White v. Jones et al
Filing
46
OPINION AND ORDER by District Judge James H. Payne : Granting 45 defendant's Motion to Dismiss. This action is in all respects, DISMISSED AS FRIVOLOUS, pursuant to 28 U.S.C. § 1915(e)(2). This dismissal shall count as a STRIKE, pursuant to 28 U.S.C. § 1915(g). (case terminated) (acg, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
KEENAN D. WHITE,
Plaintiff,
v.
JUSTIN JONES, et al.,
Defendants.
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No. CIV 13-291-JHP-SPS
OPINION AND ORDER
This action is before the court on the defendants’ motion to dismiss and the court’s
own motion to consider dismissal of the case as frivolous under 28 U.S.C. § 1915. Plaintiff,
an inmate in the custody of the Oklahoma Department of Corrections (DOC) who is
incarcerated at Cimarron Correctional Facility in Cushing, Oklahoma, brings this action
under the authority of 42 U.S.C. § 1983, seeking relief for alleged constitutional violations
during his incarceration at numerous DOC and private prisons. The defendants are former
DOC Directors Justin Jones and Ron Ward, as well as the following officials of Oklahoma
State Penitentiary (OSP) in McAlester, Oklahoma: Warden Mike Mullins, Warden Marty
Sirmons, Deputy Warden Kameron Harvanek, Chief of Security Rick Caywood, Acting Unit
Manager John Klink, Chief of Security Capt. Curtis Hood, Lt. Larry Jiles, Unit Manager
Daryl Wilson, and Correctional Officers David Strobridge, Steve Kerns, Brad Mattioda, R.
Kelly, and Cpl. James Goldringer. Also named as defendants are Sgt. Dana Knight and John
Does 1-4.1, 2
1
To the extent the defendants are sued in their official capacities as DOC officials, plaintiff’s
claims are barred by the Eleventh Amendment. It is well settled that a damages suit against a state
Plaintiff raises three grounds for relief in his complaint. Count I alleges he was
subjected to cruel and unusual punishment, in violation of the Eighth Amendment. In Count
II he claims he was denied due process, in violation of the Fourteenth Amendment. He
asserts in Count III that the defendants violated his right of access to the courts and his right
to redress grievances.
Plaintiff alleges that at the time of the incident at issue, racial tensions at OSP were
high between African American inmates and inmates associated with the United Aryan
Brotherhood (UAB). On or about March 23, 2005, Defendant Jiles informed plaintiff that
he was being moved to the F-4 Run at OSP. When plaintiff protested, Jiles told him the
transfer was authorized by Defendant Klink. Plaintiff’s request to speak with Klink was not
answered.
Inmate Goudeau, acting on plaintiff’s behalf, told Defendant Knight, the F-4 Run
supervisor, that plaintiff, a black inmate, was being transferred. Knight said this was a bad
idea, given the racial tension. Klink allegedly ignored Knight’s warning.
Jiles again told plaintiff to prepare to move, and plaintiff protested that he had heard
the UAB was blaming the Bloods for a recent stabbing fatality at Cimarron Correctional
Facility, and everyone knew that plaintiff previously was a member of the Bloods. Jiles said
that if plaintiff did not move, he would be placed in the segregation housing unit. Therefore,
plaintiff was forced to move to an area on F-4 Run that housed mostly UAB members.
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. of State 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).
2
Defendants Ron Ward, Marty Sirmons, Curtis Hood, Larry Jiles, Daryl Wilson, Steve
Kerns, Brad Mattioda, James Goldringer, Dana Knight, and John Does 1-4 have not been served.
2
The next morning plaintiff was notified to go to the yard. In accordance with facility
procedures, Defendant Strobridge handcuffed him behind his back. When plaintiff stepped
from his cell to the hallway, no guard was present with him, contrary to written procedure.
There, however, were two unguarded white inmates nearby, also allegedly contrary to
procedure.
John Doe #1 was behind the glass in the control room, about 20 feet from plaintiff’s
cell door. The door to UAB member Stacy Elston’s cell was opened, and Elston rushed
plaintiff with a knife. Elston had a handcuff dangling from his hand, but no custodial guard
was with him. Defendant Strobridge allegedly “vanished.”
Plaintiff claims he was stabbed ten times and suffered serious damage to his internal
organs. He further asserts he was in ICU for four days and was hospitalized beyond that
time.
