Brewer v. Gilroy et al

Filing 77

OPINION AND ORDER by Judge Ronald A. White : Defendants Riddle and Pinleys motion to dismiss (Dkt. 53) is GRANTED, and Defendants Riddle and Pinley are DISMISSED WITHOUT PREJUDICE for plaintiffs failure to exhaust the administrative remedies for his claims against these two defendants, pursuant to 42 U.S.C. § 1997e(a). Furthermore, plaintiffs claims against the Department of Corrections defendants and the Oklahoma State Penitentiary defendants are DENIED for failure to show these defendants personally participated in constitutional violations. This action is, in all respects, DISMISSED as frivolous, and the 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
DANNY BREWER,
Plaintiff,
v.
DEANA GILROY, et al.,
Defendants.

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No. CIV 13-471-RAW-SPS

OPINION AND ORDER
This action is before the court on the defendants’ motions to dismiss and the court’s
own motion to consider dismissal of the case as frivolous under 28 U.S.C. § 1915. The court
has before it for consideration plaintiff’s amended complaint (Dkt. 6), the defendants’
motions (Dkt. 53, 63), and two special reports prepared at the direction of the court, in
accordance with Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (Dkt. 52, 61).
Plaintiff, an inmate in the custody of the DOC who is incarcerated at Oklahoma State
Penitentiary (OSP) in McAlester, Oklahoma, brings this action under the authority of 42
U.S.C. § 1983, seeking relief for alleged constitutional violations during his incarceration at
OSP and Davis Correctional Facility (DCF), a private prison in Holdenville, Oklahoma. The
DCF defendants are Sergeant Deana Gilroy, Corrections Officer Pavtukevick, Warden’s
Administrative Assistant Jimmy Martin, Captain Riddle, and Officer Pinley. Plaintiff also
has named the following OSP officials: Deputy Warden Art Lightle, Warden’s Assistant
Terry Crenshaw, Unit Manager William Taylor, Case Manager Shearwood, and H-Block
Security Supervisor Lt. Parker. In addition, plaintiff is suing certain DOC officials: Former
DOC Director Justin Jones, Director’s Designee Mark Knutson, and Internal Affairs Officers
Randy Knight and Ken Yott.1
1

To the extent the OSP and DOC defendants are sued in their official capacities as officials
of the State, plaintiff’s claims are barred by the Eleventh Amendment. It is well settled that a
damages suit against a state 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.

Plaintiff sets forth the following claims:
Count I: Sexual abuse or rape of a prisoner by staff is, by definition, an Eighth
Amendment violation.
Count II: In violation of the Eighth and Fourteenth Amendments, prison
authorities showed deliberate indifference and even overt hostility when
plaintiff reported being raped.
Count III: In violation of the Fifth and Fourteenth Amendments, prison and
DOC authorities were motivated by racial discrimination when they acted with
deliberate indifference and overt hostility.2
DCF Claims
As an initial matter, the court directed plaintiff to serve Defendants Deana Gilroy,
Pavlukevick, and Jimmy Martin in accordance with Fed. R. Civ. P. 4(m). (Dkt. 60). The
United States Marshals Service was unable to serve these defendants, however, because
plaintiff failed to provide current, proper addresses for them. (Dkt. 72, 73, 74). Therefore,
these defendants are DISMISSED WITHOUT PREJUDICE from this action.
Plaintiff alleges that from June 2011 through January 2012, Defendant Deana Gilroy
was assigned to the shower and exercise yard crew that consisted of three men and one
woman. Plaintiff and Inmate Williams were cellmates and orderlies for the Echo-Charley
Quad. Plaintiff alleges that Gilroy would come onto the Quad, go into the staff office, and
wait until Defendant Pinley left the office or Quad. Gilroy then would call plaintiff into the
staff office, where they hugged and kissed. Plaintiff had Williams watching to see that no
one walked in on them. On some occasions Gilroy came onto the Quad and called plaintiff
into the staff office where she would stick her hand into his pants and grope his penis, while
Williams kept watch. From June 2011 through November 2011, Gilroy came at lunchtime
daily to meet plaintiff in the office and talk about her personal life and how unhappy she was

