Opinion
CIV-21-534-SLP
06-01-2024
JEROME ADRIAN DAVID, Plaintiff, v. SCOTT CROW, et. al., Defendants.
SECOND SUPPLEMENTAL REPORT AND RECOMMENDATION
GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner appearing pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Before the Court is the Motion to Dismiss filed by Defendants Crow, Glover, Atkinson, Prather, Knutson, and Goodwin. Doc. No. 64. 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 following reasons, it is recommended the Motion to Dismiss, converted to a Motion for Summary Judgment, be granted in part and denied in part.
I. Plaintiff's Claims
This case arises from Plaintiff's allegations that while he was incarcerated at William S. Key Correctional Center (“WKCC”) located in Fort Supply, Oklahoma, Defendants violated his constitutional rights. See generally Doc. No. 23. Plaintiff names as Defendants in this matter: Scott Crow, Director of the Oklahoma Department of Corrections (“ODOC”); Joe Allbaugh, former Director of ODOC; T. Hastings Siegfried; Mark Knutson, ODOC Administrative Review Authority; Lonnie Lawson, WKCC Warden; Cheri Atkinson, ODOC Medical Services Manager; Tammy Foster, WKCC “CHSA”; Aitson, Dentist; T. Lauer, WKCC “OCS”; Linda Eike, WKCC Unit Manager; Susan Goodwin, WKCC Case Manager; Persli Elsi, WKCC Kitchen Supervisor; Glover, WKCC Kitchen Staff; and Prather, WKCC Kitchen Staff. Id. at 4; Doc. No. 23-1 at 1; Doc. No. 23-2 at 2-5.
Plaintiff asserts Defendants violated his rights under the First, Eighth, and Fourteenth Amendments based upon allegations that they knowingly allowed rat and pest infestation in the kitchen, served spoiled milk and food, served food with rat droppings in them and/or food from which rats have eaten, refused to provide him a heart healthy diet as ordered by a physician, interfered with his ability to exhaust his administrative remedies, ordered him to do jobs involving dangerous chemicals without training and while refusing to provide personal protective equipment resulting in burns on his face, neck, and hands, twice terminated his employment in retaliation for reporting portions of the previous allegations, and interfered with his use of the grievance process. Doc. Nos. 23, 23-1, 23-2, 23-3.
Defendants have filed a Motion to Dismiss wherein they request dismissal of Plaintiff's claims. Doc. No. 64. Because Defendants rely, in part, on evidentiary documents outside of the pleadings in support of their Motion, and Plaintiff was advised of his responsibilities under Fed.R.Civ.P. 12 and 56 in responding to Defendants' Motion, see Doc. No. 65, the Motion will be considered as one seeking summary judgment. See Arnold v. Air Midwest, Inc., 100 F.3d 857, 859 n.2 (10th Cir. 1996) (“Notice to the parties is required to prevent unfair surprise when a judge converts a 12(b)(6) motion into a Rule 56 motion.”); Brown v. Zavaras, 63 F.3d 967, 969 (10th Cir. 1995) (explaining that courts may convert motion to dismiss into motion for summary judgment in order to consider matters outside of the pleadings); Wheeler v. Hurdman, 825 F.2d 257, 260 (10th Cir. 1987) (“[W]hen a party submits material beyond the pleadings in support of . . . a motion to dismiss, the prior action on the part of the part[y] puts them on notice that the judge may treat the motion as a Rule 56 motion.”).
In their Motion to Dismiss, Defendants state that Plaintiff has failed to serve various individual Defendants, including but not limited to Carrie Bridges, Rhodona Thomas, and FNU Pludau. Doc. No. 64 at 8 n.1. As Plaintiff did not name Bridges, Thomas, or Pludau as Defendants in his Amended Complaint, they are not parties to this lawsuit. The remaining Defendants have now been served, with the exception of Defendants Elsi, Allbaugh, Aitson, and Lauer. The Court will address Defendant Elsi herein, and Defendants Allbaugh, Aitson, and Lauer in a separate Order(s).
II. Standard of Review
A. Summary Judgment
Summary judgment may only be granted when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In considering a motion for summary judgment, the Court reviews the evidence and inferences drawn from the record in the light most favorable to the nonmoving party. Burke v. Utah Transit Auth. & Local, 462 F.3d 1253, 1258 (10th Cir. 2006).
A dispute is “genuine” if a reasonable jury could return a verdict for 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. “At the summary judgment stage, a complainant cannot rest on mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true.” Burke, 462 F.3d at 1258 (quotations omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotations omitted).
B. Screening of Prisoner Complaints
A 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. §§ 1915(e)(2)(B), 1915A(a). At any point during the litigation, 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. §§ 1915(e)(2)(B), 1915A(b).
In 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 v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). 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, 1247-48 (10th Cir. 2008) (quoting Bell Atl. 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).
III. Exhaustion of Administrative Remedies
Defendants contend Plaintiff failed, prior to filing this action, to exhaust administrative remedies through the ODOC grievance procedure. Proper exhaustion of administrative remedies is mandated by the Prison Litigation Reform Act (“PLRA”), which provides that a prisoner cannot bring an action “with respect to prison conditions under [§] 1983 . . . until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see also Ross v. Blake, 578 U.S. 632, 640 (2016) (“[T]he history of the PLRA underscores the mandatory nature of its exhaustion regime.”); Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.”).
The exhaustion doctrine protects administrative agency authority and promotes efficiency. Woodford v. Ngo, 548 U.S. 81, 89 (2006). Because the exhaustion doctrine is an affirmative defense, the defendants “bear the [initial] burden of asserting and proving that the plaintiff did not utilize administrative remedies.” Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011). Once the defendant demonstrates a plaintiff has failed to exhaust his administrative remedies, “the onus falls on the plaintiff to show that remedies were unavailable to him[.]” Id.
