Little v. Jones et al
Filing
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OPINION AND ORDER by Chief Judge Gregory K Frizzell ; dismissing/terminating case ; granting 35 Motion to Dismiss; finding as moot 35 Motion for Summary Judgment (Re: 1 Complaint ) (hbo, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
GARY LITTLE,
)
)
Plaintiff,
)
)
vs.
)
)
JUSTIN JONES, Director;
)
DON SUTMILLER, Chief Medical Officer; )
GENESE McCOY, Designee;
)
JANE STANDIFIRD, Warden;
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JODY JONES, Medical Administrator;
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DR. BOWLER, Physician;
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BETH WAGENER, PA;
)
BOB SILVIS, Chief Nurse,
)
)
Defendants.
)
Case No. 11-CV-598-GKF-TLW
OPINION AND ORDER
This is a 42 U.S.C. § 1983 civil rights action. Plaintiff appears pro se and is proceeding in
forma pauperis. By Order filed October 20, 2011 (Dkt. # 10), the Court dismissed Defendants Justin
Jones, Don Sutmiller, Genese McCoy, and Jane Standifird, and directed service of the complaint
(Dkt. # 1) by the United States Marshal as to the remaining defendants. The remaining defendants
were directed to file answers and/or dispositive motions within sixty (60) days of service. See Dkt.
# 10. Plaintiff was directed to file a response to any dispositive motion within twenty-one (21) days
after the filing of the motion. Id.
The record reflects that on February 16, 2012, remaining defendants Jody Jones, Bethany
Wagner, Dr. Larry Bowler, and Bob Silvis filed a Special Report (Dkt. # 36) and a motion to dismiss
or in the alternative motion for summary judgment and brief in support (Dkt. # 35). Plaintiff
requested and was granted an extension of time to file a response. See Dkt. #s 37, 38. His deadline
for filing a response to Defendants’ dispositive motion was April 9, 2012. See Dkt. # 38. That
deadline passed and Plaintiff failed to file a response. By Order filed June 7, 2012 (Dkt. # 40), the
Court directed Plaintiff to file a response to the dispositive motion on or before June 22, 2012.
Pursuant to LCvR7.2(f), Plaintiff was admonished that, should he fail to file a response, Defendants’
motion may be deemed confessed and the relief requested may be entered. To date, Plaintiff has not
filed a response to the motion to dismiss or in the alternative motion for summary judgment and the
final response deadline has passed.1
The Court has reviewed the Special Report (Dkt. # 36) and the dispositive motion (Dkt. #
35) filed by Defendants. As discussed below, Plaintiff’s requests for declaratory and injunctive
relief have been rendered moot by his transfer to a different facility and his ultimate discharge from
custody. For that reason, Defendants’ motion to dismiss shall be granted. The alternative request
for summary judgment shall be declared moot.
BACKGROUND
In his complaint (Dkt. # 1), Plaintiff explains that he follows a “vegan vegetarian diet” and
suffers from Hepatitis C. He complains that Defendants, all employees of the Oklahoma Department
of Corrections (ODOC) and assigned to Dick Conner Correctional Center (DCCC), Hominy,
Oklahoma, refused to provide dietary supplements, such as Ensure, En Live, and/or Boost, which
he needs to maintain a healthy body weight. Id. He also complains that Defendants refused to
monitor his weight with the frequency he believes to be necessary. Id. Based on those facts, he
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On June 22, 2012, Plaintiff’s copy of the Court’s Order establishing a final deadline for the filing
of a response was returned. The website maintained by the Oklahoma Department of Corrections,
www.doc.state.ok.us, shows that Plaintiff discharged his sentence and was released from custody
on May 18, 2012. Significantly, Plaintiff was still in custody when Defendants filed their dispositive
motion on February 16, 2012. However, he failed to file a response prior to being discharged. Since
his discharge, he has failed to keep the Court apprised of his mailing address.
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claims Defendants have been deliberately indifferent (Count I) and have violated his rights to due
process and equal protection (Count II). Id. He seeks injunctive and declaratory relief against the
medical staff at DCCC. Id. In response to the complaint, the remaining defendants seeks dismissal,
or in the alternative, entry of summary judgment, on the grounds that Plaintiff’s requested relief is
moot, he failed to exhaust administrative remedies prior to filing his complaint, and his claims fail
to state a claim upon which relief may be granted.
ANALYSIS
A. Dismissal Standards
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
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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
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).
B. Plaintiff’s requested relief is moot
As his request for relief, Plaintiff states as follows:
Plaintiff asserts that he is entitled to Declaratory relief in the form of an order from
this Court requiring the Oklahoma Department of Corrections and Jody Jones in
particular to have Plaintiff’s medical needs competently assessed and place Plaintiff
back on the supplements necessary to provide adequate caloric intake.
(Dkt. # 1 at 8). When he filed his complaint, Plaintiff was incarcerated at DCCC, Hominy,
Oklahoma. The remaining Defendants are all ODOC employees assigned to DCCC. On February
9, 2012, Plaintiff filed a Notice of Change of Address (Dkt. # 34), reflecting his transfer to Northeast
Oklahoma Correctional Center (NOCC), Vinita, Oklahoma. In addition, ODOC’s records reflect
that Plaintiff has now discharged his sentence and has been released from custody.
“Article III’s requirement that federal courts adjudicate only cases and controversies
necessitates that courts decline to exercise jurisdiction where the award of any requested relief
would be moot--i.e. where the controversy is no longer live and ongoing.” Cox v. Phelps Dodge
Corp., 43 F.3d 1345, 1348 (10th Cir.1994), superseded by statute on other grounds as stated in
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Walker v. UPS Inc., 240 F.3d 1268, 1278 (10th Cir. 2001). A “plaintiff cannot maintain a
declaratory or injunctive action unless he or she can demonstrate a good chance of being likewise
injured [by the defendant] in the future.” Facio v. Jones, 929 F.2d 541, 544 (10th Cir.1991).
Plaintiff’s transfer of custody from DCCC to another institution and his ultimate release from
custody render his requests for declaratory and injunctive relief moot. See Wirsching v. Colorado,
360 F.3d 1191, 1196 (10th Cir. 2004) (inmate’s release from prison moots his claims for declaratory
and injunctive relief); McAlpine v. Thompson, 187 F.3d 1213, 1215 (10th Cir. 1999) (recognizing
prisoner’s release from prison mooted his § 1983 claim for injunctive relief); Love v. Summit
County, 776 F.2d 908, 910 n.4 (10th Cir. 1985) (noting transfer of inmate to different prison renders
his § 1983 claim for injunctive relief moot). Accordingly, Defendant’s motion to dismiss shall be
granted and Plaintiff’s claims for injunctive and declaratory relief shall be declared moot.
Defendants’ alternative request for summary judgment shall be declared moot.
ACCORDINGLY, IT IS HEREBY ORDERED that:
1.
Defendants’ motion to dismiss (Dkt. # 35) is granted.
2.
Defendants’ alternative motion for summary judgment (Dkt. # 35) is declared moot.
3.
Plaintiff’s requests for declaratory and injunctive relief (Dkt. # 1) are declared moot.
4.
This is a final order terminating this action.
5.
A separate judgment in favor of Defendants shall be entered.
DATED THIS 27th day of June, 2012.
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