United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI, UNITED STATES DISTRICT JUDGE.
matter comes before the Court for review of the Report and
Recommendation [Doc. No. 19] issued by United States
Magistrate Judge Suzanne Mitchell pursuant to 28 U.S.C.
§ 636(b)(1)(B) and (C).
a state prisoner who appears pro se and proceeding
in forma pauperis, brought this action pursuant to
42 U.S.C. § 1983. Upon reviewing the sufficiency of the
Amended Complaint [Doc. No. 18] pursuant to 28 U.S.C. §
1915A(b) and 1915(e)(2)(B), Judge Mitchell recommends that
the claims in the Amended Complaint [Doc. No. 18] for
monetary relief from Defendant Honaker in his official
capacity be dismissed without prejudice as barred by the
Eleventh Amendment, and that the remaining claims against all
Defendants in any capacity be dismissed without prejudice for
failure to state a claim upon which relief may be granted.
Plaintiff has filed a timely objection [Doc. No. 23] to the
Report and Recommendation. The Court must make a de
novo determination of the portions of the Report to
which a specific objection is made, and may accept, reject,
or modify the recommended decision in whole or in part.
See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
Rule of Civil Procedure 8(a)(2) provides that a pleading must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” To
survive a Rule 12(b) inquiry, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007)).2 “Factual allegations must be
enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. “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.” Iqbal, 556 U.S. at 678.
facts are not necessary, ” the pleader's
allegations need only provide the “defendant fair
notice of what the … claim is and the grounds upon
which it rests.” Id. at 1192 (quoting
Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167
L.Ed.2d 1081 (2007)) (internal quotations omitted).
“Twombly and Iqbal do not require
that the complaint include all facts necessary to carry the
plaintiff's burden.” Khalik v. United Air
Lines, 671 F.3d 1188, 1192 (10th Cir. 2012). However,
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678.
Mitchell thoroughly discusses the standards for
Plaintiff's Eighth Amendment and First Amendment claims.
Plaintiff does not object to those standards as laid out by
Judge Mitchell. Therefore, the Court will not repeat them
has no objection to the dismissal of his claims against
Defendants in their official capacity but objects to
dismissal in their individual capacity. Plaintiff's
objections to the Report regarding his Eighth Amendment
claims consist of conclusory statements that: (1) the pleaded
facts “ARE sufficient to plausibly allege
deliberate indifference by all (3) of these
defendants”; and, (2) the Defendants are personally
involved in Plaintiff's dental treatment and treatment
decisions because of their “position [and] authority to
administer Plaintiff's prison grievances per ODOC
policy.” Objection at 2. Plaintiff objects to the
Report's conclusions as to his First Amendment claims on
the basis that: (1) he was punished and/or retaliated against
improperly for pursuing his grievances; and (2) Judge
Mitchell relied upon unpublished authority to which he lacked
Eighth Amendment Claims
Court agrees with Judge Mitchell's findings that
Plaintiff failed to plead sufficient facts to demonstrate
that any of Defendants acted with “deliberate
indifference” indicating a “culpable state of
mind.” Report at 10. Instead, Plaintiff pleads facts
demonstrating that Defendants interpreted ODOC policy
guidelines in denying his grievances. Complaint at
In fact, Plaintiff's Complaint alleges facts indicating
the opposite of deliberate indifference. Defendant Knight
performed a dental examination of Plaintiff's mouth and
considered the ODOC policy relating to denture replacement
and repair in denying him a new set, but, nonetheless,
referred him to another dentist for further assistance.
Complaint at 6.
Complaint asserts that the ODOC dental policy was
inappropriately applied to him but fails to include any facts
regarding what the policy states or how it was
inappropriately applied. Further, the Complaint fails to
identify the ODOC policy in question with any particularity.
Plaintiff identifies an ODOC policy in his Objection but it
is his Complaint which must contain sufficient facts to place
Defendants on notice and to state a claim upon which relief
can be granted. Objection at 1, 2. Finally, both his
Complaint and Objection rely on conclusory statements that:
(1) Defendants had a duty to follow the policy and to
supervise employees to ensure the policy was followed; and,
(2) “to state I didn't meet the policy guidelines
to have my partials fixed was wrong because I need them [and]
I am in pain.” Complaint 5, 6; Objection at 2, 3.
cites to several cases to support his position that the
pleaded facts are sufficient. However, these cases are
inapposite. Two of the cases involved application of a policy
in contradiction of state law, a circumstance not alleged in
his Complaint. See Dodds v. Richardson, 614 F.3d
1185, 1204 (10th Cir. 2010) (inmate challenged jail's
implementation of Court Clerk policy of refusing pre-set bail
in warrant until arraignment where state law placed
responsibility for making and implanting jail policies with
the county sheriff); Wright v. Smith, 21 F.3d 496,
502 (2d Cir. 1994) (superintendent of prison had been
notified via a habeas corpus petition of prison's
violation of state law requiring that no admission to the
Special Housing Unit last longer than fourteen days without a
hearing). In Plaintiff's other cited cases, the suing
inmate demonstrated actual or constructive knowledge of a
specific misapplication of policy. See, Keith v.
Koerner, 707 F.3d 1185, 1189 (10th Cir. 2013) (inmate
alleged facts showing that the warden did not follow sexual
misconduct policy consistently, was aware of sexual
misconduct, and pointed to “structural policy
problems”); Green v. Branson, 108 F.3d 1296,
1302 (10th Cir. 1997) (finding sufficient showing of link
between warden's deliberate indifference of inmate's
ruthless beating and the constitutional deprivation of
appropriate medical care where warden was personally informed
of the “vicious assault” and did nothing). In
this case, Plaintiff has failed to plead any specific facts
challenging the dental policy or showing how the policy was
incorrectly applied to him or that Defendants were made
personally aware of any such incorrect application.
Court agrees with Judge Mitchell's finding that Plaintiff
has failed to allege sufficient facts in his Complaint to
demonstrate that Defendants Honaker, Byrd, and Rashti
“had any personal involvement in in his dental
treatment or treatment decisions” beyond denial of
grievances or that Defendant Knight “was deliberately
indifferent to his dental well-being.” Report at 10,
12. For these reasons, the Court finds that Plaintiff's
objections do nothing more than repeat the failings cited by
Judge Mitchell and amount to no more than “mere
First Amendment Claims
objection to Judge Mitchell's conclusion that placement
on grievance restriction did not deny his First Amendment
right to access to the courts, Plaintiff asserts only that he
cannot respond as Judge Mitchell relies on an unpublished
opinion to which Plaintiff lacks access. However, Plaintiff
makes no attempt to counter Judge Mitchell's reasoning or
the holding of the opinion to which he objects. Instead,
Plaintiff cites Bounds v. Smith, 430 U.S. 817, 828,
97 S.Ct. 14911498, 52 L.Ed.2d 72 (1977), in which the Supreme
Court held that “the fundamental constitutional right
of access to the courts requires prison authorities to assist
inmates in the preparation and filing of meaningful legal
papers by providing ...