Smith v. Renti et al

Filing 58

OPINION AND ORDER by Judge Terence Kern ; granting 33 Motion to Dismiss for Failure to State a Claim (lmc, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
FRANKLIN C. SMITH,
Plaintiff,
v.
MONIQUE RENTIE;
JERRY BARLOW;
CHRIS STRAIGHT,

Defendants.1

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Case No. 18-CV-046-TCK-FHM

OPINION AND ORDER
Plaintiff Franklin Smith commenced this action on January 18, 2018, by filing a pro se2 civil
rights complaint (Dkt. # 1) against three Tulsa County Sheriff’s Office (TCSO) employees: Deputy
Monique Rentie, Sergeant Chris Straight, and Sergeant Jerry Barlow (collectively, Defendants).3
Before the Court is the Fed. Civ. P. Rule 12(b)(6) motion to dismiss the complaint (Dkt. # 33) filed
by Rentie and Straight. By order filed January 8, 2019 (Dkt. # 47), the Court notified the parties it
would convert the motion to dismiss to a motion for summary judgment and provided the parties
time to submit any additional materials relevant to the motion for summary judgment. See Fed. R.
Civ. P. 12(d); GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.

1

In his complaint, Smith identified Defendant Jerry Barlow only as “Sgt. Barlow.” Dkt. #
1, at 1. More recently, Smith submitted a notice to effect service on Barlow, further identifying him
as Jerry Barlow. Dkt. # 53, at 1. The Clerk of Court is directed to update the record to reflect
Barlow’s full name.
2

Because Smith appears pro se, the Court liberally construes his filings. James v. Wadas,
724 F.3d 1312, 1315 (10th Cir. 2013). But the rule of liberal construction neither requires nor
permits the Court to act as Smith’s advocate. See id.
3

According to Smith, Barlow is no longer employed by the TCSO. Dkt. # 53 at 1.

1997). In that same order, the Court directed Smith to show cause why Barlow should not be
dismissed based on Smith’s failure to effect timely service. Dkt. # 47, at 8; see Fed. R. Civ. P. 4(m).
In response to the Court’s order, Smith filed a response in opposition to the motion for
summary judgment (Dkt. # 49); a notice to effect service on Barlow (Dkt. # 53), along with a new
USM-285 Marshal service form; and an “addendum” to his response to the summary judgment
motion (Dkt. # 54).4 Rentie and Straight filed a one-sentence reply “re-urg[ing] their pending
Motion to Dismiss” (Dkt. # 52).5 For the reasons that follow, the Court (1) dismisses the complaint
without prejudice as to Counts II and III for lack of jurisdiction, (2) grants summary judgment in
favor of Defendants as to Count I on the basis of qualified immunity, (3) denies as moot Smith’s

4

After he filed his response, Smith also filed a a “notice to court” (Dkt. # 51) that consists
of a letter and copy of his response.
5

Defendants did not submit any affidavits in response to the Court’s notice that it would treat
the motion to dismiss as a motion for summary judgment. However, they previously submitted a
special report detailing the TCSO’s investigation of the incident (Dkt. # 30), Plaintiff’s medical
records (Dkt. # 31) and a DVD exhibit (Dkt. # 32). See Martinez v. Aaron, 570 F.2d 317, 318-19
(10th Cir. 1978) (permitting consideration of investigative reports compiled by prison officials). For
purposes of summary judgment, the Court will treat Smith’s verified complaint and the special report
as affidavits. See Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir. 1992) (“On summary
judgment, a Martinez report is treated like an affidavit, and the court is not authorized to accept its
fact findings if the prisoner has presented conflicting evidence.”); Conaway v. Smith, 853 F.2d 789,
792 (10th Cir. 1988) (“[A] verified complaint may be treated as an affidavit or purposes of summary
judgment if it satisfies the standards for affidavits set out in Rule 56[(c)(4)].”). In addition, the Court
will consider factual allegations in Smith’s response and the incident report attached thereto (Dkt.
# 49, at 12-14). Cf. Hayes v. Whitman, 264 F.3d 1017, 1025 (10th Cir. 2001) (suggesting “it might
be appropriate for a court to consider additional facts or legal theories asserted in a response brief
to a motion to dismiss if they [are] consistent with the facts and theories advanced in the
complaint”); Wanjiku v. Johnson Cty., 173 F. Supp. 3d 1217, 1235 n.8 (D. Kan. 2016) (finding it
appropriate to consider facts alleged in pro se response to motion to dismiss where they “merely
amplify” and “do not supplant or contradict” the allegations in the complaint).
2

