Fisher v. Allbaugh et al

Filing 12

ORDER adopting Report and Recommendations re 10 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 10/11/2016. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
RODNEY T. FISHER,
Plaintiff,
v.
JOE M. ALLBAUGH, Director,
et al.,
Defendants.

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Case No. CIV-16-662-D

ORDER
This matter is before the Court for review of the Report and Recommendation issued
by United States Magistrate Judge Shon T. Erwin pursuant to 28 U.S.C. § 636(b)(1)(B)-(C).
Upon initial screening of Plaintiff’s Civil Rights Complaint, Judge Erwin recommends the
dismissal of this action pursuant to 28 U.S.C. § 1915A(b) and § 1915(e)(2) for failure to state
a claim upon which relief can be granted. Judge Erwin finds that Plaintiff has failed to state
a plausible claim that any defendant, particularly ones who served in supervisory roles,
violated a constitutional right of Plaintiff. Judge Erwin also recommends that the dismissal
count as a “prior occasion” or strike under 28 U.S.C. § 1915(g). Plaintiff has filed a timely
written objection. Thus, the Court must make a de novo determination of portions of the
Report to which specific objection is made, and may accept, modify, or reject the
recommended decision. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Plaintiff, an Oklahoma prison inmate who appears pro se, complains primarily about
incidents that occurred at his prior place of confinement, the Lexington Correctional Center

(“LCC”), in November 2015. Plaintiff alleges he was physically assaulted by inmate Charles
Moore on November 4 and suffered a head injury, but no disciplinary action was taken
against Moore. Plaintiff alleges that other inmates assaulted Moore on November 5, but a
unit manager, Mike Duncan, detained Plaintiff in “lockup,” searched and “trashed” his cell,
and had him charged with misconduct for the assault. See Compl. attach. 1 [Doc. No. 1-1],
p.1. Plaintiff alleges Duncan favored “white Arian supporters” (apparently Moore) and
targeted minority races and religions (apparently Plaintiff, who is Muslim). See Compl.
[Doc. No. 1], p.2. Plaintiff claims Duncan violated Plaintiff’s constitutional rights to due
process and religious freedom, and destroyed personal property taken from his cell. Plaintiff
claims that LCC’s deputy warden, Jenny Dillion, allowed Duncan to violate institutional
policies and procedures and Plaintiff’s constitutional rights. Plaintiff claims he wrote to
Dillion, Warden T. McCollough, and Director Joe M. Allbaugh about “the entire incident”
and filed grievance forms, but no corrective action was taken. See Compl. attach. 1 [Doc.
No. 1-1], p.2. Plaintiff also makes a conclusory assertion that Duncan, Dillion, and a
nonparty (Ladanna Warrior) demonstrated deliberate indifference to a serious medical need.
Id. Plaintiff says he has headaches and blurry vision as a result of his head injury.
Liberally construing Plaintiff’s Objection, he appears to object generally to Judge
Erwin’s findings that the Complaint fails to state a plausible claim under 42 U.S.C. § 1983.
In light of the thorough analysis and detailed findings of the Report, the Court finds that only
specific issues raised by the Objection should be addressed. Review of all other issues is

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waived. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991); see also United
States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996).1
Plaintiff first asserts that Duncan violated his due process rights by causing him to be
falsely charged with misconduct, but Plaintiff concedes the proceeding “initially started in
November 2015, was suspended.” See Pl.’s Obj. [Doc. No. 11], p.2. Plaintiff thus confirms
the correctness of Judge Erwin’s finding that the Complaint does not allege facts to show the
impairment of a liberty interest protected by the Due Process Clause.2
Plaintiff next disagrees with Judge Erwin’s finding that he has not stated a claim under
the Equal Protection Clause. Plaintiff asserts “he has the right to the same security protection
and policy protocols as other inmates under the Department [of Corrections] Policy.” See
Pl.’s Obj. [Doc. No. 11], p.2. This assertion arguably suggests a “class-of-one” equal
protection claim. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). A
plausible class-of-one claim must be supported by factual allegations “that others, similarly
situated in every material respect were treated differently” and “this difference in treatment
was without rational basis.” See Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1216
(10th Cir. 2011) (internal quotation omitted); see also Brown v. Montoya, 662 F.3d 1152,

