Young v. Rios et al

Filing 120

ORDER ADOPTING IN PART REPORT AND RECOMMENDATION for 107 Motion for Order,, filed by George Soler Young, 116 Report and Recommendation, 94 Motion for Preliminary Injunction, filed by George Soler Young, 114 Motion for TRO, Motion for Preliminary Injunction,, filed by George Soler Young, 108 Motion for Preliminary Injunction, Motion for TRO filed by George Soler Young, ORDER RE-REFERRING CASE to Magistrate Judge Charles B Goodwin. Signed by Honorable David L. Russell on 11/14/17. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
GEORGE SOLER YOUNG,
Plaintiff,
v.
HECTOR A. RIOS, Warden, et al.,
Defendants.

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Case No. CIV-15-641-R

ORDER
Before the Court is Magistrate Judge Charles C. Goodwin’s Report and
Recommendation screening Plaintiff’s Amended Complaint. See Doc. 116. Plaintiff brings
various civil rights claims under 42 U.S.C. § 1983 against thirty-six Defendants affiliated
with Lawton Correctional Facility, GEO Group, Inc., Oklahoma Department of
Corrections, and Oklahoma State Penitentiary. See Amended Complaint, Doc. 102.
Plaintiff alleges he was assaulted by various correctional officers, threatened and retaliated
against for reporting it, and deprived of necessary medical care and protection. Judge
Goodwin recommended partial dismissal of Plaintiff’s claims, and Plaintiff has objected
only to these sections of the Report. See Doc. 119. Plaintiff also filed four motions for
injunctive relief (Docs. 94, 107, 108, 114) that the Court has considered. The Court reviews
Plaintiff’s objections to the Report de novo and adopts the Report in part. Plaintiff’s
motions for injunctive relief are DISMISSED, and the Amended Complaint is
DISMISSED in part. The Court dismisses all but the following claims:
1

1. Eighth Amendment claim against Defendants Hill, Time, Rauch,
Wiltshire, Roody, Jones, and Tweedy for assault and failure to intervene
2. Eighth Amendment claim against Defendants Hill, Time, Rauch,
Wiltshire, Roody, Jones, and Tweedy for failure to provide necessary
medical care directly following the assault
3. First Amendment claim against Defendant Rios for transferring Plaintiff
from LCF protective custody to retaliate for reporting the assault
4. First Amendment claim against Defendant Benoit for making retaliatory
threats that Plaintiff would never leave segregation if he reported the
assault
I.

Plaintiff’s Amended Complaint

Plaintiff’s Amended Complaint names thirty-six Defendants: Hector A. Rios,
Lawton Correctional Facility (“LCF”) Warden; GEO Group, Inc. (“GEO”); Reed Smith,
GEO Vice-President; Rick Whitten, LCF Deputy Warden; LCF staff members Time, Hill,
Roody, Rauch, Wiltshire, Ford, Tweedy, Jones, Benoit, Gibson, Sessums, McCracken,
Zold, Deason, Plume, Waite, Cation, Cornelius, Johns, Calhoun, Ellington, and Alston;
Robert Patton, former Oklahoma Department of Corrections (“ODOC”) Director; Joe M.
Allbaugh, ODOC Director; ODOC staff members Greg Williams, Lesia Miser, and Natalie
Cooper; Anita Trammell, former Oklahoma State Penitentiary (“OSP”) Warden; Terry
Royal, OSP Warden; and OSP staff members Gene Winningham,1 Eric Thomas, and Jerry
Perry.2 See Doc. 102, at 1–6. Plaintiff names all Defendants in their individual capacity,

1
Judge Goodwin’s Report refers to Defendant Gene “Willingham,” whereas Plaintiff’s Amended
Complaint names Defendant Gene “Winningham.” Doc. 116, at 3, 21. The Court looks to Plaintiff’s
Amended Complaint.
2
Plaintiff also names “John and/or Jane Does” and intends to “reserve [his] right to add or delete any and
all Defendants which discovery shows to be participants, and/or who directly or indirectly may have
violated [his] civil rights.” Doc. 102, at 6.

2

and the following in their official capacity as well: Rios, GEO, Smith, Patton, Allbaugh,
Williams, Miser, Cooper, and Royal.
Liberally and reasonably construed, Plaintiff brings the following claims for
monetary damages under 42 U.S.C. § 1983:
1. Eighth Amendment claim against Defendants Hill, Time, Rauch,
Wiltshire, Roody, Jones, and Tweedy for assault and failure to intervene
2. Eighth Amendment claim against Defendant Rios for failure to train and
supervise employees to prevent the assault
3. Eighth Amendment claim against Defendants Hill, Time, Rauch,
Wiltshire, Roody, Jones, and Tweedy for failure to provide Plaintiff
necessary medical care directly following his assault
4. Eighth Amendment claim against Defendants for failure to provide
Plaintiff necessary medical care until two days after the assault
5. Eighth Amendment claim against Defendants Deason, Patton, Allbaugh,
Rios, and GEO for withholding necessary dental care.
6. Eighth Amendment claim against Defendants McCracken and Zold for
withholding necessary psychiatric care.
7. Conspiracy claim against Defendants Rios, Patton, White, Plume,
Whitten, Williams and Miser for agreeing to transfer Plaintiff from LCF
protective custody in retaliation for reporting the assault
8. First Amendment claim against Defendants Rios, Patton, White, Plume,
Whitten, Williams and Miser for transferring Plaintiff from LCF
protective custody to retaliate for reporting the assault
9. First Amendment claim against Defendant Benoit for making retaliatory
threats that Plaintiff would never leave segregation if he reported the
assault
10. Eighth Amendment claim against Defendants Rios, Patton, White,
Plume, Whitten, Williams, and Miser for failing to protect Plaintiff from
serious harm

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II.