request to serve Barlow, and (4) denies as futile and untimely Smith’s requests for leave to amend
the complaint to add new claims and a new defendant.
BACKGROUND
When Smith filed his civil rights complaint, he was incarcerated in the Virginia Beach City
Jail in Virginia Beach, Virginia. Id. at 5. Smith alleges, however, that his civil rights were violated
while he was incarcerated at the David L. Moss Criminal Justice Center in Tulsa, Oklahoma, which
serves as the Tulsa County Jail (hereafter, the Jail). Dkt. # 1, at 1-4.
In Count I, Smith claims that Defendants knew he had been threatened by another inmate but
failed to protect him from being assaulted by that inmate on January 13, 2016. Id. at 3-4. In support
of this claim, Smith alleges that around 1:30 p.m. that day he notified his pod officer, Deputy Rentie,
“that inmate Patrick Wayne Thomas broke into [Smith’s] cell by altering the locking device and
stoled [sic] his commissary.” Id. at 3. Smith also told Rentie, “You got to do something theres [sic]
going to be a riot.” Id. Smith alleges Rentie contacted Barlow and Straight “regarding [Smith] being
threatened by an inmate” but Barlow and Straight “disregarded the risk of serious danger to [Smith],”
and Rentie “started reading her novel, and said, ‘Theres [sic] nothing I can do.’” Id.
According to Smith, Defendants left their shift around 4:00 p.m. “without taking reasonable
care to secure [his] safety.” Id. at 2. Smith alleges that around 5:30 p.m., on January 13, 2016,
Thomas punched him in the face, and Smith fell to the floor. Id. at 4. According to Smith, he was
“knocked unconscious,” and he “suffer[ed] a fractured cheekbone and irreparable tissue damage.”
Id. at 2-4.
In Counts II and III, Smith claims that the TCSO “creates an unreasonable risk of harm” to
inmates, particularly “older and disabled” inmates, and exposes them to “a constant threat of
3

violence and assaults” because it has no policy relating to stolen commissary items. Id. at 3-4. He
appears to allege the lack of any such policy caused or contributed to the assault he describes in
Count I. Id. In addition, he alleges that (1) Sergeant Black “moved Patrick Thomas to our pod J-12
after he was caught stealing commissary from another pod instead of placing him in solitary
confinement, (2) Thomas was placed in solitary confinement only after he assaulted Smith, and (3)
after the assault, Barlow and Straight told Smith they were not responsible for his stolen commissary
items or for the assault. Id. at 4.
In his request for relief, Smith seeks $100 million in compensatory damages, an additional
$100 million in punitive damages, injunctive relief in the form of an order directing the TCSO to
“implement a policy to prevent commissary theft and injuries in the future,” and “whatever else the
Court deems appropriate.” Id. at 4.
As directed by the Court, the TCSO investigated the alleged assault and submitted a special
report (Dkt. # 30). That report reflects that the TCSO has a policy defining theft of personal items
as a “Major Infraction” and providing that an inmate who commits theft may be administratively
disciplined or criminally charged. Dkt. # 30, at 2; see also Dkt. # 30-3, at 6-8 (TCSO Policy 90-3).
The special report reflects that Smith was incarcerated at the Jail on the date of the alleged
assault, Dkt. # 30-1, but the TCSO found “no record” of Smith informing Deputy Rentie, on January
13, 2016, that he had been threatened by another inmate. Dkt. # 30, at 3. Smith did, however,
submit a grievance request through the Jail’s kiosk system, on January 19, 2016, complaining about
the theft of his commissary items and the alleged assault. Id.; Dkt. # 30-4, at 2. In that request,
Smith described the stolen items and stated that he told Rentie about the theft and warned her that
“something real bad is going to happen.” Dkt. # 30-4, at 2. Smith further stated:
4

