Savage v. Fallin et al

Filing 10

ORDER ADOPTING REPORT AND RECOMMENDATION 8 of Magistrate Judge Shon Erwin...the court agrees with the magistrate judge's analysis including his conclusion that plaintiff has failed to state an Eighth Amendment violation...see order for specifics. Signed by Honorable Joe Heaton on 03/11/2016. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
KENT G. SAVAGE,
Plaintiff,
vs.
MARY FALLIN, et al.,
Defendants.

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NO. CIV-15-1194-HE

ORDER
Plaintiff, a state prisoner appearing pro se, filed this § 1983 action against Mary
Fallin, Governor of the State of Oklahoma, Robert Patton, Director of the Oklahoma
Department of Corrections, Jason Bryant, Warden for James Crabtree Correctional Center,
Terry Cline, Commissioner of the Health Department for the State of Oklahoma, Robert
Doke, Fire Marshall of the State of Oklahoma, Jeffrey Hickman, Speaker of the Oklahoma
House of Representatives, Brian Bingman, President Pro Tem of the Oklahoma Senate and
Clark Jolley, Chairman of the Oklahoma State Senate Appropriations Committee. Plaintiff
alleges that defendants violated the Eighth Amendment by demonstrating “deliberate
indifference towards the risk of serious harm to himself, other inmates, prison staff,
correctional officers and the public, by failing to take appropriate action to resolve the
serious danger resulting from statewide prison overcrowding and understaffing.” Doc. #1,
p.3. Plaintiff also claims defendants intentionally inflicted emotional distress upon him in
violation of state and federal law. He seeks monetary damages and declaratory and
injunctive relief.
Consistent with 28 U.S.C. § 636(b)(1)(B) and (C), the matter was referred for initial

proceedings to Magistrate Judge Shon T. Erwin. The magistrate judge determined that
plaintiff’s claims for money damages against the defendants in their official capacities as
state employees or officials are barred by the Eleventh Amendment and should be dismissed
without prejudice. He also concluded defendants Hickman, Bingman, Jolley and Fallin are
entitled to absolute legislative immunity with respect to the claims plaintiff asserts against
them in their individual capacities. He recommends that plaintiff’s claims against these
defendants be dismissed with prejudice.
Insofar as plaintiff has attempted to state a claim that defendants have been
deliberately indifferent to serious, inhumane conditions of confinement, the magistrate judge
concluded his allegations are insufficient to state a constitutional deprivation. Much of his
complaint is devoted, the magistrate judge notes, “to a discussion of the potential danger
posed by overcrowded prisons.” Doc. #8, p. 8 The magistrate judge concluded his other
complaints, which pertain to “the actual conditions of his confinement, rise only to the level
of discomfort or inconvenience.” Id. The magistrate judge also determined that plaintiff
failed to allege that the defendants acted with the required subjective intent necessary to be
found liable under the Eighth Amendment. He recommended both that plaintiff’s official
capacity claims for prospective injunctive relief and the individual capacity claims against
defendants Patton, Bryant, Cline, and Doke be dismissed without prejudice for failure to state
a claim. See 28 U.S.C. 1915A(b)(1).
Insofar as plaintiff has attempted to seek damages for intentional infliction of
emotional distress under § 1983, the magistrate judge concluded the claim fails for lack of
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allegations that the emotional distress resulted in a physical injury.

See 42 U.S.C.

§1997e(e). To the extent plaintiff asserts a claim for the intentional infliction of emotional
distress under state law, the magistrate judge recommends that the court decline to exercise
supplemental jurisdiction over the claim. See 28 U.S.C. § 1367(c)(3).
Plaintiff has filed an objection to the Report and Recommendation. He challenges the
magistrate judge’s determination that defendants Hickman, Bingham, Jolly and Fallin are
entitled to absolute legislative immunity, arguing that the defense is not available when a
government official intentionally violates the law. He then claims that he has in his
complaint sufficiently alleged facts demonstrating that defendants knew or should have
known of the risk of serious harm to him and other inmates because of the overcrowded
prison conditions. Plaintiff also states that he has asserted that his emotional distress was
accompanied by physical injuries, specifically, severe headaches and stomach problems.
And he asks that the court retain jurisdiction over his supplemental state law claims.
Having conducted the required de novo review, the court agrees with the magistrate
judge’s analysis, including his conclusion that plaintiff has failed to state an Eighth
Amendment violation.1 The court ADOPTS the Report and Recommendation.
Accordingly, plaintiff’s official capacity claims for money damages against all
defendants are DISMISSED WITHOUT PREJUDICE. Plaintiff’s official capacity claims

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Assuming plaintiff’s headaches and stomach problems satisfy the physical injury
requirement of 42 U.S.C. § 1997e(e), because the court has concluded plaintiff has failed to state
a constitutional violation, he is not entitled to recover damages under federal law for intentional
infliction of emotional distress.
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for prospective injunctive relief and declaratory relief are DISMISSED WITHOUT
PREJUDICE. Plaintiff’s individual capacity claims against defendants Hickman, Bingman,
Jolley and Fallin are DISMISSED WITH PREJUDICE. Plaintiff’s remaining individual
capacity claims against defendants Patton, Bryant, Cline, and Doke are DISMISSED
WITHOUT PREJUDICE. The court declines to exercise supplemental jurisdiction over
plaintiff’s state law claims. See 28 U.S.C. § 1367(c)(3).
IT IS SO ORDERED.
Dated this 11th day of March, 2016.

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