Green v. Patton et al

Filing 34

OPINION AND ORDER by Judge Ronald A. White : Granting 17 20 defendant's Motion to Dismiss. Defendants Welsh, Apala, and Allbaugh are DISMISSED WITHOUT PREJUDICE in their official capacities; Defendants Welsh, Apala, and Patton are DISMISSE D WITH PREJUDICE in their individual capacities; and Defendants Emma Watts and Dr. Carmen are DISMISSED WITHOUT PREJUDICE in their official and individual capacities. This action is, in all respects, DISMISSED for failure to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B). This dismissal shall count as a prior occasion or 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
BRUCE CALVIN GREEN,
Plaintiff,
v.
ROBERT PATTON, et al.,
Defendants.

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No. CIV 16-162-RAW-SPS

OPINION AND ORDER
This action is before the Court on Defendants’ motions to dismiss and the Court’s own
motion to dismiss pursuant to 28 U.S.C. § 1915(e). The Court has before it for consideration
Plaintiff’s complaint (Dkt. 1), Defendants Todd Welsh and Terri Apala’s motion to dismiss
(Dkt. 17), Defendant Robert Patton’s motion to dismiss (Dkt. 20), Plaintiff’s response to
Welsh and Apala’s motion (Dkt. 25), and Welsh and Apala’s reply (Dkt. 26).
Plaintiff is a pro se prisoner in the custody of the Oklahoma Department of
Corrections (DOC) who is incarcerated at William S. Key Correctional Center in Fort
Supply, Oklahoma. He brings this action under the authority of 42 U.S.C. § 1983, seeking
monetary relief for alleged constitutional violations during his incarceration at Jackie
Brannon Correctional Center (JBCC) in McAlester, Oklahoma. The defendants are Robert
Patton, former DOC Director, in his individual capacity; Emma Watts, JBCC Warden; Dr.
Carmen, JBCC Physician; Todd Welsh, JBCC Unit Manager; Terri Apala, JBCC Case
Manger; and Joe M. Allbaugh, current DOC Director, in his official capacity.
Plaintiff alleges he was required to transfer from JBCC to Oklahoma State
Penitentiary (OSP) to work in Food Service. When he told Defendants Todd Welsh and Terri
Apala that he could not perform any stressful work, they instructed him to submit a sick call