[Rentie] picked up the phone and said that she was calling someone now to take care
of the uprising . . . , But it is not clear if [Rentie] called [Straight]. If so, [Straight]
never responded to the uprising. If not, then [Rentie] left her shift knowing that I
could get seriously hurt trying to obtain my commissary . . . , Because [Rentie]
locked me down earlier to secure my safety but left knowing that I was a target of
theft and threats of abuse by other inmates . . ./ The inmate who had stolen my
commissary was the same inmate who had struck me, fracturing my cheek bone,
knocking me unconscious and injurying [sic] my right alble [sic] too., Which could
of been avoided if [Rentie] would of followed the jail[’]s policies, and procedures by
contacting her superiors, instead of being so rapped [sic] up in her novel.
Dkt. # 30-4, at 2 (altered to omit full capitalization). The next day, Smith submitted a kiosk request
stating, “I believe J12 is [Barlow’s] zone so I don[’]t know if [Rentie] notified him or if he was
working that day?” Id. On January 21, 2016, Barlow responded to Smith’s kiosk requests as
follows: “It is not the responsibility of the pod officer to ensure your property is secured, that is your
responsibility. If your door was unsecured and someone got into your room, then the loss of your
property is your fault.” Id.
With the special report, the TCSO submitted employee time records reflecting that, on
January 13, 2016, Straight left work at 4:15 p.m., and Rentie left work at 4:00 p.m. Dkt. # 30-5, at
1-2.
A jail incident report reflects that Patrick Wayne Thomas assaulted Smith in the day room
of the J12 pod around 5:50 p.m. on January 13, 2016. Dkt. # 30-6, at 1-2. Both inmates were cited
for “fighting.” Id. at 1. According to the report, Detention Officer Vann saw Smith fall to the floor
and saw that his face was “bloody,” but did not see who hit Smith. Id. at 2. Vann saw Thomas
arguing with a third inmate and saw Thomas pick up a dinner tray. Id. Smith and Thomas were both
escorted from the day room. Id. Smith was taken to the medical unit, and Thomas was re-housed
in the J11 pod. Id. Deputy Beck immediately investigated the assault and filed a criminal report.

5

Dkt. # 30-7. The criminal report reflects that Smith told Beck that Thomas accused Smith of stealing
commissary items “then blind sided Smith and punched him on the right side of his face causing
bleeding and swelling.” Id. at 2. Thomas told Beck he punched Smith in the face one time with a
closed fist because Smith accused Thomas of stealing commissary items.6 Id. Beck’s criminal report
reflects that Smith was taken to the emergency room a the OSU medical center where he was
diagnosed with a fractured orbital bone. Id.
The special report states that after emergency room staff cleared Smith to return to the Jail
he was re-housed in the medical unit. Dkt. # 30, at 3. Smith’s medical records reflect that he was
interviewed by a nurse at 8:38 p.m. on January 13, 2016. Dkt. # 31, at 10. At that time, his facial
fracture was treated with an ice pack and pain medication. Id. The nurse described Smith as “calm”
and “cooperative,” and observed that he had a black eye. Id. at 11. Smith was relocated to general
population on January 14, 2016. Id. When he returned for a medical visit on January 18, 2016, a
member of the medical staff observed that he had a black eye and a swollen elbow, but his vital signs
were within normal limits. Id. at 11-12. During that visit, Smith primarily complained of elbow
pain and reported occasional dizziness. Id. at 12.