According to plaintiff, he initially was returned to his cell, where his cellmate
attempted to stop his profuse bleeding. Defendant Wilson arrived with Defendants Mattioda
and Kelly. Plaintiff again was handcuffed and taken from his cell, and other inmates began
yelling that he had been “set up.” Plaintiff agreed and said he was calling his lawyer to sue.
Wilson allegedly punched plaintiff and ran his face into the control room window.
Wilson next told Mattioda and Kelly to take plaintiff to the stairwell out of view of
the camera. Defendant Hood arrived and witnessed the following events. Wilson told the
guards to pin plaintiff’s face against the wall, even though he was in great pain. Wilson
banged plaintiff’s head against the steel wall, taunting him that he was not so big now, and
his lawyer would not help him now. Wilson then ordered plaintiff held against the wall for
twenty minutes, although he was losing blood.
3
After this incident, plaintiff eventually became eligible for a transfer to a medium
security facility, but his transfer allegedly was delayed in retaliation. Two attorneys wrote
and called Defendant Warden Mullins, questioning why plaintiff had not been transferred
and suggesting it was because of retaliation. Eventually, he was transferred to Dick Conner
Correctional Center (DCCC) in Hominy, Oklahoma. During plaintiff’s time at that facility,
Sgt. Guess told him that Defendant Hood had set him up for the stabbing. Hood was Chief
of Security at DCCC during plaintiff’s incarceration there. Plaintiff claims Hood wrongfully
wrote him up without any evidence and out of retaliation, and plaintiff immediately was
transferred back to OSP.
Upon plaintiff’s return to OSP in August 2006, Deputy Warden Harvanek told
plaintiff, in the presence of Lane Davis and Capt. Franklin, that he did not belong in
administrative segregation. Plaintiff, however, was placed in administrative segregation,
which is where death-sentenced inmates are housed in isolation with a 23-hour lockdown.
After plaintiff returned to OSP, Defendants Goldringer and John Doe #2 performed
a “non-random search” of his cell. Witnesses saw Goldringer and Doe #2 rifling through
plaintiff’s legal papers, and plaintiff subsequently found his grievances concerning the
stabbing were missing.
Plaintiff contends he still is suffering from acts by the defendants. He has been
assessed medium security points but has been denied a transfer to his correct security level.
On July 2, 2012, the date the Tenth Circuit Court of Appeals affirmed this court’s denial of
his previous complaint concerning these matters, he was asked to sign a transfer. He was
supposed to go to Davis Correctional Facility, a medium security private prison in
Holdenville, Oklahoma, but instead was transferred to the maximum security unit at that
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facility. On May 30, 2013, he was transferred again to the maximum security unit at
Cimarron Correctional Facility, where his conditions of confinement are much harsher than
those experienced by similarly classified prisoners at a medium security prison.
The defendants have filed a motion to dismiss, alleging the doctrine of collateral
estoppel prohibits plaintiff from litigating issues previously determined on summary
judgment in White v. Mullins, CIV 07-085-FHS-SPS (E.D. Okla. Mar. 31, 2011), aff’d, No.
11-7030 (10th Cir. May 18, 2012). Furthermore, the defendants assert plaintiff has failed to
state a claim upon which relief can be granted.
Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
[T]o withstand a motion to dismiss, a complaint must contain enough
allegations of fact “to state a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570, (2007). . . . “[T]he complaint
must give the court reason to believe that this plaintiff has a reasonable
likelihood of mustering factual support for these claims.” Ridge at Red Hawk,
L.L.C. v. Schnieder, 493 F.3d 1174, 1177 (10th Cir. 2007). The burden is on
the plaintiff to frame a “complaint with enough factual matter (taken as true)
to suggest” that he or she is entitled to relief. Twombly, 550 U.S. at 556.
“Factual allegations must be enough to raise a right to relief above the
speculative level.” Id. at 555.
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (emphasis omitted).
