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Smith v. Rentie

United States District Court, N.D. Oklahoma

March 19, 2019

FRANKLIN C. SMITH, Plaintiff,
v.
MONIQUE RENTIE; JERRY BARLOW; CHRIS STRAIGHT, Defendants.[1]

          OPINION AND ORDER

          TERENCE KERN, UNITED STATES DISTRICT JUDGE.

         Plaintiff Franklin Smith commenced this action on January 18, 2018, by filing a pro se[2] civil rights complaint (Dkt. # 1) against three Tulsa County Sheriff's Office (TCSO) employees: Deputy Monique Rentie, Sergeant Chris Straight, and Sergeant Jerry Barlow (collectively, Defendants).[3] Before the Court is the Fed. Civ. P. Rule 12(b)(6) motion to dismiss the complaint (Dkt. # 33) filed by Rentie and Straight. By order filed January 8, 2019 (Dkt. # 47), the Court notified the parties it would convert the motion to dismiss to a motion for summary judgment and provided the parties time to submit any additional materials relevant to the motion for summary judgment. See Fed. R. Civ. P. 12(d); GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997). In that same order, the Court directed Smith to show cause why Barlow should not be dismissed based on Smith's failure to effect timely service. Dkt. # 47, at 8; see Fed. R. Civ. P. 4(m).

         In response to the Court's order, Smith filed a response in opposition to the motion for summary judgment (Dkt. # 49); a notice to effect service on Barlow (Dkt. # 53), along with a new USM-285 Marshal service form; and an “addendum” to his response to the summary judgment motion (Dkt. # 54).[4] Rentie and Straight filed a one-sentence reply “re-urg[ing] their pending Motion to Dismiss” (Dkt. # 52).[5] For the reasons that follow, the Court (1) dismisses the complaint without prejudice as to Counts II and III for lack of jurisdiction, (2) grants summary judgment in favor of Defendants as to Count I on the basis of qualified immunity, (3) denies as moot Smith's request to serve Barlow, and (4) denies as futile and untimely Smith's requests for leave to amend the complaint to add new claims and a new defendant.

         BACKGROUND

         When Smith filed his civil rights complaint, he was incarcerated in the Virginia Beach City Jail in Virginia Beach, Virginia. Id. at 5. Smith alleges, however, that his civil rights were violated while he was incarcerated at the David L. Moss Criminal Justice Center in Tulsa, Oklahoma, which serves as the Tulsa County Jail (hereafter, the Jail). Dkt. # 1, at 1-4.

         In Count I, Smith claims that Defendants knew he had been threatened by another inmate but failed to protect him from being assaulted by that inmate on January 13, 2016. Id. at 3-4. In support of this claim, Smith alleges that around 1:30 p.m. that day he notified his pod officer, Deputy Rentie, “that inmate Patrick Wayne Thomas broke into [Smith's] cell by altering the locking device and stoled [sic] his commissary.” Id. at 3. Smith also told Rentie, “You got to do something theres [sic] going to be a riot.” Id. Smith alleges Rentie contacted Barlow and Straight “regarding [Smith] being threatened by an inmate” but Barlow and Straight “disregarded the risk of serious danger to [Smith], ” and Rentie “started reading her novel, and said, ‘Theres [sic] nothing I can do.'” Id.

         According to Smith, Defendants left their shift around 4:00 p.m. “without taking reasonable care to secure [his] safety.” Id. at 2. Smith alleges that around 5:30 p.m., on January 13, 2016, Thomas punched him in the face, and Smith fell to the floor. Id. at 4. According to Smith, he was “knocked unconscious, ” and he “suffer[ed] a fractured cheekbone and irreparable tissue damage.” Id. at 2-4.

         In Counts II and III, Smith claims that the TCSO “creates an unreasonable risk of harm” to inmates, particularly “older and disabled” inmates, and exposes them to “a constant threat of violence and assaults” because it has no policy relating to stolen commissary items. Id. at 3-4. He appears to allege the lack of any such policy caused or contributed to the assault he describes in Count I. Id. In addition, he alleges that (1) Sergeant Black “moved Patrick Thomas to our pod J-12 after he was caught stealing commissary from another pod instead of placing him in solitary confinement, (2) Thomas was placed in solitary confinement only after he assaulted Smith, and (3) after the assault, Barlow and Straight told Smith they were not responsible for his stolen commissary items or for the assault. Id. at 4.

         In his request for relief, Smith seeks $100 million in compensatory damages, an additional $100 million in punitive damages, injunctive relief in the form of an order directing the TCSO to “implement a policy to prevent commissary theft and injuries in the future, ” and “whatever else the Court deems appropriate.” Id. at 4.