Further, “substantial compliance [with the grievance procedure] is insufficient.” Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007). Proper exhaustion requires compliance with all of the prison's grievance procedures, including adherence to “deadlines and other critical procedural rules[,] because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford, 548 U.S. at 90-91. Thus, “[a]n inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim[.]” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002).
There is no exception to the exhaustion requirement for “special circumstances.” Ross, 578 U.S. at 638-40 (discussing mandatory language means a court may not excuse a failure to exhaust, even to take special circumstances into account) (citing Miller v. French, 530 U.S. 327, 337 (2000) (explaining that “[t]he mandatory ‘shall' . . . normally creates an obligation impervious to judicial discretion”)). Thus, if administrative remedies are available, an inmate must complete each step of the administrative process before a federal court can consider the merits of the inmate's complaint based on alleged violations of constitutional rights.
IV. Grievance Procedure for Oklahoma Inmates
The ODOC's grievance procedure is clearly set forth in the ODOC Inmate/Offender Grievance Process OP-090124. Doc. No. 64-1. Initially, a prisoner must seek to resolve any complaint by informally raising the matter with an appropriate staff member. Id. at 7-8. If the matter is not resolved informally, the prisoner must submit a request to staff within seven calendar days of the incident, raising only one issue therein. Id. at 8.
ODOC amended its Grievance Process effective January 18, 2022. Doc. No. 62-18. The previous version, submitted as Exhibit 1 to Defendants' Motion to Dismiss, was in effect during all times relevant to Plaintiff's claims. Doc. No. 64-1. Therefore, the Court will refer only to the latter herein.
If the request to staff does not successfully resolve the issue, the prisoner must submit a formal grievance form, with a copy of the request to staff attached, to the appropriate facility reviewing authority within 15 calendar days from the date of the response to the request to staff, and can only raise one issue. Id. at 911. The reviewing authority will assign a number to each grievance received and will generally answer the grievance within 20 days of its receipt. Id. at 11-12. If the reviewing authority denies the grievance at the prison level, a prisoner must appeal the decision to the Administrative Review Authority (“ARA”) within 15 days of receipt of the same to complete exhaustion of his administrative remedies. Id. at 13-15.
When inmates face an emergency or have a sensitive grievance as defined in OP-090124, they can file a grievance directly to the reviewing authority (or to the ARA, if the emergency or sensitive grievance involves the reviewing authority) without attempting to informally resolve the dispute. Id. at 16-18. The reviewing authority must determine within twenty-four hours whether the grievance is of a sensitive nature or requires emergency handling. Id. at 17. If the reviewing authority decides the matter does not involve a true emergency or a sensitive topic, the inmate must restart the administrative process by trying to informally resolve the dispute and resubmitting the grievance. Id. at 18.
V. Plaintiff's Utilization of the Grievance Process
Defendants concede Plaintiff exhausted his Eighth Amendment claims regarding his dental care. Doc. No. 64 at 19. Thus, the Court will address Plaintiff's utilization of the administrative remedies process only with regard to his additional claims.
Defendants also concede Plaintiff exhausted his administrative remedies regarding his Eighth Amendment claims based on allegations that he was served spoiled milk and peaches, as well as non-organic food. Doc. No. 64 at 19. However, Plaintiff did not assert those claims against Defendants seeking dismissal/summary judgment by the current Motion. Therefore, the Court will not address those claims herein.
A. Chemical Exposure & Retaliatory Discharge (Bathroom Orderly)
1. Claims & Allegations
Plaintiff asserts First and Eighth Amendment claims arising from his job as a bathroom orderly during which he was exposed to chemicals that injured the skin on his hands, arms, and face. On December 31, 2020, Defendants Eike and Goodwin approved Plaintiff for the job of bathroom orderly. Doc. No. 62-30 at 5. On January 7, 2021, Defendant Eike instructed Plaintiff to clean the bathrooms, including the bathroom ceilings. Doc. No. 62-29 at 2-3. Plaintiff requested protective gear from various individuals but was informed the facility did not have any. Doc. No. 23-3 at 8; Doc. No. 62-29 at 2-3. Plaintiff performed his duties and as a result, suffered chemical burns on his hands, arms, and face. Id. Plaintiff submitted a sick call request regarding the same. He was seen by a physician who diagnosed his injuries as chemical burns and treated them for some time with silver sulfadiazine cream and Ibuprofen. Doc. No. 23-3 at 8; Doc. No. 62-29 at 10, 15. On January 8, 2021, Plaintiff first reported his chemical exposure and burns through the grievance process. Doc. No. 62-29 at 2.
On January 12, 2021, Defendants Eike and Goodwin terminated Plaintiff from his bathroom orderly position. Doc. No. 23-3 at 8; Doc. No. 62-29 at 5. As Plaintiff is required to hold a job during his confinement, he applied to be a kitchen orderly, as instructed by Defendant Goodwin, and was placed in that position. Doc. No. 62-30 at 9. However, Plaintiff did not want that position and attempted on multiple occasions to reobtain his bathroom orderly job. Defendants Eike and Goodwin denied those requests. Doc. No. 62-29 at 9-10.
The Court notes Plaintiff's application for the kitchen orderly position, submitted with Defendants' Special Report, is dated December 27, 2020, prior to the date Defendants terminated him from his bathroom orderly position. Doc. No. 62-29 at 7. However, as the application date also precedes the date Plaintiff was hired as a bathroom orderly, it might simply be a previously submitted application and not an application submitted following his termination.
