Pemberton v. Patton et al

Filing 56

OPINION AND ORDER by District Judge James H. Payne : Defendants Tim Wilkinson, Corrections Officer Underwood, Rebecca Adams, Mr. Gentry, Mr. Williams, and Justin Jones are DISMISSED WITHOUT PREJUDICE for plaintiffs failure to serve them in accordan ce with Fed. R. Civ. P. 4(m). Defendants Robert Patton, Debbie Morton, and Mark Knutson are DISMISSED WITH PREJUDICE for failure to show they personally participated in the alleged constitutional violations. This action is, in all respects, DISMISSED AS FRIVOLOUS, pursuant to 28 U.S.C. § 1915(e)(2)(B), and this dismissal shall count as a STRIKE, pursuant to 28 U.S.C. § 1915(g). 34 48 49 (case terminated) (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
PAUL PEMBERTON,
Plaintiff,
v.
ROBERT PATTON, et al.,
Defendants.

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No. CIV 14-511-JHP-SPS

OPINION AND ORDER
This action is before the court on Defendants Robert Patton, Debbie Morton, and
Mark Knutson’s motion to dismiss and the court’s own motion to consider dismissal of this
action as frivolous under 28 U.S.C. § 1915(e). The court has before it for consideration
plaintiff’s complaint (Dkt. 1), the defendants’ motion (Dkt. 34), and plaintiff’s response (Dkt.
46).
Plaintiff, an inmate in the custody of the Oklahoma Department of Corrections (DOC)
who is incarcerated at Davis Correctional Facility (DCF), in Holdenville, Oklahoma, brings
this action under the authority of 42 U.S.C. § 1983, seeking relief for alleged constitutional
violations during his incarceration at DCF. The defendants are DOC Director Robert Patton,
Former DOC Director Justin Jones, Former DOC Administrative Review Manager Debbie
Morton, DOC Administrative Review Officer Mark Knutson, DCF Warden Tim Wilkinson,
DCF Chief of Security Mr. Gentry, Former DCF Principal of Education Mr. Williams, DCF
Grievance Coordinator/Unit Manager Rebecca Adams, and DCF Corrections Officer

Underwood.1, 2
On July 8, 2015, plaintiff was directed to show cause why the unserved defendants
should not be dismissed from this action for his failure to serve them within 120 days after
filing the complaint, pursuant to Fed. R. Civ. P. 4(m) (Dkt. 53). Plaintiff’s responses to the
show-cause order (Dkts. 54, 55) claim the Marshals Service failed to serve these defendants
at the address he provided on the USM-285 forms. Plaintiff listed the service address for
Defendants Wilkinson, Underwood, Adams, Gentry, Williams, and Jones as “C/O Governor
of the State of Oklahoma, Mary Fallin, State Capitol, 2300 N. Lincoln Blvd., Suite 212,
Oklahoma City, OK 73105” (Dkts. 24, 25, 26, 27, 28, 30). He claims this address was valid,
because it was for the “Chief Executive Officer,” pursuant to Fed. R. Civ. P. 4(j)(2)(A). The
unexecuted forms, however, clearly advised plaintiff that the Marshals Service was unable
to serve the defendants at that address.
Plaintiff further claims that because he requested and was denied a court-appointed
process server (Dkts. 39, 45), he has shown good cause for his failure to serve these
defendants. The court previously has advised plaintiff that it is his responsibility to provide
the Marshals Service with proper addresses for service of the defendants under the Federal
Rules of Civil Procedure (Dkt. 45). Because there is no evidence he attempted to provide the
correct service information to the Marshals Service, the court finds he has failed to show
good cause as directed, and Defendants Wilkinson, Underwood, Adams, Gentry, Williams,
and Jones are dismissed without prejudice from this action.3
1

To the extent the DOC defendants are sued in their official capacities as state officials,
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. 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

Only defendants Patton, Morton, and Knutson have been served.

3

Defendant Jones was not specifically named in the show-cause order (Dkt. 53), but the
deficiency in the attempted service of Jones is the same as that for the other unserved defendants.

