United States District Court, W.D. Oklahoma
STEPHEN P. FRIOT UNITED STATES DISTRICT JUDGE.
9, 2017, plaintiff Frederick Rideout Gray, Jr, a state inmate
appearing pro se whose pleadings are liberally
construed, filed an amended complaint pursuant to 42 U.S.C.
§1983, alleging violations of his constitutional rights.
Doc. no. 34. That is the current version of the complaint,
and it is the version of the complaint that is challenged by
the motions to dismiss addressed in this order. The motions
challenge the claims alleged against these defendants under
Rule 12(b)(6), Fed. R. Civ. P.
before this court is the Report and Recommendation of March
7, 2019, submitted by Magistrate Judge Bernard M. Jones. Doc.
no. 108 (the Report).The March 7 Report addresses a motion to
dismiss filed by Oklahoma Department of Corrections employees
Mark Knutson and Buddy Honaker. Doc. no. 70.
Report recommends the court grant the motion, as follows: 1)
dismissing with prejudice plaintiff's claims alleged in
the amended complaint against Knutson (plaintiff alleges that
Knutson wrongfully affirmed plaintiff's various
disciplinary convictions, and plaintiff seeks an injunction
against Knutson on that basis); and 2) dismissing without
prejudice plaintiff's claims alleged in the amended
complaint against Honaker (plaintiff alleges Honaker
prevented plaintiff from receiving medical treatment,
specifically, by hindering plaintiff from obtaining hard-sole
diabetic shoes which a Lawton Correctional Facility physician
had ordered for him).
objects to the Report. Doc. no. 124. All objected to matters
have been reviewed de novo.
court has carefully considered plaintiff's objections.
respect to Knutson's motion, plaintiff argues that due
process violations are evident and that plaintiff can succeed
on the merits of his claims against Knutson. The Report
recommends granting Knutson's motion to dismiss with
prejudice, on the ground that to warrant permanent injunctive
relief as requested in the amended complaint, plaintiff must
show he will achieve actual success on the merits, which
plaintiff cannot do because inmates have no due process
rights to a prison appeal. The court agrees with the
Report's conclusion that Knutson's alleged actions in
denying plaintiff's disciplinary appeals cannot entitle
plaintiff to relief, and that the court should dismiss with
prejudice the claims seeking injunctive relief against
Knutson. This ruling covers the official capacity claim as
well as any individual capacity claim plaintiff might have
intended to allege against Knutson for violations of the
disciplinary appeals process. See, Report, doc. no.
108, p. 6, n.6.
respect to Honaker's motion, the amended complaint
alleges a LCF physician “ordered for Plaintiff to have
hard sole diabetic shoes” but that defendant Honaker
“hindered” the order by “amend[ing] the
response of Defendant Rios through Defendant Dawson.”
Allegations indicate that plaintiff attempted to order shoes
from the canteen, that LCF officials denied the request on
the ground that “Reeboks are not classified as diabetic
shoes, ” that plaintiff appealed that decision, that
Honaker then remanded the issue to LCF officials for further
review, that once back at the LCF level the grievance
coordinator told plaintiff to send his grievance to
“HSA Ms. Thomas, ” and that when plaintiff did so
Thomas deemed plaintiff out of time. See, Report,
doc. no. 108, p. 7 and n. 7. The court agrees with the
Report's conclusion that the allegations do not establish
that Honaker was objectively aware of a substantial risk of
harm to plaintiffs health or that Honaker deliberately
refused to fulfill a gatekeeping role. The result, as
recommended in the Report, is that plaintiffs claims against
Honaker should be dismissed without prejudice.
objections to the Report are DENIED. Doc.
no. 124. The Report and Recommendation is
ACCEPTED, ADOPTED and
AFFIRMED. Doc. no. 108. As recommended in
the Report, the motion to dismiss filed by Knutson and
Honaker is GRANTED as follows. The claims
alleged against Knutson in the amended complaint are
DISMISSED with prejudice. The claims alleged
against Honaker in the amended complaint are
DISMISSED without prejudice. This action
remains referred to the Magistrate Judge.
 Plaintiff has recently filed a second
motion for leave to amend the complaint. Doc. no. 130. This
order does not rule on that motion, which is pending before
the Magistrate Judge.
 Two additional Reports have been
submitted by the Magistrate Judge (doc. nos. 127, 129) which
are not ...