Munn v. Allbaugh et al

Filing 46

OPINION AND ORDER by Judge Ronald A. White : Defendant Cherrie Guay is DISMISSED WITHOUT PREJUDICE for Plaintiff's failure to properly serve her. Defendants are GRANTED summary judgment for Plaintiff's claims conce rning his medical treatment, the threat of pepper spray, and the claim concerning missing property. Plaintiff's conspiracy claim is DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. 1915(e)(2)(B) as frivolous or malicious and for failure to state a claim upon which relief may be granted. Plaintiff's request for injunctive relief is DENIED. This dismissal shall count as a "prior occasion" or "strike", pursuant to 28 U.S.C. 1915(g).(acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
FRED DEWITT MUNN,
Plaintiff,
v.

No. CIV 17-047-RAW-SPS

JOE ALLBAUGH, et al.,
Defendants.
OPINION AND ORDER
This action is before the Court on Defendants= motion to dismiss or for summary
judgment.

The Court has before it for consideration Plaintiff=s complaint (Dkt. 1),

Defendants= motion (Dkt. 37), 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. 41), and Plaintiff=s response to Defendants= motion
(Dkt. 44).
Plaintiff, an inmate in the custody of the DOC who is incarcerated at Oklahoma
State Penitentiary (OSP) 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 Joe Allbaugh, DOC Director; Kevin
Duchworth, a.k.a. Kevin Duckworth, Acting OSP Warden; Terry Royal, OSP Warden;
Cherrie Guay, OSP Canteen Officer; Dr. Phil Marlar, OSP Physician; and Regina Van
Blaricom, OSP Health Services Administrator.

Standard of Review
The Court has carefully reviewed the record and construes Plaintiff=s 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).
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. 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.
Medical Treatment Claim
Plaintiff alleges he has life-threatening, Amalignant metastatic breast cancer
disease,@ which requires continuous medical treatment at the University of Oklahoma
Medical Center (>OUMC@) in Oklahoma City. He alleges in his extremely disorganized

and repetitive complaint that the defendants hate him and have conspired to Aharass, punish,
and retaliate against [him]@ for filing this lawsuit. He further claims all the defendants are
Aacting intentionally@ in a conspiracy to have him killed to avoid paying for his expensive
medical treatment. He further asserts Defendant Dr. Marlar has threatened to kill him by
giving him a poisoned version of the medication he is supposed to receive by injection for
his treatment. Plaintiff contends the injections of Lupron Depot for treatment of his cancer
are supposed to be administered at a hospital by cancer specialists. Dr. Marlar, however,
advised him that the injections would be given at the prison. (Dkt. 1 at 4). Plaintiff,
therefore, refuses to consent to having Dr. Marlar administer the injections at OSP. (Dkt.
1 at 4-8).
Defendants allege Plaintiff has failed to exhaust the administrative remedies for
this claim. 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, 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)

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(citation omitted).
According to the DOC Offender Grievance Process, OP-090124, an inmate first
must attempt to resolve his complaint informally by communicating with an appropriate
staff member within three (3) days of the incident. If this initial attempt at resolution is
unsuccessful, the inmate must submit a Request to Staff (RTS) to the law library supervisor
or other designated staff member within seven (7) calendar days of the incident. The
supervisor or designee forwards the RTS to the appropriate staff member who then must
respond to the RTS in writing within ten (10) working days of receipt. After the RTS is
answered, the inmate may submit an Inmate/Offender Grievance Form, along with the
answered RTS, to the reviewing authority. The grievance form must be submitted within
fifteen (15) days of the incident or receipt of the answer to the RTS, whichever is later. If
the reviewing authority rejects the inmate=s grievance, the inmate then may appeal to the
Administrative Review Authority (ARA) within fifteen (15) days of receipt of the
reviewing authority=s grievance response. The ruling of the ARA is final and concludes
the internal grievance process available to the inmate. (Dkt. 41-3).
The record shows Plaintiff submitted Requests to Staff concerning his medical claim
on July 16, 2016, September 1, 2016, and September 6, 2016, each inquiring whether he
had an appointment at the AOKC Hospital@ to receive the Lupron Depot injection (Dkt. 419 at 94, 107, 109). Each RTS was answered by informing Plaintiff he was scheduled. Id.
After the DOC staff elected to provide Plaintiff the injection at his facility beginning on

