Ford v. GEO Group Inc et al

Filing 65

ORDER ADOPTING REPORT AND RECOMMENDATION for 49 Motion for Summary Judgment filed by GEO Group Inc, H A Rios, Jr, Robert Pine, 62 Report and Recommendation. Defendants Amended Motion for Summary Judgment, Doc. No. 49, is GRANTED with regar d to Defendants Pine and Rios. Plaintiffs pending motions, Doc. Nos. 54, 59, are DENIED, and the Court declines to exercise supplemental jurisdiction over Plaintiffs negligence claim, as more fully set out. Signed by Honorable David L. Russell on 8/27/15. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ERIC J. FORD,
Plaintiff,
v.
GEO GROUP, INC., et al.,
Defendants.

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Case No. CIV-13-1013-R

ORDER
Plaintiff, a state prisoner appearing pro se, filed an amended complaint under 42
U.S.C. § 1983 alleging deliberate indifference to his medical needs in violation of the
Eighth Amendment. Doc. No. 40. Before the Court is the Report and Recommendation of
United States Magistrate Judge Charles B. Goodwin in which he recommends granting
Defendants’ Amended Motion for Summary Judgment, denying Plaintiff’s pending
motions, and declining to exercise supplemental jurisdiction over Plaintiff’s negligence
claim. Doc. No. 62, at 27-28. Plaintiff has filed an Objection to the Magistrate Judge’s
conclusions in the Report and Recommendation. Doc. Nos. 63-64. 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. For the following reasons, the undersigned adopts Judge
Goodwin’s recommendations.
Background
Plaintiff was diagnosed with atopic dermatitis, commonly referred to as eczema, in
2009. Doc. No. 40, at 2. A dermatology specialist told Plaintiff he should take

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Triamcinolone Acetonide ointment three times per day. Id. In early 2013, Plaintiff saw
Dr. King, who said he would renew his prescription for Triamcinolone. Id. at 4, 8. On
March 6, 2013, Plaintiff saw Nurse Wood and told her, “I need to see the doctor because
I did not receive Triamcinolone ointment for my eczema.” Doc. No. 40, at 8-9. He then
declined to show Nurse Wood where his skin problem was located and told her, “I only
need to see the doctor to get my Triamcinolone.” Id. at 9. Wood construed Plaintiff’s
actions as a refusal of treatment. Id.
On March 14, 2013, after still not receiving his prescription, Plaintiff filed a
Request to Staff (“RTS”) seeking a refill. Doc. No. 26, Attach. 7. He received a response
on March 19 stating: “Improperly submitted. Refer to OP 090124 prior to re-submission.”
Id. Plaintiff then submitted a grievance in which he again requested a prescription refill.
Id., Attach. 8. On March 29, the grievance was returned to Plaintiff unanswered, stating:
“Please write your request for your cream on an offender request.” Id., Attach. 9. Plaintiff
then submitted a grievance appeal complaining that the Reviewing Authority was not
following the Offender Grievance Process (“OGP”). Id., Attach. 10. On April 30,
Plaintiff received a letter in response to his grievance appeal from Genese McCoy, the
Medical Services Administrator. Id., Attach. 11. In the letter, McCoy informed Plaintiff
that he had indeed followed the OGP when he submitted his March 14 RTS. Id. She then
sent a memorandum to the Correctional Health Services Administrator, Defendant Robert
Pine, directing him to amend the original March 19 RTS response and to provide the
amended response to Plaintiff within ten working days of receiving her memorandum.

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Id., Attach. 12. It is undisputed that there is no record of Ford providing Plaintiff with this
amended response. See id., Attach. 13, ¶ 3; Doc. No. 57, ¶ 16.
In an Order entered September 30, 2014, the Court excused Plaintiff from
exhausting his administrative remedies and remanded Defendants’ Motion for Summary
Judgment for further consideration consistent with that Order. Doc. No. 44, at 6. On
October 7, 2014, Judge Goodwin granted Plaintiff’s motion to amend his complaint.
Order, Doc. No. 45. Defendants then filed an Amended Motion for Summary Judgment
on November 26. Doc. No. 49. In his objection to the Report and Recommendation
Plaintiff states he has dropped his § 1983 claim against Defendant GEO. Doc. No. 63, at
17. Accordingly, the Court reviews only the § 1983 claims against Defendants Pine and
Rios.1
Standard of Review
Summary judgment is appropriate “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 is genuine when a reasonable jury could find in favor of
the nonmoving party on the issue.” Macon v. United Parcel Serv., Inc., 743 F.3d 708, 712
(10th Cir. 2014). All facts and reasonable inferences therefrom are construed in the light
most favorable to the nonmoving party. Id. at 712-13.
The Court construes Plaintiff’s filings liberally because he is a pro se litigant. Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). This means that “if the court can

