Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smith v. Whetsel

United States District Court, W.D. Oklahoma

March 31, 2017

SHERIFF JOHN WHETSEL, et al., Defendants.



         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 (10th Cir. 2007). When reviewing a claim under that standard, the court accepts all well-pleaded 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).


         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 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.


         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 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 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.