Folsom v. Knutson et al

Filing 192

ORDER ADOPTING REPORT AND RECOMMENDATION for 179 Report and Recommendation and RE-REFERRING CASE to Magistrate Judge Charles B Goodwin. Motions referred to Charles B Goodwin. Signed by Honorable Timothy D. DeGiusti on 01/11/2016. (jb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
GLEN FOLSOM,
Plaintiff,
v.
MARK KNUTSON, et al.,
Defendants.

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Case No. CIV-13-632-D

ORDER
Plaintiff Glen Folsom (“Folsom”), a state prisoner appearing pro se, brought
this action under 42 U.S.C. § 1983, alleging various state prison officials and staff, at
different facilities operated by the Oklahoma Department of Corrections, violated his
constitutional rights by: (1) making unwanted sexual advances towards him; (2)
retaliating against him for filing grievances, (3) denying him meaningful assistance
in the law library, thereby preventing him from exhausting administrative remedies,
(4) subjecting him to, and failing to protect him from, excessive force and unsafe
conditions of confinement, and (5) denying him necessary medical treatment.
The matter was referred to Magistrate Judge Charles B. Goodwin for initial
proceedings consistent with 28 U.S.C. § 636(b).1 Defendants Mark Knutson, Janet

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The allegations and analyses have been thoroughly set out in Judge Goodwin’s
Report and Recommendation (“R&R”) [Doc. No. 79] and will not be restated unless
otherwise necessary.

Dowling, Felicia Harris, Tracy McCollum, Mike McDougal, Josh Lee and Jim Farris
collectively moved to dismiss Folsom’s Complaint, or alternatively sought summary
judgment [Doc. No. 81] on the grounds that (1) the Complaint failed to state a claim
upon which relief can be granted, (2) Defendants were entitled to qualified immunity,
(3) Plaintiff failed to exhaust administrative remedies, and (4) his request for money
damages was barred by sovereign immunity. Defendant Dan Davis filed a separate
motion seeking the same relief [Doc. No. 132]. Plaintiff responded to both motions
[Doc. Nos. 109, 133].
Judge Goodwin conducted a careful examination of Folsom’s claims2 and in a
56-page opinion, concluded that, with the exception of Folsom’s individual capacity
§ 1983 claim against Defendant Chanda Grice,3 all individual capacity claims should
be dismissed for failure to state a claim upon which relief can be granted and, as to
Defendants Knutson, Dowling, Davis, Harris, McCollum, McDougal, Lee, and Farris,
as a result of qualified immunity. R&R at 55. Judge Goodwin further recommended
that any official capacity claims for money damages brought by Folsom be dismissed

