Carter v. Glanz et al

Filing 33

OPINION AND ORDER by Judge Gregory K Frizzell ; terminating attorney Andrea Marie Wyrick ; setting/resetting deadline(s)/hearing(s): ( Responses due by 1/20/2012, Replies due by 2/3/2012); terminating party Correctional Officer Hutching, Mrs Mindy, Nurse Summer's, Correctional Officer Brown and Stanley Glanz ; granting 32 Motion to Withdraw Attorney(s); granting 23 Motion to Dismiss (Re: 28 MOTION to Dismiss Plaintiff's Amended Complaint (Doc. 10) ) (hbo, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
LARRY JAMES CARTER,

)
)
Plaintiff,
)
)
vs.
)
)
STANLEY GLANZ, Sheriff;
)
TIM HARRIS, Tulsa County District Att’y; )
NURSE SUMMERS; DR. WASHBOURN; )
MRS. MINDY, Chronic Care Nurse;
)
C.O. BROWN; C.O. HUTCHING,
)
)
Defendants.
)

Case No. 10-CV-754-GKF-PJC

OPINION AND ORDER
This is a 42 U.S.C. § 1983 civil rights action. The record reflects that by Order filed May 10,
2011 (Dkt. # 13), the Court dismissed Defendant Tim Harris from this action and directed service
of the second amended complaint (Dkt. # 10) by the United States Marshal. On August 29, 2011,
Defendant Glanz filed a Special Report (Dkt. # 21) and a motion to dismiss (Dkt. # 23). Plaintiff
has not filed a response to the dispositive motion and his deadline has passed. In addition, on
October 6, 2011, Defendant Dr. Washbourn filed a motion to dismiss (Dkt. # 28). Plaintiff has failed
to file a response to Dr. Washbourn’s motion to dismiss and his deadline has passed. Plaintiff has
also failed to effect service of process as to the remaining defendants and his deadlines have passed.
On December 29, 2011, counsel for Defendant Glanz filed a motion to withdraw (Dkt. # 32). For
the reasons discussed below, counsel’s motion to withdraw shall be granted, Defendant Glanz’s
motion to dismiss shall be granted, the unserved defendants shall be dismissed from this action, and
Plaintiff shall file a response to Defendant Dr. Washbourn’s motion to dismiss within fourteen (14)
days.

PRELIMINARY CONSIDERATIONS
A. Unserved defendants
Unexecuted returns of service were filed for Defendants Mrs. Mindy (Dkt. # 17), and
Correctional Officers Brown (Dkt. # 18) and Hutching (Dkt. # 19). By Order filed October 7, 2011
(Dkt. # 30), the Court directed Plaintiff to demonstrate good cause for his failure to serve those
Defendants within the time established by the Court. Plaintiff was specifically advised that if he
failed to file a response demonstrating good cause by October 21, 2011, those defendants would be
dismissed without prejudice. Plaintiff has not filed a response and his deadline has passed.
Therefore, Defendants Mrs. Mindy, Brown, and Hutching shall be dismissed without prejudice
based on Plaintiff’s failure to effect service.
The Court also determined that service of process was insufficient as to Defendant Summers.
See Dkt. # 30. Plaintiff was given the opportunity to submit new service forms for Defendant
Summers and the Court extended the deadline for service an additional thirty (30) days. Id. The
deadline has passed and Plaintiff has not effected service as to Defendant Summers. For that reason,
Defendant Summers shall be dismissed without prejudice based on Plaintiff’s failure to effect
service.
B. Plaintiff’s failure to file a response to Defendant Dr. Washbourn’s motion to dismiss
The record reflects that on October 6, 2011, Defendant Dr. Washbourn filed a motion to
dismiss (Dkt. # 28). To date, Plaintiff has not filed a response to the dispositive motion and the
response deadline has passed. The Court’s Local Rules provide that if a party fails to file a response
to a dispositive motion, the Court may, in its discretion, provide the party an additional fourteen (14)
days to respond, after which the case will be dismissed or the motion will be deemed confessed, as

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appropriate. See LCvR7.2(f). Pursuant to LCvR7.2(f), Plaintiff shall file a response to Defendant
Dr. Washbourn’s motion to dismiss within fourteen (14) days of the entry of this Order. Should
Plaintiff file a response, Defendant may file a reply within fourteen (14) days of the filing of the
response. Should Plaintiff fail to file a response, Defendant’s motion may be deemed confessed and
the relief requested may be entered.
C. Counsel’s motion to withdraw
In her motion to withdraw (Dkt. # 32), attorney Andrea M. Wyrick explains that she is
leaving employment with the Tulsa County District Attorney’s Office. She further states that the
District Attorney’s Office will continue to represent Defendant Glanz. See Dkt. # 32. The Court
notes that Assistant District Attorney Matney Ellis has entered his appearance on behalf of
Defendant Glanz. See Dkt. # 31. Because Defendant Glanz continues to have representation, the
Court finds the motion to withdraw shall be granted.
ANALYSIS
A. Background
In his second amended complaint (Dkt. # 10), Plaintiff complains that he has not received
corrective back surgery and "correct" blood pressure medications during his incarceration at the
Tulsa County Jail. Plaintiff claims that he needs surgery to repair his tens unit1 and that he needs
“correct blood pressure meds.” See id. Plaintiff identifies three separate claims based on his
allegations that he has been denied adequate medical care. Id. Plaintiff seeks compensatory and

