United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
T. ERWIN, UNITED STATES MAGISTRATE JUDGE
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. §
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,
Plaintiff's Original Complaint
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).
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.
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.
Plaintiff's Amended Complaint
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).
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).
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).
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.
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,
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.
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).
Count III, Plaintiff argues that the transfer to DCCC
violated his Due ...