Discussion

In screening Plaintiff’s Amended Complaint in forma pauperis (see Doc. 4), the
Court must dismiss any portion that is frivolous, malicious, or fails to state a claim upon
which relief can be granted. See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii), 1915A(a)–(b); 42
U.S.C. § 1997e(c)(1)–(2); Kay v. Bemis, 500 F.3d 1214, 1217–18 (10th Cir. 2007). Further,
while the Court construes a pro se litigant’s pleadings liberally, Kay, 500 F.3d at 1218, it
“should not assume the role of advocate, and should dismiss claims which are supported
only by vague and conclusory allegations.” Northington v. Jackson, 973 F.2d 1518, 1520–
21 (10th Cir. 1992).
The standard of review for dismissals under § 1915(e) is the same as for Rule
12(b)(6) dismissals for failure to state a claim. Kay, 500 F.3d. at 1217. In determining
whether dismissal is proper, the Court “must accept the allegations of the complaint as true
and construe those allegations, and any reasonable inferences that might be drawn from
them, in the light most favorable to the plaintiff.” Id. (quoting Gaines v. Stenseng, 292 F.3d
1222, 1224 (10th Cir. 2002)). The complaint “must contain a ‘short and plain statement of
the claim showing that the pleader is entitled to relief.’” Ashcroft v. Iqbal, 556 U.S. 662,
677–78 (2009) (quoting Fed. R. Civ. Pro. 8(a)(2)). “The pleading standard . . . does not
require ‘detailed factual allegations,’ but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S at 678 (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Such conclusory allegations are not entitled
to the Court’s presumption for Plaintiff. Instead, he must plead facts that at least make the
claims plausible and raise the “right of relief above the speculative level.” Twombly, 550
4

U.S. at 558. Thus, from Plaintiff’s Amended Complaint, Defendants must learn “what
[they] did to [Plaintiff]; when [they] did it; how [their] action harmed [Plaintiff]; and what
specific legal right [Plaintiff] believes [they] violated.” Nasious v. Two Unknown B.I.C.E.
Agents, at Arapahoe Cty. Justice Ctr., 492 F.3d 1158, 1163 (10th Cir. 2007). 
Before reviewing Plaintiff’s claims, the Court summarily dismisses the following
Defendants named in the Amended Complaint because Plaintiff fails to plead specific
allegations against them: Smith, Sessums, Gibson, Cation, Calhoun, Johns, Alston,
Ellington, Trammel, Royal,3 Ford, Cornelius, Winningham, Thomas, Perry, and Cooper.
Further, the Court dismisses the following Defendants named in the original complaint
because Plaintiff fails to name them in his Amended Complaint: LCF Officer DeAlmenau,
Lt. Cantwell, and LCF Deputy Warden Caldwell.4 Compare Doc. 1, at 13, with Doc. 102.
Plaintiff failed to inform them “what [they] did to [Plaintiff]; when [they] did it; how [their]
action harmed [Plaintiff]; and, what specific legal right [Plaintiff] believes [they] violated.”
Nasious, 492 F.3d at 1163.
A. Eleventh Amendment State Sovereign Immunity
Defendants Allbaugh, Williams, Miser, and Cooper are Oklahoma employees
entitled to sovereign immunity from Plaintiff’s official-capacity claims. The Eleventh
Amendment protects states from damages suits unless Congress has abrogated sovereign

3
Defendant Royal, OSP’s Warden, is also entitled to state sovereign immunity from Plaintiff’s official
capacity claim. See infra Part II(A).
4
The Court initially found that Plaintiff’s claims against Defendants DeAlmenau and Caldwell should
survive Defendants’ Motion to Dismiss, but cautioned Plaintiff that the Amended Complaint “must
contain all of the allegations, claims, and parties he intends to be before this Court.” Doc. 95, at 3.
Plaintiff failed to rename DeAlmenau and Caldwell, and the Court dismisses them accordingly.