1

Tens is an acronym for “transcutaneous electrical nerve stimulator.” (Information obtained at
www.webmd.com). A tens unit is used to treat back pain and works by passing an electric current
from a small battery-operated box via electrodes taped to the skin near the source of the pain. Id.
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punitive damages, and an injunction “to require the defendants to make medical access in a timely
and constitutional manner.” Id.
B. Dismissal standards
Under 28 U.S.C. § 1915(e), 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. See § 1915(e)(2)(B). 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.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). 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 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. However, “when the allegations in a complaint,
however true, could not raise a [plausible] 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 Federal Rule of Civil Procedure 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 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). 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

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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 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).
C. Allegations against Defendant Glanz fail to state a claim
1. Individual capacity
In response to the second amended complaint, Defendant Glanz filed a motion to dismiss
(Dkt. # 23). Defendant Glanz claims that Plaintiff has failed to allege that he personally participated
in, had knowledge of, or acquiesced in any of the alleged wrongdoings, and that, as a result, Plaintiff
has failed to state a claim against him in his individual capacity.
Personal participation is an essential element of a § 1983 claim. Bennett v. Passic, 545 F.2d
1260, 1262-63 (10th Cir. 1976); see also Garrett v. Stratman, 254 F.3d 946, 950 n.4 (10th Cir. 2001)
(noting that medical official must have “played a role in the challenged conduct” to be liable for an
Eighth Amendment violation). As a result, government officials have no vicarious liability in a
section § 1983 suit for the misconduct of their subordinates because “there is no concept of strict
supervisor liability under section 1983.” Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996)
(quotation omitted). Instead, a supervisor is liable only if he is “personally involved in the
constitutional violation and a sufficient causal connection . . . exist[s] between the supervisor and
the constitutional violation.” Serna v. Colo. Dep’t of Corr., 455 F.3d 1146, 1151 (10th Cir. 2006)
(quotation omitted); see also Meade, 841 F.2d at 1527 (stating that to establish a § 1983 claim

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against a supervisor, the plaintiff must show that an “affirmative link exists between the
constitutional deprivation and either the supervisor’s personal participation, his exercise of control
or direction, or his failure to supervise” (quotations and alterations omitted)).
The Court finds that the second amended complaint fails to state a claim as to Defendant
Glanz in his individual capacity. In ordering Plaintiff to file an amended complaint to cure
deficiencies, the Court specifically admonished Plaintiff that his claims against Defendant Glanz
were “overbroad and conclusory” and subject to dismissal. The Court advised Plaintiff that a
“defendant may not be held liable based on the theory of respondeat superior.” See Dkt. # 3 at 5-6.
The Court further advised Plaintiff that simply alleging that Defendant Glanz should be liable
because he “run[s] the operations” is inadequate to state a claim and that he would be required to
set forth “factual allegations suggesting personal participation or an affirmative link to the
constitutional deprivation at issue.” Id. at 6. In the second amended complaint, Plaintiff’s only
complaint against Defendant Glanz is that “he could have let me go so I’d get my surgery.” See Dkt.
# 10. As noted in the Special Report (Dkt. # 21), Defendant Glanz has no authority to order the
release of a detainee. None of the events described by Plaintiff involves Defendant Glanz. Plaintiff
clearly seeks to hold Defendant Glanz liable because he holds a supervisory position as Sheriff of
Tulsa County. However, as explained above, there is no strict supervisor liability under section
1983. Defendant Glanz is cannot be liable simply because he oversees or supervises the jail.
The second amended complaint is void of allegations that Defendant Glanz personally
participated in or acquiesced to any of the medical care provided to Plaintiff. Therefore, upon
consideration of the second amended complaint in its entirety and accepting all factual allegations
contained therein as true, the Court finds the second amended complaint fails to state a claim against

