Hobbs v. Oklahoma State Penitentiary et al

Filing 37

OPINION AND ORDER by Judge Ronald A. White : Granting 29 Motion to Dismiss and the Motion for Summary Judgment. (case terminated) (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JAMES J. HOBBS,
Plaintiff,
v.
OKLAHOMA STATE
PENITENTIARY, et al.,
Defendants.

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No. CIV 14-501-RAW-SPS

OPINION AND ORDER
This action is before the court on the defendants’ motion to dismiss or for summary
judgment. The court has before it for consideration Plaintiff’s complaint (Dkt. 1), the
defendants’ motion (Dkt. 29), Plaintiff’s response (Dkt. 31), and a special report prepared
by the Oklahoma Department of Corrections (DOC) at the direction of the court, in
accordance with Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (Dkt. 28).
Plaintiff, a pro se prisoner in the custody of the DOC who is incarcerated at Oklahoma
State Penitentiary 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
that facility. The defendants are Oklahoma State Penitentiary (OSP); Wayne Brackenseik,
OSP Law Library Supervisor; Terry Crenshaw, OSP Warden’s Assistant; and Ramona Allen,
OSP Law Library Legal Clerk.
Plaintiff’s complaint is eight pages long with 169 pages of exhibits, much of which
is repetitive and submitted without explanation. While the court construes Plaintiff’s
pleadings liberally, Haines v. Kerner, 404 U.S. 519 (1972), without specific references, the
court “will not search the record in an effort to determine whether there exists dormant
evidence which might require submission of the case to a jury.” Roska ex rel. Roska v.
Peterson, 328 F.3d 1230, 1246 n.13 (10th Cir. 2003) (citations omitted).
Plaintiff alleges the defendants conspired to deny his right of access to the courts,

violating the Sixth and Eighth Amendments, as well as his due process rights. He claims he
was given instructions by the Tenth Circuit Court of Appeals, but Defendant Brackenseik
denied him access to the courts. (Dkt. 1 at 2). Defendant Crenshaw allegedly allowed this
violation to go unaddressed, and Crenshaw allegedly conspired with Brackenseik to destroy
the evidence. Id. Defendant Allen allegedly covered up this violation by altering the legal
documents used for Plaintiff’s grievance appeal to the Administrative Review Authority. Id.
at 2-3. Plaintiff further alleges “[t]he offender grievance process Request to Staff was altered
and all copies of the original disappeared from 3 different departments and was altered by
changing the signature, answer and did not copy complaint.” Id. at 4.
One of Plaintiff’s exhibits shows that on November 25, 2013, the Tenth Circuit Court
of Appeals entered an Order in Case No. 13-6231, denying Plaintiff’s six motions, including
a motion for designation of records and for court records to be produced at the State’s
expense. (Dkt. 1-1 at 4-5). Plaintiff was advised that he should direct those requests to the
district court, and he “must file his motion to unseal the records with the court that originally
sealed them.” Id. at 5. He alleges numerous constitutional violations, including his inability
to access the courts, obstruction of justice, conspiracy, and sabotage to impede his litigation.
(Dkt. 1-1 at 2). He specifically complains he submitted a Request for Legal Materials on
December 2, 2013, but only one of the four documents he submitted for copying actually was
copied. (Dkt. 1-1 at 6).
Defendant Terry Crenshaw
On October 8, 2015, the court directed Plaintiff to show cause why Defendant Terry
Crenshaw should not be dismissed from this action for Plaintiff’s failure to serve Crenshaw
in accordance with Fed. R. Civ. P. 4(m). (Dkt. 32). On October 26, 2016, Plaintiff
responded to the show-cause order, claiming his process form from the United States
Marshals Service indicates Defendant Crenshaw was served. (Dkt. 35 at 2). Plaintiff’s
attached copy of the USM-285 form clearly states the Marshals Service was unable to serve
Crenshaw, because he was on extended sick leave. (Dkt. 35 at 6; Dkt. 19).
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Although Plaintiff apparently believes the Marshals Service or the court should have
completed service on Defendant Crenshaw, it is Plaintiff’s responsibility to provide a proper
address for service of the complaint by the Marshals Service.