Plaintiff asserts an Eighth Amendment claim against Defendant Eike based on her failure to provide him with training regarding use of and/or exposure to hazardous chemicals, as required by ODOC policy, as well as his chemical exposure and resulting burns. Doc. No. 23-3 at 9-10. Plaintiff also asserts a First Amendment claim against Defendants Eike and Goodwin based on their actions in terminating him from his bathroom orderly position in alleged retaliation for reporting his chemical exposure and resulting burns. Id. at 8.
2. Exhaustion Efforts
On January 8, 2021, Plaintiff submitted a Request to Staff in which he explained that on the previous day, Defendant Eike ordered that the ceilings and other areas of the pod be cleaned. Doc. No. 62-29 at 2. He reported that he asked Defendant Eike for cleaning supplies and safety gear and she told him to ask Defendant Goodwin, who told him to ask C.O. Ellis, who informed Plaintiff that they did not have any. Id. at 2-3. Plaintiff explained that he attempted to avoid cleaning until the Unit Team provided him with safety equipment, but Defendant Eike informed him that if he failed to do so, he would lose canteen privileges. Id. at 3. Plaintiff cleaned the bathroom, including the ceiling, and chemicals got on his face, eyes, arms, and hands. Id. The following morning, Plaintiff had burns in those areas. Id. He anticipated facing the same situation and potential harm in the future. Id.
In the “Action Requested” section, Plaintiff stated, “To be provided with safety supplies needed for cleaning and handling chemicals. [A]lso not to be charged medical fees to treat my burns or if there is anything else wrong with me as [a] result of this issue.” Id. at 2. On January 11, 2021, a WKCC official responded by asking, “Mr. David[,] have you addressed with the Unit Manager[?]” Id.
On January 19, 2021, Plaintiff submitted Grievance #21-02 in which he first summarized the history of his Request to Staff, above. Id. at 4. He then explained that on January 12, 2021, Defendants Goodwin and Eike, as well as Case Manager Mindy Livshee, met with Plaintiff in his bunk area regarding his exposure to hazardous chemicals. Id. at 5. They ultimately terminated Plaintiff from his bathroom orderly position. Id. Plaintiff cited to ODOC policy prohibiting the termination of an inmate due to exercising his rights to file a complaint. Id. He explained that, contrary to policy, he did not receive any training or education regarding the use of hazardous chemicals. Id. He stated that he was concerned about the long term health effects resulting from his exposure. Id.
In the section of the Grievance in which Plaintiff was required to state the action he wanted the reviewing authority to take, he stated, “I should receive my orderly job back; I should take a safety training class and watch A CIL and SDS video; take a hazard communication training class [and] also be provided with the proper safety gear necessary for the job according with OP-150310 Section 15 Hazard Communication Program (ACA Standards 2-CO-3B-01M, 4-4215).” Id. at 4. Plaintiff also requested a copy of the ODOC Employee Exposure Report (“EER”), required by ODOC policy. Id. at 5.
On February 3, 2021, Plaintiff received a response to Grievance #21-02. Id. at 6. It stated the following:
Partial Relief Granted
You have already gotten another job in the kitchen. Attached is a copy of the back of your approved application. Therefore, you do not need to get your orderly position back. The kitchen will be responsible for training you in the areas that you will need to be
trained in.
Attached is also a copy of OP-150310 A - Oklahoma Department of Corrections Employee Exposure Report.Id.
On February 8, 2021, Plaintiff submitted an appeal from this response. Id. at 9-10. He explained that although the grievance response stated that it offered partial relief, it actually did not. Id. He wanted his bathroom orderly position and did not want his kitchen position. Id. Additionally, he intended his request for the EER to reference the Report that should have been completed following his exposure, rather than a copy of a blank EER form. Id. at 10. He also described the continuing problems he was experiencing with his burns. Id.
On March 17, 2021, Defendant Knutson, the ARA, sent a Memorandum regarding Grievance #21-02 to Defendant Lawson as WKCC Warden. Id. at 11. Therein, Defendant Knutson stated the following:
Initially on the RTS dated 1/8/21, the inmate complained of having to clean the bathroom without gloves and safety supplies and alleges that he received burns due to the exposure to chemicals. His relief requested was to be supplied with safety supplies and not to be charged medical fees for any burns or related medical issues. Apparently, between the submission of the RTS on 1/11/21 and the grievance on 1/22/21 the inmate was reassigned from his unit orderly position to the kitchen. The inmate then changed his relief requested on the grievance to wanting his orderly job back, requested safety and hazard training classes and requested a copy of the ODOC “Employee Exposure Report.” These are different issues. The
reviewing authority will prepare an amended response to WKCC 2102 and return the grievance unanswered on a checklist notifying the Inmate that he has more than one issue, the relief requested on the RTS is not consistent with the grievance and that since he has been reassigned to the kitchen, his safety issues as an orderly are now moot. He will also be notified that issues regarding medical co-pays should be properly addressed with the facility health administrator.Id. On March 17, 2021, Defendant Knutson sent a letter to Plaintiff explaining that he had forwarded Plaintiff's Grievance #21-02 to Defendant Lawson for further review and investigation and that an amended response would be provided within twenty days. Id. at 12.
On April 16, 2021, Plaintiff appealed the amended response to Grievance #21-02. Doc. No. 62-29 at 13-14. This appeal focused primarily on officials' failure to comply with requirements related to his chemical exposure. Id. He also noted that he was instructed to use chemicals without training, as well as Defendants Eike and Goodwin's threats to his employment if he did not clean the bathrooms in spite of not having any protective gear, and the burns he suffered as a result. Id. at 13-15. He included several additional pages in which he set forth his general grievance history. Id. at 16-22.