In assessing a motion to dismiss, the court must accept the factual allegations as true
and consider them in the light most favorable to the plaintiff. Tomlinson v. El Paso Corp,,
653 F.3d 1281, 1285–86 (10th Cir. 2011) (citing Smith v. United States, 561 F.3d 1090, 1098
(10th Cir. 2009), cert. denied, 132 S.Ct. 1574 (2012)). A request for dismissal pursuant to
Fed. R. Civ. P. 12(b)(6) requires the court to “look to the specific allegations in the complaint
to determine whether they plausibly support a legal claim for relief.” Alvarado v. KOB–TV,
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L.L.C., 493 F.3d 1210, 1215 n.2 (10th Cir. 2007) (citing Twombly, 550 U.S. at 555–56 and
Erickson v. Pardus, 551 U.S. 89, 93–94 (2007)).
Collateral estoppel is the legal principle that prevents a party from relitigating an issue
that already has been decided. Smith v. Dinwiddie, 510 F.3dd 1180, 1186 (10th Cir. 2007),
cert. denied, 553 U.S. 1035 (2008). Collateral estoppel has the dual purpose of protecting
the litigants from the burden of relitigating an identical issue with the same party or his privy
and of promoting judicial economy by preventing needless litigation. Blonder-Tongue Lab.,
Inc. v. Univ. of Illinois Found., 402 U.S. 313, 328-29 (1971).
Collateral estoppel bars the adjudication of a particular claim in a subsequent
proceeding when four elements are met. Those elements are (1) the issue
previously decided is identical with the one presented in the action in question;
(2) the prior action has been finally adjudicated on the merits; (3) the party
against whom the doctrine is invoked was a party, or in privity with a party,
to the prior adjudication; and (4) the party against whom the doctrine is raised
had a full and fair opportunity to litigate the issue in the prior action.
Smith, 510 F.3d at 1188.
Here, the constitutional claims and the named defendants in the present complaint are
the same as those in plaintiff’s 2007 lawsuit, with the exception of the addition of Defendant
Justin Jones. See White, No. CIV 07-085-FHS-SPS. Any claims against Defendant Jones,
however, are barred by Oklahoma’s two-year statute of limitations. See Meade v. Grubbs,
841 F.2d 1512, 1522 (10th Cir. 1988). The present complaint is a handwritten version of
plaintiff’s previous amended complaint, including errors. As an example, both cases allege
plaintiff is 38 years old, when he was 44 years old at the time he filed the current complaint.
After the court adjudicated plaintiff’s claims in the 2007 case, he appealed. The Tenth
Circuit Court of Appeals affirmed, finding, “[t]he district court was correct that a reasonable
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factfinder could not find [that plaintiff successfully exhausted his claims] and that Mr.
White’s assertion of exhaustion is just that, an assertion unsupported by facts or even any
allegations of fact.” White v. Mullins, 466 F. App’x 754, 755 (10th Cir. 2012) (citation
omitted) (unpublished).
In the present case, plaintiff is raising the same grounds for relief that were presented
in the 2007 complaint. He does not assert he exhausted or attempted to exhaust the
administrative remedies for his claims since the first lawsuit was filed. Instead, he has filed
an affidavit claiming he exhausted his remedies in 2006, and his attorney withheld his legal
documents to prevent him from filing the complaint in this action. (Docket No. 1 at 12). The
court, therefore, finds plaintiff has failed to state a claim that he has exhausted his
administrative remedies. See Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir.
2007) (“If the complaint had made it clear through [plaintiff’s] affirmative statements that
he had not exhausted his administrative remedies, the district court could have raised the
exhaustion question sua sponte, consistent with 42 U.S.C. § 1997e(c)(1) and 28 U.S.C. §§
1915 and 1915A . . . .”).
The court further finds that plaintiff has failed to state a retaliation claim. It is well
settled that “prison officials may not retaliate against or harass an inmate because of the
inmate’s exercise of his constitutional rights.” Peterson v. Shanks, 149 F.3d 1140, 1144
(10th Cir. 1998).
But “an inmate is not inoculated from the normal conditions of
confinement experienced by convicted felons serving time in prison merely because he has
engaged in protected activity.” Id. Thus, to prevail on a claim for retaliation, a prisoner must
show that, “but for” the retaliatory motive, the adverse action would not have taken place.
Id. “An inmate claiming retaliation must allege specific facts showing retaliation because
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of the exercise of the prisoner's constitutional rights.” Id. (citations omitted) (emphasis in
original).