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January 4, 2017, Plaintiff submitted no RTSs demanding to be taken to OUMC for an
injection (Dkt. 41-9). In addition, Plaintiff submitted no grievances related to the Lupron
injection (Dkt. 41-4).
Plaintiff has made notes in the margin of his complaint stating the defendants will
not answer his RTSs, thereby denying his right to file grievances (Dkt. 1 at 9, 13). A
prisoner must exhaust only those remedies that are Aavailable.@ See Little v. Jones, 607
F.3d 1245, 1250 (10th Cir. 2010). AWhere prison officials prevent, thwart, or hinder a
prisoner=s efforts to avail himself of an administrative remedy, they render that remedy
>unavailable,= and a court will excuse the prisoner=s failure to exhaust.@ Id. (citation
omitted). A prison official improperly thwarts a prisoner=s attempt to exhaust when he
rejects a prisoner=s grievance appeal on grounds not permitted by the relevant regulations.
Id. at 1249-50.
Plaintiff attached to his complaint an Inmate/Offender Grievance form dated
January 6, 2017, which purports to be AAdministrative Exhaustion@ concerning the
injection issue (Dkt. 1 at 14). There is no indication on the grievance form, however, that
it ever was received by appropriate staff, because there is no grievance number, code, or
response date noted.
Defendants assert that if Plaintiff had properly filed the grievance, these notations
would have been included, and a proper copy would have been returned to him for his
records. In addition, there is no record of this grievance having been filed at OSP (Dkt.
41-4). Even if this grievance had been properly filed, there is no record of Plaintiff=s filing
5

an RTS regarding this issue; therefore, the grievance would have been filed in error.
After consideration of the pleadings and other submitted materials, the Court is of
the view that there are no genuine issues of material fact with respect to whether this claim
is unexhausted. The Court further finds Plaintiff has not shown he was prevented from
exhausting his administrative remedies for this claim. Therefore, summary judgment is
granted on this issue.
Pepper Spray Threat
Plaintiff alleges that on January 5, 2017, OSP Lt. Williams threatened to pepper
spray him, if he did not go to Dr. Marlar=s office and allow Dr. Marlar to give him the
poisoned Lupron injection.1 Plaintiff told Dr. Marlar he only would accept the injection
at OUMC/ Presbyterian Hospital in Oklahoma City, and Dr. Marlar signed refusal forms
on January 5 and 6, 2017. Marlar allegedly enlisted other OSP staff members to conspire
to lie about Plaintiff=s refusal, all in their attempt to kill him. Plaintiff maintains he did
not refuse the injection, but he insisted the injection must be administered by a cancer
specialist at the hospital. (Dkt. 1 at 9).
Defendants assert that threats by staff are considered grievable issues under the
DOC Grievance Procedure (Dkt. 31-3 at 3). There is no record, however, that Plaintiff
filed any RTS regarding the alleged threat of pepper spray (Dkt. 41-9). Because there is
no genuine issue of material fact with respect to whether this claim is unexhausted,

1

Lt. Williams is not a defendant in this action.

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summary judgment is granted on this issue.
Property Claim
Plaintiff alleges his boots, shoes, and headphones never were mailed to his home.
He maintains this property was stolen, and Defendant Cherrie Guay, former OSP Property
Officer,2 lied about the property to Defendant Kevin Duchworth, OSP Acting Warden.
Plaintiff also asserts the $14.15 disbursement for postage to ship his property was deducted
from his account on April 28, 2016, and then repaid to his account on May 19, 2016. (Dkt.
1 at 8).
The record shows that on March 22, 2016, Plaintiff was sent a notice advising he
had unauthorized property that exceeded the amount allowed at OSP, and he would have
to dispose of it (Dkt. 41-14 at 2). One item was described as a Abox weighing approx 50
lbs.@ Id.

On March 23, 2016, Plaintiff was sent a second notice to dispose of his

unauthorized property. Id. at 3. He was instructed to provide proof of purchase for the
tennis shoes that were found in his property. Other items were described as Ametal watch,
lock, lamp, cups, bowls, light bulbs, pens/pencils, broken eyeglasses, extra soap dish,
altered cord@ Id.
On March 30, 2016, Plaintiff sent an RTS to the property officer, requesting that his
excess property be sent to his aunt. Id. at 4. The March 31, 2016, disposition of the RTS
stated, ACM [case manager] has sent PRR&R for D. When mailouts are completed your

2

Defendant Guay has not been served (Dkt. 40).

