Dopp v. Larimar et al
Filing
46
ORDER granting in part and denying in part 26 Motion to Dismiss; adopting in part Report and Recommendations re 33 Report and Recommendation.; denying 39 Motion to Supplement; denying 45 Motion to Supplement; granting 19 Motion to Dismiss. Case Re-Referred to Magistrate Purcell for further proceedings consistent with the initial case referral. Signed by Honorable Timothy D. DeGiusti on 7/29/2016. (mb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
RICHARD LYNN DOPP,
Plaintiff,
v.
RAY LARIMER,1 et al.,
Defendants.
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Case No. CIV-15-244-D
ORDER
This matter comes before the Court for review of the Report and Recommendation
[Doc. No. 33], issued by United States Magistrate Judge Gary M. Purcell pursuant to 28
U.S.C. § 636(b)(1)(B) and (C). Judge Purcell recommends that Defendants’ motions to
dismiss be granted.2 Plaintiff Richard Dopp, who appears pro se, has filed a timely written
objection. He has also filed two motions to supplement the record to add documentary
evidence to support his claim under 42 U.S.C. § 1983 that he was denied medical care for a
neck or spinal condition. The Court must make a de novo determination of the portions of
the Report 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).
1
2
A misspelling of Ray Larimer’s name in the Complaint as “Larimar” has been corrected.
Judge Purcell recommends the dismissal of Defendant Dr. Fred Sanders pursuant to 28 U.S.C.
§ 1915(e)(2)(B) because although he had not moved for dismissal at the time of the Report, the same reasons
for dismissing other defendants also apply to him. After the Report was issued, Dr. Sanders was permitted
to join in these defendants’ motion. See Order of June 1, 2016. Thus, the Court deems Judge Purcell’s
recommendation for granting the motion to include Dr. Sanders.
This civil rights action under 42 U.S.C. § 1983 concerns the conditions of Plaintiff’s
confinement as a state prisoner at the Davis Correctional Facility (“DCF”), a private prison
in Holdenville, Oklahoma. His Complaint contains two claims for relief: Count I, denial of
dental treatment for “severe periodontal teeth [and] gum disease infection;” and Count II,
denial of “adequate medical treatment for his chronic daily head [and] neck aches.” See
Compl. [Doc. No. 1], pp.8,9. The defendants named in Count I are two dentists who treat
DCF prisoners, Dr. Brisolara and Dr. Brevan, and DCF’s health services administrator,
Ray Larimer. The defendants named in Count II are Dr. Fred Sanders (a physician at DCF),
Mr. Larimer, and Genese McCoy, the medical services administrator for the Oklahoma
Department of Corrections (“ODOC”).3 Ms. McCoy promptly moved for dismissal pursuant
to Fed. R. Civ. P. 12(b)(1) and (6). After obtaining an extension of time, the DCF defendants
filed the court-ordered Special Report and a motion to dismiss under Rule 12(b)(6).4
After careful consideration of the motions, Plaintiff’s responses, and the case record,
Judge Purcell makes several findings that are adverse to Plaintiff. Regarding Ms. McCoy,
3
With his Complaint, Plaintiff filed an application to proceed in forma pauperis under 28 U.S.C.
§ 1915. Although Plaintiff has previously accumulated more than three “prior occasions” or strikes under
§ 1915(g), Judge Purcell granted the application based on a finding that Plaintiff’s allegations were “facially
sufficient to allege an imminent danger of serious physical harm” and, thus, to satisfy the imminent-danger
exception of § 1915(g). See Order Granting Leave to Proceed In Forma Pauperis [Doc. No. 5], p.2. A partial
filing fee of $3.70 was initially assessed but subsequently excused, and Judge Purcell then ordered the
service of process and the preparation of a special report pursuant to Martinez v. Aaron, 570 F.2d 317 (10th
Cir. 1978). See Order Granting Leave to Proceed In Forma Pauperis and Order Requiring Special Report
and Service of Process [Doc. No. 7].
