Morris v. Fallin et al
Filing
43
ORDER adopting Report and Recommendations re 34 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 6/23/2017. (mb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DARRELL MORRIS,
Plaintiff,
v.
GOVERNOR MARY FALLIN, et al.,
Defendants.
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Case No. CIV-16-1297-D
ORDER
This matter comes before the Court for review of the Report and Recommendation
[Doc. No. 34] issued by United States Magistrate Judge Shon T. Erwin on March 29, 2017,
pursuant to 28 U.S.C. § 636(b)(1)(B)-(C).
Upon initial screening of the Amended
Complaint, Judge Erwin recommends in a thorough 50-page Report the dismissal of certain
parties and claims. Plaintiff has filed a timely objection [Doc. No. 42] within the deadline
authorized by the Court. See 5/2/217 Order [Doc. No. 41]. The Court must make a de
novo determination of portions of the Report to which a 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)(3).
Plaintiff, a state prisoner appearing pro se and in forma pauperis, brings this action
under 42 U.S.C. § 1983 seeking declaratory and injunctive relief and damages for alleged
violations of his constitutional rights during his confinement in two correctional facilities.1
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Plaintiff complains of events at the Lexington Assessment and Reception Center (LARC) and the
Dick Conner Correctional Center (DCCC). He is now confined at the John H. Lilley Correctional Center
in Boley, Oklahoma.
Plaintiff initially sued Governor Mary Fallin and 30 officers and employees of the
Oklahoma Department of Corrections (“DOC”). The Amended Complaint asserts claims
against 23 defendants and, like the original pleading, is accompanied by voluminous
exhibits, now spanning more than 260 pages. Judge Erwin’s careful review of the
Amended Complaint leads to the following conclusions, to which Plaintiff objects:
1) Plaintiff’s claims for damages against defendants in their official capacities are
barred by Eleventh Amendment immunity and should be dismissed without prejudice.
Plaintiff makes no specific objection to this finding. See Pl.’s Obj. [Doc. No. 42] at 1, ¶ 1.
Thus, the Court discerns no issue for decision.2
2) Plaintiff’s claims for declaratory and injunctive relief should be dismissed for
various reasons.3 Again, Plaintiff makes no specific objection to these findings (id. at 1,
¶¶ 2-3), and no issue is presented for decision.
3) Plaintiff’s claims for damages against defendants in their individual capacities
for alleged deliberate indifference to Plaintiff’s medical needs, as asserted in Count I of the
Amended Complaint, should be dismissed without prejudice as to Defendants Robert
Patton, Joe Allbaugh, William Cooper, Joel McCurdy, David Parker, Genese McCoy,
2
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. United States v. 2121 East 30th Street, 73 F.3d
1057, 1060 (10th Cir. 1996). “[A]n objection stating only ‘I object’ preserves no issue for review.” Id.
(internal quotation omitted).
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Judge Erwin recommends a dismissal with prejudice; however, the reasons for dismissal are
jurisdictional in nature – the lack of an actual, live controversy to be resolved by declaratory relief and a
lack of standing to obtain the injunctive relief sought. Thus, a dismissal without prejudice is appropriate.
See Sause v. Bauer, No. 16-3231, 2017 WL 2641070, *6 (10th Cir. June 20, 2017) (to be published) (citing
Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006)).
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Buddy Honaker, Jim Farris, Tamara Hill, Janet Dowling, Tammy Cartwright, Jody Jones,
and “Population Coordinator at Lexington Correctional Center” (see Am. Compl. [Doc.
No. 29] at 3, ¶ 24) or “Population Supervisor, L.A.R.C.” (id. at 12, ¶ 17).4 Judge Erwin
primarily finds that Plaintiff fails to allege sufficient facts to show the personal
participation of these defendants in his medical care or a basis for supervisory liability.
Plaintiff’s objection fails to address this finding, arguing only that his medical condition
was so obvious even a lay person could recognize the need for treatment and that all
defendants knowingly disregarded risks to his health. See Pl.’s Obj. [Doc. No. 42] at 2,
¶ 4. Upon de novo review of the factual allegations of the Amended Complaint regarding
these defendants and their involvement in Plaintiff’s medical care, the Court fully concurs
in Judge Erwin’s findings and the recommendation for dismissal without prejudice of
Plaintiff’s claims of inadequate medical care by these defendants.
4) Plaintiff’s individual-capacity claim for damages against Defendant Ladonna
Warrior in Count I of the Amended Complaint for deliberate indifference to Plaintiff’s
medical needs should be dismissed with prejudice because her only alleged involvement
was refusing as a case manager to assist Plaintiff with administrative grievances. Plaintiff
makes no response to this finding in his objection, arguing only that he has a valid claim
against Defendant Warrior who was “well aware of the serious medical need that [she]
4
As to Defendant Hill, Judge Erwin states Plaintiff’s claim should be dismissed with prejudice.
See R&R [Doc. No. 34] at 21, 48. However, Judge Erwin finds the claim against Defendant Hill is deficient
because the allegations against her “are identical to the ones . . . asserted against Defendant Honaker” and
recommends the claim against Defendant Hill be dismissed “for the same reasons.” Id. at 20. Because
Judge Erwin recommends a dismissal without prejudice of Defendant Honaker, the Court assumes he also
intended to recommend a dismissal without prejudice of Defendant Hill.
