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Whitebird v. Gibson

United States District Court, W.D. Oklahoma

October 9, 2019

DARYL DEAN WHITEBIRD, Plaintiff,
v.
TODD GIBSON, et. al. Defendants.

          SUPPLEMENTAL REPORT AND RECOMMENDATION

          GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, a state pre-trial detainee appearing pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983. Defendant Harris has filed a Motion to Dismiss. Doc. No. 26. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, the undersigned recommends the Motion to Dismiss be granted in part and denied in part. I. Background Information Plaintiff is currently incarcerated at Cleveland County Detention Center (“CCDC”). Doc. No. 1 (“Comp.”). Following a previous judicial screening of Plaintiff's Complaint, see Doc. Nos. 9, 12, Plaintiff's remaining cause of action is a First Amendment retaliation claim against Lieutenant Harris and Jailer Masterson. In support of said claim, Plaintiff asserts that as a result of his attempts to utilize the CCDC grievance system as well as his complaints about it not working properly, Lt. Harris and Defendant Masterson retaliated against Plaintiff by moving him to lockdown. Id. at 5, 6.

         Defendant Harris has filed a Motion to Dismiss. Doc. No. 26. Therein, he asserts several unsupported factual statements regarding CCDC policies. For example, Defendant Harris states that it is CCDC policy to house pre-trial detainees charged with violent crimes and/or held under a high bond in lockdown, rather than in an open pod. Id. at 2. He asserts Plaintiff should have been assigned to a lockdown pod upon arrival due to the fact that he was being held under a kidnapping charge and under a high bond. Id. at 1-2. He further states that upon reviewing Plaintiff's grievances, he realized Plaintiff's violent charge and ordered him reassigned to a lockdown pod. Id.

         The problem with Defendant Harris' assertions are two-fold. First, he does not cite to any documentation or similar submission to support these assertions. Second, a motion to dismiss is not the place to argue factual matters not alleged in the complaint. See Jackson v. Integra Inc., 952 F .2d 1260, 1261 (10th Cir. 1991) (holding that in ruling on a motion to dismiss under Rule 12(b)(6) “the district court must examine only the plaintiff's complaint” and “cannot review matters outside of the complaint”). The fact that Defendant Harris' factual arguments are wholly unsupported by any evidence and are mere arguments of counsel would render them totally unavailing even were the Motion to Dismiss converted to a motion for summary judgment under Fed.R.Civ.P. 56, which the undersigned declines to do.[1]

         II. Failure to State a Claim Upon Which Relief can be Granted

         A motion to dismiss may be granted when the plaintiff has “failed to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In applying this standard the court must assume the truth of all well-pleaded factual allegations in the complaint and construe them in the light most favorable to the plaintiff. See Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011); Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005). To survive a motion to dismiss, a complaint must present factual allegations that “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). This review contemplates the assertion of “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. Thus, “when the allegations in a complaint, however true, could not raise a [plausible] claim of entitlement to relief, ” the cause of action should be dismissed. Id. at 558.

         A pro se plaintiff's complaint must be broadly construed under this standard. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the generous construction to be given the pro se litigant's allegations “does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). See Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (courts “will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf”).

         III. First Amendment

         Plaintiff alleges Lt. Harris moved him to lockdown, which has less favorable conditions, in retaliation for his attempts to utilize CCDC's grievance process. Comp. at 5, 6. It is well-settled that prison officials may not retaliate against or harass an inmate because of filing administrative grievances. Gee v. Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010); Williams v. Meese, 926 F.2d 994, 998 (10th Cir. 1991).

Government retaliation against a plaintiff for exercising his or her First Amendment rights may be shown by proving the following elements: (1) that the plaintiff was engaged in constitutionally protected activity; (2) that the defendant's actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the defendant's adverse action was substantially motivated as a response to the plaintiff's exercise of constitutionally protected conduct.

Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007).

         In support of this claim, Plaintiff explains that he attempted to use the grievance process through the Legacy kiosk on January 17, 2019, but did not receive a response. Comp. at 4. He filed a paper grievance on January 27, 2019, and two days later, Captain Glasco informed him he had to use the Legacy kiosk system. Id. at 4-5. On that same date, Lt. Harris returned Plaintiff's paper grievance to him and told him that only grievances submitted through the Legacy kiosk were answered. Id. at 5. Plaintiff subsequently illustrated for Lt. Harris that the Legacy kiosk was not working properly. Id. at 5.

         On January 31, 2019, Plaintiff submitted a paper grievance to the Jail Administrator complaining about the lack of a law library or access to legal materials though the Legacy kiosk. Id. Lt. Harris hand delivered the grievance response and therein, Lt. Harris stated that Plaintiff had access to the Oklahoma State Courts Network for legal research through Legacy. Id. After Lt. Harris returned the grievance to Plaintiff, Defendant Masterson told Plaintiff that Lt. Harris wanted Plaintiff moved to lockdown. Id. Defendant Masterson facilitated the move. Id. at 5, 6.

         After setting aside Defendant Harris' unsupported factual arguments, supra., he has essentially presented two bases for dismissal of Plaintiff's First Amendment retaliation claim. Defendant Harris argues that Plaintiff has not presented sufficient factual allegations to satisfy the second element of his claim because being transferred to lockdown would not chill a person of ordinary firmness from continuing to engage in the subject activity. Doc. No. 26 at 4-5. In support of this assertion, Defendant cites to cases that did not involve a transfer to an area with less favorable conditions but instead, involved a refusal to give a prisoner a grievance form and prison officials tampering with a complaint and causing a prisoner to incur monetary expenses. Id. at 5 (citing Fogle v. Infante, 595 Fed.Appx. 807, ...


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