Davis v. Corrections Corporation of America et al

Filing 163

ORDER ADOPTING REPORT AND RECOMMENDATION 159 Magistrate Judge Charles Goodwin's Amended Report and Recommendation...plaintiff's claims against Nurse Davis are dismissed without prejudice due to plaintiff's failure to serve her; defen dants' motion for summary judgment 128 is granted as to plaintiff's § 1983 claims; the court declines to exercise supplemental jurisdiction over plaintiff's state law claims; which are dismissed without prejudice; plaintiff's motions for permissive joinder and injunctive relief 92 and 97 are denied; plaintiff's remaining motions 103 , 104 , 136 and 145 are denied as being moot. Signed by Honorable Joe Heaton on 01/27/2016. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
EZEKIEL DAVIS,
Plaintiff,
vs.
CORRECTIONS CORPORATION
OF AMERICA, et al.,
Defendants.

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NO. CIV-13-1174-HE

ORDER
Plaintiff Ezekiel Davis, appearing pro se and in forma pauperis, filed this action
pursuant to 42 U.S.C. §1983, alleging violations of his constitutional rights. Consistent with
28 U.S.C. §636(b), the matter was referred to Magistrate Judge Charles B. Goodwin, who
has issued a Report and Recommendation concluding that plaintiff’s claims against defendant
Nurse Davis should be dismissed due to his failure to serve her, that the motion for summary
judgment filed by the remaining defendants, Corrections Corporation of America (“CCA”),
Warden Chad Miller, Chief Hilligoss, Lieutenant Battles, Correctional Officer Miller,
Sergeant Stokes, Counselor Gibson, Unit Manager Monday, Correctional Officer Ferrell,1
Nurse Starnes, Nurse Akers and Correctional Officer Shiplett, should be granted and that the
court should decline to exercise supplemental jurisdiction over plaintiff’s state law claims.
The magistrate judge makes other recommendations related to these suggested rulings.
Plaintiff has filed an objection to the Report and Recommendation.2

1

The court has used the same spelling of defendants’ names as used by the magistrate judge.
As he noted, the spelling in the pleadings has been inconsistent. The court notes that defendants
referred to Mr. Ferrell’s as Farrell and Ms. Akers as Acres. See Doc. #128, p. 8.
2

Page references for briefs and exhibits are to the CM/ECF document and page number.

In the first two Counts of his amended complaint plaintiff alleges that defendants
retaliated against him because he refused to settle a separate lawsuit he had brought that
involved CCA. In Count 3 plaintiff alleges that CCA’s policies and faulty training practices
led to the violations of his constitutional rights by CCA employees. In Count 4 plaintiff
claims he wants to press criminal charges against certain CCA employees who allegedly
assaulted and battered him, and in Count 5 he asserts that defendant Battles gave him a “false
misconduct” and denied him procedural due process in conjunction with a disciplinary
hearing.
The magistrate judge noted that plaintiff’s claims pertained to events that allegedly
occurred at CCF during September 2013, that he filed this action on November 1, 2013, and
that he submitted ten grievances between September 1, 2013, and October 31, 2013. Because
prisoners are required to exhaust their administrative remedies before bringing an action
regarding prison conditions, see 42 U.S.C. § 1997e(a), the magistrate judge proceeded to
determine whether, as defendants argued, plaintiff had failed to comply with the grievance
process. He concluded plaintiff did not properly exhaust his available administrative
remedies with respect to any of his claims except for one which was the subject of Grievance
No. 13-197. The magistrate judge determined a genuine factual dispute existed as to whether
plaintiff had exhausted his administrative remedies in connection with the Eighth
Amendment claim he asserted against Lieutenant Battles, which he sought to raise in
Grievance No. 13-197. He therefore proceeded to consider the merits of that claim and
recommended that summary judgment be granted as to plaintiff’s other claims for failure to
exhaust his administrative remedies.
2