The amended response was not included with Defendants' Special Report. However, in Plaintiff's April 16, 2021 appeal, he indicated he received the response on April 7, 2021. Id. at 13.
On May 18, 2021, Defendant Knutson returned Plaintiff's appeal unanswered. Id. at 23. Defendant Knutson indicated Plaintiff had submitted additional pages that were not authorized, had included more than one issue in the appeal, and failed to identify on the appeal form the facility where the grievance occurred. Id. Defendant Knutson provided Plaintiff 10 days to file a corrected appeal, see id., but Plaintiff did not do so.
Plaintiff initiated an additional round of grievances arising from events that occurred while he was a bathroom orderly. On January 19, 2021, Plaintiff submitted a Request to Staff in which he discussed the January 12, 2021 meeting with Defendants Eike and Goodwin, as well as Ms. Livshee, in which they terminated his employment as a bathroom orderly. Doc. No. 62-30 at 2-3. He stated that Defendants Eike and Goodwin indicated Plaintiff could no longer work as a bathroom orderly because his skin is too sensitive to chemicals. Id. at 3. Plaintiff argued it would not be a problem if he had been provided with the proper safety gear. Id. As relief, Plaintiff stated that he intended to seek compensatory, punitive, and nominal damages through a lawsuit under 42 U.S.C. § 1983, though he was not seeking such damages through the administrative grievance process. Id. at 2. A WKCC official responded on January 25, 2021, stating, “Mr. David[,] did you talk to your unit teams about getting another job? If you have issues with the products that we use[,] then it would be a good idea to get another job.” Id.
On February 3, 2021, Plaintiff submitted Grievance #21-4 alleging that Defendants Eike and Goodwin terminated his employment as a bathroom orderly in retaliation for reporting his chemical burns through the grievance process. Id. at 5-6. He explained that he had tried to get his orderly job back, but Defendants Eike and Goodwin refused. Id. at 5. Regarding the action he wanted the reviewing authority to take, Plaintiff stated, “I should not have been threaten[ed], nor lost anything because I filled out A RTS, Grievance Process to report my exposure to hazardous chemicals, because I was deprived [of] safety ware [sic] In accordance with OP-150310.” Id.
On February 17, 2021, Plaintiff received a response to Grievance #21-4, stating, “You already have another job . . . therefore you do not need your orderly job back.” Id. at 7. It also indicated Grievance #21-4 could have been sent back unanswered because Plaintiff did not request any affirmative relief that an official could provide. Id.
Plaintiff filed an appeal from the response stating that Defendant Eike and Goodwin had terminated his employment as a bathroom orderly in retaliation for using the grievance system, they had failed to offer him his job back, and now he is working at a job he does not want. Id. at 8-9. On March 17, 2021, Defendant Knutson submitted a Memorandum to Defendant Lawson setting forth the administrative history of Plaintiff's appeal and then explaining, “[T]he inmate has not requested any lawful o[r] even tangible relief that the reviewing authority may grant.... The reviewing authority will prepare an amended response to WKCC 21-04 and return the grievance unanswered on a checklist notifying the inmate that the relief requested on the RTS and grievance are not consistent and that he has not requested any lawful or tangible relief that the reviewing authority may grant.” Id. at 10. On the same date, Defendant Knutson sent a letter to Plaintiff explaining that he had forwarded Grievance #21-04 to Defendant Lawson for further review and investigation and that an amended response would be provided within 20 days. Id. at 11.
On March 22, 2021, Plaintiff received the amended response indicating that Plaintiff's requests for relief on the Request to Staff and Grievance did not match and that, in any event, he had not requested any lawful or tangible relief. Id. at 12. It also instructed Plaintiff that he had 10 days to resubmit a corrected grievance. Id.
On March 29, 2021, in an attempt to comply, Plaintiff resubmitted Grievance #21-04 and requested compensatory, nominal, and punitive damages. Id. at 13. On April 7, 2021, the Grievance was returned unanswered with a form indicating that Plaintiff's issue was not grievable through the administrative grievance process. Id. at 15. Additionally, the response indicated Plaintiff had previously been placed on grievance restriction and that Plaintiff had failed to follow the extra steps restriction requires in order for an inmate to file a grievance. Id.
Defendants did not submit formal documentation memorializing Defendant Lawson's actions in placing Plaintiff on grievance restriction, nor any notification provided to Plaintiff indicating the same. The only notation in the record pertaining to this issue is found within Plaintiff's Case Manager's Notes, which indicate that Plaintiff was placed on grievance restriction as of April 20, 2021. Doc. No. 62-26 at 7. Said date is well after Plaintiff's resubmission of Grievance #21-04. Therefore, at least based on the record before the Court, Plaintiff should not have been required to comply with grievance restriction requirements. However, as Plaintiff's failure to comply with said restrictions was not the only stated reason Grievance #21-04 was rejected and Plaintiff nevertheless appealed the response, the Court should not find that administrative remedies were rendered unavailable in this instance. See Tuckel, supra.
Plaintiff appealed the response to Defendant Knutson. Id. at 16-17. He indicated that he had been terminated from his orderly position in retaliation for utilizing the grievance process, but also extensively discussed complaints about the grievance process itself. Id. On April 21, 2021, Defendant Knutson returned the appeal unanswered, indicating Plaintiff had “failed to follow previous instructions from the reviewing authority or the ARA for filing this grievance/appeal and/or properly resubmit. YOU ARE NOW OUT OF TIME.” Id. at 18.