4
The motion also cites Rule 12(b)(1) and asserts this Court lacks jurisdiction because Plaintiff
previously brought the same claims in a state court action, which was dismissed, and the claims are now
barred by the doctrine of res judicata. This doctrine is not jurisdictional but may properly be asserted under
Rule 12(b)(6). See Merswin v. Williams Cos., 364 F. App’x 438, 441 (10th Cir. 2010) (unpublished).
2
Judge Purcell finds that any official-capacity claim must be dismissed for lack of jurisdiction
due to Eleventh Amendment immunity and that the Complaint fails to state an individualcapacity claim because Plaintiff does not allege Ms. McCoy “personally participated in or
made decisions concerning his medical treatment.” See R&R [Doc. No. 33], p.7. Judge
Purcell finds that Count I must be dismissed pursuant to 42 U.S.C. § 1997e(a) because
Plaintiff failed to exhaust his administrative remedies regarding the alleged denial of dental
care. Regarding Count II, Judge Purcell finds that the Complaint fails to state a claim of
deliberate indifference to a serious medical need by Dr. Sanders and Mr. Larimer because
Plaintiff’s allegations show he has received medical treatment for his headaches and neck
condition and has been scheduled for an independent evaluation; he simply desires a surgical
treatment that has not been recommended by any medical examiner. Judge Purcell further
finds that Plaintiff complains of delay in receiving a neurosurgical evaluation but does not
allege the delay has resulted in substantial harm. Plaintiff objects to these findings.5
A.
Plaintiff’s Action Against Defendant McCoy
Liberally construing Plaintiff’s Objection, he first objects to Judge Purcell’s finding
that Ms. McCoy in her official capacity is entitled to Eleventh Amendment immunity.
Plaintiff states, with apparent inconsistency, that he is suing all defendants in their individual
5
With respect to each issue, Plaintiff prefaces the arguments presented in his Objection by stating
that he “defers to his Responses to the ODOC/DCF Defendants’ Motions to Dismiss and adds the following.”
See Pl.’s Obj’n [Doc. No. 40], pp.1,2,3,5,8-9. The court of appeals has adopted a “firm waiver” rule that
requires a timely and specific objection to preserve an issue for de novo review by the district court. See
United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). Plaintiff’s general reference to prior
response briefs is insufficient to preserve any specific issue for further review.
3
capacities and that Ms. McCoy is not immune from an official-capacity suit to obtain
prospective injunctive relief from an ongoing violation of federal law, which is sufficiently
alleged in his Complaint. See Pl.’s Obj’n [Doc. No. 40], pp.2-3. The first statement is not
an objection to Judge Purcell’s finding of Eleventh Amendment immunity. The second
statement is based on a legal principle, the Ex parte Young6 doctrine, that has no apparent
application to this action.7
Plaintiff also objects to Judge Purcell’s finding that the Complaint fails to state a claim
against Ms. McCoy personally. As the Court understands Plaintiff’s Objection, he contends
the Complaint sufficiently alleges a supervisory liability claim against her. See Pl.’s Obj’n
[Doc. No. 40], p.3 (citing Green v. Branson, 108 F.3d 1296, 1302-03 (10th Cir. 1997)).
Plaintiff asserts that Ms. McCoy has the authority “to override any decision made by
ODOC/DCF subordinate prison medical staff and provide relief at any stage of the Grievance
procedure.” Id. Plaintiff points to allegations that he informed Ms. McCoy during the
6
Ex parte Young, 209 U.S. 123 (1908).
7
The Tenth Circuit has summarized the legal principles as follows:
“[I]n making an officer of the state a party defendant in a suit to enjoin the enforcement of
an act alleged to be unconstitutional, it is plain that such officer must have some connection
with the enforcement of the act, or else it is merely making him a party as a representative
of the state, and thereby attempting to make the state a party.” Ex parte Young, 209 U.S. at
157, 28 S.Ct. 441. We have explained that “Defendants are not required to have a ‘special
connection’ to the unconstitutional act or conduct. Rather, state officials must have a
particular duty to ‘enforce’ the statute in question and a demonstrated willingness to
exercise that duty.”•Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 828 (10th
Cir. 2007).
Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013). Plaintiff does not allege any particular duty of
Ms. McCoy with regard to enforcement of an alleged unconstitutional act.
