Kinkead v. Sutmiller et al

Filing 90

ORDER ADOPTING REPORT AND RECOMMENDATION for 29 Motion for Summary Judgment, filed by Genese McCoy, Don Sutmiller, Justin Jones, as more fully set out. Signed by Honorable David L. Russell on 9/24/14. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
MARK ALEX KINKEAD,
Plaintiff,
v.
DON SUTMILLER, et al.,
Defendants.

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Case No. CIV-13-49-R

ORDER
Before the Court is the Report and Recommendation of United States Magistrate
Judge Shon T. Erwin entered August 14, 2014.

Doc. No. 84.

Plaintiff has filed

Objections to the Magistrate Judge’s conclusions in the Report and Recommendation.
Doc. No. 87. Pursuant to 28 U.S.C. § 636(b)(1)(B), the Court reviews the Report and
Recommendation de novo in light of Plaintiff’s objections.
Plaintiff, a state prisoner, brings an action under 42 U.S.C. § 1983. Defendants
Justin Jones, the former Oklahoma Department of Corrections (“ODOC”) Director,1
Genese McCoy, a Medical Administrator,2 and Don Sutmiller, the ODOC Chief Medical
Officer,3 move for summary judgment. They argue that they are immune from a suit for
monetary relief under the Eleventh Amendment and that Plaintiff has failed to show that
they personally participated in a violation of his constitutional rights.

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First Am. Compl. 2. Robert Patton, the new ODOC Director,
http://www.ok.gov/doc/About_Us/Director's_Office/index.html (accessed September 23, 2014), is
substituted for Defendant Justin Jones per FED. R. CIV. P. 25(d) for any of Plaintiff’s official capacity
claims.
2
First Am. Compl. 3.
3
Id. at 1.
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Eleventh Amendment
Plaintiff argues that he is entitled to prospective injunctive relief against Jones,
McCoy, and Sutmiller in their official capacities. See Quern v. Jordan, 440 U.S. 332, 337
(1979) (“[A] federal court, consistent with the Eleventh Amendment, may enjoin state
officials to conform their future conduct to the requirements of federal law, even though
such an injunction may have an ancillary effect on the state treasury.” (citations
omitted)). Dismissing the official capacity claims against Jones, McCoy, and Sutmiller,
however, does not preclude Plaintiff from recovering prospective injunctive relief against
the State of Oklahoma. He may seek such relief, if appropriate, from one of the remaining
defendants in this case. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71
(1989) (“[A] suit against a state official in his or her official capacity is not a suit against
the official but rather is a suit against the official’s office. As such, it is no different from
a suit against the State itself.” (citations omitted)). Accordingly, Plaintiff’s claims against
Jones, McCoy, and Sutmiller in their official capacities are dismissed.
Personal Participation
To succeed on a § 1983 claim, Plaintiff must allege and prove that Defendants
personally participated in the constitutional violation. Bennett v. Passic, 545 F.2d 1260,
1262-63 (10th Cir. 1976). Plaintiff alleges five causes of action in his complaint. First,
he states that “the cumulative effects of Defendants[’] negligent actions and inaction
continue to subject [him] to ‘cruel and unusual punishment’ in violation of the Eighth
Amendment made applicable by the Fourteenth [A]mendment.” First Am. Compl. 5. His
second count alleges delay in medical care, resulting in him contracting active
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tuberculosis (“TB”) and losing 50% of his lung capacity. Id at 7. Count Five states that
Defendants placed Plaintiff, a non-smoker, into an environment wherein he was
repeatedly exposed to secondhand tobacco smoke, which exacerbated his TB symptoms.
Id. at 8.
The Court interprets Counts Two and Five as claims of cruel and unusual
punishment, as generally alleged in Count One. To establish such a claim, Plaintiff must
demonstrate that Defendants acted with deliberate indifference to his constitutional
rights. See Dodds v. Richardson, 614 F.3d 1185, 1205 (10th Cir. 2010). This requires
showing that Defendants knew he faced “a substantial risk of serious harm and
disregarde[d] that risk by failing to take reasonable measures to abate it.” Farmer v.
Brennan, 511 U.S. 825, 847 (1994).
In Count Four, Plaintiff alleges that Jones, McCoy, and Sutmiller restricted his
access to the courts by limiting his time on the prison’s Westlaw research kiosk. Id. at 8.
To establish a violation of this right, Plaintiff must demonstrate that Defendants
“affirmatively hinder[ed]” his efforts, or imposed a “deliberate impediment” to his
access. Green v. Johnson, 977 F.2d 1383, 1389 (10th Cir. 1992).4
A. Justin Jones
Plaintiff alleges that Jones participated in the delay of his medical care, his
exposure to secondhand smoke, and his restricted access to the courts. First Am. Compl.
7-8. He argues that Jones’ “malfeasance and irresponsibly negligent behavior allowed

