United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE.
Nathan Bagnell, a state prisoner appearing pro se and in
forma pauperis, commenced this 42 U.S.C. § 1983 action
on January 30, 2017, by filing a complaint (Dkt. 1) against
three defendants: Sheriff Jeremy Floyd, Dr. Aleta Fox, and
Nurse Theresa Horn. Bagnell supplemented his complaint with
“additional information” on February 15, 2017
(Dkt. 5). Bagnell claims his civil rights were
violated while he was incarcerated at the Ottawa County Jail
(OCJ). See Dkts. 1, 5. By Order filed March 2, 2017
(Dkt. 8), the Court dismissed Fox from this action, directed
service on Floyd and Horn, and ordered a Special Report
pursuant to Martinez v. Aaron, 570 F.2d 317 (10th
Cir. 1978). The Defendants filed a Special Report on May 9,
2017 (Dkt. 18).
the Court are Floyd's motion to dismiss, or in the
alternative, motion for summary judgment (Dkts. 19, 21),
Horn's motion to dismiss, or in the alternative, motion
for summary judgment (Dkts. 20, 22), and the Defendants'
joint motion to strike Bagnell's supplemental briefs
(Dkt. 35). For the reasons discussed below, the Court finds
that (1) the motions to dismiss and motion to strike shall be
granted, (2) the complaint shall be dismissed without
prejudice, and (3) the alternative motions for summary
judgment shall be declared moot.
filed his complaint while he was incarcerated at the OCJ.
Bagnell alleges that OCJ officials “purposly [sic]
ignor[ed] verbal & written needs to keep [him] healthy
and safe, ” and that the purpose of his action is
“[t]o bring awareness to the negligence and inhumane
conditions” at the OCJ. Dkt. 1 at 2.
Count I of his complaint, Bagnell claims Sheriff Floyd
violated his Eighth Amendment right to be free from cruel and
unusual punishment by failing to provide humane living
conditions. Id. at 1-2, 5-8. Bagnell alleges that
inmates in the OCJ are exposed to “black mold, ”
“fed within 5 ft of raw sewage, ” and placed in
danger by being chained together when they are transported to
court. Id. at 5-7. Bagnell states that he is
“in fear of being poisoned from being exposed to [raw
sewage] and black mold, ” id. at 5, and that
he is “in fear of [his] life when [he's] chained to
10 people” for transport, id. at 6. Bagnell
further alleges that the OCJ is overcrowded, “urine and
feces overflow onto the floor” when toilets in cells
A10 and A11 are used, inmates are not issued cleaning
supplies, lights in the cells do not work, “only one
shower works properly, ” “[o]nly a few sinks can
provide fresh water to drink, ” there are no exit
signs, “cell doors don't function properly, ”
“[t]here is a 50 ft extension corde [sic] running to
the T.V., ” and the jail once failed to provide enough
razors for all inmates. Id. at 5-7, 22-23. He
alleges he has repeatedly complained about the conditions at
the OCJ, but none of his “requests for grievances have
been answered.” Id. at 7-8, 23.
his supporting facts for Count I, Bagnell also alleges he
failed to receive his “psych meds” for six days
and does not “feel right” without his
“meds, ” id. at 5, his wife saw an OCJ
staff member open or “tamper with [his] legal mail,
” id. at 5-6, 21, 26, another inmate saw
inmate mail in a trash can, id. at 5, 8, 26, and it
once took 19 days for his wife to receive a letter from him,
id. at 6, 26.
in what appears to be a separate claim against Floyd, Bagnell
alleges Floyd violated his due process rights by directing
OCJ staff to deny his requests for copies of legal papers
pertaining to the instant civil rights action. Dkt. 5 at 1-4.
Count II of his complaint, Bagnell claims Horn, a nurse at
the OCJ, is liable for “Medical negligence.” Dkt.
