Smith v. Whetsel et al

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATION 8 of Magistrate Judge Bernard M. Jones and dismissing this case; this dismissal shall count as a prior occasion "strike" under 28 U.S.C. 1915(g), as the complaint fails to state a claim. Signed by Honorable Joe Heaton on 3/31/2017. (cla)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
FRANKLIN C. SMITH,
Plaintiff,
v.
SHERIFF JOHN WHETSEL, et al.,
Defendants.

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NO. CIV-16-1487-HE

ORDER
Plaintiff Franklin Smith, a former Oklahoma prisoner proceeding pro se, brought
this action for civil rights violations under 42 U.S.C. § 1983. This court referred the case
to U.S. Magistrate Judge Bernard Jones for initial proceedings consistent with 28 U.S.C. §
636(b)(1)(B) & (C). Following initial screening pursuant to 28 U.S.C. § 1915A, Judge
Jones issued a report and recommendation [Doc. #8] recommending dismissal of the
complaint for failure to state a claim upon which relief could be granted. 1 Judge Jones also
recommended that Smith should receive a “strike” under 28 U.S.C. § 1915(g). Smith has
objected to the report and recommendation, therefore the court reviews the complaint de
novo.
The standard of review for screening under § 1915(e)(2)(B)(ii) is the same as that
for a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Kay v. Bemis, 500 F.3d 1214, 1217

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Smith complains that he should have been afforded an opportunity to respond to the
defendants’ motion to dismiss, or that defendants should be allowed to respond before the case is
dismissed. However, the Report and Recommendation is the result of the magistrate judge’s initial
screening, not the motion of a party, and plaintiff’s objection has been considered.

(10th Cir. 2007). When reviewing a claim under that standard, the court accepts all wellpleaded factual allegations of the complaint as true and views them in the light most
favorable to the plaintiff. S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014). To survive
screening, the complaint must allege “enough facts to state a claim to relief that is plausible
on its face” and “raise a right to relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007). In other words, the facts alleged in the complaint
must allow the court to infer the defendants’ liability. Shields, 744 F.3d at 640 (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Twombly/Iqbal pleading standard “is a
middle ground between heightened fact pleading, which is expressly rejected, and allowing
complaints that are no more than labels and conclusions or a formulaic recitation of the
elements of a cause of action, which the Court stated will not do.” Id. at 640–41 (quoting
Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)). Because Smith is
proceeding pro se, the court construes his pleadings liberally, but does not act as his
advocate. Merryfield v. Jordan, 584 F.3d 923, 924 n.1 (10th Cir. 2009).
Background
Smith is a former Oklahoma state prisoner who was incarcerated in the Oklahoma
County Detention Center from March 20, 2016, to May 11, 2016. The complaint alleges
that during Smith’s incarceration, he suffered from bites from bedbugs. It also alleges that
he suffered “damage” to his hips from sleeping without a mattress. Smith’s mattress was
apparently removed for some period of time due to the bedbug infestation.
The complaint also generally alleges overcrowding, lack of mental health treatment
for inmates, gang violence, beatings, and a lack of security at the Detention Center. Smith
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claims that these conditions put him in “constant fear of much stronger and younger
inmates,” but does not allege that he was actually assaulted. Finally, Smith claims that his
guilty plea in his criminal case was not voluntary.
Smith’s objection to the Report contains additional allegations beyond those in the
initial complaint. He claims that after he was bitten by bedbugs, he suffered various
physical symptoms, including dizziness, blurry vision and pain. Smith also alleges that he
was without a mattress for a period of days, or over a week, and that he still suffers aches
and pains in his hips from that period. When Smith asked a guard why they took his
mattress, the guard allegedly responded “Not to make your incarceration easier.” Smith
further alleges that while he was in intake, a guard responded to his request for a working
toilet by instructing him to relieve himself in his pants. Finally, Smith claims his cellmate
shoved him against the wall on more than one occasion.
Analysis
Smith’s claims are essentially an Eighth Amendment claim based on the conditions
of his confinement and a due process claim related to his criminal conviction. He names as
defendants Sheriff John Whetsel, the County Commissioners of Oklahoma County, and
Oklahoma City “policymakers.” 2 Smith does not challenge Judge Jones’ determination
regarding the due process claim, and the court will therefore adopt the Report and

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Smith specifically names Whetsel in his official and individual capacities, but only names
the Commissioners and “policymakers” in their individual capacities. However, the nature of his
allegations make clear that he is seeking to assert claims against the county.