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Plaintiff’s Third Count of inadequate or inaccurate recordkeeping is not relevant to the motion under
review because he does not bring this Count against Jones, McCoy, or Sutmiller. First Am. Compl. 7.
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persons under his watch to ignore CDC policy, State law and required ODOC policy.”
Pl.[‘s] Objections to Magistrate’s Report and Recommendation 13. Plaintiff also alleges
that Jones mismanaged ODOC funds and did not provide facilities with sufficient
personnel or funding. First Am. Compl. 2. But the Court may not hold Jones liable under
§ 1983 for “mere negligence.” Serna v. Colorado Dep’t of Corr., 455 F.3d 1146, 1151-52
(10th Cir. 2006). Plaintiff does not allege how Jones deliberately contributed to a delay in
his medical care, exposed him to secondhand smoke, or restricted his access to the courts.
Accordingly, all claims against Justin Jones in his personal capacity are dismissed.
B. Genese McCoy
Plaintiff alleges that McCoy permitted him to be exposed to secondhand smoke
and restricted his access to the courts. First Am. Compl. 8-9. He argues that McCoy
denied his emergency grievance in which he complained of smoke exposure and placed
him on a grievance restriction for labeling it an “Emergency.” Pl.’s Reply to Defs.’ Mot.
Dismiss and Mot. Summ. J. Ex. G; Defs.’ Mot. Dismiss/Mot. Summ. J. Ex. 2; S.R. Ex.
28, Doc. No. 28, Attach. 2-b; Pl.[‘s] Objections to Magistrate’s Report and
Recommendation 13.
But Plaintiff must prove more than simply the denial of a grievance to satisfy the
personal participation requirement. Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.
2009) (“]A] denial of a grievance, by itself without any connection to the violation of
constitutional rights alleged by plaintiff, does not establish personal participation under
§ 1983.” (citations omitted)); Walters v. Corr. Corp. of Am., 119 F. App’x 190, 191 (10th
Cir. 2004) (unpublished op.) (“When the claim underlying the administrative grievance
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involves a constitutional right, the prisoner’s right to petition the government for redress
is the right of access to the courts, which is not compromised by the prison’s refusal to
entertain his grievance.” (quoting Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991))).
Furthermore, placing a complainant on a grievance restriction is no more evidence of
deliberate indifference of Plaintiff’s rights than the initial denial of the grievance.
Because Plaintiff does not allege how McCoy deliberately exposed him to secondhand
smoke or restricted his access to the courts, his claims against McCoy in her personal
capacity also fail.
C. Don Sutmiller
Plaintiff alleges that Sutmiller participated in delaying his medical care,
exposing him to secondhand smoke, and restricting his access to the courts. First Am.
Compl. 7-8. First, Plaintiff fails to allege how Sutmiller participated in a delay of
Plaintiff’s medical care. He points to the Tenth Circuit’s rule that a plaintiff can succeed
in a § 1983 action “against a defendant-supervisor by demonstrating: (1) the defendant
promulgated, created, implemented or possessed responsibility for the continued
operation of a policy that (2) caused the complained of constitutional harm, and (3) acted
with the state of mind required to establish the alleged constitutional deprivation.”
Richardson, 614 F.3d at 1199-1200 (footnote and citation omitted). Attempting to apply
this rule, Plaintiff alleges that Sutmiller hires ODOC physicians, is responsible for
ensuring compliance with the Tuberculosis Control Program, and is also responsible for
all tuberculosis-related policy. Pl.[‘s] Objections to Magistrate’s Report and
Recommendation 9-10. Although Plaintiff may have demonstrated that Sutmiller