4
grievance process that the treatment he was receiving at DCF was inadequate but she did
nothing to assist him, despite her “inherent authority to have [Plaintiff] sent to a totally
independent surgical institute . . . that would assuredly provide necessary corrective surgery”
for his neck condition. Id. p.4. Plaintiff contends both that his Complaint is sufficient and
that he could cure any deficiency through amendment of his pleading.
The Supreme Court made clear in Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009), that
to state a § 1983 claim against a supervisor for the conduct of subordinates, “a plaintiff must
plead that each Government-official defendant, through the official’s own individual actions,
has violated the Constitution.” The court of appeals has distilled from Iqbal the following
rule for supervisory liability: “A plaintiff may therefore succeed in a § 1983 suit against a
defendant-supervisor by demonstrating: (1) the defendant promulgated, created, implemented
or possessed responsibility for the continued operation of a policy that (2) caused the
complained of constitutional harm, and (3) acted with the state of mind required to establish
the alleged constitutional deprivation.” See Dodds v. Richardson, 614 F.3d 1185, 1199 (10th
Cir. 2010); see also Cox v. Glanz, 800 F.3d 1231, 1248 (10th Cir. 2015); Pahls v. Thomas,
718 F.3d 1210, 1225 (10th Cir. 2013). To satisfy the second element, a plaintiff must allege
facts to show the supervisor’s “alleged action(s) caused the constitutional violation.”
Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 768 (10th Cir. 2013).
In this case, Plaintiff has not alleged any facts that would state a plausible supervisory
liability claim against Ms. McCoy for the alleged failure of Dr. Sanders and Mr. Larimer to
provide Plaintiff with adequate medical treatment. He alleges neither a policy created or
5
implemented by Ms. McCoy nor actions by her that caused the alleged constitutional
violation by subordinates. Therefore, the Court concurs in Judge Purcell’s finding that
Plaintiff has not stated an individual-capacity claim against Ms. McCoy. The Court further
finds that Plaintiff has not identified any additional facts or allegations that would cure the
deficiencies in his claim against Ms. McCoy, and thus an opportunity to amend his pleading
would be futile.
B.
Failure to Exhaust Administrative Remedies for Count I
Plaintiff arguably objects on procedural and substantive grounds to Judge Purcell's
recommendation to dismiss Count I for lack of administrative exhaustion, although he
primarily argues the merits of his dental care claim. Plaintiff contends Judge Purcell erred
in two respects: 1) by relying on materials outside the Complaint without converting a
Rule 12(b)(6) motion to one for summary judgment; and 2) by finding that Plaintiff failed
to complete the administrative process applicable to prisoners (like himself) who are subject
to a grievance restriction policy, where he has shown that DCF and ODOC officials
prevented him from complying with the policy.
With regard to Plaintiff’s procedural argument, the Court agrees that the affirmative
defense of administrative exhaustion raised by the DCF defendants depends on materials
outside the Complaint and, therefore, cannot be decided under Rule 12(b)(6) but must be
resolved as a motion for summary judgment under Rule 56. See Fed. R. Civ. P. 12(d). The
Court disagrees with Plaintiff, however, that a failure to issue a formal notice that the DCF
defendants’ motion would be treated as one for summary judgment prevents consideration
6
of the threshold issue of exhaustion, as mandated by § 1997e(a). There is no unfair surprise
to Plaintiff because he responded to the motion by submitting his own materials. See Nichols
v. United States, 796 F.2d 361, 364 (10th Cir. 1986) see also Lamb v. Rizzo, 391 F.3d 1133,
1136-37 & n.3 (10th Cir. 2004); Calbart v. Sauer, 504 F. App’x 778, 781 (10th Cir. 2012)
(unpublished).8 Further, Plaintiff does not contend the record before the Court regarding
administrative exhaustion is incomplete in any material way, or that he would be prejudiced
by a decision of the issue on the existing record. The Court finds that Plaintiff received
sufficient notice of the need to come forward with facts to demonstrate that he fully
exhausted his dental care claim.9
As a substantive matter, the Court rejects Plaintiff’s contention that the DCF
defendants have not established their exhaustion defense for the dental care claim asserted
in Count I or, at least, that he has demonstrated a genuine issue of material fact regarding
whether he exhausted available administrative remedies. See Little v. Jones, 607 F.3d 1245,
1250 (10th Cir. 2010) (“PLRA only requires the exhaustion of ‘available’ administrative
remedies”). It is undisputed that Plaintiff filed only one formal grievance regarding dental
care at DCF, No. 2013-1001-00291G, before filing suit.10 The grievance was twice returned
8
Cited pursuant to Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1.