6

The TCSO submitted a DVD recording of surveillance video that purportedly captured the
alleged assault. Dkt. # 32. Citing the video clips, Smith takes issue with the TCSO’s statement in
the special report that he and Thomas were in a “fight.” Dkt. # 49, at 8, 10; Dkt. # 54, at 1, 5-6. He
asserts that defense counsel and Sergeant Black committed “fraud upon the court” by “alter[ing] the
investigation to dispute that “he was a victim of a vicious assault.” Id.; see also Dkt. # 54, at 1
(asserting that video “clearly show[s] Plaintiff Smith’s ‘hands down’ trying to lean away from his
attacker”). Due to technical issues, the Court was unable to view the video clips on the DVD.
Nonetheless, as further discussed below, even without surveillance video, the Court finds the record,
particularly Deputy Beck’s criminal report, supports Smith’s allegation that Thomas assaulted him.
Thus, the TCSO’s characterization of the assault as a “fight” has not influenced this Court’s decision.
6

According to the TCSO’s special report, the Tulsa County District Attorney’s Office filed
criminal charges against Thomas in Tulsa County District Court Case No. CM-2016-0265, but the
charges were later dismissed at the State’s request. Dkt. # 30, at 3.
In response to the Court’s notice that it would treat the motion to dismiss as a motion for
summary judgment, Smith alleged the following additional facts to support Count I: (1) Smith”was
threatened by a prisoner in front of Rentie about 1:00 or 1:30 p.m., (2) Rentie took no action because
Smith is a “well known jailhouse litigator,” (3) as Smith told Rentie about the theft of his
commissary items at 1:30 p.m., “an inmate screamed out: ‘I’m missing my commissary, I’ll kill a
m*****f***** if I catch him.” Dkt. # 49, at 3; Dkt. # 54, at 3. Defendants made no effort to
controvert these facts in their reply. Dkt. # 52.
DISCUSSION
A.

Smith’s claims for injunctive relief are moot
Smith alleges, in Counts II and III of his complaint, that the TCSO’s failure to adopt a policy

for stolen commissary items “causes a constant threat of violence and assaults” and “creates an
unreasonable risk of harm” to inmates, particularly “older and disabled” inmates, in violation of the
Eighth Amendment. Dkt. # 1, at 3-4.7 As relief for this alleged constitutional violation, Smith seeks
injunctive relief in the form of an order directing the TCSO to “implement a policy to prevent
commissary theft and injuries in the future.” Id. at 4.

7

Applying the rule of liberal construction, the Court construes the complaint as attempting
to impose liability against Tulsa County for the claims alleged Counts II and III by suing Defendants
in their official capacities. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)
(“Official-capacity suits . . . ‘generally represent only another way of pleading an action against an
entity of which an officer is an agent.’” (quoting Monell v. New York City Dep’t. of Soc. Servs., 436
U.S. 658, 690 n.55 (1978).
7

The record reflects that the TCSO does, in fact, have a policy regarding theft of personal
items. Dkt. # 30, at 2; Dkt. # 30-3, at 6-8. But even if the Court generously construes Smith’s
claims as alleging that the TCSO’s failure to enforce that policy contributed to the assault alleged
in Count I, Smith’s claims for prospective injunctive relief are moot because he is no longer housed
in the Jail. See Jordan v. Sosa, 654 F.3d 1012, 1024 (10th Cir. 2011) (“Where a plaintiff seeks an
injunction, his susceptibility to continuing injury is of particular importance—‘[p]ast exposure to
illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . .
if unaccompanied by any continuing, present adverse effects.’” (emphasis and bracket in original)
(quoting O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974))); Green v. Branson, 108 F.3d 1296, 1300
(10th Cir. 1997) (holding that claims for injunctive relief are moot when the prisoner is no longer
subject to the complained-of conditions of confinement).
Because the claims for injunctive relief alleged in Counts II and III are moot, this Court lacks
jurisdiction to consider them. Jordan, 654 F.3d at 1023. Consequently, the Court dismisses the
complaint, without prejudice, as to Counts II and III for lack of jurisdiction. See Martinez v.
Richardson, 472 F.2d 1121, 1126 (10th Cir. 1973) (noting that “a dismissal for lack of jurisdiction
is not an adjudication of the merits” and “must be without prejudice”).
B.

