SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE

Plaintiff, a state prisoner housed at the James Crabtree Correctional Center (JCCC) and appearing pro se, has filed this action under 42 U.S.C. § 1983 alleging violations of his constitutional rights by prison officials. Doc. 1; Doc. 18, Att. 1. United States District Judge Joe Heaton has referred this matter for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 7. Defendant Scott Crow, Director of the Oklahoma Department of Corrections (ODOC), filed the Court-ordered Special Report, authored by Benjamin Betts, to which Plaintiff has filed an objection. See Docs. 21, 38, 43.

Plaintiff sues JCCC's warden, Scott Nunn, the ODOC's Director, Scott Crow, Correction Officer Rackley, JCCC's Chief of Security Curtis, Correction Officer Mike Rogers, all in their individual and official capacities, and Securus. Doc. 1, at 6-7; Doc. 18, Att. 1, at 1. Defendants Crow, Nunn, Rackley, Curtis, and Rogers have moved to dismiss Plaintiff's complaint. Doc. 40. These Defendants contend in their motion that, based on the undisputed facts set forth in the Special Report and its attached exhibits, Plaintiff has failed to state a claim for relief against them under the Constitution or the PREA, Defendants Nunn and Crow did not personally participate in any constitutional violation, and they are shielded by qualified immunity. Id. at 315. Plaintiff opposes the motion. Doc. 50. As Defendants rely on documents outside the complaint to support their motion, the Court should treat it as a Fed.R.Civ.P. 56 motion for summary judgment and grant the motion.

In his third claim, Plaintiff sues the ODOC. Doc. 18, Att. 1, at 3. The undersigned recommends dismissing this Defendant, as well as Plaintiff's claims for damages against Defendants Crow, Nunn, Rackley, Curtis, and Rogers in their official capacities, on screening.

The undersigned also recommends granting Plaintiff's voluntary motion to dismiss Defendant Securus Technologies and Defendant Curtis. Doc. 48.

I. The undersigned must screen Plaintiff's complaint.

Federal law requires the Court to screen 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). The Court must also review each case brought by a prisoner regarding prison conditions and each case in which a prisoner proceeds in forma pauperis. 42 U.S.C. § 1997e(c)(1); 28 U.S.C. § 1915(e)(2)(B). The Court must dismiss any frivolous or malicious claim, any claim asking for monetary relief from a defendant who is immune from such relief, or any claim on which the Court cannot grant relief. Id. §§ 1915A(b), 1915(e)(2)(B).

“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted); see also Blessing v. Freestone, 520 U.S. 329, 340 (1997) (“In order to seek redress through § 1983, however, a plaintiff must assert the violation of a federal right, not merely a violation of federal law.”). The complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556); see also Gee v. Pacheco, 627 F.3d 1178, 1184 (10th Cir. 2010). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

This Court construes “[a] pro se litigant's pleadings . . . liberally and [holds them] to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). The Court, however, may not serve as Plaintiff's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

II. Standard of review for summary judgment motions.

This Court shall grant summary judgment “if [Defendants show] that there is no genuine dispute as to any material fact and [Defendants are] entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In considering Defendants' motion, the Court views the facts and inferences drawn from the record “in the light most favorable” to Plaintiff. See Burke v. Utah Transit Auth. & Loc. 382, 462 F.3d 1253, 1258 (10th Cir. 2006) (citation omitted).

A dispute is “genuine,” when viewed in this light, if a reasonable jury could return a verdict for Plaintiff-the nonmoving party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). Material facts are “facts that might affect the outcome of the suit under the governing law.” Id.

To obtain summary judgment, Defendants need not affirmatively negate Plaintiff's claims. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Rather, Defendants first bear the burden only of “‘showing'-that is, pointing out to the district court-that there is an absence of evidence to support” Plaintiff's case. Id. at 325. Once Defendants have satisfied this burden, the burden shifts to Plaintiff to show there is a genuine issue of material fact. See id. at 324. Plaintiff “may not rest upon mere allegation” in his pleadings to satisfy this requirement. Anderson, 477 U.S. at 256. Rather, he must “go beyond the pleadings and by . . . affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324 (internal quotation marks omitted); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (“When the moving party has carried its burden . . . the nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.'” (quoting Fed.R.Civ.P. 56(e))).

