United States District Court, W.D. Oklahoma
HEATON, CHIEF U.S. DISTRICT JUDGE
Anthony Hinds, an Oklahoma prisoner proceeding pro
se, brought this civil rights action under 42 U.S.C.
§ 1983 against three employees of the privately operated
Cimarron Correctional Facility (“CCA”). The case
was referred to U.S. Magistrate Judge Gary M. Purcell 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 Purcell issued a report and
recommendation [Doc. #12] recommending dismissal of the
complaint for failure to state a claim upon which relief
could be granted. The court adopted the report and
recommendation, but gave plaintiff leave to amend his
complaint. Plaintiff amended his complaint, and Judge Purcell
issued a supplemental report and recommendation, which again
recommended dismissal of plaintiff's claims. Plaintiff
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 Mr. Hinds 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 an Oklahoma state prisoner currently incarcerated at CCA.
The documents attached to the amended complaint show that
Correctional Officer Knighton imposed a misconduct (a
disciplinary action within the prison) on plaintiff on July
28, 2016. Plaintiff claims the misconduct was fabricated, but
that his attempts to have the misconduct reversed failed due
to the flaws in the grievance process.
amended complaint also alleges that Knighton verbally
harassed him, leading to a mental breakdown and “acts
to commit suicide.” [Doc. #21] at 13. After his release
from the medical unit, plaintiff alleges that Knighton walked
into his cell while he slept, yanked plaintiff's blanket
to the floor, and grabbed plaintiff's ankle. Plaintiff
reported these incidents to officials Cox and Byrd, claiming
that he was at risk. Cox and Byrd did not remove plaintiff
from his housing assignment or address the issues.
now sued Knighton, Cox, and Byrd for their alleged actions
amended complaint asserts claims for violations of due
process and the Eighth Amendment's prohibition on cruel
and unusual punishment.
process claims involve plaintiff's allegedly fabricated
misconduct. As outlined in the court's previous order,
plaintiff cannot attack the legitimacy of the misconduct in
an action under § 1983 unless the misconduct has been
reversed or vacated. See Heck v. Humphrey, 512 U.S.
477, 487 (1994); Edwards v. Balisok, 520 U.S. 641,
645 (1997) (holding of Heck applies to prison
disciplinary actions). Plaintiff argues that he attempted to
have the misconduct reversed, but the administrative
grievance process was unavailable to him. Plaintiff's
argument confuses the Prison Litigation Reform Act's
(“PLRA”) exhaustion requirement with the Supreme
Court's holding in Heck. Plaintiff's claim
is not subject to dismissal because he has not exhausted, it
is subject to dismissal because the misconduct itself has not
been reversed. To the extent that plaintiff is arguing that
he lacks a forum in which to challenge his misconduct, the
court notes that various federal and state avenues for habeas
relief exist outside of the prison grievance system. The
alleged unavailability of a grievance process is therefore
not a basis for avoiding Heck's requirements.
Eighth Amendment claims against Knighton also fail. Verbal
harassment leading to mental or emotional injury is not a
sufficient basis for liability under the PLRA. See
42 U.S.C. § 1997e(e). And as for the allegation that
Knighton yanked plaintiff's blanket and grabbed his
ankle, the court concludes that the physical interaction was
not sufficient to state an Eighth Amendment claim. “The
Eighth Amendment's prohibition of ‘cruel and
unusual' punishments necessarily excludes from
constitutional recognition de minimus uses of
physical force.” Hudson v. McMillian, 503 U.S.
1, 9-10 (1992). Not every push or shove gives rise to a
constitutional claim, even if that contact is malevolent.
Id. Plaintiff's allegations present such a
de minimus contact. He does not allege any injury
from the grab.
claims against Cox and Byrd also fail to state an Eighth
Amendment claim. 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). He must
also show that prison officials were deliberately indifferent
to that risk. Id.
only specific circumstances alleged in the amended complaint
are those relating to Knight's alleged verbal abuse,
falsified misconduct, and her grabbing his ankle. These
allegations fall short of stating a basis for concluding
plaintiff was subject to a substantial risk of serious ...