Toler v. Troutt et al

Filing 64

ORDER DENYING as premature 58 Motion to Compel filed by Wiley Toler, DENYING 59 Objection to Report and Recommendation filed by Wiley Toler, GRANTING IN PART and DENYING IN PART 60 , 63 Objections to Report and Recommendation filed by Wiley Toler, DENYING 61 Defendants' Objections to Report and Recommendation, ACCEPTING, ADOPTING and AFFIRMING 56 Report and Recommendation and 57 Report and Recommendation, although doc. no. 57 is ADOPTED w/the minor modification & clarificat ion noted in this order, DENYING 33 Motion to Certify and Motion to Appoint Counsel filed by Wiley Toler, GRANTING IN PART and DENYING IN PART 31 Motion to Dismiss, Motion for Summary Judgment filed by Katryna Frech, Jeffery Troutt (dfts& #039; mtn to dismiss with prejudice all claims for monetary relief alleged against dfts in their official capacities, & dfts' mtn to dismiss counts two & three for failure to state a claim, is GRANTED; dft Frech's msj on plf's eighth a mendment claim is GRANTED; & Dr. Troutt's msj on plf's eighth amendment claim is DENIED), DENYING in its entirety 37 Motion for Summary Judgment filed by Wiley Toler. The only count which survives this order is count one, alleging deli berate indifference to plf's need for pain medication, specifically Neurontin, in violation of the Eight Amendment. Count one survives to the extent that it is alleged against Dr. Troutt in his individual capacity, & to the extent, if any, that there is a need for non-monetary relief w/respect to this claim as it is alleged against the dfts in their official capacities. This case will be set for a status/scheduling conf by separate order. Signed by Honorable Stephen P. Friot on 3/26/15. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
WILEY TOLER,
Plaintiff,
vs.
JEFFERY TROUTT, D.O., and
KATRYNA FRECH, in her Individual
and Official Capacities,
Defendants.

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Case No. CIV-13-1025-F

ORDER
Plaintiff Wiley Toler, appearing pro se, brings this action under 42 U.S.C.
§1983. Plaintiff’s filings are liberally construed.
Two Reports and Recommendations of Magistrate Judge Shon T. Erwin are
before the court. Doc. nos. 56, 57. Objections have been filed to both Reports. All
matters covered in the Reports have been reviewed, including de novo review of all
objected to matters. All objections have been reviewed, including those which are not
individually addressed in this order.
Also before the court is plaintiff’s motion to compel discovery responses. Doc.
no. 58.
I. Motion to Compel
(Doc. no. 58)
Plaintiff moves to compel discovery responses. Doc. no. 58. (This motion was
filed after the magistrate judge had filed his Reports and Recommendations, so it is
not covered in those Reports.)
Defendants’ response brief indicates that in the event the court’s ruling on the
dispositive motions does not resolve all claims, discovery responses relevant to any

remaining claims will then be provided to plaintiff in a timely manner. Defendants
state that they have conveyed this representation to the plaintiff. Defendants also state
that much of the material included in plaintiff’s discovery requests is included in the
Special Report, doc. no. 30. Defendants argue the motion should be denied as
premature or because the requested material has been provided in the Special Report.
The motion will be DENIED as premature.
II. Report and Recommendation on Class Certification Motion
(Doc. no. 56)
The magistrate judge’s Report and Recommendation, doc. no. 56 (the Report),
recommends the court deny plaintiff’s motion to certify this as a class action and deny
plaintiff’s request for the court to appoint class counsel. Doc. no. 33. Plaintiff objects
to these recommendations. Doc. no. 59.
In his objection, plaintiff argues he did not intend to propose a class consisting
of all inmates incarcerated at the James Crabtree Correctional Center (JCCC) during
Dr. Jeffery C. Troutt’s employment. That class definition, however, is almost exactly
what plaintiff’s motion requested. See, doc. no. 33, p. 2 (proposing a class comprised
of “all Oklahoma inmates incarcerated at the James Crabtree Correctional Center
while Dr. Jeffery C. Troutt was the facility physician”). Although plaintiff now asks
the court to certify a different and more limited class, plaintiff did not make these
arguments before the Magistrate Judge and they are not considered.1 Alternatively,
if these new arguments for a more limited class were to be considered, they would be

1

The court does not consider arguments or evidence presented for the first time in plaintiff’s
objection to the Report. See, United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001)
(“theories raised for the first time in objections to the magistrate judge’s report are deemed
waived”); Muhleisen v. Principi, 73 Fed. Appx. 320, 322 (10th Cir. 2003) (district court was under
no obligation to consider evidence introduced for the first time in an objection to the magistrate
judge’s recommendation), unpublished.