III. Plaintiff's claims.

Plaintiff alleges prison officials failed to protect him from cruel and unusual punishment and violated his due process and equal protection rights when they violated their own policies and federal law by preventing him from immediately reporting a violation of the “Prison Rape Elimination Act (PREA)” through a telephone hotline administered by “Securus.” Doc. 1, at 8-12. See 34 U.S.C. §§ 30301-30309.

A. Plaintiff's account of the factual basis of his claims.

Plaintiff recounts that, in the pre-dawn hours of November 29, 2020, he had a personal “accident” which “required a shower and to wash [his] laundry.” Doc. 1, Ex. 1, at 1. While Plaintiff was in the shower area, Defendant Rackley asked who was in the shower and why. Id. at 2. Plaintiff states he identified himself, but Defendant Rackley “persisted” in asking him personal medical questions even after Plaintiff told him the issue was private. Id. Plaintiff claims Defendant Rackley entered the shower area while Plaintiff was nude and did not leave the shower area when Plaintiff yelled for him to “get out” of there. Id. Instead, Defendant Rackley remained in the area and “continued to stare at [Plaintiff's] crotch” for approximately “7 to 10 minutes.” Id.

When Plaintiff exited the shower and went downstairs to report Defendant Rackley's behavior via the telephone hotline, he received only a busy signal. Id. Plaintiff claims Defendant Rackley later approached him and stated they were both at fault and that he would not “write [him] up.” Id.

Plaintiff admits he successfully submitted a written PREA complaint on November 30, 2020, and prison officials denied it on January 20, 2021. See Id. Ex. 1, at 1.

In his response to the Special Report, Plaintiff complains Mr. Betts failed “to mention Plaintiff's Medical Records showing his diagnosis of PTSD as a result of this incident.” Doc. 43, at 1. He admits, however, that Mr. Betts attached his medical record referencing a diagnosis of PTSD to the Special Report as an exhibit. Id.

B. Plaintiff's requested relief.

In his first claim, Plaintiff names Defendant Rackley and alleges he violated his “right to protection from cruel and unusual punishment under the Fourteenth Amendment and from abuse under the Prison Rape Elimination Act (PREA), Act of Congress.” Id. at 8. He states that “[c]learly C/O Rackley remaining [in] the shower with Plaintiff while plaintiff was completely naked for 7-10 minutes violated [ODOC] policies, as well as violated Plaintiff's 8th Amendment protections against civil and unusual punishment.” Doc. 18, Att. 1, at 9. He requests monetary damages and for the Court “to immediately issue its preliminary injunction or temporary restraining order enjoining J.C.C.C./DOC from further violating [his] rights; an order requiring DOC officials to wear body cameras; declaratory relief and an[] order for DOC to follow PREA policy.” Id. at 9.

In his second claim, Plaintiff names Defendants Crow, Nunn, Rogers, and Rackley and alleges a violation of his due process and equal protection rights. Id.; Doc. 18, Att. 1, at 2. He asserts that “JCCC and the ARA [administrative review authority] did not follow DOC's standard operating procedures required by federal law of reporting and recording [his] PREA complaint.” Doc. 1, at 9; Doc. 18, Att. 1, at 2. In his objection to the Special Report, Plaintiff complains that “he was denied due process under the 14^thAmendment when the facility denied his PREA complaint without any investigation.” Doc. 43, at 2. He requests monetary damages and “a declaration that the named respondents violated [his] rights and did not follow policies and procedures related to PREA” and he asks this Court to order each Defendant to undergo “required training.” Doc. 1, at 10; Doc. 18, Att. 1, at 2.

In his third claim, Plaintiff names Securus and the ODOC and alleges a violation of his rights to due process and equal protection “by being restricted from reporting the PREA violation via the PREA phone hotline.” Id. at 11; Doc. 18, Att. 1, at 2-3. He alleges the ODOC changed telephone service providers but “failed to update, notify, post, train, or educate” staff and inmates about the change to the phone system which prevented him from reaching the PREA hotline to report his claim. Doc. 18, Att. 1, at 3. He requests monetary damages, declaratory relief, and “required training of DOC employees to follow PREA reporting requirements.” Doc. 1, at 12.