9
The Court notes that Judge Purcell twice advised Plaintiff that a dismissal motion based on
documentary evidence could be treated as one for summary judgment. See Order Granting Leave to Proceed
In Forma Pauperis and Order Requiring Special Report and Service of Process [Doc. No. 7], p.3; Order of
July 13, 2015 [Doc. No. 20], p.1.
10
Plaintiff was transferred to DCF in May 2013 during a prior lawsuit regarding his confinement
at the Oklahoma State Penitentiary in McAlester, Oklahoma. See Dopp v. Jones, Case No. CIV-11-14-95-D,
(continued...)
7
to Plaintiff unanswered because he failed to provide a correct affidavit, as required by the
grievance restriction policy that applied to him at the time. The second time, Plaintiff
attempted to appeal the decision to ODOC’s administrative review authority, but his appeal
was also returned unanswered for failure to provide the proper documentation to satisfy the
grievance restriction policy. Plaintiff was advised that he could resubmit the corrected
grievance within 10 days, but he did not pursue the grievance further.
Plaintiff does not dispute these facts. He asserts only that the rejection of his
grievance papers for submitting an “incorrect” affidavit – without any explanation of what
he needed to do to correct it – “thwarted his ability” to comply with the restriction policy.
See Pl.’s Obj’n [Doc. No. 40], p.7. The Court is not persuaded. ODOC’s grievance
restriction policy was obviously designed to make it more difficult for a frequent filer to
continue to submit more grievances. The Tenth Circuit has previously held that an inmate
subject to the policy can properly be required to comply with it, and an inmate who is notified
that his grievance is deficient and fails to correct it cannot be found to have exhausted the
grievance process. Under these circumstances, the inmate “‘may not successfully argue that
he had exhausted his administrative remedies by, in essence, failing to employ them.’” See
Thomas v. Parker, 609 F.3d 1114, 1118 (10th Cir. 2010) (quoting Jernigan v. Stuchell, 304
F.3d 1030, 1033 (10th Cir. 2002)).
10
(...continued)
Pl.’s Am. Rule 59 Mot. (W.D. Okla. June 19, 2103). Plaintiff first filed suit regarding his dental care at DCF
in September 2014. See Dopp v. Jones, Case No. CIV-14-961-D, Compl. (W.D. Okla. Sept. 8, 2014).
8
Upon de novo consideration, the Court finds no error in Judge Purcell’s analysis of
the administrative exhaustion issue. The Court fully concurs in Judge Purcell’s finding that
“Plaintiff failed to exhaust the administrative remedies available to him with respect to his
claims against Defendants Larimer, Brisolera, and Beven in Count I of the Complaint”
(R&R, p.14) and that Count I must be dismissed.
C.
Sufficiency of the § 1983 Claim Asserted in Count II
“A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to
an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828 (1994).
Such a claim has objective and subjective components. See Sealock v. Colorado, 218 F.3d
1205, 1209 (10th Cir. 2000). Under the objective component, a plaintiff must prove that his
alleged deprivation was “sufficiently serious.” Farmer, 511 U.S. at 834; Sealock, 218 F.3d
at 1209. To satisfy the subjective component, a plaintiff must demonstrate that the defendant
“was aware of and ignored an excessive risk to the inmate’s health or safety.” See Farmer,
511 U.S. at 837; Sealock, 218 F.3d at 1209. Where a medical professional is involved, the
deliberate indifference standard “is not satisfied, absent an extraordinary degree of neglect,
where a doctor merely exercises his considered medical judgment. Matters that traditionally
fall within the scope of medical judgment are such decisions as whether to consult a
specialist or undertake additional medical testing.” Self v. Crum, 439 F.3d 1227, 1232 (10th
Cir. 2006). An actionable claim may exist, however, “where the need for additional
treatment or referral to a medical specialist is obvious” but the obvious need is ignored. Id.