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

Plaintiff lists an identical claim in Count IV. (Dkt. 6 at 17).
2

in her marriage. Plaintiff attempted to encourage her by giving her letters, poems, and gifts,
which she took home in her shoulder bag. During that time period, Gilroy allegedly
performed oral sex on plaintiff in a cell on the Quad. When plaintiff attempted to stop giving
Gilroy letters and gifts, she became very angry and threatened to have him fired from his
orderly job and to stop his transfer package. In November 2011 Inmate Williams told
plaintiff that Gilroy had threatened him and said that plaintiff needed to fix his relationship
with her. Williams requested a cell move and was moved two weeks later. Plaintiff was
fired from his orderly job without being given a reason, and he was moved to another cell on
the Quad.
On or around November 10, 2011, Gilroy received a promotion to Sergeant and was
moved from the shower and exercise yard crew. She began working the midnight shift from
6:00 p.m. to 6:00 a.m. as the Echo-Charley Unit Shift Supervisor. Plaintiff claims she used
any excuse to come onto the Quad where he was housed, such as escorting the nurse or
passing out canteen items. She also assigned herself to the Quad when the facility was shortstaffed. When she was on the Quad, she would stop by plaintiff’s cell and tell him she
needed to talk with him, so he should be awake and waiting for her around 1:00 or 2:00 a.m.
She then would come to plaintiff’s cell during the night, where they mostly talked about her
marriage. He again gave her letters and poems. She also looked through plaintiff’s bean
hole, spoke suggestively, and watched him masturbate.
In December 2011 Inmate Ware pretended to be asleep while he listened and watched
their activity. The next day Ware reported it to Defendant Pinley, but Pinley did not report
the incident to the supervisor, violating Corrections Corporation of America’s rape policy.
On December 26, 2011, plaintiff told Defendant Pavlukevick, the Echo-Charley Quad
Corrections Officer, that Gilroy was guilty of sexual assault and rape of a prisoner. Plaintiff
related the incidents to Pavlukevick and asked that they be reported to Gilroy’s supervisor.
Instead, Pavtukevick told Gilroy, and she confronted plaintiff and denied trying to stop his
transfer package or having him fired from orderly job. She advised him to stop talking and
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relax.
At approximately midnight on January 2, 2012, plaintiff allegedly was moved to lockup for having written letters to Gilroy. He was taken to Defendant Riddle’s office where he
told Riddle that Gilroy raped and sexually assaulted him when he was an orderly, and Inmate
Ware previously had reported it to Defendant Pinley. Riddle, however, did not file a report
with the Internal Affairs officers about plaintiff’s allegations.
On January 4, 2012, plaintiff was in maximum security lock-up on Fox Unit. EchoCharley Unit Manger Barlow and the new Deputy Warden came to investigate why he had
been transferred there. The Deputy Warden was not aware of plaintiff’s allegations of rape
and sexual assault, so plaintiff told him about the incidents. On January 7, 2012, plaintiff
filed a Grievance to the DCF Administrative Review Authority (ARA), requesting an
investigation and threatening a hunger strike. The ARA’s response stated there would be an
investigation of the rape accusation against Gilroy.
On January 9, 2012, plaintiff was taken to the medical unit for a rape test. That same
day Defendant Jimmy Martin, the Warden’s Assistant, came to plaintiff’s cell and said
plaintiff could be transferred to another facility on the next Friday, if he stopped his hunger
strike. During the conversation, however, plaintiff learned that Martin was planning to
transfer him to OSP. Plaintiff said he would not stop his hunger strike until he learned the
results of the rape investigation against Gilroy.
Next, the DOC Internal Affairs Department came to interview plaintiff, but the officer
allegedly showed racial bias toward him. The officer began the investigation by telling
plaintiff, “I have read your grievance and that [sic] I don’t believe anything that you said.”
(Dkt. 6 at 15). The officer, however, said he was giving plaintiff a chance to convince him
that he was not lying about being raped. Plaintiff offered to take a polygraph examination,
but the officer said he would not administer one. The officer also told plaintiff he had
received several notes from offenders on Echo-Charley Quad stating Defendant Gilroy had
brought plaintiff tobacco and a cell phone. Plaintiff related that on December 23, his
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cellmate told Officer Pinley what he had witnessed. Plaintiff also told the officer that he had
told Officer Pavlukevick about the rape. In addition, he reported that an African-American
officer told him that he heard Pavlukevick tell Captain Riddle about the rape accusations.
The Internal Affairs officer said that Gilroy was scheduled for a polygraph
examination at the Holdenville police station that evening. Plaintiff asked if he could return
to the Echo-Charley Quad cell during the investigation, but he was informed that the officer
would recommend his immediate transfer to OSP.
Plaintiff returned to lockup on the Fox Unit where Warden’s Assistant Martin
attempted to convince him to end his hunger strike. Plaintiff refused, so around 1:30 p.m.
on January 9, he was moved to the medical unit and placed on suicide watch. On the seventh
day of the hunger strike, the head psychologist came to talk with him. Plaintiff explained he
was refusing to eat because he thought the prison officials were conspiring to transfer him
to OSP and to sweep his rape allegations under the rug. He thought the conspiracy was based
on his being African-American and Gilroy’s being a white female corrections officer.
The psychologist stated he would talk with Internal Affairs to find out the progress
of the investigation. Later that day, the psychologist returned and told plaintiff that the
Internal Affairs officer said he believed Gilroy was guilty of something, and plaintiff’s
former cellmate Inmate Ware and Inmate Williams would be interviewed that day. Plaintiff
decided to resume eating.
After plaintiff was returned to lockup, he learned from Inmates Washington and
Owen, two African-American inmates, that Gilroy had been cleared of all charges, and
plaintiff was being sent to OSP.