Defendants are entitled to summary judgment as to Count I.
In Count I, Smith alleges Defendants knew he faced a “substantial risk” of being assaulted

by another inmate on January 13, 2016, but took no actions to protect him from being assaulted,
thereby violating the Eighth and Fourteenth Amendments. Dkt. # 1, at 1-4.8
8

The Court construes Count I as asserting a claim against each defendant in his or her
personal capacity. See Graham, 473 U.S. at 165 (“Personal-capacity suits seek to impose personal
liability upon a government official for actions he takes under color of state law.”).
8

Defendants Rentie and Straight moved to dismiss the complaint, asserting Smith failed to
sufficiently plead any plausible claims against them and, alternatively, that they are “qualifiedly
immune from suit.” Dkt. # 33. In response to this Court’s notice that it would convert the Rule
12(b)(6) motion to a motion for summary judgment, Rentie and Straight filed a cursory reply reurging their motion to dismiss.9 Dkt. # 52.
Liberally construing the complaint, and accepting Smith’s allegations as true, the Court finds
the complaint sufficient to state a plausible Eighth Amendment claim against each defendant for
failing to protect him from being assaulted by Thomas. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.”). Prison
officials are obligated, under the Eighth Amendment, “to protect prisoners from violence at the hands
of other prisoners.” Requena v. Roberts, 893 F.3d 1195, 1214 (10th Cir. 2018) (quoting Farmer v.
Brennan, 511 U.S. 825, 833 (1994)). To state a plausible failure-to-protect claim, a plaintiff must
allege facts demonstrating (1) that he faced “an objective ‘substantial risk of serious harm,’” (2) “that
prison officials had subjective knowledge of the risk of harm,” and (3) that the prison officials “who
9

The Court acknowledges that Smith has not served Barlow with a summons and copy of
the complaint and, as a result, Barlow neither entered an appearance in this case nor joined in the
motion to dismiss which the Court is adjudicating as a summary judgment motion. As previously
stated, Smith requests a second attempt to serve Barlow. Dkt. # 53. However, as further discussed
in this section of the opinion, Smith’s claim against Barlow is tenuous at best and, under the facts
of this case, necessarily rises or falls with his claims against Rentie and Straight. In any event,
because Smith appears in forma pauperis, this Court is obligated to dismiss the complaint “at any
time” if it either fails to state a claim upon which relief may be granted or seeks monetary damages
from a defendant who is immune from suit. 28 U.S.C. § 1915(e)(2)(B). In addition, the Court may,
sua sponte, grant summary judgment to a nonmoving defendant under Fed. R. Civ. P. 56(f)(1). See,
e.g., Scull v. New Mexico, 236 F.3d 588, 600-01 (10th Cir. 2000) (finding no error when district
court granted summary judgment to moving defendants and, in same order, granted summary
judgment sua sponte to nonmoving newly-added defendants).
9

‘actually knew of a substantial risk to inmate health or safety’” failed to “respond[] reasonably to
[the] known risk.” Howard v. Waide, 534 F.3d 1227, 1236, 1239 (10th Cir. 2008) (quoting Farmer,
511 U.S. at 833, 844-45). Here, Smith alleges in his complaint that he told Rentie that Thomas stole
his commissary items, that he had been threatened by an another inmate, that Rentie informed
Straight and Barlow of the theft and the threat, that none of the Defendants took any steps to protect
him, and that he was later assaulted by Thomas. These allegations, though sparse, are sufficient to
withstand Defendants’ Rule 12(b)(6) motion. See Iqbal, 556 U.S. at 678.
But Smith must do more to survive a motion for summary judgment, particularly in light of
the Defendants’ assertion of qualified immunity. Summary judgment should be granted “if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A “dispute about a material fact is ‘genuine’
when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). At the summary-judgment stage, the
court’s task “is not ‘to weigh the evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.’” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (quoting
Anderson, 477 U.S. at 249). And, in applying the summary-judgment standard, the court “view[s]
the evidence and the reasonable inferences to be drawn from the evidence in the light most favorable
to the nonmoving party.” Hiatt v. Colo. Seminary, 858 F.3d 1307, 1315 (10th Cir. 2017) (quoting
Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 997 (10th Cir. 2011)). However,“[w]here the
record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there
is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968)).
10

