United States District Court, W.D. Oklahoma
FRANKLIN C. SMITH, Plaintiff,
SHERIFF JOHN WHETSEL, et al., Defendants.
HEATON CHIEF U.S. DISTRICT JUDGE
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. 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.
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).
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
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.
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
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.” 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. Rather, his objection challenges only the
recommendation as to the Eighth Amendment claim.
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).
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).
Individual Capacity claims.
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.
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 ...