United States District Court, W.D. Oklahoma
SUPPLEMENTAL REPORT AND RECOMMENDATION
M. PURCELL, UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
Failure to State a Claim Upon Which Relief can be
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.
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”).
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
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.
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,
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, ...