Therefore, Defendant

Crenshaw is dismissed without prejudice for Plaintiff’s failure to serve him in accordance
with Fed. R. Civ. P. 4(m).
Eleventh Amendment Immunity
Plaintiff is suing Wayne Brakenseik and Ramona Allen, two Department of
Corrections employees. The third remaining defendant is the Oklahoma State Penitentiary,
a prison facility of the Oklahoma Department of Corrections, which is an agency of the State
of Oklahoma. The official capacity claims against the defendants are actually claims against
the State of Oklahoma. “[T]he Eleventh Amendment bars federal court jurisdiction over a
state agency for both money damages and injunctive relief, or a state official acting in her
official capacity in a suit for damages.” Ellis v. Univ. of Kansas Med. Ctr., 163 F .3d 1186,
1196 (10th Cir.1998). Absent a waiver by the state, or a valid congressional override, the
amendment bars a damages action against a state in federal court. Kentucky v. Graham, 473
U.S. 159, 169 (1985).
The court, therefore, grants the defendants’ motion to dismiss all claims against the
Department of Corrections and all official-capacity claims against the individual defendants.
Because the Eleventh Amendment involves sovereign immunity, the official-capacity claims
are dismissed “without prejudice” rather than “with prejudice.” Rural Water Sewer & Solid
Waste Mgmt., Dist. No. 1, Logan Cnty., Okla. v. Guthrie, 654 F.3d 1058, 1069 n.9 (10th Cir.
2011).
Exhaustion of Administrative Remedies
The defendants also allege, among other things, that Plaintiff has failed to exhaust
the administrative remedies for any of 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
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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 the DOC Offender Grievance Process, OP-090124 (Dkt. 28-2), an
inmate first must attempt to resolve his complaint informally by communicating with staff
within three days of the incident. Id. at 6. If that is unsuccessful, he may submit a written
Request to Staff (RTS) within seven calendar days of the incident, alleging only one issue
per form. Id. at 6-7. If the offender does not receive a response to his RTS within 30
calendar days of submission, he may submit a grievance to the Review Authority, asserting
only the issue of the lack of response to the RTS. Id. at 7. If the complaint is not resolved
after the response to the RTS, the offender then may file a grievance with the facility’s
Review Authority within 15 calendar days of the incident, or the date of the RTS response,
whichever is later. Id. at 7-8. If the grievance also does not resolve the issue, the inmate may
appeal to the Administrative Review Authority or the Chief Medical Officer. Id. at 11-12.
The administrative process is exhausted only after all of these steps have been taken.
The defendants have set forth Plaintiff’s grievance history as follows:
Grievance #14-006
On January 21, 2014, the OSP Warden’s Office received a grievance from Plaintiff,
dated January 7, 2014. The grievance complained that Plaintiff had not received a response
from Defendant Brackenseik on his December 19, 2013, RTS. Plaintiff requested that
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disciplinary action be taken against Brackenseik, specifically termination, for violations
alleged to have occurred almost two years earlier and for Plaintiff’s not receiving a response
to the December 19, 2013 RTS. (Dkt. 1-1 at 20-22).
On the day the grievance was received, Defendant Terry Crenshaw returned it
unanswered, because a “request for disciplinary action against staff will not be addressed in
the grievance process, pursuant to Policy OP-090124. The returned grievance also stated that
non-complying grievances will be returned unanswered, and Plaintiff had ten calendar days
from the date of receipt to properly submit the grievance. (Dkt. 28-8 at 4; Dkt. 1-1 at 18).
There is no evidence that Plaintiff appealed this grievance or refiled it to cure the
deficiencies. Furthermore, Plaintiff’s demand that Brakenseik respond to the RTS became
moot, because Plaintiff admits he received Brackenseik’s response on January 13, 2014.
Plaintiff attached to his complaint a grievance dated January 22, 2014, but the Special
Report states there is no record of its receipt. The grievance is substantially similar to the
January 21, 2014, grievance, except it does not allege that Brakenseik failed to respond to
his RTS. Plaintiff admits in this grievance that he received a response to the RTS from
Brakenseik, and Plaintiff asserted he was attaching the RTS response to the grievance.
Again, the relief requested was disciplinary action against Brakenseik. (Dkt. 1-1 at 15-16).
February 13, 2014, RTS to Law Library Log-In Clerk
On February 13, 2014, the law library received an RTS from Plaintiff dated February
12, 2014, and addressed to “Mary/Law Library Log In Clerk.” The RTS complained that
Plaintiff never received a response from Brakenseik to Plaintiff’s December 19, 2013, RTS
addressed to Brakenseik. Plaintiff was not requesting a response to the RTS, but he instead
asked to be sent a “Stamped Filed Log In Copy.” Ms. Allen responded to the RTS on