B. Kitchen Conditions
Plaintiff asserts Eighth Amendment conditions of confinement claims against Defendants Elsi, Glover, and Prather based upon an alleged infestation of mice, rats, and cockroaches in the kitchen. Doc. No. 23-3 at 1-3. On February 2, 2021, Plaintiff submitted a Request to Staff in which he explained that he began working in the kitchen in January 2021 and immediately and continuously noticed it was infested with rats, mice, and cockroaches. Doc. No. 62-11 at 2. On frequent occasions, he saw rat feces in dishware, cookware, and food being served to inmates. Id. at 2-3.
Plaintiff explained that he and other inmates reported the issue to various officials. Id. at 3. Defendant Glover allegedly responded that it was an ongoing issue because there is a field behind the facility and directed Plaintiff to “shut up about it.” Id. Defendant Prather told Plaintiff not to worry about it because “rats won't eat much.” Id. On one occasion, Defendant Prather also directed Plaintiff to continue to serve carrots that had rat feces in it, although Defendant Glover subsequently directed Defendant Prather to pull the carrots. Id. Plaintiff stated that these conditions likely explain why the food sometimes made him nauseous and now that he was aware of the same, he experienced fear, stress, worry, and anxiety daily regarding the food. Id. He also stated that he spoke with all the kitchen supervisors, as well as others, but nothing was being done. Id. Plaintiff stated on the Request to Staff that he was seeking compensatory and punitive damages. Id. at 2. On February 28, 2021, Plaintiff received a response on which a staff member explained, “Mr. David, We have done several different extermination practices and will continue to do this. Any time you have mice feces in your food please let the kitchen supervisor know.” Id. at 2.
On February 24, 2021, Plaintiff completed Grievance #21-05 discussing various incidents in which he alerted multiple WKCC officials/kitchen staff to the rat feces on the dishes, cookware, and in the food. Doc. No. 62-13 at 2-3. He explained that on February 16, 2021, Plaintiff saw and reported 10 to 15 mice running from behind a kitchen sink. Id. at 3. On February 18, 2021, Defendant Elsi chastised Plaintiff for “bitchin about the mice and rats infestation and rat[] feces and urine being in the food.” Id. She told him that if he continued to do so, she would terminate him. Id. She also ordered him to apologize to Defendant Glover for showing the rat feces to a WKCC Lieutenant and Corrections Officer. Id.
Plaintiff's underlying Request to Staff for this Grievance is not included in the record.
Plaintiff also stated that on February 21, 2021, the maintenance crew removed a mirror globe from the ceiling and found over 30 dead mice inside it. Id. On one occasion, a piece of tile fell from the dining hall ceiling and dead mice fell with it. Id. Plaintiff requested compensatory, punitive, and nominal damages through a lawsuit under 42 U.S.C. § 1983. Id. at 2.
On March 8, 2021, Defendant Lawson returned Grievance #21-05 unanswered. Id. at 4. Defendant Lawson indicated Plaintiff had not attached a copy of the underlying Request to Staff, the Grievance was out of time from the date of the incident, and his request for relief was not available through the administrative process. Id. at 4-5.
On March 31, 2021, Plaintiff submitted Grievance #21-07 in which he raised essentially the same concerns and asked for the same relief as that in his February 2, 2021 Request to Staff. Doc. No. 62-11 at 4-5. On April 7, 2021, a WKCC official returned Grievance #21-07 unanswered stating, “You are on grievance restriction. You have failed to complete the required paperwork you need to fill out to complete any future grievances. You have forfeited the opportunity to submit your grievance due to failure to properly submit your paperwork.” Id. at 6.
On April 19, 2021, Plaintiff appealed Grievance #21-07 and in doing so, set out a lengthy history of his attempts to exhaust his administrative remedies regarding this and other issues. Id. at 7-15. He further alleged Defendant Lawson was attempting to interfere with his ability to exhaust his administrative remedies. Id. On May 18, 2021, Defendant Knutson completed a checklist form indicating that he was returning Plaintiff's appeal unanswered for the following reasons: (1) Attachments to Plaintiff's appeal were limited to an affidavit and Plaintiff's attachments were lengthy; (2) “Requests for disciplinary action against staff or monetary compensation will not be addressed in the grievance process”; and (3) Plaintiff included “[m]ore than one issue or additional issues submitted in the grievance appeal” that were “not presented in the initial grievance to the reviewing authority.” Id. at 16. The form indicated Plaintiff was afforded one final opportunity to properly resubmit a corrected grievance appeal within 10 days of receipt. Id. Based on the record, Plaintiff did not attempt to resubmit his appeal.
The checklist form that Defendant Knutson completed does not contain Plaintiff's signature. Id. Therefore, it is not clear from the record when Plaintiff received the same.
C. Retaliatory Discharge (Kitchen)
On March 14, 2021, Plaintiff submitted a Request to Staff in which he complained that Defendant Lawson had terminated him from his kitchen position, but Plaintiff did not know the reason for the same. Doc. No. 62-32 at 2-3. Plaintiff explained that he had earned excellent evaluations regarding his kitchen work and had recently been promoted to baker. Id. at 3. On March 29, 2021, Plaintiff received Defendant Lawson's response in which he stated, “I do not feel that you need to work in the kitchen.” Id. at 2.
