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Greer v. Fallin

United States District Court, W.D. Oklahoma

February 15, 2018

TRAVIS GREER, Plaintiff,
v.
MARY FALLIN, et al., Defendants.

          REPORT AND RECOMMENDATION

          SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Travis Greer, a state prisoner, has filed an Amended Complaint pursuant to 42 U.S.C. § 1983, challenging the conditions of his confinement. (ECF No. 57). United States District Judge Vicki Miles-LaGrange has re-referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C).

         At issue is a Motion for Summary Judgment filed by Defendants Fallin and Dowling. (ECF No. 100). For the reasons discussed below, it is recommended that the Court GRANT Defendants' Motion for Summary Judgment based on non-exhaustion. The undersigned has also sua sponte considered a pending claim for religious discrimination, and recommends that the claim be dismissed, without prejudice.

         I. PROCEDURAL HISTORY

         A. Plaintiff's Original Complaint

         When Plaintiff filed his original Complaint, he was incarcerated in the James Crabtree Correctional Center (JCCC). He sought both prospective injunctive relief and monetary damages based on his allegations that Oklahoma prisons, including JCCC, are overcrowded. He sought sweeping reforms in the Oklahoma Department of Corrections (DOC) prison system as a whole:

Plaintiff is a penitentiary inmate who has been denied his constitutional right to a safe and healthy environment due to the deliberate indifference of the defendants. During 2014[, ] about 3, 100 county jail inmates were transferred to D.O.C. operated facilities, including J.C.C.C., which were already at their design capacity. This knowingly and intentionally caused critical understaffing and overcrowding which has endangered plaintiff[, ] other inmates, correctional officers, staff and the public. The courts have ruled that lack of financing is no defense to constitutional violations.

(ECF No. 1:4).

         Plaintiff's original Complaint consisted primarily of general complaints about prison overcrowding supported by anecdotal recitations of specific instances of prisoner-on-prisoner violence, contraband introduced into JCCC, and the housing of mentally ill inmates within the general population. Mr. Greer described the “open dorm” design of JCCC as adding to the danger of being in prison. He stated other inmates became high on contraband drugs and spent the nights roaming freely through the open dormitory.

         But Plaintiff did not allege that any of the conditions he described had resulted in any actual injury to Plaintiff himself. The focus of his original Complaint was the potential for physical harm that might happen. On initial screening, this Court found Plaintiff had failed to state a claim upon which relief may be granted and recommended dismissal on filing:

None of Plaintiff's allegations rises to the level of an Eighth Amendment violation. At worst, Plaintiff has described unpleasant, perhaps even uncomfortable, conditions at JCCC. In fact, the conditions about which Plaintiff complains may be ascribed to conditions arising from prison life in general. Plaintiff has merely speculated that future harm might come to him.

(ECF No. 31:7). The District Judge adopted the Report and Recommendation and dismissed the Complaint. After Judgment was entered, Plaintiff moved to amend his Complaint, and the Court granted his motion.

         B. Plaintiff's Amended Complaint

         On February 17, 2015, Plaintiff was transferred from JCCC to the Dick Conner Correctional Center (DCCC). (ECF No. 57:22). On January 6, 2016, Plaintiff filed his Amended Complaint, which contained allegations concerning his conditions of confinement at JCCC and DCCC. (ECF No. 57).

         As Defendants, Plaintiff names: Mary Fallin, Governor of the State of Oklahoma; Brian Bingman, President Pro Tempore of the Oklahoma Senate; Jeffrey Hickman, Speaker of the Oklahoma House of Representatives; Robert Doke, State Fire Marshal; Kevin Gross, Chairman, Board Of Corrections; Michael Roach, Member, Board of Corrections; Frazier Henke, Vice Chairman, Board of Corrections; Gene Haynes, Member, Board of Corrections; Todd Holder, Member, Board of Corrections; Irma Newburn, Member Board of Corrections; Matt Tilly, Member, Board of Corrections; Joe Allbaugh, Director, Department of Corrections; Greg Williams, Division Manager West Institutions, Department of Corrections; David Parker, Division Manager, East Institutions State of Okla. Department of Corrections; Janet Dowling, Warden of Dick Conner Correctional Center; and Shawn Price, Chief of Security at Dick Conner Correctional Facility. (ECF No. 57:1-3). Plaintiff sues all named Defendants in their official and individual capacities. (ECF No. 57:1-3). As forms of relief, Plaintiff requests monetary damages, declaratory relief, and injunctive relief. (ECF No. 57:47).