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items will be sent per your directions. Receipts will be sent to you.@ Id. at 4 Plaintiff=s
property release receipt, signed March 31, 2016, included Atimberland boots black size 11,@
Aheadphones not sold at OSP,@ and A Skechers Size 11 tennis shoes.@ Id. at 5. On April
1, 2016, however, an Incident Report by the property officer indicated the boots retrieved
from Plaintiff on March 25, 2016, could not be located. Id. at 6. The supervisor=s
response stated, Arequest for camera footage to be renewed. No further action needed.@
Id. An undated receipt indicates Plaintiff approved disbursements for postage to send four
boxes, with one box remaining. Id. at 7.
On April 4, 2016, an RTS from Plaintiff, dated March 31, 2016, was received by
the property officer. Id. at 8. The RTS requested disposition of his excess property. Id.
The response, dated April 6, 2016, stated in part, AYou submitted a PRR&R for D, dated
3/31/16. Per written direction, property was processed accordingly. The boxes were sent
this morning. . . . Only items not sent out are shoes, boots & headphones.@ Id.
On April 6, 2016 an Offender Request dated April 5, 2016, was sent by Plaintiff to
the property officer, essentially repeating the RTS request for his excess property to be sent
out. Id. at 9. The April 6, 2016, response again informed Plaintiff that action had been
taken, stating, AOnly items not sent are shoes, boots and headphones.@ Id.
On April 11, 2016, yet another RTS by Plaintiff, dated April 7, was sent to the
property officer, requesting in relevant part, Aheadphones, tennis shoes, (boots?).@ Id. at
10.
The response, dated April 12, 2016, stated in part, AProvide proof of purchase for
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tennis shoes as instructed on NOF dated 3/23/16.@ Id. An email chain between April 12,
2016, and April 15, 2016, indicated Plaintiff=s boots had been missing, but were found.
Id. at 11.
On April 28, 2016, Plaintiff filed a grievance requesting to be allowed to mail his
boots, Skechers tennis shoes, and headphones home. Id. at 12-13. He was granted relief
on May 16, 2016, in a decision stating:
Offender Munn you requested on March 31, 2016, that unauthorized property
seized upon arrival to OSP be brought to you on SE 8, Property Officer
responded to your RTS on April 6, 2016, stating that per previous direction
of you your excessive property (shoes, boot, and headphones) will be
processed accordingly. Per Property Officer your items mailed out on
4/28/16. Relief granted.
Id. at 14.
On January 6, 2017, an RTS from Plaintiff, dated December 27, 2016, was sent to
the property officer, accusing Defendant Guay, the previous property officer, of stealing
his boots, tennis shoes, and headphones. He asked the property officer to look in the
property room for a box containing these items. No response was provided. Id. at 15.
There is no indication Plaintiff filed a grievance to the reviewing authority concerning the
lack of response, pursuant to OP-090124(IV)(C)(11) (Dkt. 41-3 at 9).
Also on January 6, 2017, an RTS from Plaintiff was sent to Case Manager Bobby
Tharpe, requesting a transfer to a specific facility, claiming his life was in jeopardy because
of OSP staff and prisoners. In addition, the RTS stated his boots, tennis shoes, and
headphones had been stolen.

(Dkt. 41-14 at 16-17). The response stated, AI will look
9

into this.@ Id. at 16. A case note entry by Tharpe on March 31, 2017, stated in part, ASpoke
with inmate about any issues he may be having. Inmate stated no issues at this time.@ Id.
at 18.
Here, the Court finds that to the extent Plaintiff=s property allegations concern the
alleged misconduct of Defendant Guay, he was unable to serve her, despite assistance from
the United States Marshals Service (Dkts. 36, 40). Therefore, Defendant Guay must be
dismissed without prejudice for Plaintiff=s failure to serve her pursuant to Fed. R. Civ. P.
4(m).
With respect to other defendants who may have been involved in this claim,
deprivations of property only arise under ' 1983 if the deprivation is unlawful and if the
plaintiff did not have an adequate post-deprivation remedy. Hudson v. Palmer, 468 U.S.
517, 533 (1984). Here, Plaintiff was not allowed his property because it exceeded the
amount permitted at OSP. He utilized the DOC internal grievance process and, according
to the defendants, he was granted relief. Plaintiff disagrees with this assessment, and still
asserts he is due compensation of at least $170.00 for his boots, shoes, and headphones
(Dkt. 44 at 16).
In addition, Plaintiff apparently did not complete the exhaustion of his
administrative remedies by an appeal to the Administrative Review Authority. Nor did he
pursue a remedy under state law for the alleged loss of his property.