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Plaintiff expressly states that “[t]he only reason Director Allbaugh and [Warden] McCollough are
named is due to their supervisory positions” and his § 1983 action should proceed “against Defendants
Duncan and Dillion only.” See Pl.’s Obj. [Doc. No. 11], p.5. Thus, Plaintiff appears to concede that the
Complaint fails to state a § 1983 claim against Defendants Allbaugh and McCollough.
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Plaintiff adds new allegations in the Objection that “[s]ince the initial filing of said action, Duncan
has forwarded these misconduct proceedings, which is in violation of D.O.C. Policy and Procedures.” See
id. The meaning of “forwarding” a misconduct proceeding (presumably, to Plaintiff’s current place of
confinement) is unclear. But these allegations do not show a denial of due process by Defendant Duncan.

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1173 (10th Cir. 2011) (plaintiff who “does not allege facts about any particular person or
persons who were treated differently from him” fails to state a class-of-one claim). Plaintiff
does not make such allegations.
Plaintiff also disagrees with Judge Erwin’s finding that allegations of intentional
destruction of Plaintiff’s personal property do not state a cognizable § 1983 claim. Judge
Erwin relies on the principle that no due process claim is available where an adequate postdeprivation remedy exists and that Oklahoma law provides such a remedy. See R&R [Doc.
No. 10], p.10 (citing Buchanan v. Oklahoma, 398 F. App’x 339, 342 (10th Cir. 2010)).
Plaintiff does not address this legal principle or authority in his Objection. Instead, he argues
that no official of the Department of Corrections has offered to compensate him for lost
property “nor has any remedy been offered to resolve the loss and destruction.” See Pl.’s
Obj. [Doc. No. 11], p.3. The lack of an offer of compensation does not mean there is no legal
remedy. The Court agrees with Judge Erwin that Plaintiff fails to allege he lacks an available
remedy. See Peterson v. Lampert, 499 F. App’x 782, 785 (10th Cir. 2012) (prison grievance
process may constitute sufficient post-deprivation remedy).3
Finally, Plaintiff challenges Judge Erwin’s finding that the Complaint does not state
a § 1983 claim against Defendant Dillion. Plaintiff contends Dillion is responsible because
“she allowed the actions of Duncan to continue once notified of them, and as supervisor and

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Plaintiff points out in his Objection that a state employee may be held personally liable for a
malicious or bad faith act, outside the Governmental Tort Claims Act, Okla. Stat. tit. 51, §§ 151-72. Judge
Erwin has properly screened the Complaint for claims within federal court jurisdiction, and recommends
dismissal without prejudice to pursuit of other potential claims. The Court need not address the sufficiency
of the Complaint to assert a state law claim.

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facility administrator, Dillion is also a party to these acts.” See Pl.’s Obj. [Doc. No. 11], p.4.
However, to establish § 1983 liability of a defendant-supervisor, a plaintiff must show:
“(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 Brown, 662 F.3d
at 1164; Cox v. Glanz, 800 F.3d 1231, 1248 (10th Cir. 2015). Plaintiff has made no factual
allegations that would support § 1983 liability of Dillion.
In summary, upon de novo consideration of the issues raised by Plaintiff’s Objection,
the Court finds that the Complaint fails to state a § 1983 claim for reasons ably explained by
Judge Erwin in his Report. For these reasons, the Court finds that this action should be
dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1) for
failure to state a claim upon which relief can be granted, and the dismissal should count as
a “prior occasion” or strike under 28 U.S.C. § 1915(g).
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No. 10]
is ADOPTED as set forth herein. This action is DISMISSED without prejudice to refiling.
A separate judgment of dismissal shall be entered.

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IT IS SO ORDERED this 11th day of October, 2016.

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