Perkins v. Allbaugh
Filing
29
OPINION AND ORDER by Judge Ronald A. White : Granting 16 defendant Allbaugh's Motion to Dismiss and this action is DISMISSED. 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
KELVIN PERKINS,
Plaintiff,
v.
JOE M. ALLBAUGH, DOC Director,
Defendant.
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) Case No. CIV 17-392-RAW-SPS
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OPINION AND ORDER
This action is before the Court on Defendant=s motion to dismiss or for summary
judgment (Dkt. 16). Plaintiff, an inmate in the custody of the Oklahoma Department of
Corrections (DOC) who presently 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. The defendant is Joe
M. Allbaugh, DOC Director.
Plaintiff was housed at Jackie Brannon Correctional Center (JBCC) in McAlester,
Oklahoma, when he was working on a clean-up crew for the Oklahoma State Penitentiary
(OSP) tower removal, also in McAlester. (Dkt. 1 at 18). On the morning of November
17, 2016, he was struck in the head by debris being thrown from the tower. He claims he
continues to suffer medical problems from this incident. (Dkt. 1 at 2).
Plaintiff alleges he was knocked unconscious and was rushed to the OSP medical
facility where he was treated for severe bleeding. He was in horrible pain from the top of
his head to the bottom of his knees, with dizziness and uncontrollable shaking. Although
he informed the OSP medical staff of his symptoms, he received no treatment for his aching
head. Instead, his head was re-bandaged. Id. at 3.
Plaintiff next was taken to the housing unit where he told the unit manager he needed
medical services from JBCC rather than OSP. The unit manager told him to go after the
yard count was completed. After demanding to be seen by medical services, he was seen
by a nurse practitioner, not a Areal doctor,@ who gave him a tetanus shot, checked his heart
and blood pressure, looked in his eyes, gave him gauze to wrap his head, and ordered 800
mg. ibuprofen tablets. Id.
On the day of the incident, Plaintiff submitted a request to see a mental health
professional. Id. The sick call slip was returned with a receipt date of November 23,
2016. Id. The request stated he had not been the same since the accident, and he claimed
to have the following symptoms:
I told them that I was experiencing memory loss, nightmares in my sleep,
dizziness, paranoia, mood swings, anxiety, muscle aches and spasms,
tightness and stiffness in the left side of my neck, white speckles in my eyes,
my ears ringing and popping, sharp pain in my lower back and knees when I
stand up, and my vision in my eyes hurt to sunlight, and I also had trouble
breathing out of my nose.
Id. He was seen a mental health provider on November 30, 2016. Id.
Plaintiff further alleges that over the next few days, his condition got worse, and he
requested immediate medical care on November 21, 2016. The medical treatment slip
was returned with a notation of Ascheduled,@ but he never saw a medical provider. Id. at
7-8.
Standard of Review
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 Araise a right to relief above the
speculative level.@ Twombly, 550 U.S. at 555. The complaint must contain Aenough facts
to state a claim to relief that is plausible on its face.@ Id. at 570. A court must accept all
the well-pleaded 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. ASo,
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.
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 Adoes 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, Aif 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 Amere conclusions characterizing pleaded facts.@ Bryson v. City of
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Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990); see also Twombly, 550 U.S. at 555. The
Court Awill 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). With these standards in mind, the court turns to the merits of
Defendant=s motion.
Tort Claim
On March 30, 2017, Plaintiff made a claim for compensation under the Oklahoma
Governmental Tort Claims Act.
(Dkt. 1 at 35).
Although the complaint does not
expressly raise this claim, Defendant asserts this was a tort claim for medical negligence
at a private prison. (Dkt. 16 at 23). Defendant alleges that to the extent Plaintiff is alleging
a tort claim for medical negligence, it must fail as a matter of law. According to a letter
dated June 2, 2017, from the Office of Risk Management and Enterprise Services--Risk
Management Department, the tort claim was denied pursuant to Okla. Stat. tit. 51, '
155(18), (25), and (30). Id. at 39.
The Oklahoma Governmental Tort Claims Act, Okla. Stat. tit. 51 ' 151, is the
exclusive remedy by which an injured plaintiff may recover against an Oklahoma
governmental entity in tort. Fuller v. Odom, 741 P.2d 449, 451-53 (Okla. 1987). In Okla.
