United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE
Richard Lynn Dopp, a state prisoner appearing pro se, brings
this federal civil rights action against ten defendants,
alleging violations of the Eighth Amendment of the United
States Constitution. United States District Judge Timothy D.
DeGiusti has referred this matter to the undersigned
Magistrate Judge for initial proceedings in accordance with
28 U.S.C. § 636.
is presently incarcerated at North Fork Correctional Center
(“NFCC”), an Oklahoma Department of Corrections
(“ODOC”) facility in Sayre, Oklahoma. The claims
of Plaintiff's Amended Complaint arise from events that
transpired: (1) from July 2015 to October 2016, while
Plaintiff was housed at Cimarron Correctional Facility
(“CCF”) (a facility in Cushing, Oklahoma,
operated by a company formerly known as Corrections
Corporation of America); and (2) from October 2016 to April
2017, while Plaintiff was housed at NFCC. See Am.
Compl. (Doc. No. 9) at 4, 12, 17.
Baird, Neau, Neefe, Paine, and Sellers (collectively, the
“CCA Defendants”) have moved for dismissal of or
summary judgment on Plaintiff's claims. See CCA
Defs.' Mot. (Doc. No. 49). Plaintiff has responded.
See Pl.'s CCA Resp. (Doc. No. 54); Pl.'s
Suppl. CCA Resp. (Doc. No. 66). Likewise, Defendants Honaker,
May, McCurdy, Thompson, and Troutt (collectively, the
“ODOC Defendants”) have moved for dismissal of
Plaintiff's claims. See ODOC Defs.' Mot.
(Doc. No. 47). Plaintiff has responded, and ODOC Defendants
have replied. See Pl.'s ODOC Resp. (Doc. No.
57); ODOC Defs.' Reply (Doc. No. 58). Each set of
Defendants additionally has filed a special report in
accordance with the Court's order and Martinez v.
Aaron, 570 F.2d 317 (10th Cir. 1978). See Doc.
Nos. 46, 48, 52.
pleading, Plaintiff asserts pursuant to 42 U.S.C. § 1983
that the CCA Defendants and three ODOC Defendants (Honaker,
McCurdy, and May) failed to provide adequate and proper
medical treatment to Plaintiff in connection with his
“serious degenerative medical condition” of
“cervical foraminal stenosis neck bone nerve cord
impingement” while Plaintiff was housed at CCF. Am.
Compl. at 8-9, 10-17. Plaintiff additionally asserts pursuant
to § 1983 that the five ODOC Defendants failed to
provide adequate and proper medical treatment with respect to
this neck condition while Plaintiff was housed at NFCC.
See Id. at 9, 17-20.
Defendants are sued in their individual capacities, and the
ODOC Defendants are sued in both their official and
individual capacities. See Id. at 4-6; see also
Jones v. Barry, 33 Fed.Appx. 967, 971 n.5 (10th Cir.
2002). Plaintiff seeks compensatory and punitive damages as
well as injunctive relief, costs, and fees. See Am.
Compl. at 9, 10.
ODOC Defendants' Immunity to Suit
the Eleventh Amendment, ODOC Defendants move to dismiss
Plaintiff's claims to the extent they seek money damages
from each ODOC Defendant in his or her official capacity.
See ODOC Defs.' Mot. at 3-4; Fed.R.Civ.P.
12(b)(1). The undersigned therefore is obligated to address
whether these Defendants enjoy immunity from suit. See
United States ex rel. Burlbaw v. Orenduff, 548 F.3d 931,
942 (10th Cir. 2008) (noting that if a state defendant raises
Eleventh Amendment immunity, “addressing the threshold
jurisdictional matter [is] obligatory”); Fent v.
Okla. Water Res. Bd., 235 F.3d 553, 558-59 (10th Cir.
2000) (holding that Eleventh Amendment immunity “can be
waived” but “constitutes a bar to the exercise of
federal subject matter jurisdiction” when effectively
to the doctrine of sovereign immunity, as adopted in the
Eleventh Amendment, a federal court may not hear a claim
brought by a private citizen against a U.S. state. U.S.
Const. amend. XI; Seminole Tribe of Fla. v. Florida,
517 U.S. 44, 54, 65 (1996).
But Eleventh Amendment immunity is not absolute. There are
three exceptions. First, a state may consent to suit in
federal court. Second, Congress may abrogate a state's
sovereign immunity by appropriate legislation when it acts
under Section 5 of the Fourteenth Amendment. Finally, under
Ex parte Young, 209 U.S. 123 (1908), a plaintiff may
bring suit against individual state officers acting in their
official capacities if the complaint alleges an ongoing
violation of federal law and the plaintiff seeks prospective
Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159,
1166 (10th Cir. 2012) (citations omitted). Eleventh Amendment
immunity applies to any state agencies considered to be
“arms of the [s]tate.” Will v. Mich.
