Ross v. Oklahoma Department of Corrections et al
Filing
57
ORDER ADOPTING REPORT AND RECOMMENDATION for 53 Report and Recommendation, In accordance with the foregoing, the Report and Recommendation of theMagistrate Judge is ADOPTED, as supplemented herein, and Defendants Motion toDismiss [Doc. No. 27] is GRANTED. Signed by Honorable David L. Russell on 9/29/14. (jw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ARMOND DAVIS ROSS,
Plaintiff,
v.
OKLAHOMA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
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Case No. CIV-13-323-R
ORDER
Before the Court is the Report and Recommendation of United States Magistrate
Judge Shon T. Erwin entered August 11, 2014. Doc. No. 53. Plaintiff has filed an
Objection to the Magistrate Judge’s conclusions in the Report and Recommendation.
Doc. No. 56. 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
Oklahoma Department of Corrections (“ODOC”) and Justin Jones, former ODOC
Director,1 move to dismiss Plaintiff’s claims. They argue that they are immune from a
suit for monetary relief under the Eleventh Amendment and that Plaintiff has failed to
allege that Jones personally participated in a violation of his constitutional rights.
1
Robert Patton, the new ODOC Director, http://www.ok.gov/doc/About_Us/Director's_Office/index.html
(accessed September 29, 2014), is substituted for Defendant Justin Jones per FED. R. CIV. P. 25(d) for any
of Plaintiff’s claims against Jones in his official capacity.
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Eleventh Amendment
Plaintiff concedes Defendants’ claim that they are immune from Plaintiff’s suit
for monetary relief under the Eleventh Amendment. Doc. No. 34, at 1-2. The Court thus
dismisses all claims against ODOC and Jones in his official capacity.
Personal Participation
To succeed in 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 one cause of action in his complaint: “After
giving DOC employees notice of physical threats against him, the defendants ignored
Plaintiff’s requests for protective action, being deliberately indifferent to his safety.” Doc.
No. 1, at 5. The Court interprets this cause of action as a claim of cruel and unusual
punishment in violation of the Eighth Amendment. To establish such a claim against
Jones in his personal capacity, Plaintiff must allege that Jones acted with deliberate
indifference to his constitutional rights. See Dodds v. Richardson, 614 F.3d 1185, 1205
(10th Cir. 2010). This requires alleging facts that permit the Court to infer that Jones
knew Plaintiff 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).
The Court may not hold Jones liable under a theory of respondeat superior.
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). 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
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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). The only explicit reference to Jones in the
complaint is the allegation that he was “responsible for implementation of all Department
of Correction’s policies, rules, practices, and employee training.” Doc. No. 1, at 5.
Although Plaintiff may have alleged that Jones “possessed responsibility for the
continued operation of a policy,” he did not allege any facts that would permit the Court
to infer that Jones acted with the required state of mind, namely, deliberate indifference.
Therefore, Plaintiff’s claim against Jones in his personal capacity is dismissed.
In accordance with the foregoing, the Report and Recommendation of the
Magistrate Judge is ADOPTED, as supplemented herein, and Defendants’ Motion to
Dismiss [Doc. No. 27] is GRANTED.
IT IS SO ORDERED this 29th day of September, 2014.
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