On April 5, 2021, Plaintiff submitted Grievance #21-10 in which he alleged Defendant Lawson terminated him from his kitchen position in retaliation for Plaintiff using the administrative grievance process to complain about the kitchen infestation and general conditions. Doc. No. 62-32 at 4-5. On April 21, 2021, Plaintiff received his Grievance returned unanswered. Id. at 6. Defendant Lawson indicated that jobs were not grievable issue. Id. Plaintiff did not file an appeal from this response.
VI. Plaintiff's Failure to Exhaust
As illustrated above, prior to filing this lawsuit, Plaintiff did not complete the administrative process as to his Eighth Amendment claims based upon the kitchen conditions and the chemical exposure he experienced. He asserted these claims against Defendants Eike, Elsi, Glover, Goodwin, and Prather. He also failed to exhaust his First Amendment retaliatory discharge claims arising from his kitchen and bathroom orderly positions. He asserted these claims against Defendants Eike, Goodwin, and Lawson.
In his Amended Complaint, Plaintiff indicates that his ability to exhaust his administrative remedies was thwarted by Defendants Lawson, Crow, and Knutson. Doc. No. 23-3 at 11. Specifically, he states that the policy Defendant Crow enacted prohibiting him from filing multiple grievances about the same issue hindered his ability to exhaust when the issue involved multiple jail officials. Id. He explained, “An inmate has one issue but involves, X, Y, & Z correctional officers. This procedure restricts inmate(s) form filing 3 different Request to staff individually against X, Y, & Z correctional officers about the same issue.” Id.
However, in reviewing Plaintiff's various submissions within the grievance process, he was never prohibited from filing requests to staff or grievances that involved one issue and multiple officers. Instead, such submissions were rejected when they involved more than one issue, rather than more than one individual. See Doc. No. 23-3 at 62-29 at 2-3, 4, 13-22 (Request to Staff regarding chemical exposure, Grievance rejected because he raised not only chemical exposure but also retaliatory discharge; appeal to the ARA rejected because he not only raised issue of chemical exposure but added several additional pages regarding his general grievance history); Doc. No. 62-11 at 2-3, 4-5, 7-15 (Plaintiff's appeal rejected because, inter alia, rather than only discussing kitchen conditions, as in his underlying Request to Staff, he also added several additional pages regarding his general grievance history).
Plaintiff also complains that Defendant Knutson did not respond to one of his appeals within 30 days, as required by ODOC policy. Plaintiff does not specify the appeal to which Defendant Knutson allegedly responded past 30 days, however, a review of the record overall does not support Plaintiff's assertion.
With regard to an appeal Plaintiff submitted on February 8, 2017, Defendant Knutson did not receive the same until February 18, 2021. Doc. No. 62-29 at 9; see also Doc. No. 64-1 at 15 (“The ARA has 30 days from receipt of the appeal to respond.” (emphasis provided)). He responded on March 17, 2021, at which time he informed Plaintiff that he had forwarded the Grievance to Defendant Lawson for further review and investigation. Doc. No. 62-29 at 9, 12. Defendant Knutson received another appeal on April 21, 2021. Id. at 13. He responded on May 18, 2021. Id. at 23. Defendant Knutson also responded to the remainder of Plaintiff's appeals within the 30 day window. Doc. No. 62-11 at 7, 16; Doc. No. 62-30 at 8, 11, 16, 18.
Finally, Plaintiff implies Defendant Lawson placed him on grievance restriction without cause. Doc. No. 23-3 at 11. However, his assertions are entirely conclusory and not sufficient to establish that the administrative process was not available to him. See Roberts v. Taylor, No. CIV-11-368-M, 2012 WL 874877, at *4 (W.D. Okla. Feb. 15, 2012) (“But to support his allegations, Plaintiff relies on nothing more than conclusory allegations and the mere fact of his placement on grievance restriction. Although Plaintiff contends he was placed on grievance restriction as a “ruse” he does not support his contention with specific factual allegations. And, the record before the Court demonstrates Plaintiff repeatedly misused the Grievance Process and refused to comply with the requirements of his placement on grievance restriction. Thus, the record demonstrates that Plaintiff's own conduct, not that of prison officials, resulted in the returns of his grievances.”).
Though Plaintiff began the administrative process for each of his First and Eighth Amendment claims addressed within this section, he did not complete it. Nor has Plaintiff established that the administrative remedy process was unavailable to him. Accordingly, Defendants Prather, Glover, and Goodwin's Motion as to these claims should be granted based on Plaintiff's failure to exhaust his administrative remedies. See Jernigan, 304 F.3d at 1032 (“An inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim[.]”).
Although Defendants Eike, Elsi, and Lawson are not parties to the current Motion, the Court dismisses these claims against them without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). See Scoby v. Allbaugh, No. CIV-18-721-D, 2020 WL 529705, at *1, 4 (W.D. Okla. Feb. 3, 2020) (dismissing claims against unserved parties under 28 U.S.C. § 1915(e)(2)(B) upon granting summary judgment to additional defendants on same claims based on the plaintiff's failure to exhaust administrative remedies); Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1213 (10th Cir. 2003) (holding that dismissal of prisoner's claims based on lack of exhaustion of administrative remedies should ordinarily be without prejudice), overruled on other grounds by Bock, 549 U.S. at 21617.
VII. Eighth Amendment (Dental Care)
A. Requirement for Medical Care
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 (1984)). The Supreme Court first recognized claims for deliberate indifference to a prisoner's medical needs in Estelle v. Gamble, 429 U.S. 97 (1976). The Court held that prison officials violate the Eighth Amendment's ban on cruel and unusual punishment if their “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain.” Id. at 104 (quotations omitted).
