Harper v. Rudek et al

Filing 53

ORDER ADOPTING REPORT AND RECOMMENDATION of Magistrate Judge Gary Purcell...the court also strikes as moot 34 , 41 , 42 , 44 and 48 ; plaintiff's motions for leave to amend complaint 43 and 50 are granted for limited purpose; supplemen tal pleading 46 is stricken; 49 is denied for no apparent basis for the court to afford plaintiff relief he seeks; and the case is re-referred to Magistrate Judge Gary Purcel for further proceedings consistent with this order. Signed by Honorable Joe Heaton on 01/30/2012. (lam)

IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF OKLAHOMA
DALE E. HARPER,
Plaintiff,
vs.
JAMES RUDEK, ET AL.,
Defendants.

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Case No. CIV-11-995-HE

ORDER
Plaintiff Dale Harper, a state prisoner appearing pro se, filed this civil rights action
under 42 U.S.C. § 1983 alleging defendants have violated several of his constitutional rights
during his incarceration.1 Mr. Harper’s complaint identifies seven counts or claims for relief.
Consistent with 28 U.S.C. § 636(b)(1), the matter was referred to Magistrate Judge Gary M.
Purcell for initial proceedings. Judge Purcell recommended that all seven counts be
dismissed with prejudice and the dismissal count as a “strike” under 28 U.S.C. § 1915(g).
Report and Recommendation [Doc. #37]. Plaintiff has filed an objection; therefore, the court
makes a de novo determination of the portions of the Report and Recommendation to which
objection is made. 28 U.S.C. § 636(b)(1). The court concludes five of plaintiff’s seven
claims should be dismissed for failure to state a claim and that amendment would be futile.
However, plaintiff has stated a claim for deliberate indifference against defendant Hernandez
and that claim is not clearly or obviously “frivolous or malicious.” Additionally, he is

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Mr. Harper filed, contemporaneously with this action, another lawsuit alleging several
defendants violated his constitutional rights in circumstances related to his arrest and
prosecution. Harper v. Woodward County Bd. of County Comm’rs, No. CIV-11-996-HE.

granted leave to substitute “John Doe” for defendant Margaret Bradford in order to discover
the identity of the orderly referenced in count seven.
I. Plaintiff’s Claims
In count one, plaintiff alleges certain Oklahoma Department of Corrections personnel
refused to meaningfully respond to his prison grievances. Second, he alleges two employees
at Oklahoma State Reformatory (“OSR”) assisted, or at least allowed, inmates to beat the
plaintiff and steal his property. For counts three and four, plaintiff asserts certain defendants
failed to secure his property while he was in court and allowed inmates or guards to steal it.2
Next, he alleges the law librarians denied him access to legal research materials. Finally,
plaintiff asserts that he was choked and punched by an orderly during a mental competency
exam. He contends his First, Fifth, Eighth, and Fourteenth Amendment rights were violated.
Magistrate Judge Purcell recommended that counts one and three through seven be
dismissed for failure to state a claim pursuant to 28 U.S.C §§ 1915(e)(2)(B), 1915A(b)(1).3
He also recommended that count two be dismissed as frivolous or malicious under the same
sections.

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In his objection, defendant admits his fifth count, which alleged defendants replaced his
stolen property with smashed contraband, is not itself actionable. See Doc. #45, p.18.
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Section 1915(e)(2)(B) requires the court to dismiss the complaint of a litigant who is
proceeding in forma pauperis if the complaint fails to state a claim, is frivolous or malicious, or
seeks monetary relief from a defendant who is immune from suit for money damages. Section
1915A requires the court to review a prisoner’s claims against the government or a government
employee at the beginning of the suit to determine whether a cognizable claim has been stated
and, if not, to dismiss some or all of the complaint. These sections were amended and created,
respectively, by the Prison Litigation Reform Act.