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unpersuasive because each class member’s medical circumstances would vary so
greatly as to make a class action unrealistic.
After de novo review, the court finds that it agrees with the Report of the
magistrate judge and that no purpose would be served by stating any further analysis
here. Accordingly, plaintiff’s objection to the Report and Recommendation of the
magistrate judge will be DENIED, and the Report and Recommendation at doc. no.
56 will be ACCEPTED, ADOPTED and AFFIRMED. Plaintiff’s motion for class
certification and appointment of counsel to represent the class, doc. no. 33, will be
DENIED.
III. Report and Recommendation Concerning Dispositive Motions
(Doc. no. 57)
The magistrate judge entered a Report and Recommendation at doc. no. 57 (the
Report), recommending rulings on dispositive motions. The motions which this
Report addresses are: defendants’ motion to dismiss, or in the alternative for
summary judgment, doc. no. 31; and plaintiff’s motion for summary judgment, doc.
no. 37. Plaintiff objects to the recommendations contained in the Report, in various
respects. Doc. no. 60. Defendants also object on several grounds. Doc. no. 61.
Plaintiff has also filed a reply to defendants’ objections. Doc. no. 63.
Upon review, the court finds that it agrees with the recommended rulings and
that no further discussion is necessary with regard to most of the parties’ objections,
but that it would be helpful to briefly address a few of the objections.
Plaintiff objects to language in the Report stating that plaintiff “did not indicate
in his Complaint whether he intended to name each Defendant in both their individual
and official capacities....” The caption of the complaint suggests defendants are
named in both capacities, and plaintiff’s pleadings are liberally construed.
Accordingly, this objection is GRANTED. The Report will be ADOPTED but
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MODIFIED to delete the objected to phrase, which occurs on p. 4 of the Report. This
objection, although granted, does not change any results.
Plaintiff objects to the Report’s dismissal of all official capacity claims, rather
than to dismissal of only those official capacity claims which seek monetary damages.
Plaintiff notes that his claims include non-monetary claims, such as claims for
prospective injunctive relief. Plaintiff’s argument is that the recommended dismissal
at the end of the Report is too broad because, as stated there, dismissal is not limited
to only those official capacity claims which seek monetary relief. This objection is
GRANTED. Accordingly, the court will ADOPT the Report’s recommendation
regarding the official capacity claims as stated on p. 5 of the Report, rather than as
stated at the end of the Report, at p. 21. As recommended on p. 5 of the Report, the
court will dismiss those official capacity claims that seek monetary relief, with
prejudice, on eleventh amendment grounds.
Plaintiff objects to dismissal of claims alleged in counts two and three, arguing,
among other things, that he invoked supplemental jurisdiction and intended to allege
state law claims in these counts. As noted in the Report, the state statutes which
plaintiff relies on do not provide a state law cause of action. See, doc. no. 57, p. 3,
n.1. (addressing various state statutes relied on by the plaintiff, as part of the Report’s
discussion of count three; including 76 O.S. 2011 § 21, the statute relied on by
plaintiff in the portion of his objection which relates to a state law claim for purposes
of count two). This objection will be DENIED.
Defendants object to the Report’s recommendation on various grounds,
including the Report’s recommendation that Dr. Troutt’s motion for summary
judgment be denied with respect to plaintiff’s eighth amendment claim (count one).
Count one alleges deliberate indifference on the part of Dr. Troutt for failure to
continue plaintiff’s Neurontin prescription as treatment for plaintiff’s pain.
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Defendants argue that plaintiff did not exhaust his administrative remedies with
respect to this count.
As noted in the Report, defendants concede that plaintiff submitted two
grievances “all the way through the appeals process,” one of which was JCCC-1374B. Doc. no. 57, p. 11, quoting defendants’ motion. Defendants, however, take
issue with the Report’s conclusion that grievance JCCC-13-74B sufficiently relates
to plaintiff’s eighth amendment claim so as to constitute exhaustion for purposes of
this action. Defendants argue the only relief requested in JCCC-13-74B is an
explanation for the change in plaintiff’s medication. In other words, defendants
contend plaintiff was merely requesting an answer to plaintiff’s question (why didn’t
Dr. Troutt continue my Neurontin prescription?), as opposed grieving the fact that Dr.
Troutt did not continue plaintiff’s Neurontin prescription.
When this exhaustion issue was before the magistrate judge, plaintiff argued
that this grievance “is central to this case.” Doc. no. 34, p.6. The Report concluded
that grievance JCCC-13-74B “specifically relates to Plaintiff’s Eighth Amendment
claim.” Doc. no. 57, p. 11.
While this grievance refers several times to plaintiff’s request for an “answer”
to his question regarding why he was not prescribed Neurontin, this grievance also
includes the following statement.
I saw doctor Troutt on 6-17-13 again no answer. And he did not give me
any medication for pain at all after I submitted a request for medical
services on 6-10-13 and asked Dr. Troutt.
Doc. no. 30-2, p. 35, emphasis added. Thus, even on its face, the grievance is broader
than defendants’ arguments suggest. Defendants attempt to parse grievance JCCC-1374B too finely. There is not much difference (other than arguably a rhetorical one)
between a request for an explanation as to why a particular pain medication was
discontinued, and a request to continue that pain medication.
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Moreover, the Report notes that plaintiff made other attempts to utilize the
grievance process. Doc. no. 57, p. 12. Although the magistrate judge found it
unnecessary to address most of these other attempts, the Report reminded defendants
that when officials thwart or hinder an inmate’s ability to utilize the grievance
procedure, the court will excuse a subsequent failure to exhaust. Id. at p. 13. The
record reveals that plaintiff made numerous attempts to grieve the issue he now
pursues in count one, and that his grievances were often rejected on technical,
procedural grounds.
To the extent that defendants’ objection to the Report is based on the argument
that, as a matter of law, plaintiff failed to exhaust administrative remedies, defendants’
objection will be DENIED.
All of the parties’ other objections will be DENIED, none of which require
further discussion here.
III. Conclusion
Plaintiff’s motion to compel is DENIED as premature. Doc. no. 58.
Plaintiff’s objections to the Report at doc. no. 56 are DENIED. Doc. no. 59.
Plaintiff’s objections to the Report at doc. no. 57 are GRANTED IN PART
AND DENIED IN PART, as stated in this order. Doc. nos. 60, 63.
Defendants’ objections to the Report at doc. no. 57 are DENIED. Doc. no. 61.
The Reports at doc. nos. 56 and 57 are ACCEPTED, ADOPTED and
AFFIRMED, although doc. no. 57 is ADOPTED with the minor modification and
clarification noted earlier in this order.
In accordance with the above, the court rules as follows on the remaining
motions.

