Anderson v. Wilkinson et al

Filing 82

OPINION AND ORDER by Judge Ronald A. White : Granting 72 Motion to Dismiss defendant's Susan Shields, Patricia Stem and Patricia Sorrels. Plaintiff's claims against Shields, Stem and Sorrels are DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies. (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JOHNDY ANDERSON,
Plaintiff,
v.
TIM WILKINSON, et al.,
Defendants.

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No. CIV 16-036-RAW-SPS

OPINION AND ORDER
This action is before the court on Defendants Susan Shields, Patricia Stem, and
Patricia Sorrels’ motion to dismiss Plaintiff’s second amended complaint. The Court has
before it for consideration Plaintiff’s second amended complaint (Dkt. 24), the defendants’
motion (Dkt. 72), 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. 71).
Plaintiff, a pro se prisoner in the custody of the DOC who is incarcerated at Oklahoma
State Penitentiary (OSP), 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 defendants are
(1) Tim Wilkinson, DCF Warden, in his official and individual capacities; (2) James A.
Yates, DCF Assistant Warden, in his individual capacity; (3) Marty Garrison, Eastern
Regional Director for Internal Affairs, in his individual capacity; (4) Ms. Burney, DCF Law
Library Supervisor, in her official and individual capacities; (5) Mr. Ruffin, DCF Assistant
Warden, in his official and individual capacities; (6) Dr. Sheperd, DCF Psychologist, in her
official and individual capacities; (7) Ray Larimer, DCF Correctional Health Services
Administrator, in his official and individual capacities; (8) Susan Shields, OSP Psychologist,

in her individual capacity; (9) Patricia Stem, OSP Eastern Regional Mental Health
Supervisor, in her individual capacity; (10) Mr. Garvin, OSP Psychologist/Clinician, in his
individual capacity; (11) John Doe; (12) Jane Doe; (13) Brandy Sipes, DCF Correctional
Facility Security Sergeant, in her individual capacity; (14) Dr. Sanders, DCF Physician, in
his individual capacity; (15) Dr. Marlar, OSP Physician, in his individual capacity; (16) and
Patricia Sorrels, OSP Health Services Administrator, in her individual capacity.
Plaintiff alleges that in 2014 he was employed as inmate orderly at DCF, when he
overheard a DCF official admit he had a homicide conviction. Plaintiff claims he reported
this information to DOC Internal Affairs. In retaliation, Plaintiff was fired from his job and
placed on suicide watch in Main Medical, stripped of his clothes, and given bath salts to
cause him to lose his mind. He later was released to the maximum segregation housing unit,
pending an investigation. Plaintiff asserts that while he was in the segregation unit, the
officer who allegedly admitted to having a homicide conviction raped him and ordered the
officer’s DCF subordinates to contaminate Plaintiff’s food with bath salts. (Dkt. 24 at 8-10).
Plaintiff requested an MRI or CT Scan to get baseline information and a diagnosis
before the bath salts caused him permanent damage, but Defendant Sorrels and Defendant
Dr. Marlar refused to approve a test. Plaintiff’s symptoms of “influctions, twitches, spasms,
and severe paroxysm” caused him severe pain and mental illness that resulted in his losing
his mind and later resulted in the demise of one of his former cellmates. (Dkt. 24 at 10-11).
Plaintiff further alleges Defendant Shields has denied him mental health services
when other mental health staff were unavailable. Dr. Shields allegedly acted with deliberate
indifference by refusing to visit Plaintiff on the “notorious” OSP H-Unit. In addition,
Defendant Dr. Stem violated Plaintiff’s right to be seen by qualified mental health staff,
because she failed to set policies for prisoners whose assigned mental health staff member

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is unavailable. Plaintiff contends Dr. Stem knew or should have known she was violating his
constitutional right to have a mental health professional available to him 24 hours a day, 365
days a week without excuse. (Dkt. 24 at 11, 17-19).
Defendants Shields, Stem, and Sorrels allege Plaintiff has failed to exhaust the
administrative remedies for any of his claims against them. “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 the DOC Offender Grievance Process, OP-090124, an inmate first must
attempt to resolve his complaint informally by communicating with staff within three days
of the incident. If that is unsuccessful, he may submit a Request to Staff (RTS) within seven
calendar days of the incident, alleging only one issue per form. 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 (warden’s office), asserting only the issue of the lack of
response to the RTS. If the complaint is not resolved after the response to the RTS, the

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offender then may file a grievance with the warden’s office or facility correctional health
services administrator, whichever is appropriate. If the grievance also does not resolve the
issue, the inmate may appeal to the Administrative Review Authority or the Health Services
Administrative Review Authority. The administrative process is exhausted only after all of
these steps have been taken. (Dkt. 71-5 at 7-15).
The record shows that Plaintiff has submitted three grievances. Two of the grievances
were returned unanswered because of procedural defects, and the third was submitted after
his second amended complaint was filed. (Dkts. 71-6, 71-7, 76-1). There is no evidence in
the record indicating Plaintiff complied with his obligation to fully and properly exhaust his
available administrative records before filing this lawsuit.
ACCORDINGLY, Defendants Susan Shields, Patricia Stem, and Patricia Sorrels’
motion to dismiss (Dkt. 72) is GRANTED, and Plaintiff’s claims against Shields, Stem, and
Sorrels are DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative
remedies, pursuant to 42 U.S.C. § 1997e(a).
IT IS SO ORDERED this 21 st day of March 2017.

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RONALD A. WHITE
UNITED STATES DISTRICT JUDGE

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