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II. Discussion
Dismissal of a pro se complaint for failure to state a claim is warranted only when it
is obvious the plaintiff cannot prevail on the facts alleged and amendment would be futile.
Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Additionally, a pro se plaintiff’s
allegations are construed liberally. Id. at 1218. When evaluating whether a complaint states
a claim under the Prison Litigation Reform Act (“PLRA”), the court utilizes the same
standard as it does when presented with a 12(b)(6) motion. Id. at 1217. Thus, all wellpleaded factual allegations in the complaint are accepted as true and those allegations, and
any reasonable inferences that might be drawn from them, are construed in the light most
favorable to the plaintiff. Peterson v. Grisham, 594 F.3d 723, 727 (10th Cir. 2010). The
question is whether the complaint contains “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
In order to dismiss a prisoner’s or in forma pauperis litigant’s complaint as frivolous,
the court must find that the complaint “lacks an arguable basis either in law or in fact.” See
Neitzke v. Williams, 490 U.S. 319, 325 (1989) (superseded by PLRA on other grounds). A
claim lacks an arguable basis in law when the claim is premised on an “indisputably meritless
legal theory” and amendment would be futile. Milligan v. Archuleta, 659 F.3d 1294, 1296
(10th Cir. 2011). Factual allegations are frivolous only if “clearly baseless”; that is, the
allegations are fanciful, fantastic, or delusional. See Denton v. Hernandez, 504 U.S. 25, 3233 (1992) (superseded by PLRA on other grounds). If the allegations are not clearly
baseless, then the court must accept those allegations as true when determining whether to
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dismiss the complaint.
A complaint may be dismissed as malicious when the circumstances indicate the
purpose of the lawsuit is to harass the defendants or abuse the judicial process. See, e.g.,
Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993) (holding that a duplicative lawsuit
premised on the same allegations as another pending lawsuit was malicious); Jordan v. City
of Miami, Dep’t of Polic, 720 F. Supp. 1543, 1544 (S.D. Fla. 1989) (dismissing a complaint
as malicious when it was clear the complaint was motivated by racial animus).
A. Access to the Courts
Plaintiff alleges that defendants’ refusal to meaningfully respond to his grievance
procedures (count one), negligent loss of legal research (counts three and four), and denial
of access to particular legal materials (count six) violated his fundamental right of access to
the courts. The complaint does not make out a constitutional violation because there is no
allegation suggesting the defendants hindered plaintiff’s efforts to pursue a valid legal claim.
See Lewis v. Casey, 518 U.S. 343, 351 (1996). The constitution protects plaintiff’s right to
present alleged constitutional violations to the court, it does not guarantee him unfettered
access to legal materials of his liking. Additionally, amendment would be futile here because
plaintiff has been able to present his other constitutional claims in a meaningful way—and
thus cannot state the requisite injury—and his proposed “supplemental pleading” [Doc. #46]
does not cure this defect.4

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Plaintiff has filed a motion for leave to amend his complaint [Doc. #43] and a
supplemental pleading [Doc. #46]. The latter amends the claims asserted in his original

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B. Deliberate Indifference
The Eighth Amendment prohibition against cruel and unusual punishment is violated
if a prison official knows of a substantial risk of serious harm to an inmate and fails to take
reasonable steps to protect the inmate from such harm. See Farmer v. Brennan, 511 U.S. 825,
833-34 (1970). In order to prevail on a “deliberate indifference” claim, the plaintiff must
prove first that the risk of harm was objectively serious enough to warrant constitutional
protection, and second that the prison official had subjective knowledge of that risk. Howard
v. Waide, 534 F.3d 1227, 1236 (10th Cir. 2008) (citing Farmer, 511 U.S. at 834, 837).
1. OSR
In count two, the plaintiff alleges defendant Hernandez, a prison guard at OSR,
allowed three to five inmates to “redlight”5 from another cell pod into plaintiff’s cell pod “for
the specific purpose of beating [plaintiff] down” in retaliation for plaintiff’s refusal to deliver
“packages” for Hernandez. Complaint at 4 [Doc. #1]. Taking these allegations as true,
plaintiff has stated a deliberate indifference claim against Hernandez.6
To be sure, there is substantial reason to doubt whether plaintiff will be able to

complaint and adds additional claims which occurred after this suit was filed. It was filed
without leave of court and is therefore stricken. The court only considers it when determining
whether granting plaintiff leave to amend would be futile.
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The court understands the term “redlight” in this context to refer to the practice of an
inmate not authorized to enter a particular cell pod following another inmate into the cell pod
from a common area while the door is open or unlocked.
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Plaintiff’s allegation that defendant McGill failed to do anything about this when he
reported it to her after the incident occurred is insufficient to state a deliberate indifference
claim against her.