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Defendant Glanz in his individual capacity. In light of the admonishments given by the Court prior
to Plaintiff’s filing of his second amended complaint, the Court finds that dismissal is appropriate
because to allow further amendment as to Defendant Glanz would be futile.
2. Official capacity
To the extent Plaintiff sues Defendant Glanz in his official capacity as Sheriff of Tulsa
County, the complaint fails to state a claim upon which relief may be granted. Claims against a
government officer in his official capacity are actually claims against the government entity for
which the officer works. Kentucky v. Graham, 473 U.S. 159, 167 (1985). Thus, any claim against
Defendant Glanz in his official capacity is tantamount to an action against Tulsa County itself. See
Lopez v. LeMaster, 172 F.3d 756, 762 (10th Cir. 1999). Under § 1983, a municipality may not be
held liable on a theory of respondeat superior. Seamons v. Snow, 206 F.3d 1021, 1029 (10th Cir.
2000) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)). Instead, the plaintiff must
show “that the unconstitutional actions of an employee were representative of an official policy or
custom of the municipal institution, or were carried out by an official with final policy making
authority with respect to the challenged action.” Camfield v. City of Oklahoma City, 248 F.3d 1214,
1229 (10th Cir. 2001) (internal quotation marks omitted). To establish municipal liability, a plaintiff
must show: 1) the existence of a municipal policy or custom and 2) a direct causal link between the
policy or custom and the injury alleged. City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989).
Defendant Glanz, in his official capacity, cannot be liable through vicarious liability. See
Monell, 436 U.S. at 691. As part of his Special Report, Defendant Glanz provides a copy of the
contract with Correctional Health Management of Oklahoma, Inc. (“CHMO”). See Dkt. # 21-2, Ex.

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B.2 Defendant Glanz alleges that it “is the policy in place for handling the medical needs of
prisoners.” See Dkt. # 23. Plaintiff did not file a response to the motion to dismiss, and he does not
dispute the authenticity of the contract.
In his second amended complaint, Plaintiff alleges that he has been denied “correct medical
care” as a result of “the practices and procedures” in place at the jail. He claims that the
administration stopped the “correct” treatment for his back pain because of the cost associated with
surgery.3 He does not allege that a particular policy of the jail prevented him from receiving the
“proper medications.” Upon review of the second amended complaint, the Court finds it contains
no allegation suggesting a direct causal link between the policy for providing medical care at the
Tulsa County Jail and Plaintiff’s alleged injury. City of Canton v. Harris, 489 U.S. at 385; Olsen
v. Layton Hills Mall, 312 F.3d 1304, 1318 (10th Cir. 2002); Palmer v. Board of Com’rs for Payne
Cnty. Oklahoma, 765 F.Supp.2d 1289, 1302 (W.D. Okla. 2011). Stated another way, even if Plaintiff
could demonstrate that the medical care provided to him at the Tulsa County Jail failed to satisfy
constitutional standards, see Estelle v. Gamble, 429 U.S. 97, 104 (1976) (requiring demonstration
of deliberate indifference to a serious medical need),4 he has not alleged that the policy for providing
2

In considering a motion to dismiss, the Court may consider a contract, central to the plaintiff’s
claim, which has been referenced in but not included with the complaint. See Utah Gospel Mission
v. Salt Lake City Corp., 425 F.3d 1249, 1253-54 (10th Cir. 2005).
3

Under Oklahoma law, a county is not liable for the cost of medical care associated with
treatment of a condition that preexists a prisoner’s arrest. See Okla. Stat. tit. 19, § 746(A). The law
also provides that a pretrial detainee shall be provided with the opportunity to receive necessary
medical care for a preexisting condition, but the inmate, not the county, shall be liable for the cost
of such medical care. § 746(B). See also Dkt. # 21, Ex. C.
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The Court notes that on a handwritten page of the second amended complaint (Dkt. # 10),
Plaintiff sets forth factual allegations supporting his claims that he received constitutionally
inadequate medical care while in custody at the Tulsa County Jail. Those allegations encompass a
six week period and reflect that Plaintiff received medical care for his conditions, but that he
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medical care was the driving force behind the constitutional violation. Nothing in the second
amended complaint suggests that Plaintiff’s medical condition was not preexisting at the time of his
arrest. Nor does he allege that he was not provided an opportunity to obtain surgery for his
preexisting condition at his own cost. Plaintiff fails to allege facts supporting a direct causal link
between the medical policy and any injury resulting from application of the medical policy. A
complaint does not “suffice if it tenders naked assertions devoid of further factual enhancement.”
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (internal alterations, citations, and
quotations omitted).
Upon consideration of the second amended complaint in its entirety and accepting all factual
allegations contained therein as true, the Court finds the second amended complaint fails to state a
claim against Defendant Glanz in his official capacity.
ACCORDINGLY, IT IS HEREBY ORDERED that:
1.

The motion to withdraw (Dkt. # 32) is granted. Attorney Andrea M. Wyrick is allowed to
withdraw as counsel of record.

2.

Defendant Glanz’s motion to dismiss (Dkt. # 23) is granted.

3.

Defendants Summers, Mrs. Mindy, Brown, and Hutching are dismissed without prejudice
based on Plaintiff’s failure to effect service of process.

4.

Within fourteen (14) days of the entry of this Order, or on or before January 20, 2012,
Plaintiff shall file a response to the motion to dismiss filed by Defendant Dr. Washbourn.

5.

Defendant Dr. Washbourn may file a reply within fourteen (14) days of the filing of a
response.

disagreed with the care provided.
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6.

Should Plaintiff fail to file a response to Defendant Dr. Washbourn’s motion to dismiss, the
Court will be authorized to grant the relief requested therein.

DATED THIS 6th day of January, 2012.

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