United States District Court, W.D. Oklahoma
L. RUSSELL UNITED STATES DISTRICT JUDGE
filed this action alleging that his civil rights were
violated by the Defendants during his period of incarceration
with the Oklahoma Department of Corrections. Pursuant to 28
U.S.C. § 636(b)(1)(B) and (C), the matter was referred
to United States Magistrate Judge Shon T. Erwin for
preliminary review. On May 23, 2018, Judge Erwin issued a
Report and Recommendation wherein he recommended that the
Motions to Dismiss filed by Defendants Allbaugh, Knutson,
Braggs, Platt, Means, and Madden (Doc. No. 49) and Defendant
Elliot (Doc. No. 81) be granted. The Report and
Recommendation did not address Plaintiff's claims as they
related to his time of incarceration at the Davis
Correctional Facility, which implicate Defendants Allbaugh,
Knutson, and a host of additional persons. Those claims
remain pending before Magistrate Judge Erwin. Plaintiff filed
a timely objection to the Report and Recommendation, giving
rise to the Court's obligation to undertake a de
novo review of those portions of the Report and
Recommendation to which Mr. Hines makes specific objection.
Having conducted this review, the Court finds as follows.
devotes substantial attention to arguing that affidavits
submitted by Defendants with the special report contain false
statements and constitute fraud on the Court. The Report and
Recommendation and the Court's holding herein are
premised on Plaintiff's allegations, without regard to
any affidavits submitted by Defendants. Accordingly, the
Court will not consider the fraud on the Court arguments
asserted by Plaintiff. Additionally, to the extent Plaintiff
addresses claims related to his incarceration at Davis
Correctional Facility, those claims are not currently before
the Court and will not be addressed herein. See,
e.g., Doc. No. 104, pp. 14, 23. The Court turns to
the remainder of Plaintiff's objection.
begins his objection by arguing that Defendants Allbaugh,
Knutson, Braggs, Pratt, Means, and Madden were in default
because no motion to dismiss or answer was timely filed
pursuant to an Order entered by Judge Erwin. Having responded
to the Complaint and filed the instant motion to dismiss, it
is apparent that the movants herein intend to defend against
Plaintiff's allegations, and “strong policies favor
resolution of disputes on their merits.” Cessna
Fin. Corp. v. Bielenberg Masonry Contracting, Inc., 715
F.2d 1442, 1444 (10th Cir. 1983). The Tenth Circuit prefers a
decision be made on the merits rather than judgment be
entered for punitive reasons. See Thunder Mountain Custom
Cycles, Inc. v. Thiessen Prod., Inc., No.
CIVA06CV02527PABBNB, 2008 WL 5412463, at *4 (D. Colo. Dec.
24, 2008) (discussing this preference because otherwise
“the defaulted party loses regardless of the merits of
its case, without ever having had its day in court”).
Accordingly, although Defendants' response to the
pleading may have been untimely, the Court declines
Plaintiff's request to enter default. If the Clerk had
entered default, the Court would set aside the entry pursuant
to Federal Rule of Civil Procedure 55(c), because Plaintiff
is not prejudiced by having to address the merits of his
claims and Defendants have identified meritorious defenses.
See Hunt v. Ford Motor Co., 65 F.3d 178
(10th Cir. 1995). Thus, the Court finds no basis
in this portion of Plaintiff's objection for rejecting
the Report and Recommendation.
Rule of Civil Procedure 12(b)(6) provides that a court may
dismiss a cause of action for failing to state a claim for
which the court can grant relief. While Federal Rule of Civil
Procedure 8(a)(2) requires only that a plaintiff make
“a short and plain statement of the claim showing that
the pleader is entitled to relief, ” it nonetheless
requires the plaintiff to plead factual allegations that
“give the defendant fair notice of what the ... claim
is and the grounds upon which it rests[.]” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
To survive a motion to dismiss, a complaint must allege
“enough facts to state a claim to relief that is
plausible on its face.” Hogan v. Winder, 762
F.3d 1096, 1104 (10th Cir. 2014) (quoting Twombly, 550 U.S.
at 547). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In
reviewing a motion to dismiss, the court accepts as true the
well-pled factual allegations and views the allegations in
the light most favorable to the plaintiff, drawing all
reasonable inferences in his favor. Alvarado v. KOB-TV,
LLC, 493 F.3d 1210, 1215 (10th Cir. 2007) (quotation
omitted). Because Plaintiff appears pro se, the
Court liberally construes his pleadings pursuant to
Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
However, the Court may not act as an advocate and make
legally cognizable arguments for Plaintiff. Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th
Cir. 2005) (“[T]he court cannot take on the
responsibility of serving as the litigant's attorney in
constructing arguments.”). Having addressed these
preliminary issues, the Court turns to Plaintiff's
specific objections to the Report and Recommendation.
majority of Plaintiff's claims are premised on 42 U.S.C.