In his fourth and final claim, Plaintiff names Defendant Curtis and alleges he violated his rights to “equal protection and cruel and unusual punishment under the eighth amendment and protection from employee retaliation under PREA” as well as “harassment by staff.” Doc. 18, Att. 1, at 4. Plaintiff asserts that several months after his PREA complaint he saw Defendant Curtis in the hallway and Defendant Curtis said, “Let me go first before I give you anxiety.” Id. at 5. Plaintiff requests an apology from Defendant Curtis, that he undergo further PREA training, and that his employee file reflect Plaintiff's complaint so that “this won't happen again to others.” Id.

IV. Undisputed material facts, derived from the verified Court-ordered Special Report, Defendants' motion, and Plaintiff's reply to the Special Report and Defendants' motion.

JCCC rules, as set forth in the inmate handbook, state that showers are only available to inmates from 6:00 a.m. to 8:00 a.m. and from 5:00 p.m. to 10:45 p.m. Doc. 38, Ex. 7, at 8. Staff must authorize any showers outside those designated times and showers are “shut down” fifteen minutes before lights out each night. Id.

Plaintiff has been incarcerated at JCCC since May 2017. Doc. 38, at 4 & Ex. 3. On November 29, 2020, the JCCC shift supervisor reported that Plaintiff had received a misconduct for disobeying rules. Id. Ex. 27.

On that same date, Plaintiff submitted an “emergency” grievance to the ARA complaining that Defendant Rackley had violated the PREA by looking at him in the shower that morning for approximately “7 to 10 minutes” while he was naked and Plaintiff was covering himself. Id. Ex. 15, at 2-3. Plaintiff was in the shower around 3:00 a.m. and Defendant Rackley came into the shower area to see who was there at that hour. Id. Plaintiff stated in his grievance that his attempt to report a PREA violation by telephone was thwarted by a busy signal. Id.

On December 7, 2020, Mark Knutson, Director's Designee for the ODOC, emailed Carla Braggs, the ODOC's PREA coordinator, inquiring if she had received a PREA related complaint from Plaintiff. Id. Ex. 8, at 2. She responded that she had not. Id. at 3.

On December 8, 2020, Mr. Knutson denied Plaintiff's grievance as improperly filed because he had not included a reviewing authority response to his grievance. Id. Ex. 12, at 4. Mr. Knutson explained to Plaintiff that an emergency grievance could be submitted directly to the reviewing authority, not the ARA. Id. He also informed Plaintiff that the PREA coordinator had no record of a complaint from Plaintiff. Id. Plaintiff acknowledged receipt of the denial on December 9, 2020. Id. Ex. 8, at 11.

On December 11, 2020, Ms. Braggs reached out by email to Deputy Robert Denton regarding Plaintiff's complaint. Id. at 6. In an exchange of emails, Ms. Braggs advised Deputy Denton to speak to Plaintiff about the incident. Id. at 6-14. Deputy Denton responded that he spoke to Plaintiff who was “doing well” and having “no issues.” Id. at 15. Deputy Denton said Plaintiff had told him that he was in the shower because of medical issues which prevent him from controlling his bodily functions. Id. Deputy Denton informed Ms. Braggs that there was “no documentation from medical on this matter and that is why the officer was questioning [Plaintiff] being in the shower.” Id. Deputy Denton told Ms. Braggs that he had advised Plaintiff he was going to check with medical and determine if his claim was “credible” so that he could “clear up” the matter for future events. Id.

Plaintiff submitted another grievance to the ARA which the ARA returned unanswered due to procedural error. Id. Ex. 13; Ex. 14, at 2. The ARA then forwarded Plaintiff's original emergency grievance to JCCC's reviewing authority for a response. Id. Ex. 14, at 2.

