United States District Court, W.D. Oklahoma
ORDER
DAVID
L. RUSSELL, UNITED STATES DISTRICT JUDGE
Before
the Court is a January 31, 2019 Report and Recommendation
issued by Magistrate Judge Shon T. Erwin, wherein he
recommends that the Motion to Dismiss filed by Defendants Joe
Allbaugh and Mark Knutson (Doc. No. 133) be granted.
Plaintiff filed a timely Objection to the Report and
Recommendation (Doc. No. 168), which gives rise to the
Court's obligation to undertake a de novo review
of those portions of the Report and Recommendation to which
Plaintiff makes specific objection. Having conducted the
de novo review, the Court hereby ADOPTS the Report
and Recommendation and for the reasons set forth therein and
stated herein, the claims set forth in Plaintiff's First
Amended Complaint against Defendants Allbaugh and Knutson, as
they relate to Plaintiff's incarceration at Davis
Correctional Facility are hereby dismissed.
The
Report and Recommendation characterizes the remaining claims
against Defendants Allbaugh and Knutson as alleging that
Plaintiff was denied access to the courts, that he was
subjected to unsanitary conditions in his cell in violation
of his rights under the Eighth Amendment, and that Defendants
failed to protect him from inmate violence. With regard to
Plaintiff's access to the courts claim arising under the
First Amendment, the Report and Recommendation notes that
Plaintiff does not have the right to a state administrative
grievance procedure, and the denial of an administrative
remedy does not give rise to a claim under 42 U.S.C. §
1983. Plaintiff responds by arguing that his claim is not
premised on the denial of his grievances or the failure to
respond thereto. Rather, he is asserting that the failure to
respond and the arbitrary denial of the emergency/sensitive
grievances he filed with Mr. Allbaugh and Mr. Knutson were
done in retaliation for Plaintiff's prior grievances and
lawsuits against Department of Corrections employees.
Regardless of how Plaintiff characterizes his claim that
Defendants Allbaugh and Knutson improperly denied certain
grievances, his claim is subject to dismissal.
“[P]rison
officials may not retaliate against or harass an inmate
because of the inmate's exercise of his constitutional
rights.” Peterson v. Shanks, 149 F.3d 1140,
1144 (10th Cir. 1998) (internal quotation marks and citation
omitted). At the same time, “courts are ill equipped to
deal with the increasingly urgent problems of prison
administration and reform, ” so “when a prison
regulation impinges on inmates' constitutional rights,
the regulation is valid if it is reasonably related to
legitimate penological interests.” Gee v.
Pacheco, 627 F.3d 1178, 1187 (10th Cir. 2010) (internal
quotation marks and citation omitted). In the First Amendment
context, a retaliation claim requires an inmate plaintiff to
allege: (1) that he was engaged in constitutionally protected
activity; (2) that the defendant's actions, here the
denial of emergency/sensitive grievances, caused him to
suffer an injury that would chill a person of ordinary
firmness from continuing to engage in that activity; and (3)
that the defendants' adverse action was substantially
motivated as a response to the inmate's exercise of
constitutionally protected conduct. Shero v. City of
Grove, 510 F.3d 1196, 1203 (10th Cir. 2007). “To
satisfy the third prong of the First Amendment retaliation
test, an inmate must allege specific facts showing that
‘but for the retaliatory motive, the incidents to which
he refers ... would not have taken place.'”
Banks v. Katzenmeyer, 645 Fed.Appx. 770, 772 (10th
Cir. 2016) (quoting Peterson v. Shanks, 149 F.3d
1140, 1144 (10th Cir. 1998). Upon review of Plaintiff's
Amended Complaint, the Court finds no specific factual
allegations against either Defendant Knutson or Defendant
Allbaugh to satisfy the “but for” third element
of Plaintiff's retaliation claim. Rather, the First
Amended Complaint relies on conclusory allegations which are
insufficient to meet Plaintiff's pleading burden.
Furthermore, when Plaintiff's assertion that his
grievances were emergency/sensitive was rejected by
Defendants, he remained free to route the grievances through
the standard channel. The undersigned concurs with Judge
Erwin that Plaintiff's First Amendment claim regarding
access to the courts and retaliation is subject to dismissal
for failure to state a claim.
The
Report and Recommendation addresses the second and third
claim together, concluding that Plaintiff failed to allege
sufficient facts against Defendant Allbaugh, who was director
of the Oklahoma Department of Corrections. Plaintiff asserts
that while in the special housing unit at DCF the conditions
were unsanitary and that he asked for cleaning supplies to
clean his cell or to be moved to a different cell. Plaintiff
also asserts that he requested to be moved to a different
unit because he felt threatened. Plaintiff contends he has
sufficiently alleged personal participation, although his
Objection repeats the relevant legal standards and contains
little argument, asserting:
Plaintiff has alleged sufficient facts demonstrating -- an
affirmative link between Defendant Allbaugh and Knutson
actions -- or inactions as to the Final Decision Makers
on all grievances - and Constitutional Issues raised
therein. See Meade v. Grubbs, (10th Cir.
1988) 841 F.3d 1512, 1526. Accordingly, the remainder of
Plaintiff's claims should also be GRANTED against
Defendants Allbaugh and Knutson as the - Final Decision
Makers on all complaints through grievances and -
misconduct appeals, at Final Exhaustion Stage.
(Doc. No. 168, p. 8). A § 1983 “plaintiff must
show the defendant personally participated in the alleged
violation.” Jenkins v. Wood, 81 F.3d 988, 994
(10th Cir. 1996). “[D]enial of a grievance, by itself
without any connection to the violation of constitutional
rights alleged by plaintiff, does not establish personal
participation under § 1983.” Gallagher v.
Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009). See
also Bertolo v. Benezee, 601 Fed.Appx. 636, 639 (10th
Cir. 2015) (quoting Gallagher, 587 F.3d at 1069);
Sherratt v. Utah Dep't of Corr., 545 Fed.Appx.
744, 747 (10th Cir. 2013)(“Denial of a grievance or
failure to properly investigate or process grievances,
without any connection to the violation of constitutional
rights alleged by the plaintiff, is not sufficient to
establish personal participation for purposes of a Section
1983 claim.”). Plaintiff does not allege that
Defendants Allbaugh and Knutson's roles were more than
“one of abstract authority over individuals who
actually committed a constitutional violation.”
Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir.
2008).
The
Court finds that Plaintiff has failed to state a claim
against Defendants Allbaugh and Knutson with regard to
Plaintiff's claims as set forth in the Report and
Recommendation. Accordingly, the Report and Recommendation is
hereby ADOPTED and the claims against these Defendants with
regard to ...