         Plaintiff alleges Three Counts in the Amended Complaint. In Count I, Plaintiff contends that various defendants have wilfully and intentionally denied him his Eighth Amendment right to a safe and healthy environment and failed to protect Plaintiff. He attributes the alleged Eighth Amendment violation to their deliberate indifference, corporate negligence, and failure to protect him. Mr. Greer claims generally that the alleged deliberate indifference has caused him physical harm and mental injury. (ECF No. 57:5).

         In Support of Count I, Plaintiff claims:

1. DOC Director Robert Patton made the decision to move county jail inmates into DOC facilities to save the cost of housing them in county jails, immediately causing serious problems of both understaffing and overcrowding, endangering Plaintiff's safety and creating an unhealthy environment for inmates and staff. (ECF No. 57:5-6).
2. Plaintiff is housed in an “open dorm” housing unit. Inmates have become constantly stressed because 20 new inmates have been assigned to the day rooms. Inmates have to wait in line to use sinks, toilets and shower. The number of fights has increased. (ECF No. 57:6).
3. The facility has been flooded with drugs, tobacco, cell phones and weapons thrown over the outside perimeter fence into the facility, which creates an “even more dangerous, volatile, unhealthy, and unsafe environment inside the prison itself[.]” (ECF No. 57:7).
4. Inmates caught with such contraband are not punished by losing earned credits or by facing segregation time. (ECF No. 57:7).
5. Many inmates are injecting “bath salt” and smoking “K2” which gets them high and has very serious mind-altering effects. Several inmates are generally up all night walking around. (ECF No. 57:7-8).
6. An inmate with obvious mental problems was housed in his open dorm until the inmate assaulted a seventy-four-year-old inmate. (ECF No. 57:8).
7. Though DOC has sought funding, the legislature and Governor Fallin have denied the requests. (ECF No. 57:10).
8. The disciplinary segregation unit and the protective custody unit at JCCC are filled, and there is no more room for other inmates seeking protective custody or inmates who commit serious offenses. (ECF No. 57:11).
9. Inmates are not being provided the required square footage of floor space per cell for inmates, pursuant to state and federal law. (ECF No. 57:12, 14-15).
10. The fire marshal's required ratio of inmates to sinks, toilets and showers is being violated. (ECF No. 57:12, 14-15).
11. At JCCC, no doctors or nurses are on duty after hours or on weekends, and inmates with serious medical needs must wait “a very long time” to be seen by a nurse or doctor. (ECF No. 57:14).
12. Because of overcrowding, inmates are angry and frustrated and sickness is more prevalent. (ECF No. 57:15).
13. As a result of the conditions at JCCC, Plaintiff suffered “severe sleep deprivation” and “mental distress.” (ECF No. 57:8).
14. On July 24, 2015, while at DCCC, Plaintiff was “assaulted, battered, and stabbed” which caused him physical injury. (ECF No. 57:9, 16, 20-22).
15. Defendants Fallin and Dowling were responsible for the assault on Mr. Greer by failing to protect him, which Plaintiff alleges violates the Eighth Amendment. (ECF No. 57:20-21, 30-31, 44-45).
16. While housed at DCCC, Plaintiff was exposed to a variety of “unsafe, unhealthy, and unsanitary” conditions which is a violation the Eighth Amendment. (ECF No. 57:23-24).

         In Count II, Mr. Greer alleges that: (1) Defendants Williams, Parker and Dowling retaliated against him for utilizing the grievance procedure, by transferring him to DCCC and (2) DCCC administration discriminated against him on the basis of his religion. (ECF No. 57:25-26).

         In Count III, Plaintiff argues that the transfer to DCCC violated his Due ...


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