Defendant Nunn denied Plaintiff's original grievance on January 15, 2021. Id. Ex. 15, at 4. He stated that Plaintiff's medical issue requiring him to shower outside the authorized shower times could not be substantiated but that Plaintiff could submit a sick call request to have his medical issue addressed. Id. Defendant Nunn also stated that Defendant Rogers had reportedly spoken with Plaintiff on December 11, 2020, and during that conversation Plaintiff had admitted to him that his statements about Defendant Rackley's inappropriate behavior in the shower area were fabricated. Id.

Plaintiff appealed to the ARA stating that his prior sick call requests notated his need for “adult diapers” and thus, it was logical to assume, he would need to shower after an accident. Id. Ex. 16, at 3. Plaintiff also stated he never told Defendant Rogers that he had fabricated his allegations against Defendant Rackley. Id. at 4. Mr. Knutson denied the appeal on February 5, 2021. Id. at 2. Mr. Knutson avers that Plaintiff has exhausted his administrative remedies on this issue. Id. Ex. 14.

V. The Eleventh Amendment bars Plaintiff's claims against ODOC and the named Defendants in their official capacities.

Plaintiff sues ODOC and Defendants Crow, Nunn, Rackley, Curtis, and Rogers in their official capacities for monetary damages. See Doc. 1, at 6-7; Doc. 18, Att. 1, at 1-3. The Court lacks subject matter jurisdiction over these claims, and they should be dismissed.

A. The Eleventh Amendment's sovereign immunity bar precludes Plaintiff's claims.

“The Eleventh Amendment is a jurisdictional bar that precludes unconsented suits in federal court against a state and arms of the state.” Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013) (internal quotation marks omitted). “The party asserting jurisdiction bears the burden of proving that sovereign immunity has been waived.” Impact Energy Res., LLC v. Salazar, 693 F.3d 1239, 1244 (10th Cir. 2012) (internal quotation marks and alteration omitted).

Neither States nor state officials sued in their official capacities are considered “persons” within the meaning of 42 U.S.C. § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). Claims for damages against a state official in his official capacity are construed as claims against the State and, so, are barred by the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159, 169 (1985) (holding that a suit against an individual acting in an official capacity is properly treated as a suit against the State itself and “the Eleventh Amendment bars a damages action against a State in federal court”); see also White v. Colorado, 82 F.3d 364, 366 (10th Cir. 1996) (holding Eleventh Amendment sovereign immunity barred § 1983 claims “for money damages” against prison officials in their official capacities).

Exceptions to immunity exist where a State consents to suit in federal court or where Congress has abrogated a State's sovereign immunity. Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012). But Oklahoma has not consented to be sued in federal court, nor did Congress abrogate the States' sovereign immunity by creating a private right of action under § 1983. See Berry v. Oklahoma, 495 Fed.Appx. 920, 921-22 (10th Cir. 2012) (citing Okla. Stat. tit. 51, § 152.1 and Will, 491 U.S. at 66). Thus, “the State of Oklahoma's Eleventh Amendment immunity from suits seeking money damages in federal court remains intact.” Christian v. Thompson, No. CIV-18-699-G, 2019 WL 4920885, at *2 (W.D. Okla. Oct. 3, 2019).

B. Sovereign immunity bars Plaintiff's claims against Defendant ODOC and Defendants Crow, Nunn, Rackley, Curtis, and Rogers in their official capacities.

Plaintiff has named ODOC as a Defendant and seeks monetary damages and declaratory relief. Doc. 1, at 11-12; Doc. 18, Att. 1, at 3. But the Oklahoma Department of Corrections is “shielded by sovereign immunity because it is an arm of the state.” Berry, 495 Fed.Appx. at 922. And the Eleventh Amendment applies to suits against the States and their agencies regardless of the relief sought. See Higganbotham v. Oklahoma, 328 F.3d 638, 644 (10th Cir. 2003) (“The Eleventh Amendment expressly applies to suits seeking injunctive and declaratory relief.”); see also Steadfast Ins. Co. v. Agricultural Ins. Co., 507 F.3d 1250, 1252 (10th Cir. 2007) (“Eleventh Amendment immunity applies regardless of whether a plaintiff seeks declaratory or injunctive relief, or money damages.”).

