United States District Court, W.D. Oklahoma
SUPPLEMENTAL REPORT AND RECOMMENDATION
M. PURCELL UNITED STATES MAGISTRATE JUDG£
a state prisoner appearing with counsel, brought this civil
rights action pursuant to 42 U.S.C. § 1983. The matter
has been referred to the undersigned Magistrate Judge for
initial proceedings consistent with 28 U.S.C. §
filed his Complaint in this action on January 17, 2017. At
that time, Plaintiff was incarcerated at the Oklahoma State
Penitentiary (“OSP”), a maximum security prison
in McAlester, Oklahoma. Plaintiff is serving two life
sentences for Robbery with a Firearm and Shooting with Intent
to Kill, as well as two concurrent ten-year terms of
imprisonment for Assault and Battery with a Dangerous Weapon
and Third Degree Arson. He is also serving a concurrent five
year term of imprisonment for Larceny of an Automobile.
allegations in the Complaint involve the period of time when
he was incarcerated at Cimarron Correctional Facility
(“CCF”), a private prison owned and operated by
CoreCivic, formerly Corrections Corporation of America
(“CCA”), prior to his transfer to OSP.
alleges in his Complaint that Defendants CCA (now CoreCivic)
and CCF officials Miller, Cox, Battles, Franklin, Wallis,
Waters, Shannon, and Hilligoss violated his Eighth Amendment
rights by failing to protect him from injuries caused by
other prisoners in a physical altercation occurring on
January 14, 2015, and he seeks damages for this alleged
constitutional deprivation under 42 U.S.C. § 1983.
See Farmer v. Brennan, 511 U.S. 825, 833
(1994)(holding prison officials have the duty, imposed by the
Eighth Amendment, “to protect prisoners from violence
at the hands of other prisoners”). Defendants Franklin
and Wallis were previously dismissed from the action.
alleges in the Complaint that during his incarceration in the
custody of the Oklahoma Department of Corrections
(“ODOC”), beginning in 2008, he was
“harassed, targeted and assaulted by a particular gang
within the [O]DOC system.” Complaint (Doc. # 1), at 5.
Plaintiff alleges that he submitted grievances and requests
to unidentified correctional officials “notifying these
officials of the life-threatening dangers he faced within the
[O]DOC system and requesting protective services, including
transfer to a facility in another State.” Id.
Plaintiff also alleges that he submitted “numerous
requests for protection to . . . Miller, Hilligoss, Cox,
Battles, Wallis and Waters for years . . . [but] none of
these Defendants took any measure to protect Mr.
Henderson.” Id. at 6.
contends that on January 21, 2013, he submitted a Request to
Staff (“RTS”) to “a [O]DOC Case Manager
stating his concern about retaliation from a gang he had
issues with . . . .” Id. at 5. Plaintiff
alleges he requested an out-of-state transfer “before
it is too late” and his “request was
denied.” Id. Plaintiff alleges that this RTS
gave “CCA, including [former CCF] Warden Miller, [CCF]
Chief Hilligoss and [CCF] Security Chief Cox, knowledge that
Plaintiff was at an excessive risk of bodily harm” but
these Defendants “took no measures to protect Mr.
Henderson, such as segregated housing or additional
supervision, in deliberate indifference to his safety.”
alleges he “made numerous requests for
protection” from “a particular gang, ” but
that he “was left to fend for himself in general
population” at CCF. Id. Plaintiff also alleges
he “had been attacked on numerous occasions by a
particular gang.” Plaintiff does not identify in the
Complaint the name of this so- called “gang” or
the names of any individuals who had allegedly assaulted him.
contends that on January 13, 2015, his “cousin, ”
who was also housed at CCF, “was assaulted in his cell
by the same gang that had previously assaulted Mr. Henderson,
” yet “Defendants took no action to
protect” Plaintiff. Id. at 7. Plaintiff
alleges that on January 14, 2015, he “was brutally
assaulted by members of the particular gang in his general
population cell. He was stabbed 17 times, and suffered severe
injuries, including lacerations, abrasions and punctures to
his chest, face, upper and lower back and arms. He suffered
intense and extreme physical and mental pain and
anguish.” Id. Plaintiff alleges that former
Defendant Franklin, a CCF correctional officer,
“allowed” the other prisoners to enter
Plaintiff's cell. Id. at 7-8.
alleges Defendants were deliberately indifferent to his
health and safety, in violation of his Eighth Amendment
rights, and that this deliberate indifference was “in
furtherance of and consistent with policies, customs and/or
practices which [Defendant former CCF] Warden Miller and CCA
[now CoreCivic] promulgated, created, implemented or
possessed responsibility for the continued operation of
[sic].” Id. at 8. Finally, Plaintiff alleges
an “out of control atmosphere and custom of violence
[was] fostered by CCA” (now CoreCivic), including a
previous “riot/gang battle at CCF” in 2015
resulting in four inmates' deaths, and other incidents of
violence that “evidence . . . an unchecked and
unrestrained custom of violence at the CCF.”
Id. He alleges a lack of supervision and inadequate
staffing at CCF.
the Court is Defendants CCA, Miller, Cox, Hilligoss, Shannon,
Battles, and Waters' (“Defendants”) Motion
for Summary Judgment (Doc. # 45), seeking summary judgment
pursuant to Fed.R.Civ.P. 56 due to Plaintiff's failure to
exhaust administrative remedies as required by 42 U.S.C.
§ 1997e(a). Plaintiff has responded to Defendants'
Motion for Summary Judgment, and Defendants have filed a
Reply to the Response.
Review of Summary Judgment Motion
judgment may be granted when there is no genuine dispute as
to any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). In
considering a summary judgment motion, the court reviews the
evidence and inferences drawn from the record in the light
most favorable to the nonmoving party. Burke v. Utah
Transit Auth. & Local, 462 F.3d 1253, 1258 (10th
Cir. 2006)(quotation omitted). A dispute is
“genuine” if a reasonable jury could return a
verdict for the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). “Material
facts” are “facts which might affect the outcome
of the suit under the governing law.” Id.
“At the summary judgment stage, a complainant cannot
rest on mere allegations, but must set forth by affidavit or
other evidence specific facts, which for purposes of the
summary judgment motion will be taken to be true.”
Burke, 462 F.3d at 1258 (internal quotation marks
and citations omitted). “Where the record taken as a
whole could not lead a rational trier of fact to find for
Thus, Defendants' previously-filed Motion for Summary
Judgment (Doc. # 23) is DENIED AS MOOT. Plaintiff's
argument in his responsive pleading that Defendants'
Motion for Summary Judgment (Doc. # 47) is not properly filed
is without merit. the nonmoving party, there is no genuine
issue for trial.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986)(quotation
Exhaustion of Administrative Remedies Under 42 U.S.C.
Prisoner Litigation Reform Act (“PLRA”), enacted
in 1996, requires a prisoner to exhaust his or her
administrative remedies prior to filing a lawsuit in federal
court challenging prison conditions under 42 U.S.C. §
1983 or any other Federal law. 42 U.S.C. § 1997e(a).
“[E]xhaustion requirements, ” like those in the
PLRA, “are designed to . . . give the agency a fair and
full opportunity to adjudicate their claims” before the
plaintiff proceeds to file an action in federal court.
Woodford v. Ngo, 548 U.S. 81, 90 (2006). The
PLRA's mandatory exhaustion requirement, see Jones v.
Bock, 549 U.S. 199, 211 (2007), applies “to all
inmate suits about ...