         As directed by the Court, the TCSO investigated the alleged assault and submitted a special report (Dkt. # 30). That report reflects that the TCSO has a policy defining theft of personal items as a “Major Infraction” and providing that an inmate who commits theft may be administratively disciplined or criminally charged. Dkt. # 30, at 2; see also Dkt. # 30-3, at 6-8 (TCSO Policy 90-3).

         The special report reflects that Smith was incarcerated at the Jail on the date of the alleged assault, Dkt. # 30-1, but the TCSO found “no record” of Smith informing Deputy Rentie, on January 13, 2016, that he had been threatened by another inmate. Dkt. # 30, at 3. Smith did, however, submit a grievance request through the Jail's kiosk system, on January 19, 2016, complaining about the theft of his commissary items and the alleged assault. Id.; Dkt. # 30-4, at 2. In that request, Smith described the stolen items and stated that he told Rentie about the theft and warned her that “something real bad is going to happen.” Dkt. # 30-4, at 2. Smith further stated:

[Rentie] picked up the phone and said that she was calling someone now to take care of the uprising . . ., But it is not clear if [Rentie] called [Straight]. If so, [Straight] never responded to the uprising. If not, then [Rentie] left her shift knowing that I could get seriously hurt trying to obtain my commissary . . ., Because [Rentie] locked me down earlier to secure my safety but left knowing that I was a target of theft and threats of abuse by other inmates . . ./ The inmate who had stolen my commissary was the same inmate who had struck me, fracturing my cheek bone, knocking me unconscious and injurying [sic] my right alble [sic] too., Which could of been avoided if [Rentie] would of followed the jail[']s policies, and procedures by contacting her superiors, instead of being so rapped [sic] up in her novel.

Dkt. # 30-4, at 2 (altered to omit full capitalization). The next day, Smith submitted a kiosk request stating, “I believe J12 is [Barlow's] zone so I don[']t know if [Rentie] notified him or if he was working that day?” Id. On January 21, 2016, Barlow responded to Smith's kiosk requests as follows: “It is not the responsibility of the pod officer to ensure your property is secured, that is your responsibility. If your door was unsecured and someone got into your room, then the loss of your property is your fault.” Id.

         With the special report, the TCSO submitted employee time records reflecting that, on January 13, 2016, Straight left work at 4:15 p.m., and Rentie left work at 4:00 p.m. Dkt. # 30-5, at 1-2.

         A jail incident report reflects that Patrick Wayne Thomas assaulted Smith in the day room of the J12 pod around 5:50 p.m. on January 13, 2016. Dkt. # 30-6, at 1-2. Both inmates were cited for “fighting.” Id. at 1. According to the report, Detention Officer Vann saw Smith fall to the floor and saw that his face was “bloody, ” but did not see who hit Smith. Id. at 2. Vann saw Thomas arguing with a third inmate and saw Thomas pick up a dinner tray. Id. Smith and Thomas were both escorted from the day room. Id. Smith was taken to the medical unit, and Thomas was re-housed in the J11 pod. Id. Deputy Beck immediately investigated the assault and filed a criminal report. Dkt. # 30-7. The criminal report reflects that Smith told Beck that Thomas accused Smith of stealing commissary items “then blind sided Smith and punched him on the right side of his face causing bleeding and swelling.” Id. at 2. Thomas told Beck he punched Smith in the face one time with a closed fist because Smith accused Thomas of stealing commissary items.[6] Id. Beck's criminal report reflects that Smith was taken to the emergency room a the OSU medical center where he was diagnosed with a fractured orbital bone. Id.

         The special report states that after emergency room staff cleared Smith to return to the Jail he was re-housed in the medical unit. Dkt. # 30, at 3. Smith's medical records reflect that he was interviewed by a nurse at 8:38 p.m. on January 13, 2016. Dkt. # 31, at 10. At that time, his facial fracture was treated with an ice pack and pain medication. Id. The nurse described Smith as “calm” and “cooperative, ” and observed that he had a black eye. Id. at 11. Smith was relocated to general population on January 14, 2016. Id. When he returned for a medical visit on January 18, 2016, a member of the medical staff observed that he had a black eye and a swollen elbow, but his vital signs were within normal limits. Id. at 11-12. During that visit, Smith primarily complained of elbow pain and reported occasional dizziness. Id. at 12.

         According to the TCSO's special report, the Tulsa County District Attorney's Office filed criminal charges against Thomas in Tulsa County District Court No. CM-2016-0265, but the charges were later dismissed at the State's request. Dkt. # 30, at 3.

         In response to the Court's notice that it would treat the motion to dismiss as a motion for summary judgment, Smith alleged the following additional facts to support Count I: (1) Smith”was threatened by a prisoner in front of Rentie about 1:00 or 1:30 p.m., (2) Rentie took no action because Smith is a “well known jailhouse litigator, ” (3) as Smith told Rentie about the theft of his commissary items at 1:30 p.m., “an inmate screamed out: ‘I'm missing my commissary, I'll kill a ...


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