United States District Court, E.D. Oklahoma
OPINION AND ORDER
A. White, United States District Judge.
action is before the Court on Defendant's motion to
dismiss or for summary judgment (Dkt. 16). Plaintiff, an
inmate in the custody of the Oklahoma Department of
Corrections (DOC) who presently 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. The defendant is Joe M. Allbaugh, DOC
was housed at Jackie Brannon Correctional Center (JBCC) in
McAlester, Oklahoma, when he was working on a clean-up crew
for the Oklahoma State Penitentiary (OSP) tower removal, also
in McAlester. (Dkt. 1 at 18). On the morning of November 17,
2016, he was struck in the head by debris being thrown from
the tower. He claims he continues to suffer medical problems
from this incident. (Dkt. 1 at 2).
alleges he was knocked unconscious and was rushed to the OSP
medical facility where he was treated for severe bleeding. He
was in horrible pain from the top of his head to the bottom
of his knees, with dizziness and uncontrollable shaking.
Although he informed the OSP medical staff of his symptoms,
he received no treatment for his aching head. Instead, his
head was re-bandaged. Id. at 3.
next was taken to the housing unit where he told the unit
manager he needed medical services from JBCC rather than OSP.
The unit manager told him to go after the yard count was
completed. After demanding to be seen by medical services, he
was seen by a nurse practitioner, not a “real doctor,
”who gave him a tetanus shot, checked his heart and
blood pressure, looked in his eyes, gave him gauze to wrap
his head, and ordered 800 mg. ibuprofen tablets. Id.
day of the incident, Plaintiff submitted a request to see a
mental health professional. Id. The sick call slip
was returned with a receipt date of November 23, 2016.
Id. The request stated he had not been the same
since the accident, and he claimed to have the following
I told them that I was experiencing memory loss, nightmares
in my sleep, dizziness, paranoia, mood swings, anxiety,
muscle aches and spasms, tightness and stiffness in the left
side of my neck, white speckles in my eyes, my ears ringing
and popping, sharp pain in my lower back and knees when I
stand up, and my vision in my eyes hurt to sunlight, and I
also had trouble breathing out of my nose.
Id. He was seen a mental health provider on November
30, 2016. Id.
further alleges that over the next few days, his condition
got worse, and he requested immediate medical care on
November 21, 2016. The medical treatment slip was returned
with a notation of “scheduled, ” but he never saw
a medical provider. Id. at 7-8.
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 v. Kerner, 404 U.S. 519, 520 (1972).
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 Defendant's motion.
March 30, 2017, Plaintiff made a claim for compensation under
the Oklahoma Governmental Tort Claims Act. (Dkt. 1 at 35).
Although the complaint does not expressly raise this claim,
Defendant asserts this was a tort claim for medical
negligence at a private prison. (Dkt. 16 at 23). Defendant
alleges that to the extent Plaintiff is alleging a tort claim
for medical negligence, it must fail as a matter of law.
According to a letter dated June 2, 2017, from the Office of
Risk Management and ...