Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tishkof v. Fallin

United States District Court, E.D. Oklahoma

March 28, 2019

KEITH DONALD TISHKOF, Plaintiff,
v.
MARY FALLIN, et. al., Defendants.

          OPINION AND ORDER

          THE HONORABLE RONALD A. WHITE UNITED STATES DISTRICT JUDGE

         This action is before the court on Defendants' motions for summary judgment. The court has before it for consideration Plaintiff's complaint [Doc. 1], Defendants' motions [Docs. 24, 25], and a special report [Doc. 23] prepared by the Oklahoma Department of Corrections (“DOC”) at the direction of the court, in accordance with Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978). Plaintiff did not file a response to Defendants' motions for summary judgment.

         Plaintiff is currently under the supervision of the DOC and is no longer physically incarcerated within a prison facility. Plaintiff brings this action under the authority of 42 U.S.C. § 1983, seeking relief for alleged constitutional violations during his incarceration at Mack Alford Correctional Center (MACC) and Howard McCleod Correctional Center (HMCC). [Doc. 1]. Defendants are Mary Fallin, former Governor of the State of Oklahoma; Joe Allbaugh, Director of DOC; Kameron Harvanek, former Warden of MACC; and Tommy Sharp, Warden of HMCC.[1]

         While incarcerated, Plaintiff claims that he was denied the right “to a safe and healthy environment due to prison overcrowding and understaffing.” [Doc. 1 at 2]. According to the complaint, Plaintiff was incarcerated at HMCC from March 17, 2016, through January 26, 2017. Id. at 5. Plaintiff asserts the conditions of his confinement at HMCC were unconstitutional, that the number of inmates “in all housing units far exceeded the design capacity, ” that single bunks were replaced with bunkbeds, and that “Plaintiff and other inmates were packed in like sardines, with virtually no unencumbered bed space.” Id. He alleges, as a result, that the conditions “caused constant friction and tension amongst the inmates, ” that the “noise level was constantly ear shattering, ” and that “the air was constantly filled with tobacco, marijuana and PCP smoke, even when the pod officers made their rounds at count times.” Id. at 5-6. Plaintiff further claims he witnessed several fights, robberies and bizarre behavior by inmates “who were so high they were literally out of their mind” and that he was threatened and assaulted twice. Id. at 6. Due to fear of retaliation, Plaintiff states he did not report the assaults. Id.

         Plaintiff also contends the ratio of sinks, toilets and showers to inmates was “legally unacceptable, ” that “there were rodents in the kitchen area, ” that “laundry could not provide the number and type of clothing that DOC policy says inmates are to receive, ” and that the maintenance department could not keep up with the reported problems. Id. at 6-7. Plaintiff allegedly lived in constant fear of being assaulted or robbed by predatory inmates since the officers were understaffed and could not maintain control. Id. at 7. He also claims inmates who filed grievances or lawsuits would be subject to violent retaliation, and that “despite many requests, ” he was never provided with a grievance form, and staff refused to answer his questions about the grievance process. Id.

         Plaintiff was transferred to MACC in January of 2017. Id. at 8. According to Plaintiff, the conditions at MACC “were even worse than at HMCC.” Id. Staff and officers reportedly told Plaintiff that if he filed paperwork, “he would regret it.” Id. As a result, he waited until he was transferred to initiate his grievance and lawsuit. Id. While at MACC, he was also allegedly stabbed in the face by another inmate as a result of asking for a grievance form. Id. Plaintiff claims the stabbing caused serious injury. Id. After receiving medical care at the facility, Plaintiff was transferred to the Davis Correctional Facility in Holdenville, Oklahoma. Id. at 9. Upon arrival, Plaintiff alleges most of his personal property had been stolen. Id.

         In summary, Plaintiff claims Warden Sharp and Warden Harvanek were fully aware of the conditions of these facilities “and did nothing.” Id. at 8. Plaintiff claims “all of the above was allowed to happen due to the deliberate indifference of all Defendants towards his risk of serious harm, in violation of the 8th Amendment.” Id. at 9.

         Next, Plaintiff states he has read “numerous articles in newspapers on the issue of overcrowding” and also viewed reports on OETA television.[2] Id. at 9. According to Plaintiff, the “media reports made it clear that Governor Mary Fallin and DOC Director Joe Allbaugh had long been aware of the seriousness of the overcrowding and understaffing throughout the state prison system, ” and that “years have gone by with no real corrective action.” Id. Be that as it may, Plaintiff sets forth the following basis for relief:

Governor Fallin repeatedly delayed and obstructed the Justice Reinvestment Initiative (JRI) Program which state leaders had tried to implement to address the prison overcrowding problem. Both Governor Fallin and DOC Director Allbaugh refused to implement early release programs to alleviate overcrowding. Governor Fallin initiated new rules and restrictions to dramatically reduce the number of inmates being paroled. Governor Fallin used her authority to handpick members of the pardon and parole board who are all former prosecutors, former law enforcement officers, or former judges known to be against granting clemency.

Id. at 9-10. Plaintiff thereafter concludes the deliberate indifference of all Defendants is “very obvious and apparent” and that the conduct violates the 8th Amendment. Id. at 10. Plaintiff claims “this is a continuing violation” and that “lack of funding is not a valid excuse.” Id. Plaintiff requests declaratory and injunctive relief regarding prison overcrowding and related safety issues in state-run prisons. Id. at 11. He also seeks “compensatory damages of $200, 000 plus punitive damages of $2, 000, 000.” Id. at 13.

         Standard of Review

         Defendants' Allbaugh, Harvanek and Sharp filed a motion for summary judgment [Doc. 24] on April 18, 2018. Defendant Fallin filed a separate motion for summary judgment [Doc. 25] on the same date. Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is genuine if the evidence is such that “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it “might affect the outcome of the suit under the governing law.” Id. In making this determination, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. However, a party opposing a motion for summary judgment may not simply allege there are disputed issues of fact; rather, the party must support its assertions by citing to the record or by showing the moving party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c). Thus, the inquiry for this court is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52.

         Because Plaintiff is a pro se litigant, the court construes his 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).

         Exhaustion of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.