United States District Court, E.D. Oklahoma
OPINION AND ORDER
A. White, United States District Judge.
a pro se state prisoner who is incarcerated at Joseph Harp
Correctional Center in Lexington, Oklahoma, filed an amended
civil rights complaint pursuant to 42 U.S.C. § 1983
(Dkt. 34). He alleges his constitutional rights were violated
while incarcerated at Davis Correctional Facility (DCF), a
private prisoner in Holdenville, Oklahoma, and he is seeking
injunctive and monetary relief. The defendants, all DCF
employees, are: Tiffany Ade, Echo Unit Manager; Captain
Hatchman a/k/a Captain Hatton, Security Captain; Sgt. Wright,
Security Sergeant; A.W. Perez, Assistant Warden; Terry
Underwood, Warden's Assistant; Major Brown, Chief of
Security; Major Dorman, Administrative Chief; A.W. Gentry,
Assistant Warden of Security; James Yates, Warden; and
Officer Garrison, DOC Internal Affairs Officer.
defendants have filed a motion for summary judgment (Dkt.
74), and a special report prepared by the Oklahoma Department
of Corrections (DOC) at the direction of the Court, in
accordance with Martinez v. Aaron, 570 F.2d 317
(10th Cir. 1978) (Dkt. 62). Plaintiff has filed a response to
the motion (Dkt. 80) and two supplemental responses (Dkts.
alleges that on May 30, 2017, he was transferred from Lawton
Correctional Facility in Lawton, Oklahoma, to DCF. Ezekiel
Davis, another prisoner, also was transferred. Plaintiff
claims Defendants Ade, Perez, Brown, Dorman, Gentry, and
Yates classified him and Inmate Davis before the transfer.
Inmate Davis allegedly was to be celled with another prisoner
named Marcus Woodson, however, Davis allegedly advised the
intake officer he was afraid of Inmate Woodson. Therefore,
Inmate Davis initially was placed in a single cell.
31, 2017, Plaintiff and Inmate Davis were initially assessed,
and on June 6, 2017, the facility psychiatrist met with them.
After the psychiatrist met with Inmate Davis, she allegedly
was angry and short on time, and she refused to continue
Plaintiff's routine medication. Plaintiff claims he went
approximately 11 days without his usual psychotropic
medication. He asserts his medication must be taken twice
daily for the proper treatment of his many serious
schizophrenic, bipolar disorders.
Davis allegedly took advantage of Plaintiff's
vulnerability, using it as an opportunity to prey on him.
Plaintiff claims he filed an emergency grievance, as he was
told to do by his friends and family. He was attempting to
avoid being placed in another special care unit (SHU),
because he had experienced SHU approximately seven months
after these events, Inmate Davis allegedly began verbally
assaulting Plaintiff, because Plaintiff refused to comply
with coercive threats by Davis and the prisoner in the next
cell to relinquish his property. Davis also hit Plaintiff
with a food tray and demanded that Plaintiff hand over his
property, shut up, and take the top bunk. In addition, Davis
broke the mechanism to activate the cell light, making the
cell dark. Plaintiff feared for his life, because other
prisoners had told Davis to murder Plaintiff, if Plaintiff
did not comply with their demands.
claims that during this constant abuse, his lower back, neck,
and right shoulder were re-injured, and he had new injuries
to his lip and right ear, which required medical treatment.
On June 11, 2017, C/O Romine and nurses Brill and Lundren
came to Plaintiff's cell to document Inmate Davis's
predatory behavior. Plaintiff advised them that he had
submitted an emergency grievance the day before. Davis still
had access to an unauthorized food tray, and he had used it
to force Plaintiff to comply with his demands, or face being
murdered with the tray. Romine called Defendants Hatchman and
Wright, who allegedly were biased, and they refused to listen
to Plaintiff. Plaintiff was removed from his cell, and Davis
remained. While Plaintiff was in the strip-out cage, he was
asked when he last received his psychotropic medication. When
he explained that the psychiatrist had failed to reorder the
medication, the nurses were directed to provide it to him.
Also, Plaintiff's shoes, which Davis allegedly had taken,
were retrieved. Plaintiff then was escorted to the
Fox-Unit/Bravo SHU. He was not allowed to secure his property
but was told the officer would secure it.
submitted two missing property claims, however, Defendants
Ade and Yates allegedly made no meaningful resolution.
Plaintiff claims he received some of his property, but part
of it was damaged. On or around October 24, 2017, Defendant
Ade advised Plaintiff that she would correct the problem by
finding the missing property and reimbursing him for the
damaged property. The unit clerk allegedly attempted to get
Plaintiff to agree to an erroneous resolution on October 28,
2017, but Plaintiff refused because Defendant Ade had agreed
to correct the problem.
asserts he advised Defendants Perez, Brown, Dorman, Gentry,
and Ade that he was being retaliated against for reporting an
assault and battery with a dangerous weapon (the unauthorized
food tray). He also told them he had been kidnaped, extorted,
was in the SHU from June 11, 2017, until July 21, 2017,
allegedly resulting in a denial of due process, separation
from his property, and loss of consortium with friends and
family, as well as mental and emotional anguish. Plaintiff
claims he knows of no other prisoner who is treated as he is.