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Recommendation as to dismissal of that claim. 3 Rather, his objection challenges only the
recommendation as to the Eighth Amendment claim.
The Eighth Amendment protects prisoners from conditions that result in “serious
deprivations of basic human needs.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). This
requires more than “restrictive and even harsh” conditions. Id. Instead, the problems must
deprive the prisoner of the “minimal civilized measure of life’s necessities.” Barney v.
Pulsipher, 143 F.3d 1299, (10th Cir. 1998) (citing Rhodes, 452 U.S. at 347).
Prison officials also must protect prisoners from “constant threats of violence and
sexual assaults from other inmates.” Ramos v. Lamm, 639 F.2d 559, 572 (10th Cir. 1980).
To state a claim for failure to protect, “the inmate must show that he is incarcerated under
conditions posing a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825,
834 (1994).
1. Individual Capacity claims.
Smith’s claims against the individual defendants are not based on their personal
conduct or interactions with plaintiff, but rather on the defendants’ supervisory positions.
Supervisor liability cannot be established based on a theory of respondeat superior. Monell
v. N.Y.C. Dept. of Soc. Servs., 436 U.S. 658, 691 (1978) (no vicarious liability for a
municipal “person” under 42 U.S.C. § 1983). Instead, public officials can be held liable in
their individual capacities only for their personal participation in the constitutional

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The recommendation, based on Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), clearly
appears to be substantively correct.

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deprivations. In the case of an official with policymaking authority, a plaintiff must show
that “(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.” Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010). Smith’s
complaint fails to plausibly establish any of these elements.
First, the complaint fails to identify any specific policy causing the harms Smith
claims he suffered. He makes a conclusory reference to an “unwritten” policy of taking
mattresses without replacing them with new mattresses, but admits that the mattresses were
removed because of the bedbug infestation of which he complained.
Second, the allegations do not suggest harm of sufficient seriousness to be a basis
for an Eighth Amendment violation.

While a bedbug infestation no doubt causes

discomfort, it does not suggest a deprivation of the “minimal civilized measure of life’s
necessities.” Given the nature and duration of the physical symptoms he claims to have
experienced as a result, the supplemental information he has provided does not change that
conclusion. The same is true of plaintiff’s complaint of hip “damage” from sleeping on a
hard bed without a mattress.
The assertions of overcrowding, gang violence, and the general condition of the
detention center also fail to establish an Eighth Amendment claim. Smith has not alleged
facts tending to show that the overcrowding deprived him of the minimal civilized measure
of life’s necessities. He does not claim that the overcrowding deprived him of food,

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clothing, shelter, or freedom from assault. Smith only alleges that he was shoved against
a wall more than once.

This is not enough to state an Eighth Amendment claim. And

while Smith does allege that other inmates suffered beatings and more extensive violence,
he lacks standing to raise Eighth Amendment claims based on the experience of other
inmates. Swoboda v. Dubach, 992 F.2d 286, 290 (10th Cir. 1993).
In addition to not identifying a specific policy leading to constitutional deprivations,
the complaint also fails to allege facts from which the requisite state of mind, deliberate
indifference, might be inferred.

Deliberate indifference requires more than mere

negligence. Farmer, 511 U.S. at 835. Rather, an official is deliberately indifferent if he
knows of and disregards a substantial risk of serious harm. Id. at 841-44. The complaint
does not suggest that these defendants knew of a substantial risk of serious harm to Smith,
nor does it suggest a basis for concluding they were deliberately indifferent to his
circumstances. 4 The removal of the mattress was apparently in reaction to plaintiff’s
complaints about the bedbugs. Even as supplemented by plaintiff, the complaint fails to
state a claim against the defendants in their individual capacities based on the Eighth
Amendment.
2. Official Capacity Claims.
Claims against an official in his official capacity are essentially claims against the
entity that the official represents. Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010).

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Plaintiff’s objection indicates that he successfully grieved issues relating to his
psychotropic medications, which suggests his concerns were not being generally ignored.

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A municipality or county cannot be held responsible for the unconstitutional acts of its
officers absent some wrongful action by the municipality or county. To state a claim under
§ 1983 against a municipality or county, a plaintiff must show “(1) a municipal employee
committed a constitutional violation, and (2) a municipal policy or custom was the moving
force behind the constitutional deprivation.” Cordova v. Aragon, 569 F.3d 1182, 1193
(10th Cir. 2009) (quoting Walker v. City of Orem, 451 F.3d 1139, 1152 (10th Cir. 2006)).
The complaint does not identify any such policy or custom. The only allegation that
comes close is Smith’s suggestion of an unwritten policy as to the mattresses. But even
taking that conclusory allegation as true, there is still no basis for concluding that “policy”
was the moving force behind a constitutional deprivation. Removing mattresses for around
a week to deal with a bedbug infestation does not rise to the level of an Eighth Amendment
violation. And while Smith alleges several other discrete incidents that he claims violated
his constitutional rights, he fails to present any factual allegations that would demonstrate
that “a municipal policy or custom was the moving force” behind those alleged violations.
Therefore, the official capacity claims must be dismissed.
Taking the complaint’s well-pleaded allegations as true, and as supplemented by the
additional allegations in Smith’s objection to the report and recommendation, the court
concludes the complaint fails to state a claim upon which relief may be granted. The report
and recommendation [Doc. #8] is therefore ADOPTED and this case is DISMISSED.
This dismissal shall count as a prior occasion “strike” under 28 U.S.C. § 1915(g), as the
complaint fails to state a claim.
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IT IS SO ORDERED
Dated this 31st day of March, 2017.

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