United States District Court, W.D. Oklahoma
L. RUSSELL UNITED STATES DISTRICT JUDGE
the Court is Magistrate Judge Shon Erwin's Report and
Recommendation, Doc. 111, that the Court grant
Defendants' Motion to Dismiss, Doc. 94, and dismiss all
of Plaintiffs' claims with prejudice. Plaintiff objects.
Doc. 112. In light of his objection, the Court, pursuant to
28 U.S.C. § 636(b)(1)(B), has reviewed the Report and
Recommendation de novo. In doing so, it has liberally
construed Mr. Hines's pro se filings pursuant to
Haines v. Kerner, 404 U.S. 519, 520 (1972).
reasons that follow, the Court will ADOPT IN PART the Report
and Recommendation. Defendants' Motion to Dismiss will be
GRANTED IN PART and DENIED IN PART.
Thurman Harvey Hines has sued several Oklahoma state prison
officials for his alleged treatment at the Oklahoma State
Reformatory (OSR) in Granite, Oklahoma. Having since been
transferred to the Davis Correctional Facility in
Holdenville, Oklahoma, Mr. Hines claims that prison officials
at OSR violated his constitutional rights in a number of
and caused him emotional distress. The Defendants are eight
officials employed at the OSR and three officials employed by
the Oklahoma Department of Corrections (DOC) in
administrative positions. Mr. Hines, who has sued all Defendants
in both their individual and official capacities, seeks
monetary, injunctive, and declaratory relief.
Standard of Review
Federal Rule of Civil Procedure 8(a)(2), a pleading must
contain a ‘short and plain statement of the claim
showing that the pleader is entitled to relief.'”
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). A
complaint must contain “sufficient factual matter,
[which if] accepted as true . . . state[s] a claim to relief
that is plausible on its face.” Id. at 678
(quoting Bell Atlantic Corp. v Twombly, 550 U.S.
544, 570 (2007)). In considering a motion to dismiss for
failure to state a claim, a plaintiff's well-pled factual
allegations must be viewed in the light most favorable to the
plaintiff. Beedle v. Wilson, 422 F.3d 1059, 1063
(10th Cir. 2005). Because Mr. Hines brings this suit pro se,
the Court liberally construes his claims pursuant to
Haines v. Kerner, 404 U.S. at 520-21. That said, Mr.
Hines “still has ‘the burden of alleging
sufficient facts on which a recognized legal claim could be
based.'” Jenkins v. Currier, 514 F.3d
1030, 1032 (10th Cir.2008) (quoting Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir.1991)). “Dismissal of a
pro se complaint for failure to state a claim [under §
1915(e)(2)(B)(ii)] is proper only where it is obvious that
the plaintiff cannot prevail on the facts he has alleged and
it would be futile to give him an opportunity to
amend.” Nagy v. Spence, 172 F.App'x 847,
848 (10th Cir. 2006) (unpublished) (quoting Perkins v.
Kansas Dep't of Corr., 165 F.3d 803, 806 (10th
Cir.1999)). If the Court does dismiss a prisoner's
petition, the Court should still explain the pleading's
deficiencies so that a prisoner with a meritorious claim can
then submit an adequate complaint. Cf. Nasious
v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163
(10th Cir.2007) (reversing dismissal with prejudice, in part
because of district court's failure to explain to pro se
plaintiff what is required by Rule 8).
Hines's claims, when broadly framed, fall into one of
five categories: (1) claims under 42 U.S.C. § 1983, (2)
conspiracy under 42 U.S.C. § 1985, (3) First Amendment
retaliation, (4) state law claims for intentional and
negligent infliction of emotional distress, and (5) claims
for declaratory and injunctive relief. The Court takes them
up one by one. While the Court concurs with the findings of
the Magistrate Judge as it pertains to some claims, it
appears that the he did not address others.
42 U.S.C. § 1983 Claims
Court first takes up Mr. Hines's claims under 42 U.S.C.
§ 1983. Section 1983 provides that a person acting
under color of state law who “subjects, or causes to be
subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party
injured.” 42 U.S.C. § 1983. The statute is not
itself a source of substantive rights, but a method for
vindicating federal rights elsewhere conferred.”
Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979).
Because “Section 1983 does not allow plaintiffs to
create a federal case out of every violation of state common
law . . . the first inquiry in any § 1983 suit . . . is
whether the plaintiff has been deprived of a right
‘secured by the Constitution and laws.' ”
Margheim v. Buljko, 855 F.3d 1077, 1084 (10th Cir.
2017) (internal cites and alterations omitted).
Hines believes that Defendants have run roughshod over his
federal rights in numerous ways. He alleges violation of his
Fourteenth Amendment rights to due process and equal
protection of the laws, as well as cruel and unusual
punishment in violation of the Eighth Amendment.
Due Process Claims
Hines points to several alleged due process violations. He
first complains that several defendants-Morris, Hendrix,
Hill, McCullom, Patton, Williams, Allbaugh, and
Kinnision-violated his due process rights in disciplinary
hearings at OSR by failing to provide him with videotape of
his alleged misconduct, restricting his ability to call
witnesses, providing biased hearing officers, and producing
evidence insufficient for a conviction. The Magistrate Judge
recommended dismissing these claims for Mr. Hines's
failure to show that these disciplinary hearings in any way
infringed on a protected liberty interest. The Court agrees.
Fourteenth Amendment prohibits states from depriving citizens
of liberty without due process of law.” Wilson v.
