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Gray v. Ade

United States District Court, E.D. Oklahoma

September 30, 2019

FREDERICK GRAY, Plaintiff,
v.
TIFFANY ADE, et al., Defendants.

          OPINION AND ORDER

          Ronald A. White, United States District Judge.

         Plaintiff, 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.

         The 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. 82, 95).

         Plaintiff's Allegations

         Plaintiff 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.

         On May 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.

         Inmate 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 earlier.

         Shortly 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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, and robbed.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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 against him.

         Plaintiff 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 Plaintiff.

         Plaintiff 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 addressed.

         Plaintiff 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.

         Standard of Review

         Summary 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.

         Exhaustion of Administrative Remedies

         Defendants 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. ...


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