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immunity or the state has waived it. See Edelman v. Jordan, 415 U.S. 651, 662–63 (1974).
The immunity extends to state agencies and officials “because ‘a suit against a state official
in his or her official capacity . . . is no different than a suit against the state itself.’”
Muscogee (Creek) Nation v. Oklahoma Tax Comm’n, 611 F.3d 1222, 1227 (10th Cir. 2010)
(quoting Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989)); see also Cleveland v.
Martin, 590 Fed. App’x 726, 730 (10th Cir. 2014) (“Because the defendants are employees
of the Oklahoma Department of Corrections . . . , the Eleventh Amendment applies to the
official-capacity claims for damages.”). “[S]ection 1983 does not abrogate a state’s
sovereign immunity.” Muscogee, 611 F.3d at 1227. Further, “Oklahoma has not consented
to be sued in federal court.” Berry v. Oklahoma, 495 Fed. App’x 920, 921 (10th Cir. 2012).
Therefore, Plaintiff’s official-capacity claims for money damages against Defendants
Allbaugh, Williams, Miser, and Cooper—state officials of the ODOC—do not state
plausible grounds for relief.
B. Eighth Amendment Claim for Assault
Plaintiff alleges various Eighth Amendment violations pursuant to 42 U.S.C.
§ 1983, the first of which is an assault by various LCF officers in October of 2013. Section
1983 protects “right[s] secured by the Constitution and laws of the United States,” and
Plaintiff must show that the alleged deprivation was “committed by a person acting under
color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988); see also Phillips v. Tiona, 508
Fed. App’x 737, 750 (10th Cir. 2013) (“We have long assumed that employees of a private
prison act under color of state law for purposes of § 1983 suits by inmates . . . .”). The
Eighth Amendment prohibits “cruel and unusual punishment.” In the prison context, this
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entails “excessive physical force against prisoners,” Farmer v. Brennan, 511 U.S. 825, 832
(1994), or “depriv[ing] inmates of the minimal civilized measure of life’s necessities.”
Shannon v. Graves, 257 F.3d 1164, 1168 (10th Cir. 2001) (quoting Rhodes v. Chapman,
452 U.S. 337, 347 (1981)).
To bring a Section 1983 suit against an individual defendant for an Eighth
Amendment violation, Plaintiff must first allege facts establishing “personal involvement
or participation” in the alleged violation. Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir.
1996). This requirement holds for supervisory defendants as well because even though
“direct participation” is unnecessary, liability must “be predicated on a violation traceable
to a defendant-official’s ‘own individual actions.” Pahls v. Thomas, 718 F.3d 1210, 1225
(10th Cir. 2013) (quoting Iqbal, 556 U.S. at 676)). Second, there must be a causal
connection, or an “affirmative link,” between the constitutional deprivation and the acts of
the defendant. Grimsley, 93 F.3d at 679; see also Iqbal, 556 U.S. at 676. Third, the
“defendant prison official [must] have a culpable state of mind, [such] that he or she acts
or fails to act with deliberate indifference to inmate health and safety.” Shannon, 257 F.3d
at 1168 (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). In other words, the Court
asks whether Defendant applied force “in a good faith effort to maintain or restore
discipline” or to “maliciously and sadistically . . . caus[e] harm.” Whitley v. Albers, 475
U.S. 312, 320–21 (1986).
Plaintiff clearly pleads a plausible excessive force violation against Defendants Hill,
Time, Rauch, Wiltshire, Roody, Jones, and Tweedy. Plaintiff alleges that on October 25th,
2013, Defendants Hill, Time, Rauch, and Wiltshire locked him in a disciplinary cell, strip
7

searched him for contraband, and then pushed, punched, and kicked him repeatedly. See
Doc. 102, at 11. Meanwhile, Defendant Time “roughly insert[ed] his fingers in and out of
[Plaintiff’s] rectum.” Id. This caused scars, broken and lose teeth, a protruding bone from
Plaintiff’s neck, and bleeding out of his mouth, temple, and rectum. Id. at 13. Defendants
Roody, Jones, and Tweedy allegedly stood outside the cell and did nothing to “stop or
report the assault.” Id. at 13. As alleged, Defendants Hill, Time, Rauch, and Wiltshire
personally and deliberately applied excessive force without a reasonable disciplinary
justification, while Defendants Roody, Jones, and Tweedy stood by and failed to intervene.
See Hovater v. Robinson, 1 F.3d 1063, 1068 (10th Cir. 1993) (“[A] prison official’s failure
to protect an inmate from a known harm may constitute a constitutional violation.”).
Plaintiff has a “constitutional right to be secure in [his] bodily integrity and free from attack
by prison guards.” Id. Plaintiff therefore plausibly asserts an Eighth Amendment claim
against Defendants Hill, Time, Rauch, Wiltshire, Roody, Jones, and Tweedy.
The same cannot be said for Plaintiff’s related claim against LCF Warden,
Defendant Rios. “Section 1983 does not authorize liability under a theory of respondeat
superior.” Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011). The “affirmative link
between the supervisor and the constitutional violation” requires “more than ‘a supervisor’s
mere knowledge of his subordinate’s’ conduct.” Schneider v. City of Grand Junction Police
Dep’t, 717 F.3d 760, 767 (10th Cir. 2013) (quoting Iqbal, 556 U.S. at 677). It requires
“(1) personal involvement, (2) causation, and (3) state of mind.” Schneider, 717 F.3d at
767. Plaintiff claims that Defendant Rios failed to train and supervise LCF employees and
to investigate and resolve prisoner complaints, deliberately ignoring a substantial risk that
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such inaction would cause harm to Plaintiff. See Doc. 102, at 14. However, Plaintiff fails
to identify any affirmative link, as in how Defendant’s individual conduct caused Plaintiff’s
injury. He makes one non-conclusory allegation that Defendant Rios knew that prior to the
alleged assault, LCF officers similarly assaulted another inmate in the shower. It is unclear
Defendant Rios even knew of this incident, and if he did, how acting upon that incident
would have prevented Plaintiff’s alleged harm. Pleading “fail[ure] to adequately train
and/or supervise staff” does not put Defendant on notice as to how he could have prevented
such an incident. Id. Instead, Plaintiff couches an improper § 1983 respondeat superior
claim in the guise of a claim for failure to train, supervise, or investigate. His Eighth
Amendment claim against Defendant Rios is therefore dismissed.
C. Eighth Amendment Claim for Denial of Needed Medical Care
Liberally construed, Plaintiff alleges four Eighth Amendment claims for denial of
needed medical care: (1) Defendants Tweedy, Wiltshire, Hill, Time, Rauch, Roody, and
Jones failed to take him for medical care directly after witnessing the 2013 assault (see
Doc. 102, at 11); (2) Defendants failed to take him for medical care until two days after the
assault (see id. at 12, 16); (3) Defendants Deason, Patton, Allbaugh, Rios, and GEO
withheld dental care (see id. at 16); and (4) Defendants McCracken and Zold withheld
psychiatric care (see id. at 12). Prison officials must “provide humane conditions of
confinement,” and refrain from knowingly “disregard[ing] an excessive risk to inmate
health or safety.” Farmer, 511 U.S. at 832, 837.
First, Plaintiff plausibly claims an Eighth Amendment violation against Defendants
Tweedy, Wiltshire, Hill, Time, Rauch, Roody, and Jones for failing to take him “for
9