9
In this case, Plaintiff alleges he experienced chronic headaches and neck pain that
were treated with prescriptions of pain medication and diagnostic testing performed at DCF
and a hospital in Holdenville. Plaintiff also alleges the results of those tests caused him to
be scheduled for appointments to be examined by a specialist. At the time of the Complaint,
however, Plaintiff had been waiting almost a year for a consultative examination to occur.11
Thus, it is clear that Plaintiff alleges only a delay in additional treatment. Any claim that
Plaintiff has been denied a prescribed treatment (corrective surgery) is factually unsupported;
no medical professional has examined Plaintiff and recommended the treatment he desires.
“A prison medical professional who serves ‘solely . . . as a gatekeeper for other
medical personnel capable of treating the condition’ may be held liable under the deliberate
indifference standard if she ‘delays or refuses to fulfill that gatekeeper role.’” Mata v. Saiz,
427 F.3d 745, 751 (10th Cir. 2005) (quoting Sealock, 218 F.3d at 1211). Upon consideration,
the Court finds that Plaintiff alleges minimally sufficient facts from which to infer that
Dr. Sanders and Mr. Larimer have failed to perform a gatekeeper role for Plaintiff’s further
treatment. The Complaint alleges that an MRI resulted in the diagnosis of a spinal condition
in his neck that was designated “High Priority,” and that Dr. Sanders and Mr. Larimer have
“full control . . . over all outside prison medical appointment scheduling as to certain high
priority status medical conditions.” See Compl. [Doc. No. 1], pp.9-10. Further, although
11
Plaintiff states that an appointment with a neurosurgeon at OU Medical Center scheduled for May
2014 had to be rescheduled because the surgeon wanted an MRI to be done first, that the MRI was performed
in March 2014, that Dr. Sanders promised a new appointment by August 2014, but none had occurred as of
March 2015.
10
“[d]elay in medical care only constitutes an Eighth Amendment violation where the plaintiff
can show that the delay resulted in substantial harm,” as correctly stated by Judge Purcell,
the court of appeals has held that severe pain may be sufficient to satisfy the objective
element of the deliberate indifference test. See Sealock, 218 F.3d at 1210. Here, Plaintiff
alleges the delay in treatment has caused him to experience “unbearable pain and suffering”
that is not alleviated by prescribed medications. See Compl. [Doc. No. 1], p.11. He also
alleges Dr. Sanders and Mr. Larimer were well aware of his uncontrolled, severe pain but
ignored it. Thus, accepting Plaintiff’s factual allegations as true, the Court finds that the
Complaint sufficiently states a plausible claim of deliberate indifference to a serious medical
need by Dr. Sanders and Mr. Larimer with regard to Plaintiff’s neck condition.
Conclusion
For these reasons, the Court finds that Count I of the Complaint against Dr. Brisolara,
Dr. Bevan, and Mr. Larimer must be dismissed for failure to exhaust administrative remedies,
but Count II against Dr. Sanders and Mr. Larimer should not be dismissed. The action
against Ms. McCoy should be dismissed for lack of jurisdiction of an official-capacity claim
and failure to state an individual-capacity § 1983 claim.
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No. 33]
is ADOPTED in part, as set forth herein. Defendant Genese McCoy’s Motion to Dismiss
[Doc. No. 19] is GRANTED; Defendants’ Motion to Dismiss [Doc. No. 26] is GRANTED
in part and DENIED in part. The case shall proceed only against Defendants Fred Sanders
and Ray Larimer on Count II of the Complaint.
11
IT IS FURTHER ORDERED that Plaintiff’s Motion to supplement Record With
Newly Acquired Documentary Evidence [Doc. Nos. 39] and Plaintiff’s Second Motion to
Supplement Record [Doc. No. 45] are DENIED as moot.
IT IS FURTHER ORDERED that this matter is re-referred to Judge Purcell for further
proceedings consistent with the initial case referral.
IT IS SO ORDERED this 29th day of July, 2016.
12
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