Dep't of State Police, 491 U.S. 58, 70-71 (1989). A
defendant's status as an arm of the state is a question
of federal law, but courts make this determination by
analyzing the “nature of the entity created by state
law.” Steadfast Ins. Co. v. Agric. Ins. Co.,
507 F.3d 1250, 1253 (10th Cir. 2007) (internal quotation
has not consented to be sued in federal court.”
Berry v. Oklahoma, 495 Fed.Appx. 920, 921 (10th Cir.
2012); accord Callahan v. Poppell, 471 F.3d 1155,
1159 (10th Cir. 2006). Nor has Congress abrogated state
immunity through enactment of 42 U.S.C. § 1983. See
Berry, 495 Fed.Appx. at 921-22. Thus, the State of
Oklahoma's Eleventh Amendment immunity from suits seeking
money damages in federal court remains intact.
the relevant state agency is ODOC because the individual ODOC
Defendants were employed by that agency during the events
giving rise to this lawsuit. See Am. Compl. at 4-6.
“ODOC is . . . shielded by sovereign immunity because
it is an arm of the state.” Berry, 495
Fed.Appx. at 922 (citing Eastwood v. Dep't of Corr.
of Okla., 846 F.2d 627, 631-32 (10th Cir. 1988)).
ODOC's immunity therefore extends to Plaintiff's
§ 1983 claims against ODOC employees who are sued in
their official capacities for damages. See Cleveland v.
Martin, 590 Fed.Appx. 726, 730 (10th Cir. 2014).
Defendants Honaker, McCurdy, May, Thompson, and Troutt, as
employees of ODOC acting in their official capacities,
therefore are protected by Eleventh Amendment immunity to the
extent damages are sought by Plaintiff under § 1983.
See id.; Eastwood, 846 F.2d at 632.
Plaintiff's claims seeking monetary relief from these
ODOC Defendants in their official capacities are barred by
the Eleventh Amendment and should be dismissed without
Plaintiff's Exhaustion of Administrative Remedies
Defendants assert the affirmative defense that
Plaintiff's claims are largely barred because Plaintiff
did not, prior to commencing this lawsuit, exhaust his
available administrative remedies as required by the Prison
Litigation Reform Act of 1995 (“PLRA”), codified
in pertinent part at 42 U.S.C. § 1997e(a). See
CCA Defs.' Mot. at 3-11; see also Jones v. Bock,
549 U.S. 199, 219-20 (2007) (“All [courts] agree that
no unexhausted claim may be
Standard of Review
Defendants acknowledge that assertion of an exhaustion
defense generally is examined as an argument for summary
judgment, rather than as a basis for dismissal. See
Defs.' Mot. at 2; see also Id. at 6-9 (citing
materials outside of the pleading and public record in
support of affirmative defense). To that end, CCA Defendants
titled their filing as an alternative request for summary
judgment. See Id. at 1.
Response in opposition expressly cited and discussed the
summary-judgment standard of Federal Rule of Civil Procedure
56, was “duly verified wherein it can be used as an
affidavit for purposes of MTD or MFSJ, ” and presented
and relied upon multiple documents not attached to his
pleading. See Pl.'s CCA Resp. at 1, 2, 3-6, 5
n.1; Pl.'s CCA Resp. Exs. 1-16 (Doc. Nos. 54-1 to 54-16);
see also Pl.'s Suppl. Resp. Exs. 1-6 (Doc. Nos.
66-1 to 66-6). Further, the Court earlier had advised all
parties that the Court typically considers a dispositive
motion based upon the affirmative defense of exhaustion to be
a motion for summary judgment. See Order of Apr. 27,
2017 (Doc. No. 10) at 3 n.2.
it is evident that Plaintiff was on notice to present all
material pertinent to CCA Defendants' dispositive motion
and that Plaintiff desired the Court to consider materials
outside of the pleadings in ruling on that motion.
Accordingly, the undersigned has treated the motion as one
for summary judgment with respect to the exhaustion
affirmative defense. See Fed. R. Civ. P. 12(d),
56(c)(1); Whitesel v. Sengenberger, 222 F.3d 861,
866 (10th Cir. 2000).
judgment is a means of testing in advance of trial whether
the available evidence would permit a reasonable jury to find
in favor of the party asserting a claim. The Court must grant
summary judgment when “there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law.” Fed.R.Civ.P. 56(a). When
considering a motion for summary judgment, the Court views
the evidence and any reasonable inferences drawn from the
record “in the light most favorable to the nonmoving
party.” Pepsi-Cola Bottling Co. of Pittsburg, Inc.
v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005);
see also Scott v. Harris, 550 U.S. 372, 380 (2007).
that moves for summary judgment has the burden of showing
that the undisputed material facts require judgment as a
matter of law in its favor. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). To defeat summary
judgment, the nonmovant need not convince the Court that it
will prevail at trial, but it must cite sufficient evidence
admissible at trial to allow a reasonable jury to find in the
nonmovant's favor-i.e., to show that there is a genuine
question of material fact that must be resolved by the jury.