medical help after the handcuffs had been removed and [he] was left naked in [the] cell.”
Doc. 102, at 11. Plaintiff allegedly asked Defendants Tweedy and Wiltshire for medical
help and they refused. Given the apparent blood, scars, and injuries Plaintiff exhibited
following his alleged assault (see id. at 16), Plaintiff states a plausible claim that Tweedy
and Wiltshire knowingly disregarded an “excessive risk” to his safety by refusing to help
get him medical attention. Farmer, 511 U.S. at 837. The Court also construes Plaintiff’s
complaint liberally to state a plausible claim for failure to provide medical care against
Defendants Hill, Time, Rauch, Roody, and Jones. Granted, Plaintiff only expressly alleges
that he asked Defendants Tweedy and Wiltshire for medical assistance. See Doc. 102, at
11. However, Plaintiff also alleges that Defendants Hill, Time, Rauch, and Wiltshire
assaulted him while Defendants Roody and Jones stood outside and failed to intervene.
This left Plaintiff with scars, broken and lose teeth, a protruding bone from his neck, and
blood out of his mouth, temple, and rectum. Id. at 13. Thus, Plaintiff plausibly claims that
these Defendants similarly observed and knowingly disregarded an “excessive risk” to
Plaintiff’s safety in violation of the Eighth Amendment.
Plaintiff’s second, more general, allegation against “Defendants” for failing to take
him for medical attention until two days after the assault lacks the factual information
necessary to identify what claim Plaintiff is asserting against which Defendant. See Pahls
v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013) (“‘[I]t is particularly important’ that
plaintiffs ‘make clear exactly who is alleged to have done what to whom, . . . as
distinguished from collective allegations.’”) (quoting Kan. Penn Gaming, LLC v. Collins,
656 F.3d 1210, 1215 (10th Cir. 2011)). Plaintiff suggests that his October 29th, 2013,
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grievance report to Defendant Whitten regarding the alleged sexual assault imposed a
requisite duty to provide medical care that Whitten deliberately ignored; yet, Plaintiff filed
the report two days after he admittedly received medical care. See Doc. 102, at 12; Doc.
102-10. Therefore, Plaintiff cannot maintain an Eighth Amendment claim against Whitten
or all Defendants by pleading an “undifferentiated contention that ‘defendants’ infringed
his rights.” Pahls, 718 F.3d at 1226.
Third, Plaintiff fails to plead a plausible claim that Defendants Deason, Patton,
Allbaugh, Rios, and GEO withheld “needed [dental] treatment.” Doc. 102, at 16. To qualify
as a “serious medical need,” Plaintiff must allege more than a dentures recommendation
from the LCF dentist, Defendant Deason. Estelle v. Gamble, 429 U.S. 97, 106 (1976). He
must show that withholding care constituted “unnecessary and wanton infliction of pain.”
Id. (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). For example, other symptoms
such as excessive bleeding, severe pain, inability to eat, significant weight loss, or infection
resulting from inadequate dental care tend to show an Eighth Amendment injury. See
Kidwell v. Oklahoma Dep’t of Corr., No. 13-CV-612-TCK-PJC, 2014 WL 2171647, at *11
(N.D. Okla. May 23, 2014) (listing examples of plausible Eighth Amendment claims when
plaintiffs allege denial of dentures “in combination with certain other symptoms”). Instead,
Plaintiff cites an academic journal to warn of the potentially serious harm caused by
inadequate dental care; he also claims that Defendants’ inaction “has already affected [his]
physical well being.” Doc. 102, at 16; see doc. 102-25. Such speculative and conclusory
allegations fail to state a plausible claim for relief.

