United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE
a state inmate appearing pro se and in forma pauperis, filed
an Amended Complaint pursuant to 42 U.S.C. § 1983
alleging violations of his constitutional rights at the
Lawton Correctional Facility (LCF), (Amend. Compl.) [Doc. No.
34]. United States District Judge Stephen P. Friot referred
the matter for proposed findings and recommendations
consistent with 28 U.S.C. § 636(b)(1)(B) and (C).
Defendants GEO Group, Inc./LCF, and LCF employees Rios,
Engle, Tunstal, Washington, Black, Sa ttler, Clark, Dawson,
Brannon and Johnson, have filed a Motion to Dismiss,
(Defs.'s Motion) [Doc. No. 82], and Plaintiff has
responded, (Pl.'s Resp.) [Doc. No. 94]. For the reasons
set forth below, it is recommended that Defendants'
Motion be GRANTED in part and DENIED in part. It is further
recommended that the Court dismiss certain claims on
February 2017, Plaintiff filed a § 1983 complaint
alleging various constitutional violations at LCF, [Doc. No.
10]. Generally, Plaintiff claimed: (1) he had been denied
physical and mental health treatment; (2) officials ignored
or rejected his grievances in violation of due process and
the First Amendment; (3) he had been denied access to
programs in violation of due process and his equal protection
rights; (4) various Defendants filed “bogus”
misconduct reports against him to either cover their own
violations or in retaliation; (5) various Defendants
promulgated an unconstitutional 10:00 P.M. lights-out policy;
and (6) various Defendants failed to protect him from inmate
assault. Id. at 7-22.
Court dismissed the complaint on filing, see [Doc.
Nos. 19, 35], and Plaintiff appealed to the Tenth Circuit
Court of Appeals. The circuit court affirmed in part,
reversed in part, and remanded the case for further
consideration. See [Doc. No. 48]. Specifically, the
Tenth Circuit affirmed the Court's Order:
• dismissing with prejudice all official-capacity claims
• dismissing with prejudice all due process, First
Amendment, and equal protection claims based on various
Defendants' failure to answer Plaintiff's grievances;
• dismissing the deliberate indifference claims against
Defendants Honaker, Collins, Allbaugh, Engle, and Richmond;
• dismissing with prejudice Plaintiff's Eighth
Amendment claim regarding LCF's 10:00 p.m. lights out
• dismissing the retaliation claims against Defendants
Engle, Tunstal, Simpkins and Washington; and, 
• denying Plaintiff's motion for appointment of
counsel. See Gray, 727 Fed.Appx. at 943-50.
Tenth Circuit reversed the Court's Order:
• dismissing Plaintiff's claims of deliberate
indifference to his serious medical needs against Defendants
Thomas, Lange, Morgan, Rios, Black and Shah as to
Plaintiff's alleged lack of proper mental health
• dismissing deliberate indifference claims against
Defendant Musallam as to Plaintiff's knee pain; and,
• denying Plaintiff's motion to amend his complaint.
remand, this Court accepted Plaintiff's proposed Amended
Complaint, see [Doc. Nos. 34, 51].
Plaintiff's Amended Complaint Claims
relevant here, Plaintiff alleges Defendants Rios, Black, and
Dawson, were deliberately indifferent to his mental health
illness, and Defendants Rios and Dawson were deliberately
indifferent to his need for diabetic shoes. See
Amend. Compl. at 9-10, 24. Plaintiff further claims that
Defendants Engle, Tunstal, Washington, Clark, Brannon and
Johnson brought fabricated misconduct charges against him,
and that Defendants Engle, Tunstal, Clark, and Johnson did so
out of retaliation. Id. at 11-13, 17-18, 22.
Relatedly, Plaintiff alleges Defendant Clark found him guilty
in those disciplinary hearings, and Defendant Dawson affirmed
those convictions, without due process. See Id. at
11-13, 16, 18, 20. Finally, Plaintiff alleges that Defendant
Tunstal left him in unsanitary conditions, without cleaning
products, and Defendant Sattler used excessive force on
Plaintiff. See Id. at 12, 25-26. Except for
Defendants Rios and Clark, Plaintiff names the Defendants in
only their personal capacities. See Id. at 5-9.
Defendants Rios and Clark were named in both their personal
and official capacities. See Id. at 3, 6.
Standard of Review
seek dismissal under Fed.R.Civ.P. 12(b)(6), see
Defs.'s Motion at 1, and this Court has a continuing duty
to screen any complaint where a prisoner is proceeding in
forma paupers and “shall dismiss the case at any
time” if the action fails to state a claim upon which
relief may be granted. 28 U.S.C. § 1915(e)(2)(B).
survive . . ., a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim for relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550
U.S. at 556); see also Gee v. Pacheco, 627 F.3d
1178, 1184 (10th Cir. 2010). “[T]he tenet that a court
must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678. “The court's
function on a Rule 12(b)(6) motion is not to weigh potential
evidence that the parties might present at trial, but to
assess whether the plaintiff's complaint alone is legally
sufficient to state a claim for which relief may be
granted.” Miller v. Glanz, 948 F.2d 1562, 1565
(10th Cir. 1991).
se plaintiff's complaint must be broadly construed under
the Rule 12(b)(6) standard. See Erickson v. Pardus,
551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S.
519, 520 (1972). However, the generous construction
“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). 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).
a court evaluating a Rule 12(b)(6) motion to dismiss may
consider the complaint as well as any documents attached to
it. See Hall, 935 F.2d at 1112. A court may also
consider other documents on a motion to dismiss, without
converting to a motion for summary judgment, if the documents
are (1) referenced in the complaint, (2) central to a
plaintiff's claims, and (3) indisputably authentic.
See Thomas v. Kaven, 765 F.3d 1183, 1197 (10th Cir.