See OP-

030120(VII)(A) (Dkt. 41-13 at 7) (AReimbursement for lost or damaged secured property
will only be made in accordance with Oklahoma law,@ pursuant to Okla. Stat. tit. 51, '
10

151).
After careful review, the Court finds Plaintiff has not shown the mailing did not
actually occur or that Defendants unreasonably failed to follow his mailing instructions.
He also has not shown an unlawful deprivation, and that he did not have an adequate postdeprivation remedy. Hudson, 468 U.S. at 533.
Furthermore, the Court finds Plaintiff has failed to show the personal participation
of Defendants Allbaugh, Royal, Duckworth, or Van Blaricom in this or any of the other
alleged constitutional violations. APersonal 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). Plaintiff has not met this burden. Summary judgment is granted for this claim.
Conspiracy Claim
Plaintiff alleges Dr. Marlar and the other defendants are conspiring to have him
murdered by placing him in the same cell with an unnamed inmate who will kill Plaintiff.
Plaintiff claims he is in a single cell in protective custody, with 15 active separatees against
other prisoners who have threatened his life or have attacked and stabbed him. He claims
he previously was housed in permanent protective custody at Lawton Correctional Center,
but was transferred to OSP on March 15, 2015, to be murdered to spare the prison system
11

from paying his expensive medical bills.
Conclusory allegations of a conspiracy will not suffice. Wise v. Bravo, 666 F.2d
1328, 1333 (10th Cir. 1981). Allegations of a conspiracy, backed up with no factual
showing of an agreement and concerted action amongst the defendants, are insufficient to
support such a claim. See Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir.), cert. denied,
513 U.S. 832 (1994). Plaintiff must establish an actual deprivation of his rights, in
addition to proving that a conspiracy actually exists. Dixon v. City of Lawton, 898 F.2d
1443, 1449 (10th Cir. 1990). Plaintiff has failed to meet this burden of providing evidence
to support his claim. See Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996) (holding that
allegation against a group of defendants is too conclusory to establish personal
participation on the part of any one of them).
Where, as here, a prisoner is proceeding in forma pauperis, the Court must dismiss
a claim if, at any time, the Court determines it is frivolous or malicious, fails to state a
claim upon which relief may be granted, or seeks monetary relief against a defendant who
is immune from such relief. See 28 U.S.C. ' 1915(e)(2)(B). See also 28 U.S.C. '
1915A(b)(1). Because the Court finds Plaintiff=s conspiracy claim meets these criteria, the
claim is dismissed as frivolous or malicious and for failure to state a claim upon which
relief may be granted, pursuant to 28 U.S.C. ' 1915(e)(2)(B).
Injunctive Relief
Finally, Plaintiff requests injunctive relief requiring Defendant Dr. Marlar and the
other defendants to transport him to OUMC/Presbyterian Hospital Ato be given the Lupron
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Depot shot at the Hospital by cancer specialist staff, for cancer PET scans and cancer doctor
consultations, and any cancer treatments deemed necessary to save Plaintiff Fred Munn=s
life@ (Dkt. 1 at 13). He also requests that the Court Aorder all defendant to stop trying to
kill and murder me.@ Id. He further asks the Court to order Defendant Cherrie Guay to
find his boots, tennis shoes and headphones in good condition or pay him $170.00
reimbursement. Id.
AAn injunction is a drastic and extraordinary remedy, which should not be granted
as a matter of course.@ Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010).
Furthermore, to be entitled to injunctive relief, the movant must establish a violation of his
constitutional rights. Rizzo v. Goode, 423 U.S. 362, 377 (1976). Because Plaintiff has
failed to plead any facts to sustain a finding of an ongoing constitutional violation, he is
not entitled to injunctive relief.
ACCORDINGLY,
1.

Defendant Cherrie Guay is DISMISSED WITHOUT PREJUDICE for
Plaintiff=s failure to properly serve her.

2.

Defendants are GRANTED summary judgment for Plaintiff=s claims
concerning his medical treatment, the threat of pepper spray, and the claim
concerning missing property.

3.

Plaintiff=s conspiracy claim is DISMISSED WITH PREJUDICE pursuant to
28 U.S.C. ' 1915(e)(2)(B) as frivolous or malicious and for failure to state a
claim upon which relief may be granted.
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4.

Plaintiff=s request for injunctive relief is DENIED.

5.

This dismissal shall count as a Aprior occasion@ or Astrike,@pursuant to 28
U.S.C. ' 1915(g).

IT IS SO ORDERED this 24th day of January 2019.

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