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As recommended in the Report at doc. no. 56, plaintiff’s motion to certify this
action as a class action and for appointment of class counsel is DENIED. Doc. no.
33.
As recommended in the report at doc. no. 57, defendants’ motion for dismissal
or in the alternative for summary judgment, doc. no. 31, is GRANTED IN PART and
DENIED IN PART. More specifically, defendants’ motion to dismiss with prejudice
all claims for monetary relief alleged against defendants in their official capacities,
and defendants’ motion to dismiss counts two and three for failure to state a claim, is
GRANTED; defendant Frech’s motion for summary judgment on plaintiff’s eighth
amendment claim is GRANTED; and Dr. Troutt’s motion for summary judgment on
plaintiff’s eighth amendment claim is DENIED.
Plaintiff’s motion for summary judgment is DENIED in its entirety. Doc. no.
37.
The only count which survives this order is count one, alleging deliberate
indifference to plaintiff’s need for pain medication, specifically Neurontin, in
violation of the Eight Amendment. Count one survives to the extent that it is alleged
against Dr. Troutt in his individual capacity, and to the extent, if any, that there is a
need for non-monetary relief with respect to this claim as it is alleged against the
defendants in their official capacities.
With regard to non-monetary relief, the court notes that the complaint seeks
compensatory damages, punitive damages, declaratory relief (a declaration that
plaintiff’s constitutional rights have been violated), and prospective injunctive relief
(to ensure that plaintiff is provided with adequate pain medication going forward).
It is the court’s understanding that plaintiff is currently receiving Neurontin and that
Dr. Troutt does not intend to discontinue plaintiff’s prescription. See, doc. no. 57, p.

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16, n.3. However, the extent to which any non-monetary relief may be moot is an
issue which is beyond the scope of this order.
This case will be set for a status and scheduling conference, by separate order.
Dated this 26th day of March, 2015.

13-1025p004.wpd

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