Savage v. Fallin et al

Filing 115

ORDER ADOPTING REPORT AND RECOMMENDATION 99 of Magistrate Judge Shon Erwin...for the reasons stated in the order plaintiff's objections to the discovery orders are overruled; the report and recommendations is substantially adopted consistent w ith the discussions in the order; plaintiff's official capacity claim against the JCCC Warden is Stricken as Moot; defendant's motion for summary judgment 111 is granted as to the remaining federal claims; plaintiff's state law claims are dismissed without prejudice. Signed by Honorable Joe Heaton on 01/21/2020. (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 in the custody of the Oklahoma Department of Corrections
(“ODOC”), filed this case in 2015 asserting federal claims, pursuant to § 1983, for violation
of his Eighth Amendment rights. He also asserts state law claims for intentional infliction
of emotion distress. At the outset of the case, it was referred to Magistrate Judge Shon T.
Erwin for initial review. Judge Erwin thereafter submitted a Report and Recommendation
which recommended that plaintiff’s claims be dismissed. This court adopted the Report
and Recommendation.
Plaintiff, then proceeding pro se,1 appealed the dismissal to the Tenth Circuit Court
of Appeals. The Tenth Circuit affirmed the bulk of the dismissal order but reversed the
dismissal as to the claims against Governor Fallin, Jason Bryant (the warden of the facility

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Plaintiff was represented by counsel at one point in the case, but that counsel was later
permitted to withdraw. The court has since declined plaintiff’s requests for appointment of
successor counsel but notes that plaintiff’s pro se submissions reflect considerable skill and ability,
for a non-lawyer, in dealing with the various issues.

where plaintiff was then incarcerated), and Robert Patton (the director of the Oklahoma
Department of Corrections).
The case was then re-referred to Judge Erwin, who ordered a Special Report to be
filed addressing plaintiff’s remaining claims. Thereafter, the remaining defendants filed
motions to dismiss or, alternatively, for summary judgment. Judge Erwin recommended
that those motions be viewed as ones for summary judgment and that they be denied. Upon
objection to the third Report and Recommendation,2 this court concluded the motions
should be viewed as motions to dismiss rather than for summary judgment. So viewed, the
motion of Governor Fallin was granted, but the motions of defendants Bryant and Patton
were denied. There have since been substitutions of defendants as to the official capacity
claims and a dismissal of plaintiff’s effort to assert an individual capacity claim against
one of the persons later serving as head of the ODOC (Allbaugh).
After giving effect to the decision of the Court of Appeals and the further decisions
of this court, the following claims of plaintiff remain for consideration: (1) official capacity
claims for injunctive or declaratory relief against the warden of the James Crabtree
Correctional Center (formerly Bryant, now Rick Whitten), (2) official capacity claims for
injunctive or declaratory relief against the director of ODOC (formerly Patton and
Allbaugh, now Scott Crow), (3) individual capacity claims against Bryant based on

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Judge Erwin’s second Report and Recommendation, which the court adopted,
recommended the dismissal of the claims which had been reasserted by plaintiff after the Court of
Appeals had affirmed their dismissal.

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violation of plaintiff’s Eighth Amendment rights and for intentional infliction of emotional
distress, and (4) substantially the same individual capacity claims against Patton.3
Defendants have now moved for summary judgment as to all remaining claims and
plaintiff has responded. Plaintiff has also filed two motions to compel discovery, to which
defendants have responded. Judge Erwin denied petitioner’s motions to compel [Doc.
#112]. He also issued a fourth Report and Recommendation (the “Report”) [Doc. #111]
recommending that defendants’ motion for summary judgment be granted. Plaintiff has
objected to the order denying his motions to compel and has objected to various aspects of
the Report.
Where objection is made to a magistrate judge’s decision as to a non-dispositive
motion, the district judge must modify or set aside any part of the order that is clearly
erroneous or contrary to law. Fed.R.Civ.P. 72(a). Where objection is made to a magistrate
judge’s recommendation as to a dispositive motion, the district judge’s review is de novo
as to any matter to which objection was made. Fed.R.Civ.P. 72(b).
Plaintiff objects to the denial of his discovery motions on various grounds. He
contends the court’s denial of his requests for appointed counsel limited his ability to seek
necessary discovery. However, as noted above, plaintiff’s pro se status has not prevented
him from making appropriate arguments and reflect sufficient familiarity with the various

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This court initially declined to exercise supplemental jurisdiction over the state law
claims against Bryant and Patton, after dismissing the federal claims against them. However, as
the federal claims are still outstanding pursuant to the Court of Appeals’ order, the prior basis for
declining jurisdiction no longer applies and the state law claims remain for resolution.

