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Dopp v. Honaker

United States District Court, W.D. Oklahoma

January 24, 2018

RICHARD LYNN DOPP, Plaintiff,
v.
BUDDY HONAKER et al., Defendants.

          REPORT AND RECOMMENDATION

          CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         BACKGROUND

         Plaintiff 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.[1]

         Defendants 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.

         PLAINTIFF'S CLAIMS

         In his 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.

         The CCA 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.[2]

         ANALYSIS

         I. ODOC Defendants' Immunity to Suit

         Citing 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 asserted).

         Pursuant 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 relief.

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 marks omitted).

         “Oklahoma 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.

         Here, 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.

         Accordingly, 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 prejudice.

         II. Plaintiff's Exhaustion of Administrative Remedies

         CCA 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 considered.”).[3]

         A. Standard of Review

         CCA 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.

         Plaintiff's 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.

         Thus, 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).

         Summary 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).

         A party 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).

         A 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 defendant. Id.

         When 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.

         B. Exhaustion of Administrative Remedies

         CCA 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, 1859 (2016).

         1. The PLRA

         The 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 90-91.

         2. The Oklahoma Department of Corrections' Grievance Process

         ODOC 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)).[4] 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.

         The 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. ยงยง I.D, V.B.1. This ...


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