Consistent with the plain language of Rule 56(a), the movant bears the ultimate burden to
show that there is no genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. Thomson v. Salt Lake Cty., 584 F.3d 1304, 1326 (10th Cir. 2009)
(Holmes, J., concurring). Nonetheless, when a defendant asserts that he or she is entitled to qualified
immunity, the plaintiff bears an initial burden to show (1) that the defendant committed a
constitutional violation and (2) that “clearly established law” would have given defendant fair notice
that his actions or omissions would violate the constitutional right at issue. Id. at 1325 (quoting Scott
v. Harris, 550 U.S. 372, 380 (2007)). The movant bears the traditional summary-judgment burden
only if the plaintiff satisfies this initial two-part burden. Id. at 1326.
Generally, in determining whether a plaintiff has satisfied this two-part burden, a court
should “adopt” the plaintiff’s “version of the facts.” Id. at 1325 (quoting Scott, 550 U.S. at 380).
But, at the summary-judgment stage, a “plaintiff’s version of the facts must find support in the
record.” Id. And the court may reject plaintiff’s version of the facts if it is “‘so utterly discredited
by the record that no reasonable jury could have believed’ it.” Id. (quoting Scott, 550 U.S. at 380).
The court has discretion to determine “which of the two prongs of the qualified immunity analysis
should be addressed first,” Pearson v. Callahan, 555 U.S. 223, 236 (2009), “and may resolve the
question by finding either requirement is not met,” Mascorro v. Billings, 656 F.3d 1198, 1204 (10th
Cir. 2011).
Adopting Smith’s version of the facts, to the extent those facts are supported by the record,
the Court finds that Smith has not met his burden to show an Eighth Amendment violation. As
discussed, the record reflects that Smith told Rentie (1) that Thomas stole commissary items from
his jail cell, (2) that he had been threatened by an inmate, and (3) that there would be a “riot.” Dkt.
11

# 1, at 1, 3. In addition, the record reflects that as Smith was talking to Rentie, an inmate walked by
and “screamed out” that he would “kill” the inmate who stole his commissary items. Dkt. # 49, at
3. Finally, the record reflects that Thomas assaulted Smith after both men traded accusations about
the theft of commissary items. Dkt. # 30-6, at 1-2; Dkt. # 30-7, at 2.
These facts, even if true, and even if arguably sufficient to support that Smith faced an
objective risk of harm, do not support Smith’s claim that any of the defendants had actual knowledge
that Smith faced a substantial risk of serious harm. See Howard, 534 F.3d at 1243 (reiterating “that
Farmer requires evidence of actual knowledge on the part of prison officials”). Under Smith’s
version of the facts, Rentie knew that Smith was the victim of a theft, knew that an unidentified
inmate threatened Smith in an unspecified manner, and heard another (or possibly the same) inmate
threaten to harm the person who stole commissary items. These facts do not show that Rentie had
actual knowledge that Smith faced a substantial risk of being assaulted by another inmate. Thus,
Rentie is entitled to summary judgment on the basis of qualified immunity.
Smith’s failure-to-protect claim against Straight and Barlow is even more tenuous. Given
the lack of evidentiary support demonstrating that Rentie had subjective knowledge that Smith faced
a substantial risk of harm, there is even less evidence to support that Straight and Barlow had the
requisite knowledge. Significantly, while Smith alleges in his complaint that Rentie picked up the
phone and contacted Straight and Rentie, the grievance request Smith submitted through the Jail’s
kiosk system several days after the assault discredits his version of the facts on this point. In that
request, Smith stated (1) Rentie “picked up the phone and said she was calling someone,” (2) it was
“not clear” if Rentie called Straight, and (3) the assault could have been avoided if Rentie “would
of followed the jail’s policies and procedures by contacting her superiors.” Dkt. # 30-4, at 2. The
12

next day, he submitted a kiosk request stating that he did not “know if” Rentie notified Barlow “or
if [Barlow] was working” on the day of the assault. Id. Thus, the record does not support Smith’s
claims that Straight and Barlow had actual knowledge, from Rentie or any other source that Smith
faced a substantial risk of being assaulted by another inmate on January 13, 2016. The Court
therefore finds that Straight and Barlow are also entitled to summary judgment on the basis of
qualified immunity. Because the Court finds that Barlow is entitled to summary judgment, the Court
denies as moot Smith’s request to make a second attempt to serve Barlow.
C.

