United States District Court, E.D. Oklahoma
OPINION AND ORDER
A WHITE, UNITED STATES DISTRICT JUDGE.
action is before the Court on Defendants' motions to
dismiss and the Court's own motion to dismiss pursuant to
28 U.S.C. § 1915(e). The Court has before it for
consideration Plaintiff's complaint (Dkt. 1), Defendants
Todd Welsh and Terri Apala's motion to dismiss (Dkt. 17),
Defendant Robert Patton's motion to dismiss (Dkt. 20),
Plaintiff's response to Welsh and Apala's motion
(Dkt. 25), and Welsh and Apala's reply (Dkt. 26).
is a pro se prisoner in the custody of the Oklahoma
Department of Corrections (DOC) who is incarcerated at
William S. Key Correctional Center in Fort Supply, Oklahoma.
He brings this action under the authority of 42 U.S.C. §
1983, seeking monetary relief for alleged constitutional
violations during his incarceration at Jackie Brannon
Correctional Center (JBCC) in McAlester, Oklahoma. The
defendants are Robert Patton, former DOC Director, in his
individual capacity; Emma Watts, JBCC Warden; Dr. Carmen,
JBCC Physician; Todd Welsh, JBCC Unit Manager; Terri Apala,
JBCC Case Manger; and Joe M. Allbaugh, current DOC Director,
in his official capacity.
alleges he was required to transfer from JBCC to Oklahoma
State Penitentiary (OSP) to work in Food Service. When he
told Defendants Todd Welsh and Terri Apala that he could not
perform any stressful work, they instructed him to submit a
sick call request to talk to Dr. Carmen. Plaintiff submitted
a request, and an appointment with Dr. Carmen was scheduled.
Plaintiff went to his medical appointment, he explained to
Dr. Carmen that a bulging disc in his neck was pressing
against his nerves and causing him to lose strength on the
right side of his body. Dr. Carmen had Plaintiff lift his
arms and put his hands behind his back. She then said there
was nothing wrong with him, and “OSP has to eat.”
Carmen gave Plaintiff a seven-day lay-in which she did not
renew. On May 31, 2015, Plaintiff was sent to work in OSP
Food Service. When he started to go to his assigned work
area, he slipped and fell, injuring his back and aggravating
a previous injury. He was instructed to put ice on the
injured areas but received no other medical treatment.
Plaintiff also claims he was issued disciplinary reports on
eight occasions, but he does not explain the reasons for the
reports (Dkt. 1 at 2, 8).
alleges Defendants were deliberately indifferent to his
serious medical needs in violation of the Eighth Amendment,
resulting in the unnecessary and wanton infliction of pain.
Furthermore, contrary to Defendants' assumptions in their
motions, he asserts he is not alleging a claim pursuant to
the Oklahoma Governmental Torts Claims Act, Okla. Stat. tit.
51, § 151 (Dkt. 25).
courts must engage in a preliminary screening of cases in
which prisoners seek redress from a governmental entity or
officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The court must identify any cognizable
claims and dismiss any claims which are frivolous, malicious,
fail to state a claim upon which relief may be granted, or
seek monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915A(b); 28 U.S.C. §
pleading standard for all civil actions was articulated in
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
See Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). To
avoid dismissal for failure to state a claim under
Fed.R.Civ.P. 12(b)(6), a complaint must present factual
allegations, assumed to be true, that “raise a right to
relief above the speculative level.” Twombly,
550 U.S. at 555. The complaint must contain “enough
facts to state a claim to relief that is plausible on its
face.” Id. at 570. A court must accept all the
well-pleaded allegations of the complaint as true, even if
doubtful in fact, and must construe the allegations in the
light most favorable to the plaintiff. Id. at
555-56. “So, when the allegations in a complaint,
however true, could not raise a claim of entitlement to
relief, ” the cause of action should be dismissed.
Id. at 558. The Court applies the same standard of
review for dismissals under 28 U.S.C. §
1915(e)(2)(B)(ii) that is employed for Fed.R.Civ.P. 12(b)(6)
motions to dismiss for failure to state a claim. Kay v.
Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007).
se plaintiff's complaint must be broadly construed under
this standard. Erickson v. Pardus, 551 U.S. 89, 94
(2007); Haines v. Kerner, 404 U.S. 519, 520 (1972).
The generous construction to be given to the pro se
litigant's allegations “does not relieve the
plaintiff of the burden of alleging sufficient facts on which
a recognized legal claim could be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Notwithstanding a pro se plaintiff's various mistakes or
misunderstandings of legal doctrines or procedural
requirements, “if a court can reasonably read the
pleadings to state a valid claim on which the plaintiff could
prevail, it should do so . . . .” Id. A
reviewing court need not accept “mere conclusions
characterizing pleaded facts.” Bryson v. City of
Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990); see
also Twombly, 550 U.S. at 555 (“While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff's obligation to
provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.”
(quotations and citations omitted)). The court “will
not supply additional factual allegations to round out a
plaintiff's complaint or construct a legal theory on a
plaintiff's behalf.” Whitney v. New
Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997)
or Individual Capacities
Welsh, Apala, and Patton allege in their motions to dismiss
that it is unclear whether they have been sued in their
official capacities, individual capacities, or both. When a
pro se plaintiff fails to specifically indicate whether he is
suing a defendant in his official or individual capacity, he
is given the benefit of the doubt, and the court will
liberally construe his claims against named defendants in
both their official and individual capacities. See Hull
v. State of N.M. Taxation & Revenue Dep'ts Motor
Vehicle Div., 179 Fed. App'x 445, 447, 2006 WL
1075617, at **2 (10th Cir. Apr. 25, 2006) (citing Brady
v. Smith, 656 F.2d 466, 469 (9th Cir. 1981)). Therefore,
the Court finds Defendants Welsh, Apala, and Patton were sued
in both capacities.