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“possessed responsibility for the continued operation of [the tuberculosis] policy,” he did
not produce evidence that Sutmiller acted with the required state of mind, namely,
deliberate indifference.
Plaintiff further argues in support of his claim that Sutmiller delayed proper
medical treatment that he did not prescribe “an x-ray, blood sample, sputum sample or
proper medication” after Plaintiff tested posted for TB. Id. at 10. Even assuming this
suggests that Sutmiller knew of and disregarded a “substantial risk of serious harm” by
not prescribing, nor directing a subordinate physician to prescribe the above, Plaintiff
does not allege that failing to do so caused him any injury.5 Because he did not
demonstrate that Sutmiller acted with deliberate indifference to Plaintiff’s medical care,
the delay of medical care claim against Sutmiller is dismissed.
Second, Plaintiff has failed to show how Sutmiller personally participated in
exposing him to secondhand smoke. Although Plaintiff addressed an emergency
grievance to Sutmiller in which he complained of such exposure, Pl.’s Reply to Defs.’
Mot. Dismiss and Mot. Summ. J. Ex. G, there is no evidence that Sutmiller saw this
grievance. Rather, McCoy was the administrator who responded to this grievance. Defs.’
Mot. Dismiss/Mot. Summ. J. Ex. 2. Plaintiff further argues that Sutmiller is responsible
for “implementing all policies related to ODOC medical care… [including] all special
conditions related to [Plaintiff’s] post tB treatment.” First Am. Compl. 1. But such an
allegation is too vague to infer deliberate indifference on the part of Sutmiller.
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Plaintiff says as much in his response to Defendants’ motion for summary judgment: “Plaintiff has never
complained by § 1983 complaint or otherwise, that after he was diagnosed positive with active infectious
tuberculosis, that he was not treated respectfully, and as best as he could understand from the governing
law and policy, accordingly treated.” Pl.’s Reply to Defs.’ Mot. Dismiss and Mot. Summ. J. 14.
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Plaintiff then argues that Sutmiller told him around July 1, 2012 that he would be
Plaintiff’s medical provider for the remainder of his treatment, First Am. Compl. 1-2, and
that he met personally with Sutmiller on two occasions to address his concern about
exposure to secondhand smoke, Pl.’s Reply to Defs.’ Mot. Dismiss and Mot. Summ. J. 7.
Such allegations do not prove that Sutmiller deliberately placed Plaintiff in an
environment that exacerbated his TB. He has not alleged that Sutmiller was responsible
for enforcing the no-smoking policy, nor has he alleged that Sutmiller had the authority
to transfer Plaintiff to a facility with less secondhand smoke. Cf. Arocho v. Nafziger, 367
F. App’x 942, 955 (10th Cir. 2010) (unpublished op.) (“We do not mean to rule out the
possibility of liability where the officer denying a grievance has an independent
responsibility for the wrong in question and the grievance provides the necessary notice
of the wrong or the effective means to correct it. But, as explained below, the complaint
fails to allege grounds on which [the defendant Warden] could be held responsible for the
medical decisions involved here.”).
Finally, Plaintiff did not allege any facts suggesting that Sutmiller hindered his
ability to gain access to the courts. Therefore, all of Plaintiff’s claims against Sutmiller in
his personal capacity are dismissed.
In accordance with the foregoing, the Report and Recommendation of the
Magistrate Judge is ADOPTED, as supplemented herein, and Defendants’ Motion for
Summary Judgment [Doc. No. 29] is GRANTED.

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IT IS SO ORDERED this 24th day of September, 2014.

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