Plaintiff contended Lieutenant Battles violated his Eighth Amendment rights by being
deliberately indifferent to his health and safety when he failed to separate plaintiff from Mr.
Burton, his cellmate, on September 5, 2013, in order to allow plaintiff to speak freely
regarding his request to be separated from Mr. Burton and despite witnessing Mr. Burton
“jump off his top bunk and square off with [plaintiff].” Doc. #122, p. 8. The magistrate
judge determined that, assuming plaintiff could established the objective component of an
Eighth Amendment claim,3 he failed to offer sufficient evidence to demonstrate the
subjective component. He did not show, the magistrate judge concluded, that “Lieutenant
Battles had actual knowledge of and disregarded a serious risk posed by Mr. Burton to
Plaintiff’s health or safety at the specific times of the decisions underlying Plaintiff’s
claims.” Doc. #159, p. 39. All he showed, the magistrate stated, was that on September 5,
2013, Lieutenant Battles knew that “Plaintiff and Mr. Burton were incompatible[,] . . . that
Plaintiff did not like to be awakened early in connection with a nurse’s visit to the cell [and
that] Lieutenant Battles . . .witnessed behavior by Mr. Burton that was threatening but that
involved no physical contact.” Id. at p. 40.
Noting, among other things, that plaintiff admitted he did not report any prior physical
altercations with Mr. Burton to Lieutenant Battles, the magistrate judge concluded plaintiff
had failed to establish that Lieutenant Battle’s alleged response to Mr. Burton’s behavior –

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“The test for a ‘deliberate indifference’ claim under the Eighth Amendment has both an
objective and a subjective component. The objective component of the test is met if the harm
suffered is sufficiently serious to implicate the Cruel and Unusual Punishment Clause. The
subjective component is met if a prison official knows of and disregards an excessive risk to inmate
health or safety.” Kikumura v. Osagie, 461 F.3d 1269, 1291 (10th Cir.2006) (internal quotation
marks omitted), overruled on other grounds by Robbins v. Oklahoma, 519 F.3d 1242 (10th
Cir.2008).

3

threatening to use mace on the two cellmates if a fight occurred rather than separating them
– was not a reasonable measure to monitor and guarantee the safety of Plaintiff and Mr.
Burton, in light of the information he had at the time.