Also, the African-American officer had not been

interviewed, nor were any of the correctional officers who were aware of the rape allegations.
Plaintiff claims the Internal Affairs officer conspired with Defendant Jimmy Martin to
transfer plaintiff to OSP. Martin told plaintiff that Defendant OSP Deputy Warden Art
Lightle would personally deal with plaintiff.
DCF Defendants Pinley and Riddle allege plaintiff has failed to exhaust the
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administrative remedies for any of his claims against them. (Dkt. 53). “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. The 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.
Both DOC and CCA/DCF policies provide a specific remedy to an inmate in the event
of failure of staff to respond to a RTS. Pursuant to DOC policy, if there has been no
response within 30 calendar days of submission, the inmate may file a grievance to the
reviewing authority with evidence of submitting the RTS to the proper staff member. The
grievance may assert only the issue of lack of response to the RTS. Likewise, CCA/DCF
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policy states that grievable matters include individual staff and inmate actions, including the
denial of access to the informal resolution or grievance policies.
According to the affidavit by Terry Underwood, the DCF Grievance Coordinator,
plaintiff filed three grievances at that facility from October 2011 until his transfer to OSP in
March 2012. (Dkt. 53-2): Grievance 2012-1001-0026, Grievance 2012-1001-0162, and
Grievance 2012-1001-0221. Only the first one concerned the allegations in his complaint,
with the other two were related to property issues.
Plaintiff filed Emergency Grievance No. 2012-1001-0026 on January 5, 2012, setting
forth his claims of sexual abuse and rape against Officer Gilroy. His requested action was,
“All I want is for S/O Gilroy to be investigated and the witnesses that I mention be
questioned.” (Dkt. 53-3 at 2). In the Grievance narrative plaintiff set forth the following
about Defendant Riddle: “The next thing I knew was that Captain Riddle was at my cell door
three weeks later telling me to cuff up because S/O Gilroy had said that I gave her a letter and
I was being charged for Menacing!” (Dkt. 53-3 at 5). Regarding Defendant Pinley, the
Grievance stated, “Inmate . . . Ware talked to S/O Gilroy after C/O Pinley came to him and
told him that S/O Gilroy was saying things to him (Pinley) about me, and S/O Gilroy denied
ever talking to C/O Pinley about me at all.” (Dkt. 53-3- at 5).
The January 6, 2011, response to the grievance stated “[t]he appropriate authorities
have been notified and an investigation has begun.” (Dkt. 53-3 at 4). Further, plaintiff’s
request (1) “for SC/O Gilroy is GRANTED, and (2) for the witnesses to be questioned is
GRANTED.” Id.
According to the record, plaintiff clearly did not exhaust the administrative remedies
for his claims against Defendants Riddle and Pinley. Grievance No. 2012-1001-0026 did not
assert that Riddle or Pinley violated plaintiff’s constitutional rights as alleged in the
complaint.

Therefore, Defendants Riddle and Pinley are DISMISSED WITHOUT

PREJUDICE from this action for plaintiff’s failure to exhaust the administrative remedies
for his claims against these two defendants.
7