February 13, 2014, stating, “Copy of disposition of RTS attached.” The Request to Staff Log
provided to Plaintiff listed a print-out date of February 13, 2014. (Dkt. 1-1 at 33, 35).
ARA Appeal #14-64
On February 18, 2014, the ARA received an appeal from Plaintiff dated February 12,
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2014. The issue for appeal was that Plaintiff had not received a response on a grievance
dated January 22, 2014, that he sent to Warden Trammell. The ARA returned the appeal
unanswered on the same day it was received, because it was premature pursuant to
OP0090124. Specifically, a grievance may be sent to the ARA for a non-response of a
grievance after thirty calendar days from the date of submitted the grievance. (Dkt. 28-10
at 2-5).
ARA Appeal #14-70
On February 24, 2014, the ARA received an appeal from Plaintiff, dated February 20,
2014, again complaining he had not received a response from Warden Trammell to the
grievance submitted on January 22, 2014. Again, he did not attach evidence of this
grievance. (Dkt. 28-11 at 2-4).
Plaintiff’s appeal to the ARA was returned unanswered on February 26, 2014, based
on the same deficiency as in ARA Appeal #14-64. Plaintiff again had submitted the appeal
prematurely, because 30 days from the date the grievance was submitted had not expired.
The envelope indicated the Appeal was mailed on February 20, 2014, based on the post
office date stamp. There is no evidence Plaintiff ever timely resubmitted a grievance or
appeal regarding this issue after 30 days from submission of the grievance had expired. Id.
Therefore, Plaintiff has failed to exhaust his administrative remedies for the January 22,
2014, grievance and the claim made in that grievance.
Plaintiff’s Attached March 7, 2014, Grievance and April 7, 2014, Appeal
Plaintiff attached to his complaint a grievance dated March 7, 2014, which the Special
Report shows no record of receipt. (Dkt. 1-1 at 24-25). The grievance complains about
violations alleged to have committed by the OSP Law Library, but it does not state the dates
of those incidents. (Dkt. 1-1 at 24-25). The grievance requests to have his copies made by
Unit Staff, not the Law Library. Id. The basis for this grievance is unclear, as it does not
appear that Plaintiff is appealing an RTS response.
Plaintiff also attaches an Appeal Form to the ARA dated April 7, 2014, of which the
Special Report has no record of receipt. (Dkt. 1-1 at 41). Plaintiff apparently was grieving
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a non-response to a grievance filed on March 7, 2014, and not getting “a second chance to
file correctly.” Id.
To the extent the March 7 and April 7 grievances were filed, Plaintiff does not allege
he filed any subsequent, related grievance to the ARA to raise non-response for either
grievance. Plaintiff, therefore, did not exhaust his administrative remedies for these attached
documents or the claims alleged in them.
Plaintiff’s April 2014 RTSs to the Law Library
On April 11, 2014, the law library received an RTS from Plaintiff concerning a RFLM
dated March 11, 2014. (Dkt. 1-1 at 14). On the day of receipt, Defendant Allen responded
to the RTS. Id. There is no evidence Plaintiff ever filed a grievance appealing this RTS
response. Therefore, he did not exhaust his administrative remedies regarding the RTS or
the claims made in it.
On April 21, 2014, the law library received an RTS from Plaintiff dated April 14,
2014. (Dkt. 1-1 at 37). Plaintiff complains in the RTS that he submitted a RFLM on April
10, 2014, requesting a copy of the answered RTS dated December 19, 2013, but Allen only
sent a copy of the front side of the document. Id. In the section of the RTS to write the
requested action, Plaintiff asked, “Why did you Fail To Copy The back where the Sixth
Amendment Violation was addressed?” Id.
On April 21, 2014, the date of receipt, Allen responded that “[w]hen Law Library
received the RTS, there was NOTHING on the back--only received a COPY, therefore, I
could NOT answer due to there being NOTHING on back.” Id. (emphasis in original). In
addition, this issue was addressed in Allen’s response of January 14, 2014. Id.
Plaintiff’s Attached April 30, 2014, Grievance
Plaintiff also attached to his complaint a grievance dated April 30, 2014. (Dkt. 1-1
at 26-27). The grievance stated that on January 22, 2014, he submitted a grievance to the
Reviewing Authority with an answered RTS attached. Id. Plaintiff explains that “[t]his
Grievance was appealed to The Administrative Reviewing Authority,” but was returned twice
for the same deficiency. Id. Under the second section of the grievance, Plaintiff states that
in response to his RTS dated April 14, 2014, Allen informed him that the law library received
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a copy of the December 19, 2013, RTS with nothing on the back side of the RTS. Id. Allen
responded to this RTS on January 14, 2014. Id. For the relief requested, Plaintiff states, “I
want to know where the Original Log No. 2013-2679 is And was this Altered Document Log
No. 2013-2679 used in Offender’s Appeal to Administrative Reviewing Authority in
O.K.C.?”