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intentionally disregarded.” See Pl.’s Obj. [Doc. No. 42] at 2, ¶ 5. The Court finds this
objection fails to preserve a specific issue for review. See supra note 2. Further, upon de
novo review of the Amended Complaint, the Court fully concurs in Judge Erwin’s findings
regarding Plaintiff’s medical care claim against Defendant Warrior. This claim should be
dismissed with prejudice because further amendment of Plaintiff’s pleading would be
futile.
5) Plaintiff’s individual-capacity claims for damages asserted under Count II of the
Amended Complaint against Defendants McCoy, Honaker, Parker, Farris, Hill, Warrior,
Dowling, Cartwright, Jones, Diana Collins, Terrance Bolt, Daniel Owens, Lisa Smiley,
LARC Population Supervisor, Kent King, Robert Balogh, Billie Nye, Larry Bowler, and
Bethany Wagener for retaliatory conduct in violation of Plaintiff’s First Amendment rights
should be dismissed without prejudice for failure to allege sufficient facts to support
essential elements of a retaliation claim. Plaintiff’s objection fails to address the reasons
given by Judge Erwin for dismissal of his retaliation claim against these defendants. See
Pl’s Obj. [Doc. No. 42] at 2-3, ¶ 7. Further, upon de novo consideration, the Court finds
that the Amended Complaint fails to state a First Amendment retaliation claim for the
reasons ably explained by Judge Erwin. Thus, the Court concurs in the recommendation
for dismissal without prejudice of Plaintiff’s retaliation claim in Count II.
6) Plaintiff’s individual-capacity claims for damages for alleged discrimination and
violation of the Equal Protection Clause, as asserted in Counts III and VI of the Amended
Complaint, against Defendants Cooper, McCurdy, Honaker, McCoy, Parker, Hill, King,
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Balogh, Nye, Dowling, Jones, Bowler, Wagener, Bolt, Owens, Smiley, Collins, the LARC
Population Coordinator, Warrior, and Cartwright should be dismissed without prejudice,
except any disability discrimination claim asserted against Defendant Dowling in Count III
for alleged violation of the Americans with Disabilities Act or the Rehabilitation Act
should be dismissed with prejudice. Plaintiff’s objection fails to address the reasons given
by Judge Erwin for dismissal of his discrimination and equal protection claims. See id. at
3-4, ¶¶ 8-10. Further, upon de novo consideration, the Court finds that the Amended
Complaint fails to state a plausible discrimination or equal protection claim for the reasons
ably explained by Judge Erwin. Thus, the Court concurs in the recommendation for
dismissal with prejudice of Plaintiff’s disability discrimination claim against Defendant
Dowling and dismissal without prejudice of all other discrimination claims asserted in
Counts III and VI.
7) The conspiracy claim asserted against all Defendants in Count IV of the
Amended Complaint should be dismissed without prejudice for failure to state a claim on
which relief can be granted. Because Plaintiff makes no specific objection to this finding
(see id. at 4, ¶ 11), no issue is presented for decision. Further, upon de novo consideration,
the Court finds that the Amended Complaint fails to state a § 1983 conspiracy claim for
the reasons explained by Judge Erwin. Thus, the Court concurs in the recommendation for
dismissal without prejudice of the conspiracy claim in Count IV.
8) The claims for damages for an alleged denial of due process (Count V) and an
unconstitutional grievance process (Count VII) should be dismissed with prejudice for
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failure to state an actionable claim. Plaintiff’s objection fails to address the reasons given
by Judge Erwin for dismissal of his discrimination and equal protection claims. See id. at
5-6, ¶¶ 12-13. Further, upon de novo consideration, the Court finds that the Amended
Complaint fails to state a constitutional claim in Counts V and VII for the reasons explained
by Judge Erwin and that these claims should be dismissed with prejudice.
9) The state-law fraud claim asserted in Count VIII of the Amended Complaint
against Defendants King, Balogh, Bolwer, Wagener, Jones, McCoy, Honaker, Bolt, and
Dowling should be dismissed without prejudice for failure to state a claim on which relief
can be granted. Upon de novo consideration of this finding in light of Plaintiff’s objection,
the Court fully concurs that the Amended Complaint fails to state an actionable fraud claim
against any of the named defendants and this claim should be dismissed without prejudice.
10)
The state-law “extortion” claim asserted in Count IX of the Amended
Complaint against Defendant Jones should be dismissed, but the Court should exercise
supplemental jurisdiction of the claim against Defendant McCoy and permit Plaintiff to
proceed on this claim, subject to proof of compliance with the procedural requirements of
the Governmental Tort Claims Act, Okla. Stat. tit. 51, §§ 151-72. Plaintiff’s objection fails
to address the reasons given by Judge Erwin for dismissal of his extortion claim against
Defendant Jones. See id. at 6, ¶ 16. Further, upon de novo consideration of this finding in
light of Plaintiff’s objection, the Court fully concurs that the Amended Complaint fails to
state an actionable claim against Defendant Jones and this claim should be dismissed
without prejudice.
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IT IS THEREFORE ORDERED that the Report and Recommendation [Doc.
No. 34] is ADOPTED as set forth herein. Further, the “Summary of Recommendations”
is adopted in full except the dismissal of Plaintiff’s claims for declaratory and injunctive
relief and the dismissal of Plaintiff’s claim in Count I against Defendant Hill are without
prejudice. The case remains under referral to Judge Erwin for further proceedings.
IT IS SO ORDERED this 23rd day of June, 2017.
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