See Garrison v. Gambro, Inc., 428 F.3d 933, 935
(10th Cir. 2005). Parties may establish the existence or
nonexistence of a disputed material fact through:
• citation to “depositions, documents,
electronically stored information, affidavits or
declarations, stipulations . . ., admissions, interrogatory
answers, or other materials” in the record; or
• demonstration “that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.”
Fed. R. Civ. P. 56(c)(1)(A)-(B).
defendant seeking summary judgment on the basis of an
affirmative defense “must demonstrate that no disputed
material fact exists regarding the affirmative defense
asserted.” Hutchinson v. Pfeil, 105 F.3d 562,
564 (10th Cir. 1997). “If the defendant meets this
initial burden, the plaintiff must then demonstrate with
specificity the existence of a disputed material fact”
as to one or more elements of the affirmative defense, absent
which summary judgment must be granted in favor of the
assessing CCA Defendants' Motion for summary-judgment
purposes, the undersigned has considered the factual
allegations of Plaintiff's sworn filings (e.g., the
Amended Complaint and Plaintiff's Responses) and the
affidavit of CCA's Grievance Coordinator (CCA Defs.'
Mot. Ex. 2 (Doc. No. 49-2)) to the extent those allegations
are sworn or declared under penalty of perjury and are
“made on personal knowledge, set out facts that would
be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters
stated.” Fed.R.Civ.P. 56(c)(4); see Hall v.
Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991); see
also 28 U.S.C. § 1746.
Exhaustion of Administrative Remedies
Defendants must establish their affirmative defense of
nonexhaustion by showing that “administrative remedies
were, in fact, available” to Plaintiff when each claim
arose and that Plaintiff “failed to exhaust these
remedies.” Purkey v. CCA Det'n Ctr., 263
Fed.Appx. 723, 726 (10th Cir. 2008). If CCA Defendants make
that showing, the burden shifts to Plaintiff to show a
genuine dispute over whether “an administrative remedy,
although officially on the books, [was] not capable of use to
obtain relief.” Ross v. Blake, 136 S.Ct. 1850,
PLRA provides that no action under 42 U.S.C. § 1983 may
be brought by a prisoner regarding conditions of confinement
“until such administrative remedies as are available
are exhausted.” 42 U.S.C. § 1997e(a); see also
Woodford v. Ngo, 548 U.S. 81, 90, 93-103 (2006)
(explaining that § 1997e(a) requires “proper
exhaustion”-i.e., “using all steps that the
agency holds out, and doing so properly (so that the
agency addresses the issues on the merits)” (internal
quotation marks omitted)). “Proper exhaustion demands
compliance with an agency's deadlines and other critical
procedural rules because no adjudicative system can function
effectively without imposing some orderly structure on the
course of its proceedings.” Ngo, 548 U.S. at
The Oklahoma Department of Corrections' Grievance
has adopted an offender Grievance Process, Operations
Memorandum OP-090124, through which a prisoner in its custody
at any prison facility may seek administrative decisions or
answers to complaints. See OP-090124 (eff. Nov. 20,
2014) (CCA Defs.' Mot. Ex. 1, at 3-23 (Doc. No. 49-1));
OP-090124 (eff. July 19, 2016) (CCA Defs.' Mot. Ex. 1, at
25-45 (Doc. No. 49-1)). The ODOC Grievance Process requires an
inmate initially to attempt informal resolution of his or her
complaint by speaking to an appropriate staff member within
three days of the relevant incident. See Id. §
IV.B. If the inmate is dissatisfied after this initial
attempt, then he or she may submit a written “Request
to Staff” within seven days of the incident.
Id. § IV.C. This first informal level may be
bypassed only if the complaint involves a sensitive topic or
an emergency. See id. § VIII.A.
next level of the ODOC Grievance Process is the filing of a
formal grievance. If dissatisfied with the response received
from a Request to Staff, the inmate may file a grievance
within fifteen days of the date of the response to a timely
Request to Staff. See id. § V.A.1. The
grievance is submitted to the facility's Reviewing
Authority, defined as the “facility head or facility
correctional health services administrator.”
Id. §§ I.D, V.B.1. This ...