§ 1983, which provides no substantive rights but permits
an injured person to seek damages for the violation of his
federal rights. See 42 U.S.C. § 1983; see
also West v. Atkins, 487 U.S. 42, 48 (1988). To assert a
claim under section 1983, Plaintiff must show (1) he had a
right secured by the Constitution and laws of the United
States that was violated (2) by a person who acted under
color of state law. Hall v. Witteman, 584 F.3d 859,
864 (10th Cir. 2009). Plaintiff's First Amended Complaint
alleges violation of his constitutional right to seek access
to the courts and his right to file grievances regarding the
conditions of his confinement. He further claims he was
subjected to retaliation as a result of both the lawsuit,
CIV-15-901-R, and grievances that he filed. In addition to
the underlying claims, he alleges certain Defendants
conspired to deprive him of his rights and that other
Defendants failed to train and supervise their subordinates.
Judge Erwin recommends dismissal of all claims against the
movants as discussed herein.
Erwin recommends the Court dismiss Claim No. Three of the
First Amended Complaint wherein Plaintiff alleges Defendants
Allbaugh, Means, Pratt, Elliott, Madden and Knutson
interfered with his right of access to the courts by
interception of certain legal mail and failing to respond to
grievances related to the interception of his legal
mail. Judge Erwin concluded the Amended
Complaint sufficiently alleged that the named Defendants
acted deliberately, but failed to allege sufficient facts to
support a claim because Mr. Hines did not allege that he
suffered an actual injury; that is, that he was prejudiced in
pursuing litigation. See Lewis v. Casey, 518 U.S.
343, 351-54 (1996); Treff v. Galetka, 74 F.3d 191,
194 (10th Cir. 1996) (prisoner “must show that any
denial or delay of access to the court prejudiced him in
pursuing litigation.”) Even if the Court accepts as
true Plaintiff's allegation that his copy of the motion
to dismiss in No. CIV-15-901-R was circumvented by Defendant
Pratt at the instruction of Defendant Elliott, Plaintiff
concedes in his pleading that he eventually received the
motion and secured an extension of time to respond thereto.
The court in that case did not rule against Mr. Hines on
grounds that he failed to respond to the motion. Although
Plaintiff asserts that he was required to use his supply of
paper and to expend funds to mail his applications for
extension of time, he has not alleged facts from which the
Court can conclude that he was prejudiced with regard to
non-frivolous litigation, i.e., that having to seek
additional time required him to forego other
litigation. Pursuant to Lewis v. Casey, 518
U.S. at 350-51, Plaintiff lacks standing to pursue his denial
of access to the courts claim premised on the alleged theft
of his mail. See Clark v. Oakley, 560 Fed.Appx. 804,
807 (10th Cir. April 1, 2014).
Claim No. Three can further be construed as alleging denial
of access to the Courts based on the failure of certain
Defendants to respond to Plaintiff's grievances regarding
the redirection/theft of his legal mail, including the denial
of grievances Plaintiff labeled as “sensitive” on
the grounds that the issues raised therein were not
sensitive. Judge Erwin properly concluded that there is no
constitutional right to a grievance procedure and denial of
the process does not support an independent claim under 42
U.S.C. § 1983. See Burnett v. Allbaugh, 715
Fed.Appx. 848, 852 (10th Cir. Nov. 7, 2017);
Boyd v. Werholtz, 433 Fed.Appx. 331, 2011 WL 4537783
(10th Cir. Oct. 3, 2011). Additionally, Oklahoma
law provides an inmate an avenue for relief in the event a
grievance goes unanswered, and therefore the failure to
answer a grievance does not provide a basis for concluding
that Plaintiff suffered an actual injury by virtue of the
denial of his grievances. Therefore, the Court grants
Defendants' Motions to Dismiss as they related to
Plaintiff's Claim No. Three with regard to the period of
his incarceration at Lexington.
Claim No. Six Plaintiff sought relief from Defendant
Allbaugh, Director of the Department of Corrections, alleging
he failed to adequately train, supervise or discipline
certain Defendants. Plaintiff also alleged that Defendant
Braggs, Warden at the Lexington Assessment and Reception
Center, failed to adequately train, supervise, and discipline
his subordinates. Plaintiff also identifies Defendant
Knutson, the Director's Designee/Administrative Review
Authority (“ARA”), as a defendant to Claim No.