Similarly, ODOC's immunity extends to its employees who are sued in their official capacities for monetary damages. See Cleveland v. Martin, 590 Fed.Appx. 726, 730 (10th Cir. 2014) (“Because the defendants are employees of the Oklahoma Department of Corrections . . ., the Eleventh Amendment applies to the official-capacity claims for damages.”); Pietrowski v. Town of Dibble, 134 F.3d 1006, 1009 (10th Cir. 1998) (“An action against a person in his official capacity is, in reality, an action against the government entity for whom the person works.”).

Plaintiff's claim against Defendant ODOC and his claims against Defendants Crow, Nunn, Rackley, Curtis, and Rogers in their official capacities are barred and should therefore be dismissed without prejudice. See, e.g., Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006) (“[W]here the district court dismisses an action for lack of jurisdiction . . . the dismissal must be without prejudice.”).

VI. Plaintiff has no private cause of action under § 1983 to enforce alleged PREA violations.

Plaintiff alleges Defendants violated his rights under the PREA because they failed to protect him from abuse and failed to properly hear or investigate his PREA complaint. Doc. 1, at 8-11; Doc. 18, Att. 1, at 2-3, 7, 10-11; Doc. 50, at 12-14. In their motion, Defendants argue Plaintiff has no substantive rights under the PREA or a private right of action to enforce its procedures. Doc. 40, at 8. The Court agrees.

A. The PREA grants no substantive rights to Plaintiff.

Plaintiff alleges Defendants violated his rights under the PREA by failing to protect him from Defendant Rackley's sexual behavior. Doc. 1, at 8. The PREA was designed to “detect, prevent, reduce, and punish prison rape” in United States' prisons. 34 U.S.C. § 30302. While one of the purposes of the PREA is to “protect the Eighth Amendment rights of Federal, State, and local prisoners,” id. § 30302(7), the statute itself does not “create any private right of action for prisoners to sue correctional staff for alleged sexual misconduct.” See Pope v. Martin, No. CIV-21-216-C, 2021 WL 4699168, at *2 (W.D. Okla. Sept. 9, 2021) (quoting Worley v. Ewing, 2021 WL 951704, at *4 (S.D. W.Va. Mar. 12, 2021)), adopted by, 2021 WL 4692393 (W.D. Okla. Oct. 7, 2021); see also Moreno v. Corizon Med. Provider, 2017 WL 3052770, at *2 (D.N.M. June 21, 2017) (“The PREA is intended to address the problem of rape in prison, authorizes grant money, and creates a commission to study the issue, but does not grant prisoners any specific rights.” (internal quotation marks omitted)).

B. Plaintiff's due process and equal protection claims are not cognizable under the PREA.

Plaintiff complains prison officials denied him due process and equal protection when they failed to properly hear or investigate his PREA complaint under the PREA procedures. Doc. 1, at 9-11; Doc. 18, Att. 1, at 2-3, 7, 10-11; Doc. 50, at 12-14. But the PREA does not provide Plaintiff with a private right of action, enforceable under § 1983, to challenge the processes that prison officials afforded to him under the PREA. See Johnson v. Garrison, 859 Fed.Appx. 863, 863-64 (10th Cir. 2021) (“To the extent Johnson's due process claim is premised on processes afforded him under the PREA, the district court correctly concluded Johnson has failed to show the PREA provides an inmate with a private right of action, enforceable under § 1983, to challenge that process.”).

C. Conclusion.

Plaintiff cannot sue Defendants, either substantively or procedurally, for violating the PREA. The undersigned therefore recommends dismissal of these claims.

VII. Plaintiff's Eighth Amendment claim. ^]

A. Section 1983 law.

Section 1983 is a vehicle for imposing personal liability on government officials who, acting under color of state law, violate a person's federally protected rights. West, 487 U.S. at 48. “Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Governmentofficial defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. Conclusory allegations of involvement do not suffice.

“Supervisory status alone does not create § 1983 liability.” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009). To demonstrate personal participation in the alleged constitutional violations, a plaintiff must show “an affirmative link . . . between the constitutional deprivation and either the supervisor's personal participation, his exercise of control or direction, or his failure to supervise.” Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997) (internal quotation marks and alterations omitted).