1 at 2-3. According to Bagnell, Horn failed to provide his
“psych meds, ” during his “entire”
period of incarceration at the OCJ, ignored his multiple
requests for medical services between December 5, 2016, and
December 29, 2016, and refused to make appointments for him
to see an outside doctor. Id. at 2, 9-11, 20-21. He
also alleges he received treatment at Bearskin Medical on
December 14, 2016, and that he “started receiving
meds” on December 16, 2016. Id. at 10. Bagnell
alleges that on December 21, 2016, he requested medical
treatment for a lost filling in his tooth. Id. Two
days later, Horn gave him “gauze” and told him he
“was crazy for pulling [his] own tooth, ” but
failed to inspect his mouth. Id. Bagnell states he
was “in pain for over 45 days, ” and alleges that
on December 29, 2016, and January 2, 2017, he told Horn he
had “continuous pain in [his] lower back and
legs.” Id. at 9, 11. Bagnell's wife
eventually made him an appointment with Bearskin Medical
where he was seen by a doctor on January 6, 2017.
Id. at 12, 20-21.
request for relief, Plaintiff asks for “punitive
damages, injunction to administration, admistration [sic]
changes, a complete investigation & audit over the entire
adm, and the practices of the legal system in this
county.” Id. at 3.
Motion to strike
response to Bagnell's complaint, Floyd and Horn both
filed motions seeking dismissal under Fed.R.Civ.P. 12(b)(6)
or, in the alternative, summary judgment under Fed.R.Civ.P.
56(a). See Dkts. 19, 20, 21, 22. On September 25,
2017, Bagnell filed a response in opposition to the motions
to dismiss (Dkt. 28). Defendants filed a joint reply on
October 9, 2017 (Dkt. 29). Bagnell subsequently filed four
“notices” containing additional factual
allegations and purporting to provide the Court with further
“evidence” to support his claims against
Defendants (Dkts. 30, 32, 33, 34).
LCvR 7.2(h), Floyd and Horn move to strike three of
Bagnell's “notices”-Dkts. 32, 33 and 34-as
improper surreplies. See Dkt. 35. Under LCvR 7.2(h),
a motion is deemed ripe for ruling either (1) after a
response and reply have been filed, or (2) if no reply is
filed, after the time to file a reply has expired.
“Supplemental briefs are not encouraged and may be
filed only upon motion and leave of Court.” LCvR
7.2(h). Having reviewed Bagnell's “notices, ”
the Court agrees with Defendants that these pleadings are
“in intent and effect” improper surreplies filed
without leave of Court. See Dkt. 35 at 2. As a
result, the Court grants Defendants' motion to strike
Dkts. 32, 33 and 34 as improper surreplies. For the same
reason, the Court sua sponte strikes Dkt. 30 as an
improper surreply. Thus, the Court will not consider Dkts.
30, 32, 33 and 34 in ruling on the Defendants' motions to
Motions to dismiss under Rule 12(b)(6)
and Horn each move to dismiss Bagnell's complaint under
Fed.R.Civ.P. 12(b)(6). Floyd contends that the factual
allegations in the complaint, even accepted as true, are not
sufficient to state any plausible § 1983 claims against
him. See Dkt. 19 at 15-23. Horn primarily contends
that Bagnell asserts only a state-law claim against her for
medical negligence and argues that claim should be dismissed
for various reasons. See Dkt. 20 at 14-19.
Alternatively, Horn contends that if the complaint could be
read as asserting an Eighth Amendment deliberate-indifference
claim for the denial of adequate medical care, Bagnell fails
to state a claim upon which relief may be granted.
Id. at 19-23.
response to the motions to dismiss, Bagnell urges this Court
to deny the motions to dismiss for four reasons: (1) he has
been denied access to the law library, (2) he is not
represented by counsel, (3) he does not have “access to
any and all documents previously filed” in this case,
and (4) the conditions at the OCJ have
“worsened.” See Dkt. 28 at 1-2.
Defendants' joint reply to the response appears to be
both an answer responding to Bagnell's seemingly new
claims and a reply addressing Bagnell's failure to come
forward with evidence to defeat their alternative motions for
summary judgment. See Dkt. 29. Because the Court
finds that this case can be resolved on Defendants' Rule