For over forty years, the Tenth Circuit has recognized that “dental care is one of the most important medical needs of inmates.” Ramos v. Lamm, 639 F.2d 559, 576 (10th Cir. 1980). Other jurisdictions, too, recognize “the [E]ighth [A]mendment requires that prisoners be provided with a system of ready access to adequate dental care.” Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989). See also Williams v. York, 891 F.3d 701, 707 (8th Cir. 2018) (stating that an inmate's right to treatment for serious and painful dental conditions has been clearly-established for more than three decades); Carlucci v. Chapa, 884 F.3d 534, 539 (5th Cir. 2018) (finding allegations of severe physical pain and denial of recommended dental treatment are sufficient to state a plausible claim for relief); McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010) (noting principle that deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment applies equally to dental care); Boyd v. Knox, 47 F.3d 966, 969 (8th Cir. 1995) (“A three-week delay in dental care, coupled with knowledge of the inmatepatient's suffering, can support a finding of an Eighth Amendment violation under section 1983.”).
B. Deliberate Indifference
To successfully allege an Eighth Amendment deliberate indifference claim, a plaintiff must present sufficient allegations to satisfy a two-prong test. First, the plaintiff must satisfy an objective component showing that the deprivation suffered was “objectively sufficiently serious” to implicate Eighth Amendment protections. Second, the plaintiff must allege allegations that the defendant had a sufficiently culpable state of mind or was “deliberately indifferent” to the inmate's safety. Farmer, 511 U.S. at 834; Wilson v. Seiter, 501 U.S. 294, 298-99 (1991); Garcia v. Salt Lake Cnty., 768 F.2d 303, 307 (10th Cir. 1985). “Deliberate indifference” is defined as knowing of and disregarding an excessive risk to an inmate's health or safety. Farmer, 511 U.S. at 827; Estelle, 429 U.S. 97, 104-05.
1. Objective Component
The objective component of the aforementioned test is satisfied “if the condition has been diagnosed by a physician as mandating treatment or . . . is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001) (quotations omitted). The Tenth Circuit has reiterated in recent years that the objective component is satisfied where a prisoner demonstrates he suffered unnecessary pain associated with delay in receiving medical care. McCowan v. Morales, 945 F.3d 1276, 1291 (10th Cir. 2019) (officer's delay in getting prisoner to detention center which resulted in several hours of excruciating pain associated with his shoulder injury was sufficient to satisfy the objective prong of the deliberate indifference test); see also Stack v. McCotter, 79 Fed.Appx. 383, 389 (10th Cir. 2003) (“Under circuit precedent, pain itself can be considered substantial harm resulting from delay, giving rise to a cause of action for deliberate indifference.”); Sealock v. Colorado, 218 F.3d 1205, 1210 n.5 (10th Cir. 2000) (noting that, although defendant prison official did not cause inmate's heart attack, “there is factual evidence from which a jury could conclude that the delay occasioned by his inaction unnecessarily prolonged appellant's pain and suffering”).
Plaintiff alleges that while he was confined at WKCC, he was repeatedly denied restorative dental care. Doc. No. 23-3 at 4. Specifically, Plaintiff asserts that Defendant Aitson examined his teeth and screened him as a “priority III per OP-140124 #3 (periodontal disease, mesial decay, severe cavities, etc.).” Plaintiff contends these conditions caused great pain and discomfort that would worsen if left untreated. Id. Although Defendant Aitson placed him on a treatment plan for restorative care, she also refused to reschedule Plaintiff for a two week follow up. Ultimately, his treatment was delayed for seven months, during which he experienced ongoing pain, discomfort, sleep deprivation, biting holes in his mouth because it was difficult for him to chew food properly, and swelling in his face. Id. Eventually, Plaintiff's dental condition deteriorated and he had to undergo an emergency extraction. Id. Based upon these allegations, Plaintiff has satisfied the objective prong of his deliberate indifference claim.
2. Subjective Component
To satisfy the subjective component of the test for deliberate indifference to his serious dental pain, Plaintiff must demonstrate Defendants “kn[ew] of and disregard[ed] an excessive risk to inmate health or safety,” Sealock, 218 F.3d at 1209 (quoting Farmer, 511 U.S. at 837), or as in Sealock, they knew of and disregarded Plaintiff's excessive pain. Each Defendant must have been 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.” Farmer, 511 U.S. at 837. Whether a prison official had the requisite knowledge of an inmate's severe pain is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious. Id. at 842. The Tenth Circuit has stated that “if a risk is obvious so that a reasonable man would realize it, we might well infer that [the defendant] did in fact realize it.” Mata v. Saiz, 427 F.3d 745, 752 (10th Cir. 2005) (quotations omitted).
C. Defendant Atkinson
1. Official Capacity
Plaintiff asserts Eighth Amendment claims against Defendant Atkinson, in both her individual and official capacity, related to his dental care. Doc. No. 23-3 at 3, 5. Plaintiff bases his official capacity Eighth Amendment claim on inadequate dental care staffing. Id.
“[T]he three elements required to establish a successful § 1983 claim against a defendant based on his or her supervisory responsibilities [are]: (1) personal involvement[,] (2) causation, and (3) state of mind.” Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir. 2013); see also Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010). The first element requires the plaintiff to “show an ‘affirmative link' between the supervisor and the constitutional violation.” Estate of Booker v. Gomez, 745 F.3d 405, 435 (10th Cir. 2014) (quotations omitted). “The plaintiff can show such a link by establishing ‘the [supervisor] promulgated, created, implemented[,] or possessed responsibility for the continued operation of a policy,' or ‘the establishment or utilization of an unconstitutional policy or custom' . . . provided the policy or custom resulted in a violation of the plaintiff's constitutional rights.” Burke v. Regalado, 935 F.3d 960, 997 (10th Cir. 2019) (quoting Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011) and Dodds, 614 F.3d at 1199).