Six, although he does not allege whom Defendant Knutson
allegedly supervises, nor is there any logical person who can
be identified as a subordinate of Defendant Knutson based on
his role within the Department of Corrections. Plaintiff
contends that as a result of unidentified deficiencies in
training, supervision, and discipline, his legal mail, his
copy of a motion to dismiss, was subjected to interference.
Plaintiff's claims regarding the interference with his
legal mail directly implicate Defendant Elliott, who
allegedly directed Defendant Pratt to remove a motion to
dismiss from Plaintiff's mailbox and reroute it to him.
(Doc. No. 45, ¶¶ 25-29). The First Amended
Complaint alleges that Defendants Means and Madden saw Pratt
remove the manila envelope containing the motion from the
inmate mailbox but did nothing to stop the removal. (Doc. No.
45, ¶ 26-27). In response to the Report and
Recommendation, Plaintiff states “Mr. Hines has
indicated which Defendant should have been trained and
adequately supervised all of them from Allbaugh to least c/o
involved.” (Doc. No. 104, p. 14). The Court concurs
with Judge Erwin that Plaintiff's allegations are
insufficient to sustain a claim with regard to Claim No. Six.
Erwin's recommendation was premised in part on
Plaintiff's failure to identify which particular
Defendants were responsible for the supervision of persons
directly involved in the alleged theft of the motion to
dismiss. Defendant Knutson is entitled to dismissal
without discussion because there are no allegations he
supervised anyone involved nor can an inference be drawn
based on his role. Further, even if the Court assumes
Defendant Allbaugh, as director, is responsible for
supervising all other Defendants and Defendant Braggs was
responsible for supervising Defendants Pratt, Means, and
Madden, Plaintiff has failed to state a claim under §
1983 for a failure to train, supervise, or discipline against
either, because “the defendant's role must be more
than one of abstract authority over individuals who actually
committed a constitutional violation.” Fogarty v.
Gallegos, 523 F.3d 1147, 1162 (10th Cir.
supervising prison official may be liable “[w]here
there is essentially a complete failure to train, or training
that is so reckless or grossly negligent that future
misconduct is almost inevitable.” Houston v.
Reich, 932 F.2d 883, 888 (10th Cir. 1991) (alteration in
original) (citation omitted). Here, Claim No. Six merely
alleges that Defendants Allbaugh, Braggs, and Knutson
“participated and acquiesced in the failure to
adequately train, supervise and discipline insubordinates
(sic) violating Mr. Hines' rights.” Doc.
No. 45, p. 39. Such vague and conclusory allegations are
insufficient to establish a claim for supervisory liability.
In his objection, Plaintiff attempts to clarify his claim by
stating that employees should have been trained regarding
Department of Corrections policies so as not to retaliate
against inmates who file lawsuits or
grievances. This allegation is still insufficient to
avoid dismissal as recommended in the Report and
Recommendation. Accordingly, the motion to dismiss is granted
as to Claim No. Six.
regard to Claim No. Eight, Judge Erwin recommended dismissal
because of the lack of a constitutional right to a grievance
procedure. Nothing in the objection alters the correctness of
Judge Erwin's analysis, and accordingly, the motion is
granted as to Claim No. 8 as directed to Defendants Allbaugh
No. Nine is captioned “Federal and State Tort of
Negligent and Intentional Infliction of Emotional
Distress.” (Doc. No. 45, p. 41). Plaintiff levies these
claims against Defendants Allbaugh, Knutson, Braggs, Means,
Madden, Pratt, and Elliott. Judge Erwin recommends the Court
dismiss any request for emotional distress damages pursuant
to 42 U.S.C. § 1997e and decline to exercise
jurisdiction over the state law claims pursuant to the
Court's discretion under 28 U.S.C. § 1367(c)(3). The
Court notes that dismissal under § 1367(c)(3) is not
appropriate because not all claims over which the Court has
original jurisdiction have been addressed: the federal claims
related to Plaintiff's detention at Davis Correctional
Facility remain pending. The Court finds, however, that
Plaintiff's allegations are legally insufficient to
support a claim under either federal or state law.
U.S.C. § 1983 provides an avenue of relief to a person
who believes his constitutional rights have been violated by
a person acting under color of state law. There are no
federal tort claims for either the intentional or negligent
infliction of emotional distress by state employees, nor does
such a claim sound under § 1983. See Taylor v.
Nichols, 409 F.Supp. 927, 936 (D. Kan. 1976),
aff'd, 558 F.2d 561 (10th Cir. 1977).
Thus, any attempt at a stand-alone federal claim for the
intentional or negligent infliction of emotional distress
unattached to a claim that a particular constitutional right
was violated necessarily fails. To the extent Plaintiff is
not seeking to pursue a separate federal claim based on the
infliction of emotional distress but seeks only ...