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Fourth, Plaintiff’s claim against Defendants McCracken and Zold for withholding
psychiatric care also falls short. He questions whether Defendant McCracken ever stopped
by his cell on October 30, 2013, following the alleged sexual assault. See Doc. 102, at 12.
He allegedly asked repeatedly for Defendant Zold’s “intervention and help,” but neither
she nor Defendant McCracken attended to him. Id. These conclusory allegations fail to
show a serious medical need or deliberate indifference. Therefore, the Court dismisses this
claim as well.
D. Remaining Conspiracy, Retaliation, and Failure to Protect Claims
Plaintiff alleges a conspiracy among prison officials to transfer him, cover up his
assault claims, and leave him at risk of further harm. His particular allegations are difficult
to track, but the Court construes four claims:5 (1) Defendants Rios, Patton, White, Plume,
Whitten, Williams and Miser conspired to transfer him from LCF protective custody (see
Doc. 102, at 14–15); (2) Defendants Rios, Patton, White, Plume, Whitten, Williams and
Miser transferred Plaintiff from LCF protective custody to retaliate for reporting the 2013
assault, in violation of the First Amendment (see id. at 10, 14–15); (3) Defendant Benoit
made retaliatory threats that Plaintiff would never leave segregation if he reported the 2013
assault, in violation of the First Amendment (see id. at 11–12);6 and (4) Defendants Rios,

5
Plaintiff also devotes a significant part of his Amended Complaint to numerous alleged transfers and
incidents during his prior terms of incarceration up to thirty years ago, which implicate ODOC Deputy
Director Cameron, Warden Morton, and various unnamed officers. See Doc. 102, at 8–10. To the extent
Plaintiff seeks relief for these matters, he has not pled with sufficient particularity for the Court to liberally
construe plausible claims.
6
Plaintiff also alleges that Defendant Roody was “smiling and laughing” alongside Defendant Benoit as
Plaintiff failed to get medical treatment. Doc. 102, at 11. Although discussed alongside his retaliatory
threat allegation, this do not plausibly implicate Defendant Roody for a First Amendment violation.

12

Patton, White, Plume, Whitten, Williams, and Miser failed to protect Plaintiff from serious
harm in violation of the Eighth Amendment (see id. at 10, 14–15).
1. Conspiracy
Plaintiff’s conspiracy claim fails to present plausible grounds for relief. Conspiracy
is “a viable claim under § 1983,” Robinson v. Maruffi, 895 F.2d 649, 654 (10th Cir. 1990),
but “[c]onclusory allegations of conspiracy are insufficient to state a valid § 1983 claim.”
Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994) (quoting Durre v. Dempsey, 869 F.2d
543, 545 (10th Cir.1989)). There is an “inherent difficulty of producing direct evidence of
a conspiracy.” Hunt, 17 F.3d at 1268. At a minimum, Plaintiff must “allege specific facts
showing agreement and concerted action among” Defendants. Id. at 1266. Plaintiff alleges
that he was in protective custody at LCF after repeated threats to him because he is a former
prospective corrections officer. See Doc. 102, at 8, 10. Defendants Rios, Patton, White,
Plume, Whitten, Williams and Miser allegedly conspired to transfer him from protective
custody—because he reported the 2013 assault—by making up allegations that he violently
harmed fellow inmates. See id. at 14. Plaintiff claims that Defendant Whitten was aware of
the assault allegations and that Defendant Williams was aware of Plaintiff’s complaint to
Governor Fallon. See id. at 12, 15. However, Plaintiff fails to plead facts exhibiting an
agreement among Defendants. The Court therefore dismisses Plaintiff’s conspiracy claim.
2. First Amendment Retaliation Claims
Plaintiff alleges two separate instances of retaliation. A First Amendment retaliation
claim requires the following:

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(1) that the plaintiff was engaged in constitutionally protected activity;
(2) that the defendant's actions caused the plaintiff to suffer an injury that
would chill a person of ordinary firmness from continuing to engage in that
activity; and (3) that the defendant’s adverse action was substantially
motivated as a response to the plaintiff’s exercise of constitutionally
protected conduct.
Shero v. City of Grove, Okl., 510 F.3d 1196, 1203 (10th Cir. 2007). The test for chilling
speech is an objective one. Id. (citing Eaton v. Meneley, 379 F.3d 949, 954–55 (10th Cir.
2004)). Plaintiff’s first retaliation claim is that Defendants Rios, Patton, White, Plume,
Whitten, Williams and Miser retaliated against him by transferring him from LCF
protective custody to OSP on February 19th, 2014, because he reported the alleged assault
to Defendant Whitten on October 29th, 2013. See Doc. 102, at 10; Doc. 102-10 (“I was
sexually assaulted by your staff and you[’re] punishing me?”). Seeking justification to
transfer him and mask the retaliation, “they” made up that Plaintiff killed an inmate, raped
an inmate, and caused others to overdose. See Doc. 102, at 14. Temporal proximity is
insufficient to show retaliation because Plaintiff has not alleged particular facts that
plausibly show Defendants Patton, White, Plume, Whitten, Williams or Miser caused his
transfer or possessed the requisite “retaliatory intent.” Worrell v. Henry, 219 F.3d 1197,
1213 (10th Cir. 2000). Plaintiff therefore cannot satisfy the second or third requirement for
First Amendment retaliation against these Defendants.
Construed liberally, however, Plaintiff states a plausible claim against Defendant
Rios. In addition to allegedly making up crimes to justify the transfer, Defendant Rios
personally “put[] in a transfer request after [Plaintiff] reported the . . . assault.” Doc. 102,
at 14. Plaintiff’s claim that Rios acted “deliberately and maliciously” is conclusory and
14