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The Magistrate Judge noted Folsom’s Complaint included various conclusory
allegations with no factual support and declined to address those claims. R&R at 30,
32, 43-44.
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At the time the R&R was issued, it appeared from the record that Defendant
Grice had not been served. R&R at 3.
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for lack of subject matter jurisdiction and the official capacity claims for money
damages against Defendants Grice and Francis be dismissed for Eleventh Amendment
sovereign immunity. R&R at 55. Lastly, he recommended that various discovery
motions filed by Folsom be denied without prejudice to refiling, assuming the action
proceeded against Defendant Grice. Id.
Judge Goodwin noted the Eleventh Amendment precludes a suit for money
damages in federal court against a state, its agencies, officers, and other “arms of the
state,” and found this sovereign immunity consequently barred Folsom’s claim and
removed Defendants, in their official capacities, from the ambit of §1983 since they
could not be considered “persons” for purposes of the statute. Id. at 8, n. 4. He further
held that under controlling law, Folsom failed to allege sufficient facts to state an
Eighth Amendment violation against Defendant Davis for the alleged sexual
harassment. Id. at 16. As to Defendant Dowling, Judge Goodwin concluded Folsom
failed to allege sufficient facts to show Dowling had knowledge of any ongoing harm
caused by the alleged sexual harassment against him. Id. at 17. Next, he held the
Complaint failed to state sufficient facts supporting Folsom’s claim of retaliation. Id.
at 19, 21, 23, 25, 29, 35.
As to Folsom’s claim of denial of access to the law library/courts, Judge
Goodwin held Folsom did not allege facts showing he was prevented from pursuing
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any non-frivolous appeal. Id. at 24, 31, 43. Indeed, he noted Folsom was able to
pursue appeals of his disciplinary convictions. Id. at 22. Regarding Folsom’s
complaints of denial of medical treatment, the Magistrate Judge concluded Folsom
failed to state a plausible claim of such denial under either an objective or subjective
component. Id. at 26-28, 32, 36. Lastly, Judge Goodwin found the Complaint included
sparse statements that were insufficient to plausibly support Folsom’s allegations of
excessive force, abuse, and unsafe conditions of confinement. Id. at 34, 40-41. He,
however, found the Complaint did appear to state a claim for First Amendment
retaliation against Defendant Grice, as noted above, but determined she had not been
adequately served. Id. at 21.
As a consequence of Folsom’s failure to state a plausible constitutional
violation, Judge Goodwin determined Defendants were entitled to qualified immunity.
Id. at 46. The magistrate judge denied Defendants’ request for dismissal based on
failure to exhaust administrative remedies. Id. at 48. He also denied Folsom’s repeated
Motions to Amend his Complaint [Doc. Nos. 133, 139, 146, 157] on the basis of
futility. Id. at 51-52. Folsom’s Motion for Default Judgment against Defendant
Francis was denied for insufficient service and failure to state a claim, id. at 54, and
it was recommended that several discovery motions by Folsom [Doc. Nos. 156, 158,
161, 163, 164, 165, 177] be denied as moot, pending this Court’s adoption of the
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report. Id. at 54-55. The parties were advised of their right to object to the R&R by
September 21, 2015, and Folsom timely filed his objection [Doc. No. 185].
In light of Folsom’s objection, the Court must make a de novo determination
of any portion of the R&R to which a specific objection is made, and may accept,
reject, or modify the recommended decision in whole or in part. See 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(b)(3). When considering a motion to dismiss, courts look
to the complaint and those documents attached to or referred to in the complaint,
accepting as true all allegations contained in the complaint, and drawing all reasonable
inferences from the pleading in favor of the pleader. Pace v. Swerdlow, 519 F.3d
1067, 1073 (10th Cir. 2008); Alvarado v. KOB–TV, L.L.C., 493 F.3d 1210, 1215 (10th
Cir. 2007).The Court does not, however, accept as true conclusory allegations
unsupported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Liberally construing Folsom’s objection,4 he objects to the R&R in its entirety
and, in essence, argues he has presented sufficient facts that state a constitutional

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The Court is required to construe Defendant’s filings liberally. Calhoun v.
Attorney Gen. of Colo., 745 F.3d 1070, 1073 (10th Cir. 2014). However, “the court
cannot take on the responsibility of serving as the litigant’s attorney in constructing
arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer, 425
F.3d 836, 840 (10th Cir. 2005). The Court also “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)
(citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
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violation. The law governing Folsom’s claims is clear. To state a claim under § 1983,
a plaintiff must allege two essential elements: (1) that a right secured by the
Constitution or laws of the United States was violated and (2) that the alleged
violation was committed by a person acting under color of state law. West v. Atkins,
487 U.S. 42, 48 (1988); Anderson v. Suiters, 499 F.3d 1228, 1232-33 (10th Cir. 2007).
Although Folsom’s pleadings are to be construed liberally,“where a right or immunity
created by the Constitution or laws of the United States is an essential element of the
cause of action, it is incumbent upon the plaintiff to adequately and properly allege
jurisdictional facts according to the nature of the case.” Dewell v. Lawson, 489 F.2d
877, 879 (10th Cir.1974), abrogated on other grounds in Melton v. City of Okla. City,
879 F.2d 706, 724 n. 25 (10th Cir. 1989) (quoting Pan Am. Petroleum Corp. v.
Superior Court of Del. For New Castle Cty., 366 U.S. 656 (1961) (further citations
omitted)).
After conducting a de novo review, and construing Folsom’s pro se filings
liberally, the Court finds Judge Goodwin’s Report and Recommendation is
well-supported by the facts, evidence submitted, and the prevailing legal authority. It
is therefore ordered that the Report and Recommendation [Doc. No. 179] is hereby
AFFIRMED and ADOPTED. The matter is hereby again referred to Magistrate
Judge Goodwin for further proceedings consistent with the Report and
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Recommendation.
IT IS SO ORDERED this 11th day of January, 2016.

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