Plaintiff, Nurse Castro completely ignored Dr. Reiheld’s recommendations concerning his
medications. Id. On February 13, 2013, Plaintiff alleges he had a seizure in which he ceased
breathing for over four and ½ minutes. Plaintiff claims he had an allergic reaction to the new
medication. Thereafter, Plaintiff asserts he was “locked unobserved in medical observation
cell 2/25/13 and injected with a substance that induced series of grandmal siezures (sic),
authorized by Mr. Latimer (sic), without medical authorization of qualified Dr. Neither the
injection or the siezures (sic) were logged by medical staff.” Id. Plaintiff claims he
attempted an informal resolution of his grievance with Dr. Reiheld and he thought he was
going to be returned to his previous level of control medications; however, this did not occur.
Plaintiff asserts Defendants Latimer, Castro, and other assorted medical staff continue to
thwart Dr. Reinheld’s efforts to address plaintiff’s health and safety issues and concerns.

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Plaintiff requests this Court reinstate his pre 12/01/12 meds, order an examination by a
neurologist and grant him access to a medical doctor.
On June 19, 2013, 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 August 19, 2013, the special report was filed along with the Defendants’ Motion to
Dismiss. On September 12, 2013, the Plaintiff filed his response to which the defendants
filed their reply.
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.
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
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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).
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
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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)).
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
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).
According to the special report submitted herein, it is clear the plaintiff did not
properly exhaust his administrative remedies. The plaintiff was incarcerated at the Davis
Correctional Facility, in Holdenville, Oklahoma. The Davis facility is a medium-security/maximumsecurity private prison run by the Corrections Corporation of America, Inc. (“CCA”). CCA has
entered into a contract with the Oklahoma Department of Corrections (“DOC”) to house inmates for
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DOC. Two DOC employees are regularly at the Davis facility as “contract monitors” for DOC.
Dkt. # 39-2.
Since September 2012, the DOC grievance policy, OP-090124, has been the only grievance
policy available to inmates housed at Davis by DOC. See, Dkt. # 27-2. This policy sets out a stepby-step process an inmate must follow in order to exhaust his administrative remedies. The policy

provides that an offender must first try to resolve his complaint informally by talking with
appropriate staff within three days of the incident. Id., at p. 6.1 If not resolved, the inmate
must submit a “Request to Staff” stating “completely but briefly the problem.” Id. This
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 or the facility
correctional health services administrator. 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., at p. 8. Davis is responsible, under this
policy, to respond “to grievances on matters occurring during the offender’s incarceration”
and offenders “may file grievances at private prisons with the facility administrator
concerning their assignment at the private prison.” Id. The last step in the grievance policy
requires an inmate to make a final appeal to the Administrative Review Authority or the

1

Page numbers reference the CM/ECF page number at the top of the document cited as opposed to the page number of
the grievance policy.