insufficient to show intent. Id. Nonetheless, Plaintiff plausibly claims that as LCF Warden,
Rios “knew or should have known” the content of the grievance form submitted to his
Deputy Warden, Defendant Whitten, alleging that LCF officers sexually assaulted an
inmate. Id.; see Doc. 102-10. This establishes the necessary nexus between the grievance
and transfer. Thus, Plaintiff alleges a plausible First Amendment claim: (1) constitutionally
protected activity—reporting officers’ violent sexual assault; (2) Defendant Rios
personally orchestrated the transfer out of protective custody, which would plausibly chill
an ordinary person from reporting; and (3) Rios transferred Plaintiff because of the
grievance report, justifying the transfer instead on made-up grounds.
Plaintiff’s second retaliation claim plausibly alleges that Defendant Benoit violated
his First Amendment right. Benoit allegedly “kept his verbal threats and told [Plaintiff] that
if [Plaintiff] kept complaining he would make sure [Plaintiff] would never get released
from segregation[,] A.K.A. seg.” Doc. 102, at 11–12. Just before making these threats,
Benoit was allegedly “smiling and laughing” near Plaintiff outside LCF’s medical facility
and alongside Defendant Roody, one of the officers who allegedly watched and did nothing
as Plaintiff was sexually assaulted by other officers. Doc. 102, at 11; see id. at 13.
First, Plaintiff clearly has a First Amendment right to report the alleged sexual
assault he experienced on October 25th, 2013. Second, Defendant Benoit threatened
Plaintiff further time in segregation, which is enough of an injury—construed liberally in
the context of (1) Plaintiff’s alleged assault just days before and (2) Defendant Benoit
“laughing” alongside one of the alleged assaulters shortly before making the threats—to
“chill a person of ordinary firmness” from filing a grievance. That Plaintiff did report the
15

alleged assault (Doc. 102-10) in spite of Defendant Benoit’s threats does not preclude a
finding that the threats were objectively chilling. See Eaton, 379 F.3d at 954–55. Such a
conclusion would impose a perverse Catch-22—Plaintiff would have to forego redress
from prison grievance officers just to petition the Court for First Amendment relief. See
Rhodes v. Robinson, 408 F.3d 559, 568–69 (9th Cir. 2005). Third, Plaintiff alleges the
threats were made to target constitutionally protected speech. Thus, Plaintiff’s First
Amendment claim against Defendant Benoit for retaliatory threats survives the Court’s
screening.
3. Eighth Amendment Failure to Protect
From the same conspiracy and retaliation allegations, Plaintiff fails to present a
plausible Eighth Amendment claim. Again, the Eighth Amendment imposes on prison
officials a duty to “take reasonable measures to guarantee the safety of the inmates” and
address “substantial risk[s] of serious harm.” Farmer, 511 U.S. at 833; Benefield v.
McDowall, 241 F.3d 1267, 1271 (10th Cir. 2001). Plaintiff references “real threats to [his]
safety” made in 2004 that led him to LCF protective custody. Doc. 102, at 10. Yet, it is
unclear these threats remain now that he is no longer in LCF protective custody.
Regardless, he has not pled with sufficient particularity a “substantial risk of serious harm.”
Benefield, 241 F.3d at 1271. The Court therefore dismisses this Eighth Amendment claim.
III.

Claims for Injunctive Relief

Plaintiff filed the following four motions for injunctive relief:
1. Plaintiff’s Plea to Court to Order Defendants, Their Agents or Successors
to Stop This Ongoing Retaliation, Return All My Property They Just
Confiscated and to Keep Me Out of Harm’s Way (“First Motion for
16

Preliminary Injunction,” Doc. 94), requesting Defendants return
Plaintiff’s legal materials and transfer him back to protective custody at
LCF
2. Declaration in Support of Plaintiff’s Motion for a Temporary Restraining
Order and Preliminary Injunction (“Second Motion for Preliminary
Injunction,” Doc. 107), requesting an immediate hearing, termination of
retaliation, placement into protective custody, no cellmate while at OSP,
and/or immediate release
3. Plaintiff’s Motion to be Granted Injunction/TRO Against Defendants for
Cause7 (“Third Motion for Preliminary Injunction,” Doc. 108), requesting
transfer back to protective custody at LCF, a hearing, or release
4. Plaintiff’s Federal Question and Petition to be Granted Preliminary
Injunction and TRO (“Fourth Motion for Preliminary Injunction,” Doc.
114), requesting transfer back to protective custody at LCF
The Court denies the motions for three reasons. First, his recent transfer to Joseph
Harp Correctional Center (“JHCC”) moots any requested relief from Defendants at OSP.
Plaintiff was transferred to JHCC in Lexington, Oklahoma, sometime before August 17th,
2017. See Doc. 115. An injunction geared toward housing, legal materials, or further
conduct at OSP would be moot because it could not confer Plaintiff any “conclusive relief.”
Jordan v. Sosa, 654 F.3d 1012, 1024 (10th Cir. 2011); see Stephens v. Jones, 494 F. App’x
906, 911 (10th Cir. 2012). Second, the Court is sensitive not to interfere in state prison
administration, a significant public interest to weigh upon a motion for preliminary
injunction. Turner v. Safley, 482 U.S. 78, 84–86 (1987). Third, Plaintiff’s fears that he will
be “seriously hurt or killed” once transferred from OSP into general population at another
prison are speculative and unfounded. Therefore, Plaintiff has failed to satisfy the

