United States District Court, E.D. Oklahoma
MIKEL J. KINDER, JR., Plaintiff,
OKLAHOMA DEPARTMENT OF CORRECTIONS, Defendant.
OPINION AND ORDER
A. White United States District Judge Eastern District of
action is before the Court on Defendant Oklahoma Department
of Corrections' motion to dismiss (Dkt. 9). Plaintiff, a
pro se prisoner who is incarcerated at North Fork
Correctional Center in Sayre, Oklahoma, brings this action
under the authority of 42 U.S.C. § 1983. He is seeking
monetary relief for alleged constitutional violations during
his incarceration at Davis Correctional Facility, a private
prison in Holdenville, Oklahoma. The sole defendant is the
Oklahoma Department of Corrections.
alleges his constitutional rights were violated while he was
at Davis Correctional Facility, which is contracted by
Defendant Oklahoma Department of Corrections. He claims that
on March 1, 2016, he received a note from the Indian gang
called “Savage Boy, ” threatening to have him
stabbed on sight in retaliation for the murder of their
“brother.” The note was referring to the victim
of the crime for which Plaintiff is incarcerated. Plaintiff
also claims he was told that the Neighborhood Crips wanted
him stabbed on sight, because they believed he had informed
prison staff of the Crips' illegal activities.
further alleges he advised his unit team (case manager, unit
manager, counselor, chief of security, warden and internal
affairs) of the threat and requested a “protective
measures packet.” He also asked to be placed in a
single cell to await a transfer, because his cellmate was a
Crip gang member who had demonstrated hostility toward
Plaintiff, and Plaintiff did not feel safe. The requests were
April 15, 2016, Plaintiff allegedly sent a letter to the
Interim Director of the Department of Corrections, stating he
had received threats on his life and believed his life was in
danger. The letter further stated that his cellmate was a
Crip who seemed to want to harm him. Plaintiff could not
sleep because of his fear of being attacked. The Interim
Director advised Plaintiff to address this issue through the
no one would protect him and that he could not protect
himself, Plaintiff pleaded with his cellmate when the
cellmate approached Plaintiff to harm him. The cellmate said
he was half Indian, and Plaintiff had killed the wrong
Indian. After Plaintiff showed the cellmate evidence of
Plaintiff's innocence, the cellmate allegedly had a
“change of heart” and agreed to help Plaintiff by
writing a statement about the plan to stab him. The cellmate
allegedly told Plaintiff he had been offered $500 to stab
him, and the cellmate put this information in writing to help
Plaintiff get assistance from the staff. Plaintiff does not
allege he was physically harmed by another inmate.
Oklahoma Department of Corrections has filed a motion to
dismiss, alleging the Eleventh Amendment bars Plaintiff's
claims against this defendant (Dkt. 9). Plaintiff has not
filed a response to the motion or requested leave to file an
Eleventh Amendment bars federal court jurisdiction over a
state agency for both money damages and injunctive relief, or
a state official acting in her official capacity in a suit
for damages.” Ellis v. Univ. of Kansas Med.
Ctr., 163 F .3d 1186, 1196 (10th Cir.1998). Absent a
waiver by the state, or a valid congressional override, the
amendment bars a damages action against a state in federal
court. Kentucky v. Graham, 473 U.S. 159, 169 (1985).
Here, the defendant has not waived immunity. Therefore, the
Court finds the motion to dismiss must be granted.
Eighth Amendment imposes on prison officials a duty to
protect prisoners from violence at the hands of other
inmates. See Ramos v. Lamm, 639 F.2d 559, 572-73
(10th Cir. 1980), cert. denied, 450 U.S. 1041
(1981). Prison officials are not, however, expected to
prevent all inmate-on-inmate violence. Farmer v.
Brennan, 511 U.S. 825, 834 (1994); Berry v.
City of Muskogee, 900 F.2d 1489, 1494-95 (10th Cir.
Under some circumstances, the failure to protect an inmate
from a threat of violence may state a claim under the Eighth
Amendment. Northington v. Jackson, 973 F.2d 1518,
1524 (10th Cir. 1992). . . . The general rule in the usual
case, however, is that mere words, without more, do not
invade a federally protected right. Collins v.
Cunday, 603 F.2d 825, 827 (10th Cir. 1979). . By
implication, a defendant's failure to protect an inmate
from idle threats by fellow inmates does not violate the
Bauer v. Dantis, No. 95-2153, 1996 WL 77037 (10th
Cir. Feb. 21, 1996) (unpublished) (quoting Bauer v.
Dantis, No. 94-cv-430-LH-LCH (D.N.M. July 7, 1995)).
the absence of any allegation in the complaint that another
prisoner actually attempted to physically injure Plaintiff,
the Court finds Plaintiff's allegations fail to
demonstrate that prison officials were deliberately
indifferent to his safety. Therefore, amendment of the
complaint would be futile.
Defendant's motion to dismiss (Dkt. 9) is GRANTED, and
this action is, in all respects, DISMISSED WITHOUT PREJUDICE.