Stat. tit. 51, ' 152.1(A), the legislature adopted the doctrine of sovereign immunity for the
State, its political subdivisions, and all employees acting within the scope of their
employment. Id. AScope of employment@ is defined as Aperformance by an employee
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acting in good faith within the duties of the employee=s office or employment or of tasks
lawfully assigned by a competent authority . . . but shall not include corruption or fraud.@
Okla. Stat. tit. 51 ' 152(12). Here, Plaintiff has not alleged that any person was acting
outside the duties of his office or had otherwise engaged in fraud or corruption when the
claim arose. Thus, there is no liability for Defendant Allbaugh.
To the extent Plaintiff is asserting that a private prison failed to provide adequate
medical care, pursuant to Okla. Stat. tit. 51, ' 155(25), immunity is preserved for the State
of Oklahoma on claims arising from the A[p]rovision, equipping, operation or maintenance
of any prison, jail or correctional facility . . . .@ In Medina v. State, 871 P.2d 1379 (Okla.
1993), the exemption was defined using the ordinary meaning of the operative words
Aprovision,@ Aequipping,@ Aoperation@ and Amaintenance@ of a prison.
Id. at 1382.
Further, this exemption encompassed Aall activity involved in the performance of policy.@
Id. at 1383. Thus, Plaintiff=s tort claim arising from the alleged denial of medical services
at the prison also must fail.
In addition, Okla. Stat. tit. 51, ' 155(18), exempts the State from liability for A[a]n
act or omission of an independent contractor or consultant or his or her employees, agents,
subcontractors or suppliers or of a person other than an employee of the state or political
subdivision at the time the act or omission occurred.@ Because Plaintiff=s claims arose
from the alleged acts or omissions of personnel in a private prison, his claims clearly are
prohibited.
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Based on the above analysis, the Court finds the State of Oklahoma has not waived
its sovereign immunity with regard to Plaintiff=s tort claim. The claim, therefore, must be
dismissed.
Exhaustion of Administrative Remedies
Defendant Allbaugh alleges Plaintiff has failed to exhaust the administrative
remedies for 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, 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). 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
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days of the incident. (Dkt. 15-3 at 6). 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.
Id. at 7. 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. Id. at 8. If the complaint is
not resolved after the response to the RTS, the offender then may file a grievance. Id. If
the complaint is medical, the grievance must be submitted to the facility Correctional
Health Services Administrator (CHSA). Id. at 9. Grievances that are an emergency or of
a sensitive nature can be submitted directly to the reviewing authority without informal
resolution. This is appropriate where the inmate faces a substantial risk of personal injury,
sexual harm, or other irreparable harm. Id. at 15. If the grievance also does not resolve
the issue, the inmate may appeal to the Administrative Review Authority or the Medical
Administrative Review Authority. Id. at 12. The administrative process is exhausted
only after all of these steps have been taken. Id. at 14.
Plaintiff alleges in the complaint that Defendant Allbaugh was deliberately
indifferent by failing to provide appropriate medical care and treatment of his head, neck,
and back pain. He contends in his response to the motion to dismiss that he has fully
exhausted his grievance process, and he still is being denied the medical treatment he
needs. (Dkt. 20). Plaintiff=s attempts to exhaust the administrative remedies for his
claims are set forth below.
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On December 2, 2016, Plaintiff submitted an RTS to the warden of JBCC,
requesting relief for alleged negligent failure to provide a safety hat and a safe construction
work site in compliance with OSHA requirements. (Dkt. 1 at 11-12). He also requested
professional medical and mental health services. Id. In response, Plaintiff was advised
to request health services at DCF, his current facility. Id.
On December 20, 2016, Plaintiff submitted Grievance No. 00312 on this issue. Id.
at 13-14. The grievance also requested monetary compensation for the violation of
Plaintiff=s Eighth and Fourteenth Amendment right to be free from DOC=s negligence in
failing to meet OSHA=s safety requirements. Id.
On December 29, 2016, Grievance No. 00312 was returned unanswered because the
grievance form was not completed correctly, grievances cannot request monetary
compensation, and a grievance cannot include more than one issue per grievance form.
