United States District Court, N.D. Oklahoma
FRANKLIN C. SMITH, Plaintiff,
MONIQUE RENTIE; JERRY BARLOW; CHRIS STRAIGHT, Defendants.
OPINION AND ORDER
TERENCE KERN, UNITED STATES DISTRICT JUDGE.
Franklin Smith commenced this action on January 18, 2018, by
filing a pro se 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). 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).
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). Rentie and Straight filed a
one-sentence reply “re-urg[ing] their pending Motion to
Dismiss” (Dkt. # 52). 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.
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.
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.'”
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.
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.
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.
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
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.
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
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. 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.
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.
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.
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