It allegedly is the position of Defendants Ade, Perez, and
Yates that a documented predator such as Inmate Davis should
not be placed with a vulnerable, mentally ill prisoner such
as Plaintiff. Plaintiff argues he should not have been
labeled a mentally ill, behavioral problem and placed in the
SHU. Instead, Inmate Davis should have been moved there, and
Plaintiff should have been protected from Davis' abuse.
also complains of a subsequent, inappropriate placement in
the SHU by Defendant Ade from September 15, 2017, until
approximately December 11, 2017. The placement allegedly
arose when Inmate Tony Matin tried to throw urine on
Plaintiff, but it hit a correctional officer. Plaintiff
claims he was blamed for the incident in retaliation for his
grievances. While Defendants Ade, Perez, Gentry, Brown, and
Dorman agreed with Plaintiff that he should have not been
placed in the SHU for this incident, the officials would not
intervene to remove him from the placement.
alleges he has received approximately seven retaliatory
misconduct offenses that have caused him to lose his earned
credit level, which apparently affected his gang pay. He
claims he is deprived of the ordinary treatment received by
other, similarly-situated prisoners.
requests restoration of his personal property which was taken
without due process by Defendants Wright and Hatchman.
Defendants Ade and Perez said they would see to
Plaintiff's reimbursement, but have not done so. He
asserts the property deprivation coupled with the allegedly
inappropriate segregation have exacerbated his depression,
resulting in his suicide attempt.
further alleges he was entitled to Protective Measure Inmate
(PMI) housing, because he is a vulnerable, capricious,
mentally ill prisoner. He claims that because Defendants Ade
and Perez did not assure his safety, he was viciously
attacked and had property taken and destroyed. Because of the
abuse, he had difficulty sleeping and was in constant fear of
being attacked again and having his property stolen.
further contends Defendants Underwood and Yates retaliated
against him by placing him on an excessive and arbitrary
grievance restriction, whereby it cost approximately $30.00
for a notary before he can submit a grievance. This
restriction deterred him from filing grievances about his
housing situation which was emotionally and psychologically
abusive. He claims that at the time the complaint was filed,
he had an overbearing cellmate, Inmate Paul Roppolo, who
manipulated him with words, instead of violence. Roppolo
allegedly complained about the cell conditions and
Plaintiff's habits and behavior. Plaintiff was afraid to
speak up for himself, because Roppolo had gotten angry and
slung things around the cell after Plaintiff cleaned it, and
he also feared Roppolo would file a bogus PREA complaint
also claims the Law Library Supervisor, Ms. Willa Burney,
denied him access to the courts. Ms. Burney, however, is not
a defendant in this action. He asserts Defendants Ade, Brown,
Yates, Dorman, Perez, Gentry, and Underwood colluded to
retaliate against him for standing up for his constitutional
rights through the grievance process. He claims the
defendants discouraged him from using the process by advising
him that it was unnecessary to use the DOC 09-OP-0901240 form
to begin the grievance process. Defendant Perez allegedly
told Plaintiff he would find another prisoner with as many
complaints as Plaintiff and cell the other prisoner with
told Defendant Perez he had Obsessive-Compulsive Disorder
about sanitation, and he was entitled to a clean cell with
furnishings. Perez told Plaintiff to write him on the least
formal 09-OP-90124E form. In November 2017, when Plaintiff
did as instructed, however, none of his concerns were fully
next alleges that when he learned from Defendants Perez and
Brown that Defendants Wright and Hatchman failed to follow
the norms of a cell altercation/emergency cellmate separation
by writing a required report, Plaintiff sought an immediate
Internal Affairs Investigation. He complains that when
Defendant Garrison responded to Plaintiff's inquiry about
Inmate Davis's being punished for attacking Plaintiff, he
was advised that Defendant Ade would handle the
investigation. Defendants Ade, Brown, Gentry, Dorman, and
Perez stated they were looking into the issue; however,
Inmate Davis was not punished.
judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
a judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
dispute is genuine if the evidence is such that “a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A fact is material if it “might
affect the outcome of the suit under the governing
law.” Id. In making this determination,
“[t]he evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in his
favor.” Id. at 255. A party opposing a motion
for summary judgment, however, may not simply allege there
are disputed issues of fact; rather, the party must support
its assertions by citing to the record or by showing the
moving party cannot produce admissible evidence to support
the fact. Fed.R.Civ.P. 56(c). Thus, the inquiry for this
Court is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” Anderson, 477 U.S. at 251-52.
of Administrative Remedies
have filed a motion for summary judgment, alleging among
other things that Plaintiff has failed to exhaust the
available administrative remedies for most of his claims. The
Prison Litigation Reform Act of 1995 (PLRA) requires
prisoners to exhaust available administrative remedies before
filing a lawsuit concerning prison conditions under 42 U.S.C.
§ 1983, including Eighth Amendment claims. “No
action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law,
by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as
are available are exhausted.” 42 U.S.C. §
1997e(a). Inmates are required to exhaust available
administrative remedies, and suits filed before the
exhaustion requirement is met must be dismissed. Booth v.
Churner, 532 U.S. 731, 740-41 (2001); Yousef v.
Reno, 254 F.3d 1214, 1216 n.1 (10th Cir. 2001).
“An inmate who begins the grievance process but does
not complete it is barred from pursuing a § 1983 claim
under PLRA for failure to exhaust his administrative
remedies.” Jernigan v. Stuchell, 304 F.3d
1030, 1032 (10th Cir. ...