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Johnson v. Garrison

United States District Court, E.D. Oklahoma

March 25, 2019

MARTY GARRISON, et al., Defendants.


          Ronald A, White United States District Judge

         This 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.

         Plaintiff's 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. 1991).

         Plaintiff 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"[1] 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).

         Plaintiff 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.

         On 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.

         Plaintiff 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.

         Plaintiff 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.

         He also 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.

         Plaintiff 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 15.

         Standard of Review

          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.

         A pro 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 Defendants' motion.

         Statute of Limitations

          The 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.

         Plaintiff 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.

         Defendants 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, 2018, ...

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