United States District Court, E.D. Oklahoma
DANIEL L. JOHNSON, Plaintiff,
MARTY GARRISON, et al., Defendants.
OPINION AND ORDER
A, White United States District Judge
action is before the Court on Defendants' motion to
dismiss Plaintiff's complaint as barred in part by the
statute of limitations and for his failure to exhaust the
administrative remedies for his claims. Plaintiff, an inmate
in the custody of the Oklahoma Department of Corrections
(DOC) who is incarcerated at Davis Correctional Facility
(DCF) in Holdenville, Oklahoma, brings this action under the
authority of 42 U.S.C. § 1983, seeking relief for
alleged constitutional violations during his incarceration at
that facility. The defendants are three DCF officials: Marty
Garrison, Investigator; Officer Berry, Unit Manager; and
Terri Underwood, Grievance Coordinator.
complaint is disorganized and difficult to understand. The
Court has carefully reviewed the record and construed
Plaintiff's pleadings liberally. Haines v.
Kerner, 404 U.S. 519 (1972). This relaxed standard,
however, does not relieve his burden of alleging sufficient
facts on which a recognized legal claim could be based.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
sets forth the nature of the case as follows: “The
context of this case is base [sic] on the discrimination of
the handling of of [sic] the investigation into my
"PREA" matter of the Harassment of Unit Manager
Berry. The handleing [sic] of the grievance that hindered the
due process of my complaint as well.” (Dkt. 1 at 12).
alleges that on or about January 13, 2016, he was working in
the DCF rotunda as an orderly, when Defendant Unit Manager
Berry and Berry's wife came around the corner from the
law library. Berry was talking to his wife and looking at
Plaintiff as he passed by. Plaintiff claims Berry told his
wife in a very demeaning, joking manner not to pass a note
from Plaintiff to Plaintiff's “girlfriend, ”
who was another prisoner. Plaintiff claims the statement was
made to shame Plaintiff in front of Berry's wife.
Id. at 22.
February 16, 2016, Plaintiff went to Assistant Warden
Bonner's office to request a move within the facility.
Bonner was not authorized to permit moves, so he called
Defendant Berry to the office to discuss Plaintiff's
request. Id. at 22. While he was in Bonner's
office, Berry said Plaintiff was a "punk chaser,"
which meant Plaintiff was "trying to get moved to follow
a homosexual or something of that nature.” Plaintiff
asserts he had an ongoing problem with Berry's references
to Plaintiff's sexual orientation. Id. at 24.
further alleges that on March 7, 2016, he submitted a PREA
complaint directly to Defendant Underwood. He spoke with
Defendant Garrison and Mr. Yendale on March 10, 2016, in
Garrison's office. Garrison stated the incident was not a
PREA matter, and Plaintiff believed Garrison would be biased
against him. The conversation was not documented.
Id. at 14.
asserts Defendant Underwood mishandled the March 7, 2016,
grievance. He contends she should have understood that a
grievance may be submitted directly to the reviewing
authority without the informal resolution process, when it is
of a sensitive nature or when there is substantial risk of
personal injury, sexual assault, or the existence of other
irreparable harm. Id. at 16.
complains that Defendant Garrison discriminated against him
by mishandling a PREA investigation after Garrison met with
Plaintiff on March 10, 2016. Plaintiff alleges he filed
several Requests to Staff (RTSs) in April about the issue,
because Garrison had not taken Plaintiff's claim
seriously. Garrison's response stated Plaintiff's
PREA claim was unfounded, although Garrison's previous
response to one of the RTSs stated the incident was under
investigation. Garrison also stated Plaintiff was being too
sensitive about the matter, which Plaintiff considered an
unprofessional response. Id. at 15.
sent an RTS about the incident, advising that evidence could
be viewed on the camera footage, along with the names of two
witnesses. Garrison, however, failed to conduct a proper
investigation and interview the witnesses. Id. at
Defendants have moved for dismissal pursuant to Fed.R.Civ.P.
12(b)(6). The pleading standard for all civil actions was
articulated in Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007). See Ashcroft v. Iqbal, 556 U.S. 662, 684
(2009). To avoid dismissal for failure to state a claim under
Fed.R.Civ.P. 12(b)(6), a complaint must present factual
allegations, assumed to be true, that “raise a right to
relief above the speculative level." Twombly,
550 U.S. at 555. The complaint must contain "enough
facts to state a claim to relief that is plausible on its
face." Id. at 570. A court must accept all the
well-pleaded allegations of the complaint as true, even if
doubtful in fact, and must construe the allegations in the
light most favorable to the plaintiff. Id. at
555-56. "So, when the allegations in a complaint,
however true, could not raise a claim of entitlement to
relief," the cause of action should be dismissed.
Id. at 558.
se plaintiff's complaint must be broadly construed under
this standard. Erickson v. Pardus, 551 U.S. 89, 94
(2007); Haines, 404 U.S. at 520. The generous
construction to be given to the pro se litigant's
allegations "does not relieve the plaintiff of the
burden of alleging sufficient facts on which a recognized
legal claim could be based." Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991). Notwithstanding a pro
se plaintiff's various mistakes or misunderstandings of
legal doctrines or procedural requirements, "if a court
can reasonably read the pleadings to state a valid claim on
which the plaintiff could prevail, it should do so . . .
." Id. A reviewing court need not accept
“mere conclusions characterizing pleaded facts."
Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th
Cir. 1990); see also Twombly, 550 U.S. at 555. The
Court "will not supply additional factual allegations to
round out a plaintiff's complaint or construct a legal
theory on a plaintiff's behalf." Whitney v. New
Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). With
these standards in mind, the court turns to the merits of
record shows that on June 27, 2016, Plaintiff initially filed
this action as a petition in Oklahoma County District Court
No. CV-2016-1367. Johnson v. Berry, No. 116, 301
slip op. at 2 (Apr. 12, 2018) (Dkt. 16-3 at 4). He presented
the same allegations against the same defendants as presented
in this action, except he also named DCF Warden Tim Wilkinson
as a defendant. Plaintiff, however, served only Defendant
Berry. Id. at 2, n.1. On April 25, 2017, the state
district court granted Berry's motion to dismiss.
Johnson v. Berry, No. CV-2016-1367, slip op. at 1
(Okla. County Dist. Ct. Apr. 25, 2017) (Dkt. 16-2). The
petition was dismissed without prejudice, because Plaintiff
had failed to plead exhaustion of administrative remedies,
and he had failed to comply with the Governmental Tort Claims
Act notice requirement. Id. Plaintiff appealed the
dismissal to the Oklahoma Supreme Court, and on April 12,
2018, that Court entered an order affirming the district
court's decision. Johnson, No. 116, 301, slip
op. at 9.
claims in his response to the motion to dismiss that as a pro
se litigant, he did not understand the procedure for serving
Defendants Garrison and Underwood in his state lawsuit. (Dkt.
18). He, however, has presented no authority for waiving
service based on a pro se plaintiff's misunderstanding of
the service process.
allege Plaintiff's claims against Garrison and Underwood
are barred by the statute of limitations, but the claims
against Defendant Berry were timely filed. The statute of
limitations for a civil rights cause of action in Oklahoma is
two years. Meade v. Grubbs, 841 F.2d 1512, 1522
(10th Cir. 1988). Plaintiff filed this action on May 14,