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Hines v. Allbaugh

United States District Court, W.D. Oklahoma

July 17, 2018

THURMAN HARVEY HINES, Plaintiff,
v.
JOE ALLBAUGH, et al., Defendants.

          ORDER

          DAVID L. RUSSELL UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Federal 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.

         The 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.

         Judge 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.[1] 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.[2] 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).

         Plaintiff's 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.[3] 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.

         In 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.

         Judge 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.[4] 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. 2008).[5]

         A 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.[6] 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.

         With 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 and Knutson.

         Claim 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.[7] The Court finds, however, that Plaintiff's allegations are legally insufficient to support a claim under either federal or state law.

         42 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 ...


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