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Chief Medical Officer within 15 calendar days of receipt of the reviewing authority’s
response or any amended response. Id., at p. 11. For final appeals of medical issues, the
DOC has a Chief Medical Officer and medical office administrative review authority that
provides the final level of appeal for inmates filing grievances about medical issues.
According to the special report, Plaintiff filed four grievances between October 2012
(the date of the first allegation in his Complaint) and April 1, 2013 (the date this lawsuit was
filed). On April 21, 2013, Plaintiff submitted an additional grievance. While the majority
of those grievances were returned for failure to attempt an informal resolution prior to
submitting his formal grievance, Plaintiff did not appeal any of the decisions to return his
grievances. See, Dkt. # 27, at pp. 5-9, Grievance Nos. 2013-1001-00045-G, 2013-10010046-G, 2013-1001-00089-G, and 2013-1001-00114-G. Following the filing of one of his
grievances, the Plaintiff was seen by Dr. Reiheld and his grievance was returned since the
matter had been resolved. See, Dkt. # 27-4, at pp. 10-15, Grievance No. 2013-1001-00050G. The grievance submitted on April 21, 2013, was initially returned for failure to complete
the grievance form in its entirety and for failure to resolve the complaint informally. Plaintiff
was given an opportunity to resubmit the grievance and on May 3, 2013, Plaintiff
resubmitted this grievance. On May 10, 2013, the reviewing authority denied the request for
the following reasons:
Offender Baker requests that his KOP (Keep On Person) medicine status be
restored and delete the unfounded accusation of “Hording” from his file.
After an investigation of the matter it was determined by Ray Larimer, Clinical
Supervisor that multiple meds were found in Offender Baker’s cell indicating
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that the offender was not taking his meds properly. Offender Baker will need
to submit a request to medical services to discuss this with the provider.
See, Dkt. # 27-4, at pp. 20- 22 and 24-27. Although the response advised Plaintiff that he
had the right to appeal, where to file his appeal, the DOC form to use, and the time limit
within which the appeal had to be filed, Plaintiff never filed any appeal from this response.
Plaintiff asks this Court to excuse his exhaustion because any administrative remedies
would be futile. Plaintiff does not, however, explain why he can not obtain relief thru the
inmate grievance procedures. Rather, plaintiff simply states “there are no administrative
remedies for the resolution of the issues” contained in his complaint.2 The special report,
however, clearly establishes that there are written grievance policies and procedures which
must be followed in order to resolve the types of issues contained in Plaintiff’s complaint.
Furthermore, in his objection to the special report filed on September 25, 2013, Plaintiff
states that he was sent to the Holdenville Hospital to have a CAT scan of his neck since the
filing of this lawsuit which appears to be one of the requests he had made in Grievance No.
2013-1001-00046-G filed in February, 2013. As a result, this Court finds Plaintiff did not
exhaust the available administrative remedies prior to filing this lawsuit. Therefore, pursuant
to 42 U.S.C. § 1997e(a), this action must be dismissed.
D. Eighth Amendment Claims
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On January 24, 2014, Plaintiff filed a Supplement to his motion for temporary restraining order (Dkt. # 50) and a
Supplement or Sur-reply to Defendants’ Motion to Dismiss (Dkt. # 51). Again Plaintiff informs the court that he has not been
seen by Dr. Sanders or a neurologist. While not considering whether Plaintiff has fully exhausted his administrative remedies
regarding the grievances attached to those pleadings, the court would note that those grievances do not predate the filing of this
action, and therefore, do not demonstrate that the grievance procedures are futile. The grievances attached to these latest
pleadings were responded to and even though the response changed due to an apparent misunderstanding by the person
responding to the grievance, Plaintiff still has a right to appeal any decision denying his grievance to the Administrative Review
Authority and/or the Chief Medical Officer as detailed herein.

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In order to state a claim under § 1983, a plaintiff must 1) allege a violation of a right
secured by the Constitution or laws of the United States and 2) demonstrate that the alleged
deprivation was committed by a person acting under color of law. Hall v. Witteman, 584
F.3d 859, 864 (10th Cir. 2009). The Eighth Amendment’s prohibition against cruel and
unusual punishment imposes minimum requirements on prison officials in the treatment
received by inmates. Not every injury suffered by a prisoner at the hands of another,
however, translates into constitutional liability for prison officials. Farmer v. Brennan, 511
U.S. 825, 834, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994). In order for a violation of a
convicted prisoner’s Eighth Amendment rights due to inadequate medical care, the prisoner
“must, at a minimum, allege ‘deliberate indifference’ to his ‘serious’ medical needs.” Wilson
v. Seiter, 501 U.S. 294, 297-299, 111 S.Ct. 2321, 2323, 115 L.Ed.2d 271 (1991). See also,
Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 85, 291, 50 L.Ed.2d 251 (1976). An Eighth
Amendment claim has both an objective and subjective component. Farmer, supra. The
objective component requires proof that the condition was “sufficiently serious.” Id. To
meet the objective component, “extreme deprivations are required . . . .” Hudson v.
McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992). The subjective
component is met by a prison official who is deliberately indifferent to an inmate’s health or
safety. Wilson v. Seiter, 501 U.S. at 297. “[A]llegations of ‘inadvertent failure to provide
adequate medical care,’ or of a ‘negligent . . . diagnos[is],’ simply fail to establish the
requisite culpable state of mind.” Id. (citations omitted) Furthermore,

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. . . . a complaint that a physician has been negligent in diagnosing or treating
a medical condition does not state a valid claim of medical mistreatment under
the Eighth Amendment. Medical malpractice does not become a constitutional
violation merely because the victim is a prisoner. In order to state a cognizable
claim, a prisoner must allege acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs. It is only such indifference
that can offend “evolving standards of decency” in violation of the Eighth
Amendment.
Estelle v. Gamble, 429 U.S. at 106.
To show deliberate indifference to his serious medical needs the plaintiff must
demonstrate that prison officials “refused to treat him, ignored his complaints, intentionally
treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton
disregard for any serious medical needs.” Domino v. Texas Dept. of Criminal Justice, 239
F.3d 752, 756 (5th Cir. 2001) (quoting Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985)).
“Medical records of sick calls, examinations, diagnoses and medications may rebut an
inmate’s allegations of deliberate indifference.” Banuelos v. McFarland, 41 F.3d 232, 235
(5th Cir. 1995).
According to the special report filed herein, Plaintiff was seen by medical facility staff
at least twenty-seven times between October 4, 2012 and March 14, 2013. While Plaintiff
disagrees with the medication changes that have recently been made, such changes do not
amount to deliberate indifference in violation of the Eighth Amendment of the Constitution.
Furthermore, there is no constitutional right to be seen only by a licensed physician.
Although Plaintiff filed an objection to the special report on September 25, 2013, he does not
deny that he has been seen by medical staff. Rather, his objection is that the facility did not