Id. at 15-17. Plaintiff was advised that his requests for medical relief first must be pursued
in a request for health services submitted to his current facility, DCF. Plaintiff was further
instructed that if his medical needs were not adequately addressed, he could submit an RTS
to the DCF Correctional Health Services Administrator (CHSA), followed by a grievance
to JBCC, where the injury was sustained. There is, however, no indication that Plaintiff
resubmitted the grievance.
On January 8, 2017, Plaintiff submitted an RTS to Ray Larimer, DCF CHSA,
requesting medical treatment for his head, neck, left shoulder, left elbow, and lower back.
(Dkt. 1 at 18-19). In response, he was advised to submit a request for medical services,
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because he had submitted no medical requests since he saw a medical provider on
December 7, 2016. Id. at 18. On January 13, 2017, he submitted a request for health
services at DCF. Id. at 20. The response stated he was seen in medical and referred to a
provider. Id.
Plaintiff next submitted two emergency medical grievances with each requesting Xrays, health care, and pain medication for his head injury. Id. at 21-22, 26-27. The first
emergency grievance, submitted to the DCF CHSA on January 17, 2017, was returned
unanswered on January 18, 2017, for failure to comply with the grievance procedure. Id.
at 21-25.
His second emergency grievance, dated January 19, 2017, was submitted to DOC=s
Medical Services Administrator, who also serves as the final Administrative Review
Authority for medical issues. Id. at 26-27. The response to the second emergency
grievance granted partial relief in that Plaintiff=s request for medical treatment was
provided during a medical appointment on January 24, 2017.
Id. at 28.
Because
Plaintiff=s second emergency grievance sought relief beyond what was provided at the
medical appointment, he was advised to address additional medical concerns in a request
for health services form. Id. Thus, the grievance was partially denied. Id.
Plaintiff attempted to appeal the response to the second emergency grievance. Id.
at 29. On March 8, 2017, the appeal was returned, and Plaintiff was informed that because
the grievance was submitted directly to DOC=s final medical administrative reviewing
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authority, the response was final. Id. at 33. Plaintiff was also advised that, because his
grievance appeal included requests beyond the scope of the original grievance, the appeal
was improperly submitted. Id.
On March 6, 2017, March 8, 2017 and May 19, 2017, Plaintiff submitted
correspondence and RTSs wherein he complained about medical care and specifically
requested treatment by an outside medical provider.
(Dkt. 1 at 31-32, 34, 37-38).
Respondent asserts there is no indication that Plaintiff filed related grievances or appeals.
The only issue for which the administrative remedies were exhausted concerned Plaintiff=s
request for medical appointments at a private prison, which he received. Plaintiff=s claims,
to the extent that they are based upon failure to provide outside medical treatment including
X-rays and evaluations, remain unexhausted. Therefore, the Court finds Plaintiff failed to
fully and properly exhaust administrative remedies regarding his claims that he was denied
proper medical care and treatment when he was not referred to an outside medical provider.
Eleventh Immunity
Defendant Allbaugh also alleges he is entitled to Eleventh Amendment immunity.
An official capacity claim against an Oklahoma official is actually a claim against the State
of Oklahoma. See Kentucky v. Graham, 473 U.S. 159, 165 (1985); Will v. Michigan Dep=t
of State Police, 491 U.S. 58, 71 (1988). A[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.
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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 (1985). Here, the Court finds Plaintiff=s
claims against Defendant Allbaugh in his official capacity are barred by the Eleventh
Amendment.
Personal Participation
Defendant Allbaugh further alleges Plaintiff has failed to affirmatively link him to
any alleged constitutional violations. The complaint does not allege that Allbaugh denied
him medical or mental health care and treatment, and there are no allegations that Allbaugh
participated in any constitutional violations. Instead, Allbaugh apparently is named as a
defendant because of his position as DOC Director or his presumed supervisory position.
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) (holding ASection
1983 will not support a claim based on a respondeat superior theory of liability.@). Here,
the Court finds Plaintiff has not shown that Defendant Allbaugh participated in the alleged
constitutional violations. Therefore, Plaintiff has failed to state a claim against Allbaugh.
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ACCORDINGLY, Defendant Allbaugh=s motion to dismiss (Dkt. 16) is
GRANTED, and this action is DISMISSED. This dismissal shall count as a APRIOR
OCCASION@ or ASTRIKE,@ pursuant to 28 U.S.C. ' 1915(g).
IT IS SO ORDERED this 27th day of March 2019.
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