Anderson v. Wilkinson et al

Filing 110

OPINION AND ORDER by Judge Ronald A. White: Granting 109 Defendants Tim Wilkinson, James A. Yates, Marty Garrison, Ms. Burney, Dr. Shepherd, Ray Larimer, Brandy Sipes, and Dr. Sanders' Motion for Summary Judgment and this action is DISMISSED in its entirety. (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JOHNDY ANDERSON,
Plaintiff,
v.

No. CIV 16-036-RAW-SPS

TIM WILKINSON, et al.,
Defendants.
OPINION AND ORDER
This action is before the Court on Plaintiff=s second amended complaint (Dkt. 24)
and Defendants= motion for summary judgment (Dkt. 109). Plaintiff, a pro se prisoner in
the custody of the Oklahoma Department of Corrections (DOC) is incarcerated at
Oklahoma State Penitentiary in McAlester, Oklahoma. He brings this action under the
authority of 42 U.S.C. ' 1983, seeking relief for alleged constitutional violations during
his incarceration at Davis Correctional Facility (DCF), a private prison in Holdenville,
Oklahoma. The remaining defendants are Tim Wilkinson, DCF Warden; James A. Yates,
DCF Assistant Warden; Marty Garrison, Regional Director for DOC Internal Affairs; Ms.
Burney, DCF Law Library Supervisor; Dr. Shepherd, DCF Psychologist; Ray Larimer,
DCF Correctional Health Services Administrator; Brandy Sipes, DCF Security Sergeant;
and Dr. Sanders, DCF Physician.1

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On March 21, 2017, Defendants Susan Shields, Patricia Stem, and Patricia Sorrels were
dismissed without prejudice from this action for Plaintiff=s failure to exhaust the administrative
remedies for his claims against them. (Dkt. 82). On November 27, 2917, Defendants Mr. Ruffin,
Mr. Garvin, Dr. Marlar, John Doe, and Jane Doe were dismissed without prejudice from this action

Standard of Review
Summary judgment is appropriate when Athere is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a matter of law.@ Fed. R. Civ. P.
56(a). A dispute is genuine if the evidence is such that Aa reasonable jury could return a
verdict for the nonmoving party.@ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A fact is material if it Amight affect the outcome of the suit under the governing
law.@ Id. In making this determination, A[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.@ Id. at 255. However,
a party opposing a motion for summary judgment may not simply allege there are disputed
issues of fact; rather, the party must support its assertions by citing to the record or by
showing the moving party cannot produce admissible evidence to support the fact. See
Fed. R. Civ. P. 56(c). Thus, the inquiry for this Court is Awhether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.@ Anderson, 477 U.S. at 251-52.
Plaintiff=s Allegations
Plaintiff alleges that in 2014 he was a Adirect employee@ of Defendants Wilkinson
and Yates in the administrative area of DCF.

In the course of his duties, Plaintiff

overheard Yates tell another DCF employee that Yates had a homicide conviction.
Plaintiff did not understand how Yates could have such a conviction and still be employed
as a DCF official. Therefore, Plaintiff advised Defendant DOC Internal Affairs Director

for Plaintiff=s failure to serve these defendants in accordance with Fed. R. Civ. P. 4(m). (Dkt. 91).

