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Savage v. Fallin

United States District Court, W.D. Oklahoma

March 30, 2018

KENT G. SAVAGE, Plaintiff,
GOVERNOR MARY FALLIN, et al., Defendants.



         In this § 1983 case, plaintiff, a prisoner in the custody of the Oklahoma Department of Corrections (“ODOC”), asserts violations of his Eighth Amendment right to safe and humane conditions of confinement. At the time the case was filed, he asserted claims against the Governor of Oklahoma, Oklahoma legislative leaders, and several officials of the ODOC. Various proceedings have since occurred in the case, resulting in the disposition of some claims, and it is useful to briefly recount the history before addressing the pending motions.

         Plaintiff filed this case pro se in 2015. Following its filing, the case was referred to U.S. Magistrate Judge Shon T. Erwin for initial proceedings. Judge Erwin issued a report recommending that the complaint be dismissed in its entirety on various grounds. That report was adopted by this court and plaintiff's claims were dismissed.

         Plaintiff appealed the dismissal to the Tenth Circuit Court of Appeals. The Court of Appeals affirmed in part and reversed in part. It affirmed the dismissal of plaintiff's claims for damages against all the defendants in their official capacities. It affirmed the dismissal of all claims of any kind against defendants Cline and Doke. It also affirmed the dismissal of all claims against the legislative leaders, on the basis of legislative immunity.

         The Circuit reversed this court's dismissal of the claims against Governor Fallin on the basis of legislative immunity, concluding that plaintiff had potentially alleged claims against her based on actions which were administrative, rather than legislative, in nature and hence not barred by legislative immunity. It left open the question of whether claims against her were otherwise stated.

         The Circuit also reversed the dismissal as to the claims against ODOC officials Bryant and Patton, concluding that plaintiff had sufficiently alleged a basis for claim against those two defendants.

         Following remand, plaintiff, still proceeding pro se, sought and received leave to file an amended complaint adding a claim against the current director of ODOC, Joe Allbaugh. The amended complaint, in addition to adding the claims against Allbaugh, also reasserted some of the claims that had been previously dismissed and the dismissal upheld by the Circuit. This court adopted a second Report and Recommendation dismissing again those claims the dismissal of which had been affirmed by the Tenth Circuit.

         The result of these proceedings is that, after remand and the amendment, claims remain (or potentially remain) against Governor Fallin and ODOC officials Patton, Bryant, and Allbaugh. The claims assert Eighth Amendment violations based on the defendants' alleged deliberate indifference to a substantial risk of serious harm to plaintiff, due to their failure to address overcrowding and understaffing in the state's correctional facilities. Plaintiff also asserts a state law claim against these defendants for intentional infliction of emotional distress.[1]

         The remaining defendants have moved to dismiss the remaining claims on various grounds or, alternatively, for summary judgment as to them. Judge Erwin issued a third Report and Recommendation as to those motions, recommending that they be treated as summary judgment motions and denied. The defendants have objected to the recommendation, which triggers de novo review by this court of the matters to which objection was made.

         As a threshold matter, the court concludes the present motions should be viewed as motions to dismiss, rather than for summary judgment, and resolved on that basis. Plaintiff is an incarcerated prisoner, which limits his ability to secure factual materials such as might bear on claims he raises here. Until recently, he has proceeded pro se and he secured legal counsel, at least formally, only after his objections to the pending motions were due.[2]Given these circumstances, including the Court of Appeals' conclusion that some claims have been stated and the complexity of certain of the legal doctrines involved, the court concludes it is premature to resolve the present motions as ones for summary judgment.

         Viewing the motions as motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the standard of review is familiar. To survive a motion to dismiss under that rule, the complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Conclusory allegations are insufficient to state a facially plausible claim. Id. at 557. A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Thus, dismissal under Rule 12(b)(6) is only appropriate “if the complaint alone is legally insufficient.” Brokers' Choice of America, 861 F.3d at 1104-05 (citation omitted).

         Plaintiff asserts claims against the four defendants in both their individual and official capacities. To the extent he asserts claims against the defendants in their official capacities, Eleventh Amendment immunity limits the relief that is available. That amendment bars claims for damages or other relief sought directly against a state. However, it is subject to limited exceptions. The exception applicable here was recognized by Ex parte Young, 209 U.S. 123 (1908), which established that a plaintiff may “bring suit against individual states officers in their official capacities if the complaint alleges an ongoing violation of federal law and the plaintiff seeks prospective relief.” Muskogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012). Here, the complaint purports to do that.

         To state an Eighth Amendment claim, a plaintiff must allege facts showing that the officials, “acting with deliberate indifference, exposed a prisoner to a sufficiently substantial risk of serious damage to his future health.” Farmer v. Brennan, 511 U.S. 825, 843 (1994) (quotations and citation omitted). To succeed on such a claim, plaintiff must demonstrate that the “defendant-officials [] at the time suit was filed . . . knowingly and unreasonably disregard[ed] an objectively intolerable risk of harm, and that they will continue to do so . . . during the remainder of the litigation and into the future.” Id. at 846.

         The Court of Appeals concluded that plaintiff has adequately pleaded claims that defendants Bryant and Patton were deliberately indifferent to overcrowding and understaffing conditions that posed a substantial risk of serious harm. “At this preliminary phase, we conclude that Savage has plausibly pled that he is subjected to overcrowding and staffing conditions that pose a substantial risk of serious harm” sufficient to satisfy the objective component of an Eighth Amendment violation. Savage v. Fallin, ...

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