7
Plaintiff titles the third and fourth motion as motions for temporary restraining order, but considering the
contemporary notice given to Defendants upon filing, the Court will construe both as motions for
preliminary injunction. See Doc. 108, 114; Fed. R. Civ. Pro. 65(a)–(b).

17

requirements for a preliminary injunction and the Court denies all four motions. See
Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001).
IV.

Second Request to Amend

Before the Court is Plaintiff’s Objection to Judge Goodwin’s Second Report and
Recommendation, which includes a second request to amend his complaint. See Doc. 119,
at 3–4, 6–7. “Dismissal of a pro se complaint for failure to state a claim is proper only
where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would
be futile to give him an opportunity to amend.” Kay v. Bemis, 500 F.3d 1214, 1217 (10th
Cir. 2007) (quoting Curley v. Perry, 246 F.3d 1278, 1281 (10th Cir.2001)).
To properly consider this second request to amend, some background is necessary.
Plaintiff George Soler Young filed his lawsuit against twenty-one defendants on March
31st, 2015. See Doc. 1. Following Defendants’ 12(b)(6) motion, Judge Goodwin
recommended dismissal of each of Plaintiff’s claims, excluding an Eighth Amendment
excessive force claim against five Defendants and a First Amendment retaliatory transfer
claim against eleven Defendants. See First Report and Recommendation, Doc. 81. Most of
Plaintiff’s shortcomings concerned vagueness regarding who committed each alleged
action, how they caused the requisite constitutional harm, and their state of mind. See id.
The Court fully adopted the Report’s reasoning, but granted Plaintiff thirty days to file an
amended complaint by November 3rd, 2016, “address[ing] the deficiencies” discussed in
the First Report. Doc. 95, at 3. The Court “caution[ed] Plaintiff that the Amended
Complaint will stand on its own; accordingly, it must contain all of the allegations, claims,
and parties he intends to be before this Court.” Id.
18

Plaintiff experienced a setback, however, when Defendants allegedly deprived him
of legal materials he felt were necessary to amend his complaint. Plaintiff’s First Motion
for Preliminary Injunction alleged that on September 28th, 2016, officers falsely accused
him of possessing illegal contraband to justify confiscating all legal materials and draft
filings in this case, leaving only his “institutional misconduct history, a couple books, and
[the] special report and recommendation.” Doc. 94, at 2.8 The day before Plaintiff’s
amended complaint was due, he requested a twenty-day extension, citing this incident and
the fact that Defendants failed to return most of his materials. See Doc. 97. Judge Goodwin
granted Plaintiff a twenty-five day extension to November 28th, 2016. See Doc. 98. Plaintiff
then requested a second extension for thirty days until December 28th, 2016, again citing
his missing drafts and legal materials. See Doc. 99. Plaintiff claimed that Defendants
returned only some legal materials, and that his case manager told him she was working on
returning the rest. Id. Judge Goodwin granted a shortened extension to December 14th, but
warned that he would not grant another amendment extension. See Doc. 101.
Plaintiff filed his Amended Complaint on December 15th, 2016, renaming eighteen
of the original twenty-one defendants and adding eighteen more. See Doc. 102, at 2–6.
Plaintiff also filed four motions for injunctive relief, repeating various requests to be placed
in protective custody, transferred back to higher-security LCF, or released. See Docs. 94,
107, 108, 114. The Court re-referred the matter to Judge Goodwin, who screened Plaintiff’s
claims pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(a)–(b) and 42 U.S.C.

8
Plaintiff made a similar obstruction claim in June of 2015, asking the Court for an extension of time to
respond to Defendants’ Motion to Dismiss. See Doc. 60.