Marty Garrison of Yates= conviction.
Yates allegedly retaliated against Plaintiff by having him fired from his prison job
and by placing Plaintiff on suicide watch in the main medical area. Yates also demanded
that Plaintiff take off his clothes for a strip cell and allegedly caused Plaintiff to be given
Abath salt@ to make him lose his mind.
Plaintiff claims Defendants Yates, Wilkinson, Shepherd, and Larimer subsequently
advised him that he no longer could be held on suicide watch, because he was not suicidal.
He was placed on observation for security reasons and then was housed on Fox Bravo in
maximum segregation housing, pending an investigation. Plaintiff asserts that while in
that unit, Yates raped him and continued to order bath salt be sprinkled on his food.
Plaintiff claims that after the rape, he verbally grieved the issue to many persons,
which he claims satisfied the first step of the DOC grievance process. He also filed an
emergency/sensitive grievance to Defendants Wilkinson, Garrison, and Larimer, pursuant
to the second step of the grievance policy. Despite Plaintiff=s claims of sexual assault by
Yates, Defendants Wilkinson, Garrison, and Larimer rejected the emergency/sensitive
grievance as not concerning an emergency or sensitive matter.
Plaintiff further alleges Defendant Yates ordered his subordinates to douse
Plaintiff=s food with bath salt to cover up the rape and to cause mental illness, or the
appearance of mental illness, in Plaintiff. Yates allegedly did not deny the rape and bath
salt incidents, both of which violated the Eighth Amendment.

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Plaintiff advised Defendant Dr. Shepherd that he was suffering physical and
emotional pain and a psychological disorder, as a result of the rape by Defendant Yates
and the introduction of bath salt and other unknown substances into his body. Plaintiff
sought to have an MRI or CT Scan before permanent damage was inflicted upon him. Dr.
Shepherd allegedly agreed that Plaintiff=s food was being contaminated with bath salt, but
nothing was done about the poisoning, and no medical tests were arranged. Plaintiff
contends Dr. Shepherd=s deliberate indifference to his serious medical needs may have
resulted in his psychological or permanent brain damage.
Plaintiff further claims Defendant Sipes maliciously placed an electronic notebook
outside each cell in Plaintiff=s housing unit, because Plaintiff had reported Yates= crimes.
The device revealed sensitive and confidential information about Plaintiff=s being a Acatchout,@ who is someone who informs on someone to escape a drug or tobacco debt, or because
he is a coward.
Plaintiff allegedly suffers from twitches, spasms, severe pain, and severe paroxysm
brought on by the bath salt poisoning. He claims it resulted in his losing his mind and the
death of one of his cellmates. He is facing a charge of first degree murder with malice
aforethought.
Defendant Burney allegedly interfered with Plaintiff=s First Amendment right to
petition prison officials and with his right to equal access to the courts. Defendant
Wilkinson

allegedly

violated

Plaintiff=s

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First

Amendment

right

to

submit

sensitive/emergency grievances, resulting in the wanton infliction of pain in violation of
the Eighth Amendment. Further, Defendant Garrison allegedly violated Plaintiff=s First
Amendment right to grieve the acts of a prison official when Garrison failed to act upon
Plaintiff=s notification through the grievance process of the rape and ongoing poisoning by
bath salt.
Plaintiff also claims Defendant Larimer violated his Eighth Amendment right to
medical care by refusing to allow him to have an MRI or CT Scan to diagnose his spasms,
seizures, and paroxysm caused by the bath salts.

Larimer also allegedly violated

Plaintiff=s First Amendment right to file grievances against Larimer, Dr. Shepherd, and Dr.
Sanders concerning the testing and the tampering with Plaintiff=s food. In addition,
Defendant Dr. Sanders was deliberately indifferent to Plaintiff=s serious medical needs
when he refused to investigate Plaintiff=s allegations of rape and poisoning with bath salt.
Failure to Exhaust Administrative Remedies
Defendants Wilkinson, Sipes, Sanders, Yates, Garrison, Shepherd, Larimer, and
Burney allege Plaintiff has failed to exhaust the administrative remedies for any of his
claims. ANo 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,