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establish any claim in this regard based on the scattergun nature of the allegations plaintiff
has made here against other parties, the fact of defendant’s previous court-ordered
competency examination, the nature of other litigation he has pursued in this court,7 and
otherwise. However, while the question is close, the court concludes those circumstances
fall short of establishing frivolous or malicious conduct. A claim is stated against defendant
Hernandez sufficient to avoid dismissal base on preliminary screening under the PLRA.
2. Oklahoma Forensics Center
In count seven, plaintiff alleges an unnamed male orderly at the Oklahoma Forensics
Center in Vinita, Oklahoma, choked him and punched him in the forehead on December 16,
2010, during a mental competency examination. Complaint at 7 [Doc. #1]. The only named
defendant identified in the complaint with respect to this claim is the forensic center’s
executive director, Margaret Bradford. In his objection to the Report and Recommendation,
plaintiff admits that Bradford cannot be vicariously liable under § 1983 for the orderly’s
actions but argues instead that he should be able to name Bradford as a defendant in order
to conduct discovery and determine the identity of the orderly. Plaintiff relies on Satchell
v. Dilworth for support. 745 F.2d 781, 786 (2d. Cir. 1984) (stating that supervisors could be
properly named as defendants in § 1983 action “for purposes of conducting discovery aimed
at identifying those of their subordinates who are personally responsible for the departmental
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Plaintiff has filed multiple cases in this court (see CIV-10-849-He and CIV-11-973-HE,
previously dismissed, the allegations of which appear to be substantially carried forward into
CIV-11-996) asserting a variety of civil rights or similar claims against the district judge in his
state criminal case, the district attorney, his own attorney, the Oklahoma Indigent Defense
System, Woodward County, Oklahoma, and the sheriff of Woodward County, among others.

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actions complained of.”). However, the better practice in this circumstance is to name a
“John Doe” defendant and then amend the complaint after discovery has revealed the
intended defendant’s identity. Accordingly, plaintiff is granted leave to amend his complaint
for the limited purpose of substituting “John Doe” for Margaret Bradford.
III. Conclusion
Magistrate Judge Purcell’s Report and Recommendation [Doc. #37] is ADOPTED
in part. Plaintiff’s complaint is dismissed with prejudice except to the extent it asserts
deliberate indifference claims against Hernandez and John Doe (counts two and seven in the
original complaint). Plaintiff is granted leave to amend his complaint in order to substitute
John Doe, a male orderly at the Oklahoma Forensics Center, in place of Margaret Bradford.
Plaintiff is cautioned that his amended complaint is to contain only allegations relating to his
deliberate indifference claims against Hernandez and John Doe. Any additional claims will
be stricken absent further permission from the court. This partial dismissal does not count
as a “strike” under 28 U.S.C. § 1915(g).
There are several other motions pending before the court as well. Doc. Nos. 34, 41,
42, 44, & 48 are STRICKEN as MOOT. Plaintiff’s motions for leave to amend his
complaint [Doc. Nos. 43 and 50] are GRANTED for the limited purpose explained above.
The supplemental pleading [Doc. #46] is STRICKEN because it was filed without leave of
court. Doc. #49 is DENIED because there is no apparent basis for the court to afford
plaintiff the relief he seeks.
This matter is re-referred to Magistrate Judge Purcell for further proceedings
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consistent with this order.
IT IS SO ORDERED.
Dated this 30th day of January, 2012.

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