B. Eighth Amendment law.

The Eighth Amendment “imposes duties on [prison] officials, who must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must ‘take reasonable measures to guarantee the safety of the inmates[.]'” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-527 (1984)). “[A] prison official violates the Eighth Amendment only (1) if the constitutional deprivation is ‘objectively sufficiently serious' and (2) the prison official has a ‘sufficiently culpable state of mind.'” Ullery v. Bradley, 949 F.3d 1282, 1290 (10th Cir. 2020) (quoting Farmer, 511 U.S. at 834). So “[t]o state a claim for sexual abuse against a prison official under the Eighth Amendment, a plaintiff must therefore satisfy two elements-one objective and one subjective.” Id. (citing Smith, 339 F.3d at 1212).

The objective component is met if a defendant's “alleged wrongdoing was objectively harmful enough to establish a constitutional violation.” Ullery, 949 F.3d at 1290. But not “every malevolent touch by a prison guard gives rise to a federal cause of action.” Hudson v. McMillian, 503 U.S. 1, 9 (1992).

The subjective component is met if a prison official “knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. “[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. “When a prisoner alleges excessive force in the form of sexual abuse, the subjective element ‘turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.'” Ullery, 949 F.3d at 1290 (quoting Smith, 339 F.3d at 1212); see also Joseph v. U.S. Fed. Bureau of Prisons, 2000 WL 1532783, at *1 (10th Cir. 2000) (“‘To prevail on a constitutional claim of sexual harassment, an inmate must therefore prove, as an objective matter, that the alleged abuse or harassment caused ‘pain' and, as a subjective matter, that the officer in question acted with a sufficiently culpable state of mind.'” (quoting Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997))).

C. Plaintiff's allegations against Defendant Rackley do not rise to a constitutional violation.

Plaintiff alleges Defendant Rackley sexually harassed him on one occasion by viewing Plaintiff's naked body for several minutes while Plaintiff was in the shower without permission in the middle of the night. Doc. 1, at 8; Doc. 18, Att. 1, at 8. He asserts Defendant Rackley's conduct caused him to suffer psychological injury and severe anxiety. Doc. 18, Att. 1, at 7, 10. Defendants argue Defendant Rackley's conduct did not violate Plaintiff's constitutional rights. Doc. 40, at 5-7. The undersigned agrees.

“The sexual harassment of a prisoner by a prison guard can, in certain circumstances, violate the prisoner's Eighth Amendment right to be free from cruel and unusual punishment.” Folsom v. Knutson, No. CIV-13-632-D, 2015 WL 13742442, at *7 (W.D. Okla. Sept. 4, 2015) (citing Joseph, 2000 WL 1532783, at *1), adopted by, 2016 WL 123432 (W.D. Okla. Jan. 11, 2016), aff'd, 702 Fed.Appx. 781 (10th Cir. 2017). But Plaintiff's allegation is not objectively sufficiently serious to give rise to an Eighth Amendment violation.

Plaintiff admits he was taking a shower outside the designated shower times and that Defendant Rackley entered the shower area to question him about his conduct. Doc. 1, Ex. 1, at 2-3; Doc. 38, Ex. 7, at 8. Plaintiff complains that Defendant Rackley should have left him alone rather than staying in the shower area for several minutes to question him. Doc. 50, at 2-3. He asserts Defendant Rackley's only reason for questioning him in the shower area was “for his own sexual gratification.” Id. at 2. But Plaintiff makes no claim that Defendant Rackley touched him or made any sexual advances, motions, or remarks during this isolated incident. Further, Plaintiff admits he was able to cover “his genital area with his hands” during the encounter. Id. at 5. Under these circumstances, the undersigned cannot conclude Defendant Rackley's limited, nonphysical conduct was sufficiently serious to satisfy the objective component of an Eighth Amendment claim. See Folsom, 2015 WL 13742442, at *7 (rejecting the plaintiff's allegations of an Eighth Amendment violation where the plaintiff described only one incident where the prison guard defendant had “winked” and “suggestively licked his lips” at the plaintiff while the plaintiff was naked in the shower); see also Barney, 143 F.3d at 1310 n.11 (“Although plaintiffs allege Mr. Pulsipher subjected them to severe verbal sexual harassment and intimidation, these acts of verbal harassment alone are not sufficient to state a claim under the Eighth Amendment.”); Howard v. Everett, 208 F.3d 218, 2000 WL 268492, at *1 (8th Cir. 2000) (“[S]exual harassment, absent contact or touching, does not constitute unnecessary and wanton infliction of pain.”); Reyes v. Corn, 2020 WL 495382, at *2-4 (D.N.M. Jan. 30, 2020) (finding no Eighth Amendment violation as a result of “one specific incident of sexual harassment during which, when [the plaintiff] was naked in the shower, [the defendant] entered the shower, smiled at [the plaintiff] in a sexual manner while looking at his exposed genitals and buttocks, and refused to give [the plaintiff] his clothes and his towel or move out of the way so that [the plaintiff] could exit the shower”).