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fully investigate his allegations when completing the Special Report. In particular, he
complains because the special report does not contain his medical records all the way back
to 2000. The allegations made in plaintiff’s complaint, however, deal with whether or not
the defendants were deliberately indifferent to his medical needs between October 2012 and
the filing of his lawsuit on April 1, 2013. He asks the court to “[r]ienstate (sic) pre 12/01/12
meds”; to order an examination by a neurologist and to require access to a medical doctor at
DCF. See, Dkt. # 1, at p. 10. See also, Motion for Temporary Restraining Order and
Preliminary Injunction, Dkt. # 37 and Supplement to Declaration in Support of Plaintiff’s
Motion for Temporary Restraining Order and Preliminary Injunction, Dkt. # 47 (in which
Plaintiff states “[o]n September 6, 2013, [he] was taken to the Holdenville General Hospital
for a CT scan.”) Plaintiff attaches a radiology report which indicates he may be suffering
from degenerative disc disease and the radiologist recommends “MRI for further evaluation
if clinically indicated.” (Emphasis added) Plaintiff states in his declaration that the
radiologist “recommended that [he] be subjected to an MRI.” Dkt. # 47, at p. 2. The
allegations in his Motion and Supplemental Declaration go way beyond the allegations made
in his Complaint. Dkt. # 1.
Furthermore, while Plaintiff complains that his files could have been altered, his
complaints are conclusory and he supports his allegations with no facts which would
establish deliberate indifference to his serious medical needs. Plaintiff does not allege that
he suffered substantial harm from the change in his medications. Rather, he indicates that
his seizures have only recently gotten worse and he claims to have had “an allergic reaction
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to new medication.”3 Plaintiff states following this incident he was placed in a medical
observation cell. The Request to Staff attached to Plaintiff’s Motion for Expansion of the
Record (Dkt. # 42), indicate Plaintiff has been offered several different seizure medications
and he refuses to try them. Further, this document indicates Plaintiff’s medical record was
reviewed by Dr. Sanders, who agrees with the treatment provided. Id., at pp. 4-5. Plaintiff’s
objection to the special report, as well as the continuing complaints regarding daily medical
care while in prison and his continued requests that this Court order a complete medical exam
and/or psychiatric evaluation to be completed in order that it can be included as an addendum
to the special report (see, Dkt. # 33, at p. 5, ¶ 15), establish Plaintiff is operating under a
mistaken impression of the purpose of this lawsuit. While claims of inadequate medical
treatment can give rise to federal protections under § 1983, prison officials must of necessity
be vested with a wide degree of discretion in determining the nature and character of medical
treatment to be afforded prisoners. The function of this Court is not to micro manage the day
to day medical operations of the prison or to interfere with the conduct of prison officials in
carrying out their medical obligations to inmates. Where a inmate is provided with medical
care and the dispute is over the adequacy of that care, an Eighth Amendment claim simply
does not exist. Wilson v. Seiter, supra. Viewing the facts in the light most favorable to
Plaintiff, this Court finds that Plaintiff has not pled sufficient facts to state a claim that any
of the named Defendants were “deliberately indifferent” to his serious medical needs.
Rather, his complaint indicates he has been seen by medical personnel. In particular, on
3

Plaintiff does not support this conclusory allegation with any evidence.

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February 13, 2013,when he had a seizure and claims to have stopped breathing for over four
and a half (4 ½ minutes), medical personal responded and apparently revived him. Because
Plaintiff has failed to provide any evidence from which the finder of fact could conclude that
Defendants Miller, Castro, Larimer or Wilkinson were deliberately indifferent to his serious
medical needs, this Court finds, even if the grievance procedures were futile, Plaintiff has
failed to state a claim for relief.
Accordingly, this Court hereby grants Defendants motion to dismiss for failure to
exhaust (Dkt. # 28).

Plaintiff’s Motions for: (1) Temporary Restraining Order and

Preliminary Injunction (Dkt. # 37); (2) to Supplement titled “Motion for Expansion of
Record” (Dkt. # 42); and (3) Motion to Produce Contract (Dkt. # 44) are DENIED.
IT IS SO ORDERED on this 28th day of January, 2014.

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