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Perkins v. Allbaugh

United States District Court, E.D. Oklahoma

March 27, 2019

KELVIN PERKINS, Plaintiff,
v.
JOE M. ALLBAUGH, DOC Director, Defendant.

          OPINION AND ORDER

          Ronald A. White, United States District Judge.

         This 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 Director.

         Plaintiff 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).

         Plaintiff 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.

         Plaintiff 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.

         On the 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 symptoms:

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.

         Plaintiff 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.

         Standard of Review

         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 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.

         Tort Claim

         On 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 ...


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