OSP and DOC Claims
Plaintiff alleges the OSP administration is comprised of white males, and there is a
history of their racial discrimination against African-American offenders. He further claims
that Defendants Art Lightle, Terry Crenshaw, and William Taylor are not following the
Offender’s Disciplinary Procedure with respect to him because of racial discrimination.
According to plaintiff, from the moment he arrived at OSP on March 4, 2012, he has
been subjected to overt racial discrimination from Defendants Lightle, Crenshaw, and Taylor.
Upon arrival, he was placed in a cell with no lights inside, just holes in the wall where the
lights had been. He was not given a mattress or bedroll and was wearing boxer shorts. At
lunch time Correctional Officers Sgt. Hammell and Crenshaw, who is the son of Warden’s
Assistant Terry Crenshaw, provided food to him, but at dinner plaintiff did not receive
anything to eat. The toilet and the sink faucet in his cell did not work, and he was forced to
lie on cold concrete, with the smell of urine and feces surrounding him. Plaintiff got up and
covered the window in the cell door, so the staff could not see him when they performed their
count.
Sgt. Hammell called Shift Captain Kennedy, who removed the paper in the window
and asked plaintiff why he had done it. Plaintiff told him the corrections officer was not
feeding him, his cell smelled like urine and feces, and nothing worked in the cell. Kennedy
checked the cell and moved him to another cell that also had no lights, but the plumbing
worked. Plaintiff asked Kennedy for something to eat, and Kennedy said the kitchen was
closed for the night, but he would check into why plaintiff had not received his meals.
Plaintiff claims that after that night he went seven full days and nights without food, until
Sergeant Boowey, an African-American officer, came to his unit. On March 12, 2012,
plaintiff banged on the window in his door and got Boowey’s attention. Plaintiff asked why
the white correctional officers would not give him food. Boowey answered over the cell
intercom and said it had something to do with why plaintiff was sent to OSP. Boowey said
he would investigate, and about 30 minutes later he told plaintiff over the cell intercom that
8

Deputy Warden Lightle had placed plaintiff on a seven-day sack lunch restriction, but the
kitchen was not aware of the restriction. Plaintiff received his lunch that day on Sgt.
Boowey’s shift.
The next day, while plaintiff was being escorted to his disciplinary hearing, he told
Lt. Glover in front of Sgt. Boowey that Glover’s corrections officer was not feeding him.
She replied that she knew plaintiff was receiving all his meals, because she watched the Quad
camera and saw him get the meals. Once he was back in his cell, Sgt. Boowey told plaintiff
he would get his food when Boowey was working a shift.
After Boowey was gone, however, plaintiff claims he again was denied his meals by
white corrections officers. In particular he asserts that Mr. Sgt. Spears came from his post
to Ms. Sgt. Spears’ post to push Ms. Spears’ food cart around the Quads. Ms. Spears opened
the inmates’ bean holes and delivered their food. When they came to plaintiff’s cell,
however, they would pass by and refuse to give him a meal. Plaintiff could see his sack
lunch on the cart with his name on it, but it was not given to him.
After plaintiff informed Chief Peters about his not receiving meals for seven days, Mr.
and Ms. Spears personally began bringing the sack lunches to him by making plaintiff stand
at the back of his cell and throwing the food on the floor, where there sometimes was a
puddle of water from a roof leak. Plaintiff later was moved to another area of the Quad
where Mr. Spears and Correctional Officer Heartsfield worked the 6:00 a.m. to 2:00 p.m.
shift. They allegedly instructed Gooseby, the Quad “run man,” that he would be fired if he
gave anything to plaintiff. The run man is responsible for cleaning the Quad and passing out
tea, juice, milk, coffee, toilet tissue, clothing, and indigent hygiene items.
Plaintiff further complains there were no lights in his cell, and he could smell raw
sewage and see it in the toilet and sink. He was not given a mattress or bedroll for another
seven days, and was allowed to eat only every other day. He alleges he sent three grievances
to the administrator concerning his living conditions, but there were no responses. He also
claims he submitted two grievances to Warden Workman in March 2012, but Workman was
9