Leave to amend the complaint and add a new defendant
In his response and “addendum,” Smith appears to allege additional claims that are not

identified in the complaint and seeks to add a new defendant. Dkt. ## 49, 54. Liberally construing
his filings, Smith appears to allege four new claims:
(1)

the “City” and/or the TCSO exposed itself to “municipal liability” because
it was “impermissibly unconstitutional” for the TCSO to house mentally ill
inmates in general population, Dkt. # 49, at 1-2, 4-5, 7-8; Dkt. # 54, at 2-3
(municipal-liability claim);

(2)

the TCSO failed to adequately train Defendants to identify mental illness and
the risks faced by mentally ill inmates, Dkt. # 49, at 1, 7 (failure-to-train
claim);

(3)

Barlow and Straight “allowed or took covert steps to take several of [Smith’s]
commissary items, including his radio while he was at the Psychiatric
Hospital (OFC) from (November 3rd 2015) to (December 18th 2015)” in
violation of the Due Process Clause, id. at 3 (due-process claim); and

(4)

Sergeant Black, Defendants, and Defendants’ former counsel, Meredith
Baker, committed “fraud on the court” by altering the TCSO’s internal
investigation of his failure-to-protect claim to reflect that he and Thomas
were “in a fight” when, in fact, he was the victim of an assault, id. at 10; Dkt.
# 54, at 1, 5 (fraud claim).

13

Smith further alleges that Black intentionally placed Thomas in the same pod as Smith so
Thomas could continue stealing commissary items, thereby creating the risk that Thomas would
assault Smith. Dkt. # 1, at 4; Dkt. # 49, at 10; Dkt. # 54, at 2. Based on this allegation, and
presumably with respect to the fraud claim, Smith seeks to add Black as a defendant. Dkt. # 49, at
10. Given Smith’s pro se status, and out of an abundance of caution, the Court will consider Smith’s
pleadings as also requesting leave to amend the complaint to add the four “claims” described above.
See Fed. R. Civ. P. 15(a); Pater v. City of Casper, 646 F.3d 1290, 1299 (10th Cir. 2011) (“An issue
raised for the first time in a motion for summary judgment may properly be considered a request to
amend the complaint, pursuant to [Rule] 15.”).
Under Rule 15(a)(2), a “court should freely give leave [to amend] when justice so requires.”
Rule 15(a)’s purpose “is to provide litigants ‘the maximum opportunity for each claim to be decided
on its merits rather than on procedural niceties.’” Minter v. Prime Equip. Co., 451 F.3d 1196, 1204
(10th Cir. 2006) (quoting Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 456 (10th Cir. 1982));
see also Pater, 646 F.3d at 1299 (“As a general rule, a plaintiff should not be prevented from
pursuing a claim merely because the claim did not appear in the initial complaint.”). Thus, “[i]n the
absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the amendment, futility of
amendment, etc.—the leave sought should, as the rules require, be ‘freely given.’” Minter, 451 F.3d
at 1204 (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). “However, a court properly denies
leave where ‘a late shift in the thrust of the case will [ ] prejudice the other party in maintaining his
defense upon the merits.’” Pater, 646 F.3d at 1299 (alteration in original) (quoting Evans v.
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McDonald’s Corp., 963 F.2d 1087, 1090-91 (10th Cir. 1991)); see also Frank v. U.S. West, Inc., 3
F.3d 1357, 1365-66 (10th Cir. 1993) (noting that “untimeliness alone is a sufficient reason to deny
leave to amend . . . especially when the party filing the motion has no adequate explanation for the
delay”).
For four reasons, the Court denies Smith’s requests to add new claims and to add Black as
a defendant. First, it would be futile to allow Smith to add the municipal-liability claim and the
failure-to-train claim because, like the claims in Counts II and III, those claims are moot given that
Smith is no longer incarcerated in the Jail. See Jordan, 654 F.3d at 1024. Second, it would be futile
to permit Smith to add the due-process claim because Smith alleges a deprivation of property that
occurred more than two years before he filed the instant complaint. Thus, his due-process claim
would be time-barred. See Lawson v. Okmulgee Cty. Criminal Justice Auth., 726 F. App’x 685, 690
(10th Cir. 2018) (unpublished)10 (noting that, under Oklahoma law, two-year statute of limitations
applies to 28 U.S.C. §1983 claims). Third, Smith’s request to add Black as a defendant is untimely.
Smith commenced this action in January 2018, and alleged in Count III of the complaint that Black
“moved Patrick Thomas to our pod-J12 after he was caught stealing commissary from another pod
instead of placing him in solitary confinement.” Dkt. # 1, at 4. It is apparent from the complaint that
Smith believed Black had some involvement in either failing to protect him from an assault or failing
to enforce TCSO policies which, in Smith’s view, contributed to the assault. Yet, Smith offers no
adequate explanation for his delay in seeking to add Black as a defendant. Fourth, and finally, it
would be futile to allow Smith to bring a fraud claim based on his belief that Defendants, Black, or