2

Plaintiff’s complaint is rambling and difficult to understand, but the court construes
his pleadings liberally. Haines v. Kerner, 404 U.S. 519 (1972). This relaxed standard,
however, does not relieve his burden of alleging sufficient facts on which a recognized legal
claim could be based. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Plaintiff alleges DCF has no method of duplicating documents for inmates in the
presence of the inmates, so they must give their legal materials to staff for copying, with no
assurance that the documents are not read or that copies are not made for opposing parties.
He claims that on or about July 19, 2012, he gave legal documents to DCF Library
Supervisor Patty Farris for copying, and the documents were held by staff for three days in
violation of the Fourth Amendment. (Dkt. 1 at 10). On August 15, 2012, he filed a
grievance to address this issue, but his efforts to use the grievance procedures were
sabotaged, resulting in his denial of access to the courts to pursue meritorious cases.
Plaintiff further alleges former DOC Director Justin Jones and Jones’ successor
Defendant DOC Director Robert Patton had a duty to supervise all Oklahoma prisons and the
administrative operations procedures of the private prisons. Plaintiff contends his right of
access to the courts was denied, but he does not allege any facts directly involving Director
Jones or Director Patton. Instead, he claims these two defendants were responsible for the
actions of the private prison officials, and they had a duty to uphold the constitutional rights
of inmates.
Plaintiff claims Defendant Morton, the former manager of the DOC Administrative
Review Authority, ignored his grievances and retaliated against him for filing grievances.
In addition, Morton allegedly sabotaged his efforts by placing him on grievance restriction
on September 10, 2012, thus denying his right to access the courts through judicial review.
(Dkt. 7 at 15). He complains that Morton rejected his grievance appeal without explaining
what she meant when she stated his grievances were “not according to policy.” He further

Furthermore, as with Jones’ successor, plaintiff alleged no facts showing Jones personally
participated in the alleged constitutional violations.

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asserts Morton is “affirmatively linked” to his Fourth Amendment claims by virtue of her
position as a supervisor over corrections officers.
Plaintiff also complains that in December 2013 Defendant Knutson violated his right
of access to the courts by returning unanswered his grievance appeal regarding his requests
for legal and writing materials. (Dkt. 7 at 41). Knutson allegedly returned the grievance to
sabotage plaintiff’s ability to seek judicial review. On January 27, 2014, Knutson returned
unanswered plaintiff’s grievance appeal, because it did not match the issues in the referenced
Request to Staff. (Dkt. 7 at 50).
Defendants Patton, Morton, and Knutson allege plaintiff has failed to show their
personal participation in the alleged constitutional violations. “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). 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).
Defendant Morton also alleges plaintiff’s claims against her are barred by the statute
of limitations. The statute of limitations for a civil rights cause of action in Oklahoma is two
years. Meade v. Grubbs, 841 F.2d 1512, 1522 (10th Cir. 1988). Plaintiff claims Morton
placed him on grievance restriction on September 20, 2012, so his claims against her arose
then. This complaint, however, was not filed until November 20, 2014, more than two years
later.
After careful review, the court finds plaintiff’s allegations against Defendants Patton,
Morton, and Knutson are vague and conclusory, and the allegations do not rise to the level
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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 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)). Pursuant to 28 U.S.C. § 1915(e), the court therefore denies plaintiff’s claims against
Defendants Patton, Morton, and Knutson as frivolous. All remaining pending motions are
denied as moot.
ACCORDINGLY, Defendants Tim Wilkinson, Corrections Officer Underwood,
Rebecca Adams, Mr. Gentry, Mr. Williams, and Justin Jones are DISMISSED WITHOUT
PREJUDICE for plaintiff’s failure to serve them in accordance with Fed. R. Civ. P. 4(m).
Defendants Robert Patton, Debbie Morton, and Mark Knutson are DISMISSED WITH
PREJUDICE for failure to show they personally participated in the alleged constitutional
violations. This action is, in all respects, DISMISSED AS FRIVOLOUS, pursuant to 28
U.S.C. § 1915(e)(2)(B), and this dismissal shall count as a STRIKE, pursuant to 28 U.S.C.
§ 1915(g).
IT IS SO ORDERED this 3rd day of September 2015.

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