Here, plaintiff has provided only conclusory allegations without identifying which
defendant harmed him. Further, he has not presented specific facts showing retaliation based
on the exercise of his constitutional rights. It is well established that a change in a prisoner’s
security classification does not implicate a violation of constitutional rights. See Templeton
v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994) (holding that a prisoner “is not entitled to a
particular degree of liberty in prison”). See also Brown v. Champion, No. 95-5061, 1995 WL
433221, at *1 (10th Cir. July 24, 1995) (finding Sandin v. Conner, 515 U.S. 472 (1995),
makes it clear that an Oklahoma inmate has no constitutional liberty interest in
reclassification, as classification is “entirely discretionary” with Oklahoma prison officials);
Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (“[T]he Constitution itself does not give rise
to a liberty interest in avoiding transfer to more adverse conditions of confinement”).
Plaintiff’s allegations of harsh prison conditions also fail to state a claim. “The
Constitution does not mandate comfortable prisons,” and the conditions imposed may be
“restrictive and even harsh.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Plaintiff’s
bare- bones, conclusory assertions, without more, fail to raise his “right of relief above the
speculative level.” Twombly, 550 U.S. 555. Therefore, he has failed to state a claim
regarding his facility transfers and the conditions of his confinement.
Finally, plaintiff’s conclusory allegations that the defendants participated in retaliatory
conduct also are meritless. He merely names defendants collectively without specifying
which defendants did what to him and continues to complain of his security status. Without
making it “clear exactly who is alleged to have done what to whom, to provide each
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individual with fair notice as to the basis of the claims against him or her,” plaintiff fails to
“nudge[] [his] claims across the line from conceivable to plausible.” Robbins v. Oklahoma,
519 F.3d 1242, 1250-52; Twombly, 550 U.S. at 545.
His request for a permanent injunction to enjoin DOC and Correctional Corporation
of America officials from further retaliating against him also must be denied.
For a party to obtain a permanent injunction, it must prove: (1) actual success
on the merits; (2) irreparable harm unless the injunction is issued; (3) the
threatened injury outweighs the harm that the injunction may cause the
opposing party; and (4) the injunction, if issued, will not adversely affect the
public interest.
Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 822 (10th Cir. 2007). “A
permanent injunction cannot be granted if any of the four requirements has not been met.”
Utah Envtl. Cong. v. United States Bureau of Land Mgmt., 119 F. App’x 218, 220 (10th Cir.
Dec. 15, 2004) (unpublished).
After careful review, the court finds all of plaintiff’s allegations regarding retaliatory
conduct are merely conclusory recitations of the elements of a cause of action. He fails to
identify which defendant participated in the alleged unconstitutional acts or why he is in
imminent danger of serious physical injury. Therefore, his request for an injunction must be
denied.
Based on the foregoing reasons the court finds the allegations in plaintiff’s complaint
are vague and conclusory, and the allegations do not rise to the level of a constitutional
violation. The Tenth Circuit Court of Appeals consistently has held that bald conclusions,
unsupported by allegations of fact, are legally insufficient, and pleadings containing only
such conclusory language may be summarily dismissed or stricken without a hearing. Dunn
v. White, 880 F.2d 1188, 1197 (10th Cir. 1989), cert. denied, 493 U.S. 1059 (1990); Lorraine
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v. United States, 444 F.2d 1 (10th Cir. 1971). “Constitutional rights allegedly invaded,
warranting an award of damages, must be specifically identified. Conclusory allegations will
not suffice.” Wise v. Bravo, 666 F.2d 1328, 1333 (10th Cir. 1981) (citing Brice v. Day, 604
F.2d 664 (10th Cir. 1979), cert. denied, 444 U.S. 1086 (1980)).
The court authorized commencement of this action in forma pauperis under the
authority of 28 U.S.C. § 1915. Subsection (e) of that statute permits the dismissal of a case
when the court is satisfied that the complaint is without merit in that it lacks an arguable basis
either in law or fact. Nietzke v. Williams, 490 U.S. 319 (1989); Yellen v. Cooper, 828 F.2d
1471, 1475 (10th Cir. 1987).
ACCORDINGLY, the defendants’ motion to dismiss (Docket No. 45) is GRANTED,
and this action is in all respects, DISMISSED AS FRIVOLOUS, pursuant to 28 U.S.C. §
1915(e)(2). This dismissal shall count as a STRIKE, pursuant to 28 U.S.C. § 1915(g).
DATED this 30th day of September 2014.
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