United States District Court, W.D. Oklahoma
HEATON, U.S. DISTRICT JUDGE
Ezekiel Davis, a state prisoner appearing pro se,
filed this § 1983 action alleging his constitutional
rights were violated while he was incarcerated at the Lawton
Correctional Facility (“LCF”), a private prison
owned and operated by GEO Group. He sued multiple LCF and
Oklahoma Department of Corrections (“DOC”)
officials and LCF-related people in both their individual and
official capacities. He seeks monetary and injunctive relief.
with 28 U.S.C. § 636(b)(1)(B), (C), the matter was
referred for initial proceedings to Magistrate Judge Suzanne
Mitchell, who conducted the required screening, see
28 U.S.C. §§1915A(a), 1915A(b), 1915(e)(2)(B), and
issued a Report and Recommendation (“Report”).
The magistrate judge recommends that all official capacity
claims against the LCF defendants and all claims against the
DOC defendants be dismissed without prejudice. Plaintiff has
filed an objection to the Report.
Report, the magistrate judge initially recommends the
dismissal of plaintiff's official capacity claims against
all defendants. She concludes plaintiff's claims against
the LCF defendants in their official capacities fail because
a private prison employee is not a state actor and lacks an
official capacity as the term is used under the Eleventh
Amendment. See Jones v. Barry, 33 Fed.Appx. 967,
971, n.5 (10th Cir. 2002). She rejects his claims for
monetary relief against the DOC defendants in their official
capacities, concluding they are barred by Eleventh Amendment
immunity. The magistrate judge then considers plaintiff's
claims against the DOC defendants -- Allbaugh, Honaker and
McGee - in their individual
first claim, plaintiff alleges that the LCF and DOC
defendants violated his Eighth Amendment right to adequate
medical services. A prison official's deliberate
indifference to an inmate's serious medical needs
violates the Eighth Amendment's prohibition against cruel
and unusual punishment. Mata v. Saiz, 427 F.3d 745,
751 (10th Cir. 2005). A deliberate indifference claim has
both an objective and a subjective component. Id.
The objective component is satisfied if the deprivation is
sufficiently serious, while the subjective component is met
if the plaintiff “present[s] evidence of the prison
official's culpable state of mind.” Id.
Liability may be imposed if the official knew the prisoner
“faced a substantial risk of harm and disregarded that
risk by failing to take reasonable measures to abate
it.” Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th
Cir. 1999) (internal quotation marks omitted).
magistrate judge focused on the subjective component of
plaintiff's deliberate indifference claim. After a
careful review and liberal construction of the pro
se complaint, she determined that plaintiff failed to
allege that the DOC defendants acted with the required
culpable state of mind. Because he pleaded conclusions,
rather than facts, he did not succeed in
“‘stat[ing] a claim to relief that is plausible
on its face.'” Doc. #55, p. 11 (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
magistrate judge recognized that a few facts had been pleaded
with respect to the DOC defendants in the context of the
DOC's Inmate/Offender Grievance Process. But she
concluded that was not enough to state an Eighth Amendment
claim against them because plaintiff had not “allege[d]
facts to show that any DOC Defendant had
any personal involvement in his treatment or
treatment decisions.” Doc. #55, p. 13. The law is well
established that merely denying a grievance or grievance
appeal, without a connection to the alleged constitutional
violation, does not establish the personal participation
required by §1983. Gallagher v. Shelton, 587
F.3d 1063, 1069 (10th Cir. 2009).
he had not alleged that the DOC defendants acted with
deliberate indifference in violation of his Eighth Amendment
rights, the magistrate judge recommended that plaintiff's
first claim against the DOC defendant in their individual
capacities be dismissed without prejudice.
second claim, plaintiff alleges the defendants, including DOC
defendants Allbaugh and Honaker, violated his First Amendment
right to redress grievances. The magistrate judge recommended
the dismissal of this claim on the ground there is no
independent constitutional right to state administrate
proceedings. See Johnson v. Richins, 438 Fed.Appx.
647, 649 (10th Cir. 2011) (“And Mr. Johnson's claim
that Ms. Casper mishandled his prison grievances does not
implicate any due-process rights.”).
third claim, plaintiff alleges a conspiracy among the
defendants to deprive him of his “constitutional
rights” and his “8th Amend right to adequate
medical care.” Doc. #20, p. 36. The magistrate judge
recommends that this claim, insofar as it is asserted against
the DOC defendants, be dismissed because plaintiff has failed
to plead facts showing the required agreement and concerted
action among the alleged conspirators.
the magistrate judge recommends that plaintiff's claims
against DOC defendant Minyard be dismissed. Due to the lack
of any allegations against her, the magistrate judge
determined plaintiff failed to state a claim against Ms.
Minyard upon which relief could be granted.
objection plaintiff states that he does not object to the
dismissal of the defendants in their official capacities.
Plaintiff's claims against the LCF and DOC defendants in
their official capacities will therefore be dismissed without
essentially the same arguments as he presented to the
magistrate judge, plaintiff does object to the dismissal of
his deliberate indifference individual capacity claims
against the DOC defendants. Initially he argues that
defendants Honaker, McGee, Allbaugh and Minyard can be held
liable under § 1983 because they were in
“supervisory positions.” Doc. #57, pp.1, 2. But
merely being a supervisor is not enough to create § 1983
liability. Gallagher, 587 F.3d at 1069. To prevail
against a defendant based on his or her supervisory
responsibilities, a plaintiff must demonstrate personal
involvement, causation and a culpable state of mind link.
Schneider v. City of Grand Junction Police
Dep't, 717 F.3d 760, 767 (10th Cir. 2013). As the
magistrate judge explained in her Report, the complaint lacks
sufficient factual allegations “to plausibly allege
deliberate indifference by a DOC Defendant.” Doc. #55,
p. 11. “Conclusory allegations are not enough to
withstand a motion to dismiss.” Gallagher, 587
F.3d at 1068.
also relies on the DOC defendants' asserted
“fail[ure] to act when [he] filed grievance to the
Chief Medical Officer” and denial of his request for
adequate medical care. Doc. 57, p. 3. He contends that
“surely these defendants had a duty to actively conduct
an investigation into my allegations, surely they contacted
GEO Group Corr. Inc. medical personnel - supervisor
personnel, and there was a concerted effort done to
not provide me with adequate medical care . . .
.” Id. These unsupported assertions, which are
not in the complaint, also fail to show that the DOC
defendants were directly involved with the alleged
constitutional violation - the asserted failure to provide