Id.

He did not appeal Allen’s RTS response, so he failed to exhaust his

administrative remedies for this claim.
Plaintiff’s Attached June 2014 Appeal to the ARA
Also attached to Plaintiff’s complaint is an appeal to the ARA dated June 12, 2014.
(Dkt. 1-1 at 38-39). According to the Special Report, the DOC has no record of receipt of
this appeal, and the appeal does not list a grievance being appealed. The appeal, however,
indicates Plaintiff is appealing the Reviewing Authority’s response on the grounds of newly
discovered or available evidence that was not considered by the Reviewing Authority. Id.
Plaintiff explains that the December 19, 2013, RTS that was answered by Defendant
Brakenseik was attached to the grievance he submitted to the Reviewing Authority. Id.
Plaintiff further asserts that after he received the April 21, 2014, RTS response from
Defendant Allen, he submitted a grievance to the Reviewing Authority dated April 30, 2014.
Id. Warden Trammell received the grievance on May 9, 2014, but Plaintiff has not received
a response to this grievance. Id.
According to the defendants, to the extent this appeal was filed, there is no evidence
Plaintiff filed a grievance to the ARA regarding non-response, or that he exhausted his
administrative remedies regarding the claims in this appeal or in the May 9, 2014, grievance.
After careful review, the court finds that Plaintiff has failed to exhaust the
administrative remedies for his claims against the defendants. Therefore, this action must
be dismissed.
ACCORDINGLY, Defendant Terry Crenshaw is DISMISSED WITHOUT
PREJUDICE for Plaintiff’s failure to serve Crenshaw pursuant to Fed. R. Civ. P. 4(m). The
Department of Corrections and the official-capacity claims against Defendants Wayne
Brakenseik and Ramona Allen are DISMISSED WITHOUT PREJUDICE because of
Eleventh Amendment immunity, and the remaining claims against Defendants Wayne
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Brakenseik and Ramona Allen are DISMISSED WITHOUT PREJUDICE for Plaintiff’s
failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a).
IT IS SO ORDERED this 29th day of March 2016.

Dated this 29th day of March, 2016.
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