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532 U.S. 731, 740-41 (2001); Yousef v. Reno, 254 F.3d 1214, 1216 n.1 (10th Cir. 2001).
AAn 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).
According to DCF Grievance Coordinator Terry Underwood, DCF utilizes DOC
Offender Grievance Policy, OP-090124, at the facility. (Dkt. 109-2 at 3). Pursuant to the
policy, an offender first must attempt to resolve his complaint informally by
communicating with staff within three days of the incident. (Dkt. 109-3 at 8). If that is
unsuccessful, he may submit a Request to Staff (RTS) to the law library supervisor within
seven calendar days of the incident, alleging only one issue per form. Id. If the offender
does not receive a response to his RTS within 30 calendar days of submission, he may
submit a grievance to the reviewing authority, asserting only the issue of the lack of
response to the RTS. Id. at 9. If the complaint is not resolved after the response to the
RTS, the offender then may file a grievance. Id. at 9-10. If the grievance also does not
resolve the issue, the inmate may appeal to the Administrative Review Authority (ARA)
or the Chief Medical Officer within 15 calendar days of receipt of the reviewing authority=s
response. Id. at 13. The administrative process is exhausted only after all of these steps
have been taken. Id. at 15. Mr. Underwood states by affidavit that Plaintiff filed no
grievances at the facility level during the relevant time period. (Dkt. 109-2). Plaintiff
did, however, submit four grievances to the to the ARA and to the Medical Services

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Division:
ARA 14-393, marked as Aemergency/sensitive@ and requesting an investigation of a
crime which was committed against Plaintiff, was submitted on November 5, 2014. The
information in the grievance was forwarded to DOC=s Internal Affairs for investigation of
Plaintiff=s allegations, while the original grievance was returned unanswered to Plaintiff on
November 6, 2014. Because the grievance was not of a sensitive/emergency nature, he
was advised to follow the standard grievance process and that the sexual assault allegation
was forwarded to the PREA (Prison Rape Elimination Act) Unit. (Dkt. 109-6 at 3-5).
Plaintiff next submitted an appeal of the ARA=s grievance response on November
14, 2014. The grievance appeal was returned unanswered on November 24, 2014, with
notations of A1) No grounds for appeal; and, 2) Other: You cannot appeal this office=s
previous response. Specific complaints must be addressed with the facility in compliance
with OP-090124.@ Id. at 8-9.
Plaintiff submitted ARA 14-410, also marked as emergency/sensitive, on December
1, 2015.

He requested information for filing charges against the administration

concerning his transfer to maximum security. The grievance was returned unanswered on
December 2, 2014, with the notation that it was not of a sensitive or emergency nature and
that the ARA does not intervene in transfer or facility assignment issues. Id. at 13-14.
Finally, ARA 15-020, marked emergency/sensitive and requesting a transfer, was
submitted on January 16, 2015. It was returned unanswered on January 16, 2015, with the

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notation that it was not of a sensitive or emergency nature. Id. at 18-20.
Plaintiff also filed seven medical grievances with the DOC Medical Services
Administrative Review Authority during the relevant period.

(Dkt. 109-5).

Each

grievance was marked at Aemergency/sensitive@ and concerned his desire to have an MRI
or CT Scan and other medical tests. (Dkt. 109-9). All were returned unanswered to
Plaintiff, in part because the issues were not of a sensitive or emergency nature as defined
in the grievance process. Id. Although the medical grievances were returned, Buddy
Honaker, the DOC Medical Services Administrator states by affidavit that Plaintiff=s
medical records and files were reviewed upon submission of the grievances, and Plaintiff
appeared to have been receiving appropriate care. (Dkt. 109-5).
After careful review of the record, the Court concludes there is no genuine dispute
as to any material fact concerning whether Plaintiff has exhausted the administrative
remedies for his claims, pursuant to 42 U.S.C. ' 1997e(a). Therefore, Defendants are
entitled to judgment as a matter of law.@ Fed. R. Civ. P. 56(a).
ACCORDINGLY, Defendants Tim Wilkinson, James A. Yates, Marty Garrison,
Ms. Burney, Dr. Shepherd, Ray Larimer, Brandy Sipes, and Dr. Sanders= motion for
summary judgment (Dkt. 109) is GRANTED, and this action is DISMISSED in its entirety.
IT IS SO ORDERED this 4th day of February 2019.

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