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Markham v. Rios

United States District Court, W.D. Oklahoma

August 27, 2019

FLOYD MARKHAM, JR., Plaintiff,
v.
HECTOR RIOS, JR., et al., Defendants.

          ORDER

          CHARLES B. GOODWIN UNITED STATES DISTRICT JUDGE

         This matter comes before the Court for review of the Report and Recommendation (Doc. No. 14) issued by United States Magistrate Judge Suzanne Mitchell pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). Plaintiff, a state prisoner appearing pro se, brought this action under 42 U.S.C. § 1983, alleging civil rights violations and violations of state law.

         On screening, Judge Mitchell has recommended partial dismissal of Plaintiff's claims for failure to state a claim upon which relief can be granted. See R. & R. at 1-2; 28 U.S.C. § 1915A(b)(1). Plaintiff has objected to the R&R. See Pl.'s Obj. to R. & R. (Doc. No. 21).[1] Plaintiff's objection triggers de novo review by this Court of those portions of the Report and Recommendation to which objection is made. See, e.g., United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). Issues or claims raised for the first time, however, are waived. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996).

         I. Eighth Amendment Claim

         Judge Mitchell recommends dismissal of Plaintiff's Eighth Amendment claim against the Doe Defendants, [2] Defendant Thomas, and Defendant Rios.

         A. Doe Defendants

         With respect to the Doe Defendants, Judge Mitchell determined that Plaintiff failed to plead facts demonstrating knowledge of and disregard for “an excessive risk to inmate health or safety.” R. & R. at 7-8 (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Specifically, she noted that Plaintiff did not allege any facts suggesting “that the Doe Defendants were aware of Plaintiff's dental condition at all.” Id. at 9.

         In his Objection, Plaintiff rehashes his allegations that the Doe Defendants failed to perform the duties required of them by the applicable prison regulations. See Pl.'s Obj. to R. & R. at 4-5. But these allegations, as Judge Mitchell correctly observed, do not suggest that the Doe Defendants “knew of and disregarded an excessive risk to Plaintiff's health or safety, ” and Plaintiff has not demonstrated otherwise. R. & R. at 8-9. Accordingly, the Court adopts Judge Mitchell's recommendation to dismiss Plaintiff's Eighth Amendment claim against the Doe Defendants.

         B. Defendant Thomas

         Judge Mitchell determined that Plaintiff failed to state an Eighth Amendment claim against Defendant Thomas because the sole allegation against her-i.e., that she “provid[ed] an unfavorable response to a grievance”-does not establish her personal participation in the alleged constitutional violation. R. & R. at 9.

         In his Objection, Plaintiff complains that Defendant Thomas “failed to conduct an independent investigation” regarding the adequacy of Plaintiff's dental treatment. Pl.'s Obj. to R. & R. at 6. Plaintiff's failure-to-investigate theory is not mentioned in the complaint, and the Court will not consider it for the first time in Plaintiff's Objection. At any rate, Plaintiff has not shown that Defendant Thomas was constitutionally obliged to further investigate his treatment or that her failure to investigate rose to the level of deliberate indifference. See Sherratt v. Utah Dep't of Corr., 545 Fed.Appx. 744, 747 (10th Cir. 2013) (“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”). Therefore, the Court adopts Judge Mitchell's recommendation to dismiss Plaintiff's Eighth Amendment claim against Defendant Thomas.

         C. Defendant Rios

         Judge Mitchell concluded that Plaintiff failed to state an Eighth Amendment claim against Defendant Rios because the allegations against him-i.e., that he failed to “cause[] an investigation” in response to Plaintiff's grievance and that he failed to ensure his subordinates' “compli[ance] with DOC and LCF policies and law”-do not demonstrate his personal participation in the alleged constitutional violation. R. & R. at 10.

         In his Objection, Plaintiff asserts that Defendant Rios' “failure to strictly adhere to regulations . . . enabled [his subordinates] to continue their deliberate indifference.” Pl.'s Obj. to R. & R. at 5. But this statement, like the allegations in Plaintiff's complaint, does not supply the requisite “affirmative link” between the alleged constitutional violation and Defendant Rios' “personal participation . . . exercise of control or direction, or . . . failure to supervise.” Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993). To the extent Plaintiff attempts to base liability on Defendant Rios' alleged departure from prison regulations, that attempt must fail, as “§ 1983 provides a cause of action only for violations of federal law.” Walker v. Wilkerson, 310 Fed. App'x 284, 285 n.1 (10th Cir. 2009) (emphasis in original); see also Koch v. Carlisle, No. CIV-15-811-HE, 2017 WL 7175960, at *4 (W.D. Okla. Dec. 4, 2017), report and recommendation adopted, No. CIV-15-811-HE, 2018 WL 632033 (W.D. Okla. Jan. 30, ...


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