The magistrate judge therefore

determined defendants were entitled to summary judgment on the merits of plaintiff’s Eighth
Amendment claim based on his interaction with Lieutenant Battles on September 5, 2013.
He rejected plaintiff’s argument that summary judgment should be deferred because
defendants had hindered his discovery efforts.
As for the assault and battery claims alleged in Count 4, the magistrate judge
concluded that, to the extent plaintiff was attempting to assert criminal charges, his claims
were not permitted under state law and should be dismissed. Otherwise, the magistrate judge
recommended that, if the court adopt his Report and dispose of plaintiff’s § 1983 claims in
their entirety, that it decline to exercise supplemental jurisdiction over the state law claims
and dismiss them.
The magistrate judge’s remaining recommendations pertain to plaintiff’s motion to
add another defendant, Joseph Sebenick, his motion for preliminary injunctive relief, his
motion to attend conferences by telephone, and his motions requesting the appointment of
counsel, an evidentiary hearing and an evidentiary hearing date. The magistrate judge
recommends the motion for joinder be denied because, he states, plaintiff knew or should
have known about the facts relevant to any claims he might have against Mr. Sebenick when
he filed this action “and certainly, by the time he filed the Amended Complaint[], which
counsels against allowing amendment.” Doc. #159, p. 46. More importantly, he determined,
any claims against Mr. Sebenick “would be subject to denial for the same reasons as those
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claims raised against the current Defendants.” Id.
The magistrate judge concluded plaintiff was not entitled to injunctive relief because
he sought relief that was “separate from and unrelated to the allegations” in his Amended
Complaint. Id. at p. 49. The magistrate judge also noted that plaintiff’s request was largely,
if not entirely, moot because he had obtained the primary relief he sought in the motion –
transfer away from CCF. He recommended that plaintiff’s remaining motions be denied as
moot.
In his objection plaintiff challenges the magistrate judge’s conclusion that he failed
to exhaust his administrative remedies. He claims “the evidence shows that Plaintiff was
impeded by the Defendants actions to prevent Plaintiff from completing the [grievance]
process . . . .” Doc. #161, p. 2. Plaintiff makes various arguments in an attempt to
demonstrate that he was impeded, including that no remedies were available because
monetary damages could not be given. The magistrate judge meticulously addressed the issue
of whether defendants had established their affirmative defense of failure to exhaust with
respect to plaintiff’s claims. The court agrees with his analysis and, while the court
understands plaintiff’s frustration with the process, it concludes he failed to exhaust his
administrative remedies with respect to all but his Eighth Amendment claim alleged in Count
1.
With respect to that claim, which is based on plaintiff’s interaction with Lieutenant
Battles on September 5, 2013, the court also agrees with the magistrate judge that plaintiff
has failed to offer sufficient evidence to create a triable issue of fact as to whether Lieutenant
Battles’ had the “sufficiently culpable state of mind” required to establish a deliberate
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indifference claim. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks
omitted).
In his objection plaintiff disagrees with the magistrate judge’s assessment of his
evidence, but does not demonstrate how the magistrate judge erred. He asserts, in response
to the Magistrate Judge’s statement that he did not clearly allege that Lieutenant Battles had
any knowledge of Mr. Burton’s alleged mental health or behavioral issues, that the lieutenant
“knew that Mr. Burton had mental health issues, he was responsible for moving Mr. Burton”
and that “the Warden, Lt. Battles everyone knew about Mr. Burton.” Doc. #161, pp. 11,12.
However, plaintiff alleges in the Amended Complaint that “C.O. Miller and Counselor
Gibson moved inmate Burton” into his cell. Doc. #122, pp. 2, 6. And he does not cite any
evidence in his objection to substantiate his assertion, assuming that Lieutenant Battles was
aware of Mr. Burton’s mental health issues, that he posed a safety risk to plaintiff.4 Plaintiff
also admits in his objection that he was unable to advise Lieutenant Battles of the risk he
faced. He states that “the risk he posed to me could not be told to Lt. Battles because he
refused to separate Plaintiff and Mr. Burton on Sept. 5, 2013 . . . .” Doc. #161, p. 12. The
court therefore concludes summary judgment is warranted in favor of defendants on
plaintiff’s Eighth Amendment claim based on Lieutenant Battle’s conduct alleged in Count
1.
Accordingly, having conducted the required de novo review, the court ADOPTS

4

Plaintiff alleges in Count 3 that “Lt. Battles knew about inmate Burton and knew he was
moved from ‘suicide watch.’” Doc. #122, p. 11. He does not specify, though, what Lieutenant
Battles knew and, the fact that Mr. Burton may have posed a risk to himself, does not demonstrate
that he posed a risk to others.

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Magistrate Judge Goodwin’s thorough Report and Recommendation. Plaintiff’s claims
against Nurse Davis are dismissed without prejudice due to plaintiff’s failure to serve her.
Fed.R.Civ.P. 4(m). Defendants’ motion for summary judgment [Doc.#128] is GRANTED
as to plaintiff’s § 1983 claims. The court declines to exercise supplemental jurisdiction over
plaintiff’s state law claims, which are dismissed without prejudice. Plaintiff’s motions for
permissive joinder and injunctive relief [Doc. Nos. 92, 97] are DENIED.5

Plaintiff’s

remaining motions [Doc. Nos. 103, 104, 136, 145] are DENIED as being MOOT.
IT IS SO ORDERED.
Dated this 27th day of January, 2016.

5

Plaintiff did not object to the dismissal of his state law claims, the denial of his motion to
join Sebenick as a defendant or the denial of his motion seeking injunctive relief. See Doc. #161,
p. 14.

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