Plaintiff also cannot satisfy the subjective component of his Eighth Amendment claim. Plaintiff alleges that he had a medical condition precipitating his off-hours shower, but he neither refers to nor provides any prior authorization from the medical or prison staff for him to leave his bunk to shower if he had an accident. He also admits he refused to discuss his medical condition with Defendant Rackley when he asked him about it during the encounter. Doc. 1, Ex. 1, at 3. Under these circumstances, Plaintiff cannot show that Defendant Rackley, by entering the shower to question him about his presence there at 3:00 a.m., did so maliciously and for the very purpose of causing harm rather than in a good faith effort to maintain or restore discipline. See Ullery, 949 F.3d at 1290 (“When a prisoner alleges excessive force in the form of sexual abuse, the subjective element ‘turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.'” (quoting Smith, 339 F.3d at 1212)); see also Hutto v. Davis, 972 F.Supp. 1372, 1376 (W.D. Okla. 1997) (“Each defendant's conduct must be judged by information known to him at the time, not by facts that developed later.”).

Viewing the evidence in a light most favorable to Plaintiff, the undersigned concludes he does not raise a fact issue that Defendant Rackley's conduct during this shower incident violated Plaintiff's Eighth Amendment rights. The undersigned therefore recommends granting summary judgment to Defendant Rackley on this claim.

D. Plaintiff's supervisory claims against Defendants Nunn and Rogers also fail.

Plaintiff alleges Defendants Nunn and Rogers violated his constitutional rights by failing to properly train and supervise Defendant Rackley. Doc. 50, at 7-10. But because Defendant Rackley's conduct does not rise to the level of a constitutional violation, Plaintiff cannot establish an affirmative link between a constitutional deprivation and Defendant Nunn's and Defendant Rogers' supervisory conduct. Green, 108 F.3d at 1302; see also Gallagher, 587 F.3d at 1069 (“Supervisory status alone does not create § 1983 liability.”). They are, therefore, also entitled to summary judgment on Plaintiff's Eighth Amendment claims.

VIII. Plaintiff's voluntary dismissal.

Plaintiff has filed a “Voluntarily Dismissal” of his claims against Securus, as alleged in Count 3, and his Count 4 claims against Defendant Curtis. Doc. 48. The undersigned recommends the Court find Plaintiff has withdrawn these claims and these Defendants from this case.

IX. Recommendation and notice of right to object.

Based on the above the Court should: (1) dismiss the claims against Defendant ODOC and the official capacity claims against Defendants Crow, Nunn, Rackley, Rogers, and Curtis; (2) dismiss Plaintiff's PREA and policy violation claims against all Defendants; (3) grant Defendants' motion for summary judgment, Doc. 40; and (4) allow Plaintiff to withdraw his claims against Defendant Securus and Defendant Curtis. The Court should also deny Plaintiff's request for injunctive relief and his motions for discovery as moot. Docs. 4, 51, 52.

The undersigned advises the parties of their right to file an objection to the Report and Recommendation with the Clerk of this Court by July 20, 2022, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned also advises the parties that failure to make a timely objection to the Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).

This Report and Recommendation terminates the referral in this case.