10

The Court cites this unpublished decision, and other unpublished decisions herein, as
persuasive authority. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
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Defendants’ former counsel altered the TCSO’s investigation by characterizing the assault as a fight.
Smith cites Fed. R. Civ. P. 60(b)(3) as the basis for asserting “fraud upon the court.” Dkt. # 49, at
10; Dkt. # 54, at 1. Under Rule 60(b)(3), a “court may relieve a party ... from a final judgment, order
or proceeding” due to “fraud (whether previously called intrinsic or extrinsic), misrepresentation,
or misconduct by an opposing party.” A motion made under subsection (b)(3) must be made “no
more than a year after the entry of the judgment or order or the date of the proceeding.” Fed. R. Civ.
P. 60(c)(1). Disregarding the lack of finality in the instant summary judgment proceeding, it would
be futile to permit Smith to add a fraud claim because, as previously discussed, the record reflects
that Smith was assaulted and the TCSO’s mischaracterization has no bearing on the Court’s
summary judgment ruling. See supra n.6 (discussing Smith’s allegation of “fraud upon the court”);
Orient Mineral Co. v. Bank of China, 416 F. App’x 721, 725 (10th Cir. 2011) (unpublished) (“To
establish fraud on the court, one must prove that ‘the impartial functions of the court have been
directly corrupted.’” (quoting Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985) (en
banc))).
For these reasons, the Court denies Smith’s explicit request to add Black as a new defendant
and his implicit requests to amend the complaint to add new claims.
CONCLUSION
Because Smith is no longer incarcerated at the David L. Moss Criminal Justice Center, the
claims he alleges in Counts II and III are moot. The Court therefore dismisses the complaint, without
prejudice, as to Counts II and III for lack of jurisdiction. Construing the motion to dismiss (Dkt. #
33) as a motion for summary judgment, the Court finds that Smith fails to demonstrate that
Defendants’ conduct in this case violated the Eighth Amendment and concludes that Defendants
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Rentie, Straight and Barlow are each entitled to summary judgment on Count I on the basis of
qualified immunity. As a result of the Court’s decision to sua sponte grant summary judgment in
favor of Barlow, the Court denies as moot Smith’s request for a second attempt to serve him.
Finally, because Smith’s requests to amend the complaint add new claims and add a new defendant
are either untimely or futile, the Court denies those requests.
ACCORDINGLY, IT IS HEREBY ORDERED that:
1.

The complaint (Dkt. # 1) is dismissed without prejudice as to Counts II and III.

2.

The motion to dismiss filed by Defendants Rentie and Straight (Dkt. # 33), construed as a
motion for summary judgment, is granted as to Count I on the basis of qualified immunity.

3.

The Court sua sponte grants summary judgment in favor of Defendant Barlow as to Count
I on the basis of qualified immunity.

4.

Smith’s request to serve Barlow is denied as moot.

5.

Smith’s requests to amend the complaint to add new claims and to add Sergeant Black as a
defendant are denied.

6.

A separate judgment shall be entered in this matter.
DATED this 19th day of March 2019.

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