19

§ 1997e(c)(1)–(2). See Second Report and Recommendation, Doc. 116. Judge Goodwin
recommended dismissal of all but two Eighth Amendment claims because he found that
the rest fail to present plausible grounds for relief. See id. at 4–5. On September 13th, 2017,
the day before objections to the Second Report were due, Plaintiff requested another
extension. See Doc. 117. Again citing his missing materials, Plaintiff claimed that had
Judge Goodwin granted him the full thirty-day second extension to amend his complaint
with full access to his materials, he would have been able to include other claims that he
left out. Id. at 1-2. The Court granted Plaintiff’s extension request until October 14th, 2017
(Doc. 118), after which Plaintiff filed his objection on October 17th. See Doc. 119.
Plaintiff now cites two reasons to restart his repeated amendment and extension
exercise,9 and both are belied by the record. First, Plaintiff claims that he did not “get the
time . . . requested and needed to properly amend [his] petition.” Doc. 119, at 3. Judge
Goodwin granted Plaintiff two extensions to file his Amended Complaint due to the
confiscation incident that prevented him from meeting the initial deadline.10 See Docs. 98,
101. It appears that Plaintiff’s primary critique is that Judge Goodwin second extension
was only sixteen days, rather than thirty days like he requested. Nevertheless, in nine
weeks, Plaintiff filed an Amended Complaint detailing factual allegations against thirtysix Defendants that spans 196 pages and twenty-eight exhibits. See Doc. 102. He fails to
show how he was prejudiced by not receiving a second full extension.

9
See Plaintiff’s requests to amend filings and extend deadlines, Docs. 60, 70, 73, 82, 89, 97, 99, 102, and
117.
10
See Doc. 101, at 1 (“Absent extraordinary circumstances, no further extension of this deadline will be
permitted.”)

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Second, Plaintiff claims that “OSP is deliberately withholding [his] legal exhibits,
documents, and books,” but because he has a book on filing federal lawsuits and is no
longer in an isolated cell, he now “understands what is expected” and “can correct most of
[his] deficiencies by clarifying . . . who[] did what, when and where.” Id. at 3–4. The Court
already asked Plaintiff “who,” “what,” “when,” and “where” when it reviewed Judge
Goodwin’s First Report. Plaintiff assures the Court that he understands this time, but what
has changed? He still claims many of his legal materials are missing, none of which are
actually necessary to cure the factual deficiencies in his complaint—Plaintiff merely failed
to present “enough facts to state a claim to relief that is plausible on its face.”11 Twombly,
550 U.S. at 547.
Granted, the task of drafting a plausible complaint requires basic knowledge of each
claim’s elements. However, no book on filing federal suits could supplement his memory
of who did what to him. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“[A]
pro se plaintiff requires no special legal training to recount the facts surrounding his alleged

11
See First Report and Recommendation, Doc. 81, at 11 (“Plaintiff does not allege facts regarding
Defendant Rios’ involvement or participation such as would be required to state a claim against him.
. . . Plaintiff does not identify any of the other 15 Defendants as direct or indirect actors in the events of
October 25, 2013.”), 16–17 (“Plaintiff . . . alleges only that the attack caused nonspecific pain and
presents no allegations that support an inference that he was suffering from an obvious, ‘sufficiently
serious’ medical need. . . . And even assuming Plaintiff’s vision constituted a sufficiently serious medical
need, Plaintiff nowhere identifies a Defendant who knew of and disregarded this need or intentionally
delayed Plaintiff’s access to vision care.”), 18 (“Plaintiff offers only ‘collective allegations’ and fails to
‘make clear exactly who is alleged to have done what to whom,’ as required to impose personal liability
under § 1983.”), 19 (“Although the Complaint alleges that Plaintiff lost ‘over 50’ pounds after being
transferred to OSP, Plaintiff does not allege that this weight loss was caused by his lack of
dentures. . . . And Plaintiff’s speculative concerns about possible future health issues caused by his dental
condition are too vague and unsupported to establish either a diagnosed or obvious serious medical
need.”), 22 (“While these statements conclude there was an improper agreement among Defendants,
Plaintiff has alleged no specific facts to actually show any such agreement . . . .”).

21

injury, and he must provide such facts if the court is to determine whether he makes out a
claim on which relief can be granted.”). Further, Plaintiff still had his “institutional
misconduct history, a couple books, and [the] special report and recommendation.” Doc.
94, at 2. It is unclear if Plaintiff was referring to the Special Report (Doc. 67) or the First
Report and Recommendation (Doc. 84), but both summarize his original complaint in great
detail. Thus, Plaintiff fails to show why he could not fill in the factual gaps in his complaint
to plausibly state claims against each Defendant. The Court asked Plaintiff to recount what
happened, gave him nine weeks to do so, and explained the repercussions of failing to do
so. Granting leave to amend again would be futile, and the Court denies Plaintiff’s second
request to amend.
V.

Conclusion

Plaintiff is left with two Eighth Amendment claims against Defendants Hill, Time,
Rauch, Wiltshire, Roody, Jones, and Tweedy (Claims 1 and 3)12; a First Amendment claim
against Defendant Rios (Claim 8); and a First Amendment Claim against Defendant Benoit
(Claim 9). Plaintiff’s remaining Claims 2, 4, 5, 6, 7, and 10 are therefore DISMISSED, and
Claim 8 is DISMISSED in part with respect to Defendants Patton, White, Plume, Whitten,
Williams and Miser. His motions for injunctive relief (Docs. 94, 107, 108, 114) are also
DISMISSED.

This matter is re-referred to Magistrate Judge Charles C. Goodwin for

further proceedings consistent with the original referral herein.

12
Claim numbers herein refer to the Court’s Amended Complaint summary in Part I, at 3.

22

IT IS SO ORDERED this 14th day of November, 2017.

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