Jones, 430 F.3d 1113, 1117 (10th Cir. 2005). This
guarantee applies to prison inmates, but “[p]rison
disciplinary proceedings are not part of a criminal
prosecution, and the full panoply of rights due a defendant
in such proceedings does not apply.” Harrison v.
Morton, 490 F.App'x 988, 992 (10th Cir. 2012)
(unpublished) (citing Wolff v. McDonnell, 418 U.S.
539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)). In order for
a prison inmate to show that his disciplinary proceedings
have implicated a protected liberty interest, an inmate must
show that he was “subjected to (1) conditions that
impose atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life or (2)
disciplinary actions that inevitably affect the duration of
his sentence.” Harrison v. Morton, 490
F.App'x 988, 992 (10th Cir. 2012) (alterations and quotes
Hines's due process claim fails because he has shown
neither of these things. Nowhere does he allege that these
disciplinary actions affected the duration of his sentence.
And while he claims in his Objection that he was subject to
atypical and significant hardship through disciplinary
segregation and the restriction of visitation and canteen
rights, he does not elaborate on how his hardship qualifies
as significant. Consequently, that due process claim is
dismissed for failure to state a claim.
Hines's second due process claim consists of allegations
that several officials- Patton, Knutson, McCullom, and
Bornheim-inappropriately denied the grievance complaints he
filed with prison staff. The Magistrate Judge also found this
claim failed as a matter of law: Mr. Hines failed to plead
facts showing these Defendants were personally involved in a
way sufficient to trigger liability under § 1983. That
determination was correct. Mr. Hines allegations amount to no
more than the argument that these Defendants must be
complicit because they denied his grievances. His claims
essentially seek to impose supervisor liability on these
Defendants, which the Court may not entertain under §
1983: “[Section] 1983 does not recognize a concept of
strict supervisor liability; the defendant's role must be
more than one of abstract authority over individuals who
actually committed a constitutional violation.”
Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir.
2008). Consequently, the “denial of a grievance, by
itself without any connection to the violation of
constitutional rights alleged by plaintiff, does not
establish personal participation under § 1983.”
Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.
Hines does not address this legal shortcoming in his
Objection. Instead, he insists the denial of his grievances
violated federal law but does not explain how. And he
contends that the Magistrate Judge improperly construed one
of his “misconduct appeals” as a “grievance
appeal.” None of this, however, rectifies the
deficiency: the denial of a grievance alone does not invite
liability under § 1983.
are two other way ways Mr. Hines believes Defendants violated
his due process rights: (1) failing to follow prison policy
and procedures during his disciplinary hearings and (2)
denying him access to the courts by refusing to give him an
ink pen. While the Magistrate Judge did not address these
claims in the context of due process, they too fail in any
Mr. Hines's complaints about prison officials ignoring
DOC policy, he must point to some way in which Defendants
trampled upon his federally secured rights in order to state
a claim under § 1983. Yet all Mr. Hines mentions is a
failure to abide by DOC evidentiary standards in his
disciplinary hearings. That allegation will not suffice
because the violation of a prison policy does not state a
claim for the violation of a constitutional right. See,
e.g., Williams v. Miller, No. 16-6346, 2017 WL 2438128,
at *6 n.14 (10th Cir. June 6, 2017) (unpublished); see
also Hovater v. Robinson, 1 F.3d 1063, 1068 n.4 (10th
Cir. 1993) (“[A] failure to adhere to administrative
regulations does not equate to a constitutional
violation.”); see also Hostetler v. Green, 323
Fed.Appx. 653, 657-58 (10th Cir. 2009) (noting a
defendant's mere violation of a prison regulation does
not equate to a constitutional violation).
does Mr. Hines's complaint about not being given an ink
pen by the OSR Law Library Supervisor, Paula Bethea,
come any closer to stating a due process claim. To be sure,
an inmate has a constitutional right of meaningful access to
the Courts, meaning prison officials must provide Mr. Hines
with a “reasonably adequate opportunity” to
present his legal claims. Bounds v. Smith, 430 U.S.
817, 825, 97 S.Ct. 1491, 1496, 52 L.Ed.2d 72 (1977);
Petrick v. Maynard, 11 F.3d 991, 994 (10th Cir.
1993). Practically speaking, this standard requires prisoners
be afforded paper, writing implements, stamps, and access to
notary services, as well access to an adequate law library or
legal advisor. Bounds, 97 S.Ct. at 1496-97;
Petrick, 11 F.3d at 994.
Hines must still have standing. He must show that the denial
of an ink pen- i.e., access to courts-prejudiced
him. “A prisoner must demonstrate actual injury from
the interference with his or her access to the courts; this
principle derives from the doctrine of standing.”
A.M. v. New Mexico Dep't of Health, 148
F.Supp.3d 1232, 1271 (D.N.M. 2015); see also Harmon v.
Keith, 383 Fed.Appx. 770, 771 (10th Cir.2010)
(unpublished) (“An inmate lacks standing to raise a
right-of-access claim unless he is able to demonstrate actual
he has not made this showing. And it is doubtful he could
even if the Court granted him leave to amend. He complains of
a lack of access to the courts despite having filed this
lawsuit. Moreover, even if Defendants did improperly deny Mr.
Hines legal supplies, then “[a]t worst, defendants'
misconduct temporarily, but not fatally, delayed, and did not
unreasonably hinder, the filing of [his] claims.”
Purkey v. Green, 28 F.App'x 736, 742 (10th Cir.
2001) (unpublished). His § 1983 claim based on his
alleged hindered access to the Courts is therefore denied.
conclusion, Mr. Hines has failed to state a plausible claim
under 42 U.S.C. § 1983 for the denial of any due process