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Plaintiff does not object to the Magistrate Judge’s recommendation that the Court deny his pending
motions and decline to exercise supplemental jurisdiction over his negligence claim.
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reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it
should do so despite the plaintiff’s failure to cite proper legal authority, his confusion of
various legal theories, his poor syntax and sentence construction, or his unfamiliarity with
pleading requirements.” Id. (footnote omitted). But the court will not advocate for the pro
se litigant. Id.
Analysis
A. Defendant Pine
Plaintiff argues Defendant Pine’s failure to send him an amended response to his
March 14, 2013 RTS constitutes deliberate indifference to his medical needs in violation
of the Eighth Amendment. Doc. No. 63, at 17-18. To succeed on a § 1983 claim, a
plaintiff must allege and prove the personal participation of each defendant. Mitchell v.
Maynard, 80 F.3d 1433, 1444 (10th Cir. 1996). A prison official violates the Eighth
Amendment’s prohibition on cruel and unusual punishment if he is deliberately
indifferent to an inmate’s serious medical needs. Mata v. Saiz, 427 F.3d 745, 751 (10th
Cir. 2005) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “Deliberate indifference”
has both an objective and a subjective component. Id. The objective component is met if
the deprivation is “sufficiently serious,” that is, “if it is one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a lay person would
easily recognize the necessity for a doctor’s attention.” Id. (quoting Sealock v. Colorado,
218 F.3d 1205, 1209 (10th Cir. 2000)). The subjective component is met if a prison
official “knows of and disregards an excessive risk to inmate health or safety.” Id.
(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
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Plaintiff has not produced sufficient evidence to create a genuine dispute with
regard to the subjective component of deliberate indifference on the part of Defendant
Pine. It is undisputed that there is no record of Pine providing Plaintiff an amended
response to his March 14, 2013 RTS, even after being directed to do so by the Medical
Services Administrator. Doc. No. 26, Attach. 11-13; Doc. No. 57, ¶ 16. But the
memorandum to Pine did not provide any detail as to the content of Plaintiff’s RTS. Doc.
No. 26, Attach. 12. It merely told him that Plaintiff had submitted the RTS in accordance
with prison policy and directed Pine to amend the original response and return it to
Plaintiff within ten working days. Id. There is also no evidence Pine had seen the RTS
itself. Plaintiff addressed the RTS to “Ms. Stouffer, LPN,” and the staff member who
initially responded to it was not Pine, but a staff member named “C. Danley.” Id., Attach.
7.
Even if Pine did have knowledge of Plaintiff’s prescription refill request, “a denial
of a grievance, by itself without any connection to the violation of constitutional rights
alleged by [a] plaintiff, does not establish personal participation under § 1983.”
Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (citations omitted). Although
Plaintiff’s RTS was not only deemed “improperly submitted,” but Defendant Pine also
did not comply with the order directing him to provide Plaintiff with an amended
response, this fact does not establish any connection between Pine and the alleged
violation of Plaintiff’s Eighth Amendment right to be free from cruel and unusual
punishment. See Sherratt v. Utah Dep’t of Corr., 545 F. App’x 744, 747 (10th Cir. 2013)
(unpublished) (“Denial of a grievance or failure to properly investigate or process
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grievances, without any connection to the violation of constitutional rights alleged by the
plaintiff, is not sufficient to establish personal participation for purposes of a Section
1983 claim.” (citations omitted)). Plaintiff’s only allegations against Defendant Pine
relate to the denial of his RTS. Accordingly, Plaintiff has failed to create a genuine
dispute of material fact with regard to the personal participation required for his § 1983
claim against Pine. See Gallagher, 587 F.3d at 1069.
B. Defendant Rios
Plaintiff argues Defendant Rios, the Warden of Lawton Correctional Facility,
failed to “properly hire, train, supervise, direct or control the actions of subordinates (Dr.
King, and Nurse Wood) who caused Plaintiff’s suffering.” Doc. No. 40, at 2; Doc. No.
63, at 14. To succeed on a § 1983 claim under the Eighth Amendment against a
defendant-supervisor a plaintiff must satisfy three elements: “(1) personal involvement;
(2) causation; and (3) state of mind.” Estate of Booker v. Gomez, 745 F.3d 405, 435 (10th
Cir. 2014) (citations omitted). The plaintiff must demonstrate that the supervisor knew of
and disregarded an excessive risk to his health or safety, and must also show “an
affirmative link between the constitutional deprivation and the supervisor’s actions.”
Keith v. Koerner, 707 F.3d 1185, 1188 (10th Cir. 2013) (citations omitted). “This
requires more than a supervisor’s mere knowledge of his subordinate’s conduct.” Estate
of Booker, 745 F.3d at 435 (citation and internal quotation marks omitted).
Plaintiff contends Rios “knew ‘or should have known of the misconduct, and yet
failed to act to prevent future harm.’” Doc. No. 63, at 16 (quoting McClelland v. Facteau,

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610 F.2d 693, 697 (10th Cir. 1979)).2 He does not point to any evidence of Rios’ personal
involvement in the alleged constitutional violations, or to any evidence suggesting Rios
was aware of Plaintiff’s request for a prescription refill. And even if Rios “should have
known” about the alleged violations, that is insufficient to establish liability under
§ 1983. Woodward v. City of Worland, 977 F.2d 1392, 1399 (10th Cir. 1992). “The
Supreme Court has made it clear that liability under § 1983 must be predicated upon a
‘deliberate’ deprivation of constitutional rights by the defendant. It cannot be predicated
upon negligence.” Id. (citations omitted). Absent evidence of “personal direction or of
actual knowledge and acquiescence” on the part of Defendant Rios, id. at 1400, Plaintiff
has not created a genuine dispute of material fact on this claim.
Conclusion
In accordance with the foregoing, the recommendations of the Magistrate Judge
outlined in the Report and Recommendation, Doc. No. 62, are ADOPTED for the reasons
stated herein. Defendants’ Amended Motion for Summary Judgment, Doc. No. 49, is
GRANTED with regard to Defendants Pine and Rios. Plaintiff’s pending motions, Doc.
Nos. 54, 59, are DENIED, and the Court declines to exercise supplemental jurisdiction
over Plaintiff’s negligence claim.
IT IS SO ORDERED this 27th day of August, 2015.

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McClelland “provided an early statement of the personal participation requirement later refined in
Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 103 L.Ed.2d 412 (1989).” Tesoro v. Zavaras, 46 F.
Supp. 2d 1118, 1124 n.10 (D. Colo. 1999).
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