request to talk to Dr. Carmen. Plaintiff submitted a request, and an appointment with Dr.
Carmen was scheduled.
When Plaintiff went to his medical appointment, he explained to Dr. Carmen that a
bulging disc in his neck was pressing against his nerves and causing him to lose strength on
the right side of his body. Dr. Carmen had Plaintiff lift his arms and put his hands behind
his back. She then said there was nothing wrong with him, and “OSP has to eat.”
Dr. Carmen gave Plaintiff a seven-day lay-in which she did not renew. On May 31,
2015, Plaintiff was sent to work in OSP Food Service. When he started to go to his assigned
work area, he slipped and fell, injuring his back and aggravating a previous injury. He was
instructed to put ice on the injured areas but received no other medical treatment. Plaintiff
also claims he was issued disciplinary reports on eight occasions, but he does not explain the
reasons for the reports (Dkt. 1 at 2, 8).
Plaintiff alleges Defendants were deliberately indifferent to his serious medical needs
in violation of the Eighth Amendment, resulting in the unnecessary and wanton infliction of
pain. Furthermore, contrary to Defendants’ assumptions in their motions, he asserts he is not
alleging a claim pursuant to the Oklahoma Governmental Torts Claims Act, Okla. Stat. tit.
51, § 151 (Dkt. 25).
Screening/Dismissal Standards
Federal courts must engage in a preliminary screening of cases in which prisoners
seek redress from a governmental entity or officer or employee of a governmental entity. 28
U.S.C. § 1915A(a). The court must identify any cognizable claims and dismiss any claims
which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b);
28 U.S.C. § 1915(e)(2)(B).
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The pleading standard for all civil actions was articulated in Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007). See Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). To avoid
dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a complaint must present
factual allegations, assumed to be true, that “raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. The complaint must contain “enough facts to state a
claim to relief that is plausible on its face.” Id. at 570. A court must accept all the wellpleaded allegations of the complaint as true, even if doubtful in fact, and must construe the
allegations in the light most favorable to the plaintiff. Id. at 555-56. “So, when the
allegations in a complaint, however true, could not raise a claim of entitlement to relief,” the
cause of action should be dismissed. Id. at 558. The Court applies the same standard of
review for dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii) that is employed for Fed. R. Civ.
P. 12(b)(6) motions to dismiss for failure to state a claim. Kay v. Bemis, 500 F.3d 1214,
1217-18 (10th Cir. 2007).
A pro se plaintiff’s complaint must be broadly construed under this standard.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972).
The generous construction to be given to the pro se litigant’s allegations “does not relieve
the plaintiff of the 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). Notwithstanding a pro
se plaintiff’s various mistakes or misunderstandings of legal doctrines or procedural
requirements, “if a court can reasonably read the pleadings to state a valid claim on which
the plaintiff could prevail, it should do so . . . .” Id. A reviewing court need not accept
“mere conclusions characterizing pleaded facts.” Bryson v. City of Edmond, 905 F.2d 1386,
1390 (10th Cir. 1990); see also Twombly, 550 U.S. at 555 (“While a complaint attacked by
a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s
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obligation to provide the grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
(quotations and citations omitted)). The court “will not supply additional factual allegations
to round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citation omitted).
Official or Individual Capacities
Defendants Welsh, Apala, and Patton allege in their motions to dismiss that it is
unclear whether they have been sued in their official capacities, individual capacities, or
both. When a pro se plaintiff fails to specifically indicate whether he is suing a defendant
in his official or individual capacity, he is given the benefit of the doubt, and the court will
liberally construe his claims against named defendants in both their official and individual
capacities. See Hull v. State of N.M. Taxation & Revenue Dep’ts Motor Vehicle Div., 179
Fed. App’x 445, 447, 2006 WL 1075617, at **2 (10th Cir. Apr. 25, 2006) (citing Brady v.
Smith, 656 F.2d 466, 469 (9th Cir. 1981)). Therefore, the Court finds Defendants Welsh,
Apala, and Patton were sued in both capacities.
Eleventh Amendment Immunity
Defendants Welsh and Apala further allege that as employees of the Oklahoma
Department of Corrections, they are entitled to Eleventh Amendment immunity. 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
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(1985).
The Court, therefore, grants Defendants Welsh and Apala’s motion to dismiss all
claims against them in their official capacities. Because the Eleventh Amendment involves
sovereign immunity, the official-capacity claims are DISMISSED WITHOUT PREJUDICE.
See Rural Water Sewer & Solid Waste Mgmt., Dist. No. 1, Logan Cnty., Okla. v. Guthrie, 654
F.3d 1058, 1069 n.9 (10th Cir. 2011).
On January 9, 2017, DOC Director Joe M. Allbaugh was substituted for Defendant
Robert Patton, in his official capacity. (Dkt. 30). For the reasons set forth above, Defendant
Allbaugh, in his official capacity, also is entitled to Eleventh Amendment immunity and is
DISMISSED WITHOUT PREJUDICE.
Personal Participation
Defendants Welsh, Apala, and Patton allege, among other things, that Plaintiff has
failed to show they personally participated in the alleged Eighth Amendment 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).
The record shows Plaintiff has not claimed that these three defendants personally
participated in the alleged Eighth Amendment violations. Plaintiff asserts he explained to
Welsh and Apala that his bulging disc prevented him from working, but neither of these
JBCC defendants are alleged to have been responsible for Plaintiff’s assignment to the OSP
Food Service job. As for Defendant Patton, Plaintiff only alleges this defendant is the DOC
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Director, and Plaintiff has presented no facts connecting Patton to the alleged violations.
Because Plaintiff has failed to show their personal participation, Defendants Welsh, Apala,
and Patton are DISMISSED WITH PREJUDICE in their individual capacities.
Defendants Emma Watts and Dr. Carmen
According to the USM-285 forms for Defendants Emma Watts and Dr. Carmen, Ms.
Watts no longer works at JBCC, and Dr. Carmen is “unknown.” (Dkts. 13, 15). On January
9, 2017, the Court directed Plaintiff to show cause why Defendants Watts and Carmen should
not be dismissed from this action for Plaintiff’s failure to serve them in accordance with Fed.
R. Civ. P. 4(m) (Dkt. 32). Plaintiff’s response to the Order stated he did not have forwarding
addresses for Watts or Carmen (Dkt. 33).
It is Plaintiff’s responsibility to provide sufficient information for service on the
parties. See Pemberton v. Patton, No. 15-7059, 2916 WL 7383967, at *2-*3 (10th Cir. Dec.
21, 2016). Here, the Court finds Plaintiff has not alleged he made any efforts to discover the
correct addresses for service of Defendants Emma Watts and Dr. Carmen. Therefore,
Defendants Watts and Carmen are DISMISSED WITHOUT PREJUDICE for Plaintiff’s
failure to serve them pursuant to Fed. R. Civ. P. 4(m).
Conclusion
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
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,
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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 Welsh, Apala, and Allbaugh are DISMISSED
WITHOUT PREJUDICE in their official capacities; Defendants Welsh, Apala, and Patton
are DISMISSED WITH PREJUDICE in their individual capacities; and Defendants Emma
Watts and Dr. Carmen are DISMISSED WITHOUT PREJUDICE in their official and
individual capacities. This action is, in all respects, DISMISSED for failure to state a claim
on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B). This dismissal shall count as
a “prior occasion” or “strike,” pursuant to 28 U.S.C. § 1915(g).
IT IS SO ORDERED this 28th day of March 2017.

_________________________________
RONALD A. WHITE
UNITED STATES DISTRICT JUDGE

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