on medical leave, and Deputy Warden Lightle was on vacation. Plaintiff then filed a
grievance to DOC Director’s Designee Debbie Morton, asking for relief, but again received
no response.
Plaintiff contends the white male administration at OSP is racially discriminating
against him, because he is African-American and because he claimed a white female
corrections officer raped him. He also claims the OSP officials are conspiring with DCF
Warden’s Assistant Jimmy Martin and the Internal Affairs Officers, so they can cover up the
crimes against him.
Plaintiff continues with allegations that Sgt. Spears and Correctional Officer
Heartsfield instructed Bradshaw, the new run man, not to give plaintiff anything. When
plaintiff complained to Sgt. Taylor and Sgt. Hands, they said it was not their job to give him
the items passed out by the run man. Instead, plaintiff was responsible for getting the
products from the run man. Plaintiff filed a grievance to Warden Workman and claims he
complied with every step to exhaust his administrative remedies.
Plaintiff further alleges that after complaining about the conditions for a full year, Unit
Manager William Taylor and Deputy Warden Lightle moved him to a high max cell as
punishment. He was denied food for several days and filed several Requests to Staff and an
Emergency Grievance, but received no responses.
Plaintiff claims he had to write DOC Deputy Director D.B. Parker, before any of his
issues at OSP were addressed. The conditions began to improve, and plaintiff began to be
allowed in the exercise yard almost daily and to take daily showers. He also received three
meals a day. The water faucet in his cell sink was not working, so he filed an Emergency
Grievance. DOC Director’s Designee’s response was that the lack of water in his cell was
not an emergency. Plaintiff asserts he had no drinking water in his cell for more than three
months.
Plaintiff also submitted several grievances to Mr. Knutson he marked
“Sensitive/Emergency,” claiming he was experiencing racial discrimination from the OSP
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administration. The issues, however, were not addressed. In addition, Deputy Warden
Lightle and Corrections Officers Kelley and Scott used racial epithets and talked about
assassinating the President, and there are no African-American corrections officers at OSP
above the rank of Sergeant. Finally, plaintiff asserts that Lt. Parker on H-Block falsifies
records and refuses to follow policy concerning plaintiff’s yard time and showers.
OSP and DOC Defendants Terry Crenshaw, Justin Jones, Randy Knight, Mark
Knutson, Jacky Parker, Keith Sherwood, William Taylor, and Art Lightle also have moved
for dismissal, alleging plaintiff has failed to show their personal participation in any
constitutional violations. (Dkt. 63). “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, 430-31 (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).
The court finds plaintiff has failed to identify what, if anything, Defendant Jones did
that resulted in a constitutional violation. Jones is mentioned only with respect to his position
as the DOC Director. Similarly, there are no allegations that Internal Affairs Officers Knight
and Yott personally participated in constitutional violations against plaintiff.3
Regarding Defendant Lightle, plaintiff alleges he discriminated against him because
of his race, placed him on a sack lunch restriction, moved him to a high-max cell, and used
racial epithets. The allegations regarding plaintiff’s food do not show that Lightle personally
participated in the denial of meals, only that plaintiff was placed on a sack lunch restriction.
Further, movement to a different cell is not a constitutional violation.

Cf. Olim v.

Wakinekona, 461 U.S. 238, 245 (1983) (holding that it is well settled that there is no
constitutional right to incarceration in a particular correctional facility); Quick v. Mann, No.

3

Defendants Knight and Yott have not been served, but an entry of appearance for Knight
was entered. (Dkt. 35).
11

05-7012, 170 F. App’x. 588, 590 (10th Cir. Mar. 15, 2006) (unpublished) (“[C]orrections
officials retain broad discretion over the administration of prisons, including housing in
general and cell assignments in particular.”); Templeman v. Gunter, 16 F.3d 367, 369 (10th
Cir. 1994).
Furthermore, plaintiff’s allegations against Lightle and Defendant Crenshaw about
racial discrimination must fail, because plaintiff has not specified any conduct by these
defendants that amounts to a constitutional violation in which they personally participated.
As for Defendant Taylor, plaintiff claims Taylor discriminated against him, failed to provide
toiletry items, and moved him to another cell. Again, there are no details to support Taylor’s
personal participation in unconstitutional acts or omissions.
The only allegations against Defendant Knutson are related to the grievance process.
In addition, the allegations against Director’s Designee Sherwood concern Sherwood’s
response to plaintiff’s Emergency Grievance about the broken faucet in his cell. Sherwood
allegedly told plaintiff that his situation was not an emergency. Plaintiff also contends
Sherwood failed to address his Sensitive/Emergency Grievance concerning alleged racial
discrimination. Plaintiff’s claims against these two defendants are meritless, because “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).
Defendant Lt. Parker is alleged to have falsified records and refused to follow policy
regarding plaintiff’s yard time and showers. Plaintiff, however, has not provided any context
or specific facts that would support a claim that Parker personally participated in a
constitutional violation.
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
12

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
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, Defendants Deana Gilroy, Pavlukevick, and Jimmy Martin are
DISMISSED WITHOUT PREJUDICE for plaintiff’s failure to serve them in accordance
with Fed. R. Civ. P. 4(m). Defendants Riddle and Pinley’s motion to dismiss (Dkt. 53) is
GRANTED, and Defendants Riddle and Pinley are DISMISSED WITHOUT PREJUDICE
for plaintiff’s failure to exhaust the administrative remedies for his claims against these two
defendants, pursuant to 42 U.S.C. § 1997e(a). Furthermore, plaintiff’s claims against the
Department of Corrections defendants and the Oklahoma State Penitentiary defendants are
DENIED for failure to show these defendants personally participated in constitutional
violations. This action is, in all respects, DISMISSED as frivolous, and the dismissal shall
count as a STRIKE, pursuant to 28 U.S.C. § 1915(g).
IT IS SO ORDERED this 18th day of March 2015.

Dated this 18th day of March, 2015.
J4h4i0

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