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procedures. His request for further time to complete discovery was, as noted by Judge
Erwin, undercut by defendants’ adequate responses to his prior relevant discovery requests.
Plaintiff argues he needs additional discovery on various matters to be able to respond
adequately to defendants’ summary judgment motion. The court generally agrees with
Judge Erwin’s determination of that issue, essentially that the additional information
sought would not otherwise alter the court’s disposition of the remaining issues. For
example, plaintiff states that he wants more information as to how the state computed the
inmate capacity of particular institutions. However, in light of the undisputed evidence of
change in the number of inmates actually in the affected institutions, the court’s decision
would be the same regardless of the specific basis for the referenced changes in inmate
capacity.
In any event, the magistrate judge’s disposition of the discovery motions is not
clearly erroneous or contrary to law. Plaintiff’s objection to Order Denying Motions to
Compel [Doc. #113] is therefore OVERRULED.
With respect to the Report’s recommendation that summary judgment be granted
for the defendants on the remaining claims, the court concludes that summary judgment
for defendants is appropriate on substantially, though not entirely, the basis stated by Judge
Erwin.
As noted above, plaintiff’s remaining Eighth Amendment claims are those tied to
his contention that he is at substantial risk of physical harm by reason of overcrowding and
understaffing.

Defendants contend that the undisputed facts show that staffing and

prisoner numbers at the facilities where plaintiff has been assigned are within constitutional
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norms and that he is not at substantial risk of physical injury by reason of those
circumstances. Specifically, defendants’ submissions indicate, and plaintiff does not deny,
that the operating capacity of Oklahoma prisons are established by the Board of
Corrections. The submissions indicate that, as to the JCCC facility where plaintiff was
housed at the time of filing this case, the prisoner count was slightly below its operational
capacity (capacity 1313, prisoner count 1312) in late 2015. By 2017, the prisoner count
was slightly above its operational capacity (capacity 1175, prisoner count 1201) but
plaintiff had been transferred to a different facility by that time.4 It also appears undisputed
that JCCC met all the mandatory standards necessary for accreditation by the American
Corrections Association audit in 2015.5 The audit included a statement that, while noting
at least one inmate homicide at the facility (which it concluded was apparently not the
result of gang activity or a pattern of institutional violence) that the facility had “very few
incidents of assault or violence.”
The facility to which plaintiff was transferred in 2017 is the North Fork Correctional
Center. The submissions indicate that, at the time of plaintiff’s arrival, North Fork had an
operational capacity of 2610 and the prisoner count was 1821. The submissions also
indicate North Fork was authorized to employ 295 staff positions and 225 of those were
budgeted for. Of the budgeted positions, 217 were filled.

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Plaintiff questions the relevance of the 2017 statistics in light of his transfer.

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Plaintiff argues that some of the non-mandatory standards should be, or might later
become, mandatory, but does not appear to dispute the facts of compliance as indicated.

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Against this backdrop, the court concludes that there is no dispute of material fact
which might translate into a basis for finding a constitutional violation based on a risk of
violence or physical injury to plaintiff. As the Court of Appeals noted, overcrowding in
and of itself does not support an Eighth Amendment claim, though overcrowding numbers
may, at some point, get there. Savage v. Fallin, 663 Fed. Appx. 588, 593 (10th Cir. 2016).
And while the prisoner and capacity numbers in the facilities involved here are not optimal
by any stretch, “optimal” is not the constitutional standard. Rather, the undisputed facts
establish that minimum standards set by the principal accrediting agency were generally
met, and that prisoner counts were well within the zone suggested by the various Eighth
Amendment cases as meeting constitutional norms.6 The staffing numbers at the facility
where plaintiff is incarcerated, while not optimal, also do not establish a constitutional
violation (i.e. 217 onboard staff versus a prisoner count of 1821). Further, while there is
always a risk of violence in a prison setting, the facts establish that, during the general time
frame during which plaintiff was at JCCC, the incidence of violence there was low.
Plaintiff’s claims, and the Report’s treatment of them, are addressed more
specifically as follows:

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Defendants state in their brief (though not in their statement of undisputed facts) that the
Oklahoma prison system operated at 111% of its authorized capacity at the time this case was
filed, citing the Special Report filed in the case. They also note that, in Brown v. Plata, 563 U.S.
493 (2011), the Supreme Court was concerned with how to meet a remedial target of 137.5% of
authorized capacity (i.e. how to get California’s system to that point to meet constitutional
standards.) While there is no hard and fast rule as to capacity percentages in these cases, 111%
of authorized capacity does not support an inference of a constitutional violation. For the same
reason, the 2017 numbers for JCCC, while slightly in excess of authorized capacity, do not suggest
a constitutional violation.

