United States District Court, W.D. Oklahoma
SUPPLEMENTAL REPORT AND RECOMMENDATION
M. PURCELL UNITED STATES MAGISTRATE JUDGE
a state prisoner appearing pro se, brings this civil
rights action under 42 U.S.C. § 1983. The matter has
been referred to the undersigned Magistrate Judge for initial
proceedings consistent with 28 U.S.C. § 636(b)(1)(B).
Before the Court is a Motion to Dismiss and/or Motion for
Summary Judgment filed by Defendant Joe Gwynn. Doc. No. 22.
For the following reasons, it is recommended Defendant
Gwynn's Motion be granted. The undersigned further
recommends Plaintiff's claim against Defendant Jason
Bryant be dismissed pursuant to 28 U.S.C. § 1915A(b).
is incarcerated at James Crabtree Correctional Center
(“JCCC”) located in Helena, Oklahoma. Doc. No. 1
(“Comp.”) at 4. Plaintiff's Complaint asserts
an Eighth Amendment claim against former JCCC Warden, Jason
Bryant, and Unit Manager Joe Gwynn alleging that JCCC was
infested with bedbugs and JCCC staff did not take sufficient
action to remedy the problem. Id. at 7, 11-12.
Additionally, Plaintiff asserts a First Amendment claim
against Defendant Gwynn alleging that after Plaintiff
complained about the bedbugs to an auditor visiting JCCC,
Defendant Gwynn retaliated against him by directing JCCC
employees to confiscate Plaintiff's personal property.
Id. at 6, 9-11.
Gwynn has filed a Motion to Dismiss and/or Motion for Summary
Judgment arguing that Plaintiff failed to sufficiently allege
personal participation in violation of Plaintiff's First
Amendment rights and that his allegations do not rise to the
level of a First or Eighth Amendment violation. See
generally Doc. No. 22. In his Motion, Defendant Gwynn
relies on documents and other materials outside of the
pleadings. Plaintiff was advised that when a dispositive
motion is supported by affidavits and/or other documentary
evidence, the motion may be converted to one for summary
judgment under Fed.R.Civ.P. 56. Doc. No. 23 at 1. Moreover,
in his Response, Plaintiff presented several exhibits
relevant to Defendant Gwynn's Motion. Doc. Nos. 24-1,
24-2. Thus, it is evident from Plaintiff's responsive
submission that he was on notice to present materials
pertinent to Defendant's Motion and that he intended for
the Court to consider materials outside the pleadings in
ruling on this Motion. Accordingly, the Court will treat the
motion as seeking summary judgment. Fed.R.Civ.P. 12(d),
56(c)(1); Whitesel v. Sengenberger, 222 F.3d 861,
866 (10th Cir. 2000) (holding that district court may convert
motion to dismiss into motion for summary judgment to
consider matters outside the complaint).
Standard of Review
judgment shall be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). In considering a motion for summary
judgment, the court must view the facts and inferences drawn
from the record in the light most favorable to the nonmoving
party. Burke v. Utah Transit Auth. & Local 382, 462 F.3d
1253, 1258 (10th Cir. 2006) (quotation omitted). While the
court liberally construes a pro se plaintiff's complaint,
such a plaintiff must adhere to the same rules of procedure
that are binding on all litigants. Kay v. Bemis, 500 F.3d
1214, 1218 (10th Cir. 2007). Thus, strict adherence by a pro
se plaintiff to the requirements of Fed.R.Civ.P. 56 is
required. With respect to those requirements, the Supreme
Court has determined that
the plain language of Rule 56 mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial. In such a situation, there can be
“no genuine issue as to any material fact, ”
since a complete failure of proof concerning an essential
element of the nonmoving party's case necessarily renders
all other facts immaterial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
Screening of Prisoner Complaints
federal district court must review complaints filed by
prisoners seeking relief against a governmental entity or an
officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). After conducting an initial review, the
court must dismiss a complaint or any portion of it
presenting claims that are frivolous, malicious, fail to
state a claim upon which relief may be granted, or seek
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. §§ 1915A(b).
conducting this review, the reviewing court must accept the
plaintiff's allegations as true and construe them, and
any reasonable inferences to be drawn from the allegations,
in the light most favorable to the plaintiff. Kay,
500 F.3d at 1217. Although a pro se litigant's pleadings
are liberally construed, Haines v. Kerner, 404 U.S.
519, 520 (1972), “[t]he burden is on the plaintiff to
frame a ‘complaint with enough factual matter (taken as
true) to suggest' that he or she is entitled to
relief.” Robbins v. Oklahoma, 519 F.3d 1242,
1247 (10th Cir. 2008) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007)). The allegations in a
complaint must present “enough facts to state a claim
to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. Further, a claim is
frivolous “where it lacks an arguable basis either in
law or in fact” or is “based on an indisputably
meritless legal theory.” Neitzke v. Williams,
490 U.S. 319, 325, 327 (1989).
undersigned determines the uncontroverted facts herein to be:
Plaintiff has been incarcerated at JCCC for over ten years.
Doc. No. 24 at 4.
Plaintiff alleges that he first noticed bedbugs in JCCC in
June 2017. Comp. at 9.
Plaintiff notified Joseph Tindale, Case Manager
(“CM”), who instructed Plaintiff to take all of
his clothes and bedding to laundry and wash them.
Plaintiff alleges that over the following month, six other
inmates in his living area found bedbugs and CM Tindale also
directed them ...