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a.

Official capacity claims – JCCC warden.

As noted above, plaintiff was

transferred from the James Crabtree Correctional Center to North Fork Correctional Center
during the pendency of this case. As a result, the Report concluded that plaintiff’s official
capacity claims against the JCCC warden were moot. Given that the official capacity
claims against the warden are for injunctive or declaratory relief, the court agrees that there
is no further basis for claim against the JCCC warden. To the extent plaintiff attempts a
systemic attack on the Oklahoma penal system generally, rather than just remediation of
the conditions where he is, his transfer does not moot his claim. But such claims are more
appropriately viewed as involving a claim against the Director of DOC rather than the
JCCC warden. Plaintiff’s official capacity claims against the warden of JCCC will be
stricken as moot.
b. Official capacity claims – ODOC director. The Report also recommends that
summary judgment be entered for the defendant Director of ODOC (Crow, formerly
Allbaugh and Patton) on the official capacity claims against him. It notes that the
undisputed facts establish significant changes in the condition of the prison system as it
relates to overcrowding and understaffing, and concludes these changes render plaintiff’s
Eighth Amendment claims moot. This court disagrees that the changes render plaintiff’s
claims moot in a strict sense, but they do result in a merits determination in favor of
defendants on the basis noted above.
c. Individual claims against Bryant and Patton.
The individual capacity claim against Bryant is premised on the allegation that he
did not maintain appropriate disciplinary policies and that it and the staffing conditions
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created an unconstitutional risk of injury to plaintiff.

To succeed on “an Eighth

Amendment claim for failure to protect, ‘the inmate must show that he is incarcerated under
conditions posing a substantial risk of serious harm.’” Savage, 663 Fed. Appx. at 592
(quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The objective component of a §
1983 claim requires plaintiffs to present admissible evidence of a prison official’s act or
omission resulted “in the denial of the minimal civilized measure of life’s necessities.”
Framer v. Brennan, 511 U.S. 825, 834 (1994). As noted above, the undisputed facts do not
establish an Eighth Amendment violation.
The individual capacity claim as to Patton is based on the allegation that he created
or contributed to the unconstitutional conditions by transferring prisoners from county jails
to the state system, thus increasing prisoner counts at the state facilities. Defendants argue
that the transfer of prisoners to the state system is required by law (i.e. those sentenced to
state prison rather than to county jails) and that Patton’s actions were therefore lawful and
required. It cites 57 Okla. Stat. § 521(A) which appears to say that, and plaintiff does not
contend to the contrary. Beyond that, as noted above, the prisoner/capacity numbers for
the facilities in which plaintiff was incarcerated and for the system as a whole do not violate
constitutional norms regardless of how they got there.
The court concludes that Patton and Bryant are entitled to judgment as a matter of
law as to the individual claims against them.
d. Intentional infliction of emotional distress.
“No Federal civil action may be brought by a prisoner confined in jail, prison, or
other correctional facility, for mental or emotional injury suffered while in custody without
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a prior showing of physical injury.” 42 U.S.C. § 1997e(e). Plaintiff has made no such
showing. Further, “intentional infliction of emotional distress, by itself, cannot amount to
a constitutional violation.” Voyticky v. Village of Timberlake, Ohio, 412 F.3d 669, 678
(6th Cir. 2005). Damages, however, may be recovered if emotional distress results from a
constitutional violation. Id.; McClure v. Indep. Sch. Dist. No. 16, 228 F.3d 1205, 1214-15
(10th Cir. 2000). Because the court concludes no constitutional violation occurred,
plaintiff has no federal claim for emotional distress.
As the court has concluded defendants prevail on the federal claims asserted in this
case, it declines, as it did previously, to exercise supplemental jurisdiction over the
remaining state law claims against Bryant and Patton for intentional infliction of emotion
distress. Those claims will be dismissed without prejudice.
Summary
For the reasons stated, Plaintiff’s objections to the discovery orders are
OVERRULED. The Report is substantially adopted, consistent with the above discussion.
Plaintiff’s official capacity claim against the JCCC warden is STRICKEN as moot.
Defendant’s motion for summary judgment [Doc. # 111] is GRANTED as to the remaining
federal claims. Plaintiff’s state law claims are DISMISSED without prejudice.
IT IS SO ORDERED.
Dated this 21st day of January, 2020.

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