Under the second element, there must be evidence that “the defendant's alleged action(s) caused the constitutional violation by setting in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights.” Burke, 935 F.3d at 997 (quoting Estate of Booker, 745 F.3d at 435). With respect to the third element, “a plaintiff can ‘establish the requisite state of mind by showing that [a supervisor] ‘acted with deliberate indifference.'” Burke, 935 F.3d at 997 (quoting Perry v. Durborow, 892 F.3d 1116, 1122 (10th Cir. 2018)). “[A] local government policymaker is deliberately indifferent when he deliberately or consciously fails to act when presented with an obvious risk of constitutional harm which will almost inevitably result in constitutional injury of the type experienced by the plaintiff.” Burke, 935 F.3d at 998 (quoting Hollingsworth v. Hill, 110 F.3d 733, 745 (10th Cir. 1997)).
Plaintiff identifies Defendant Atkinson as the WKCC Medical Supervisor. Id. According to Plaintiff, though WKCC holds over 700 inmates, she provided the facility with only one dentist and one dental assistant. Id. Plaintiff contends the lack of adequate dental staff resulted in constraints in the dental care provided. Id. For example, when Dr. Aitson left WKCC for several months, Plaintiff did not receive any dental care. Id. at 4-5. It was during this time Plaintiff's dental conditions deteriorated, he suffered continuous and increasing pain, as well as swelling in his face, and after several months, was ultimately forced to undergo an emergency extraction. Id. at 4-5.
In Burke, the Tenth Circuit concluded that the evidence presented to a jury sufficiently established that a county sheriff - identified as the individual who managed the county jail - maintained a policy or custom of providing deficient medical care, including, inter alia, inadequate staffing. Id. at 999-1001. The Burke court summarized its determination as to the sheriff's supervisory liability as follows:
It was reasonable for the jury to find (1) Sheriff Glanz was responsible for “an unconstitutional policy or custom,” Dodds, 614 F.3d at 1199, of poor training, inadequate staffing, and lack of urgency surrounding jail medical care; (2) that this policy or conduct resulted in a violation of Mr. Williams's right to adequate medical care under the Fourteenth Amendment; and (3) Sheriff Glanz acted with deliberate indifference toward the risk that the policy or conduct of providing inadequate medical care would result in an injury like Mr. Williams's. Accordingly, the evidence was sufficient to support the jury's verdict against Sheriff Glanz holding him liable for supervisory liability.Id. at 1001. There was also evidence in the record that outside entities who had inspected and/or audited the jail in previous years had notified the sheriff of inadequacies and he had not corrected them. Id. at 999-1001.
Defendant Atkinson initially acknowledges in her Motion that one of Plaintiff's Eighth Amendment claims against her is based on WKCC's inadequate staffing of dental care personnel. Doc. No. 64 at 22 (“Plaintiff alleges he was denied access to a larger dental staff and denied a policy that provided more constitutionally adequate treatment options.”). However, in support of her request for summary judgment, she asserts only one argument. Relying on ODOC policy, OP-140101, Defendant Atkinson contends that she was not responsible for hiring and firing decisions. Specifically, OP-140101(I)(A)(3) provides:
Notably, Defendant Atkinson does not argue that Plaintiff does not meet the objective component of his deliberate indifference claim, nor that WKCC did in fact have adequate staffing for dental care.
Hiring, termination and performance management of unclassified medical services personnel, to include . . . dentists, in correctional facilities will be coordinated with the facility head. Final decisions will be made by the chief medical officer or chief dental officer in conjunction with the facility head and director of Offender Services.Doc. No. 64-2 at 1-2. Based upon this policy, Defendant argues, “[] Plaintiff's allegations regarding Atkinson's authority to hire dental staff have no basis in fact or policy.” Doc. No. 64 at 22.
If Plaintiff's claim was based upon hiring and firing decisions, the Court would agree. However, Plaintiff does not allege Defendant Atkinson hired dentists that were somehow inadequate. Rather, his claim is based upon a lack of dentists - that there was only one dentist and one assistant to serve over 700 inmates. Doc. No. 23-3 at 5. He asserts that only having one dentist and one assistant was a decision for which Defendant Atkinson was responsible. Id. In this regard, further provisions of OP-140101 are notable.
Directly after the portion of the policy upon which Defendant relies, it states:
The facility will use a staffing analysis, developed by medical services, to determine the essential positions needed to perform the health services mission and provide the defined scope of services. The staffing plan will be reviewed annually by the health authority to determine if the number and type of staff is adequate.Doc. No. 64-2 at 2.
Defendant identifies herself as the Medical Services Manager. Doc. No. 64 at 22. It appears from the language contained within the above policy that “medical services” performs a staffing analysis to determine the number of positions necessary to perform health services. Construing the facts in favor of Plaintiff as the non-moving party, because Defendant Atkinson is the Medical Services Manager and ‘medical services' determines “the essential positions needed to perform the health services mission,” it appears that she does in fact play a key role, possibly the primary role, in determining the number of WKCC health care positions, including dental care staff.
Plaintiff alleges that Defendant Atkinson should have been aware that one dentist and one assistant was not adequate to provide dental care to over 700 inmates. Id. at 5. Unlike Burke, the record does not currently contain direct evidence that Defendant Atkinson was previously notified by third parties or entities that WKCC's dental care staffing was inadequate. However, Burke and other Tenth Circuit authority has recognized that a “policymaker is deliberately indifferent when he deliberately or consciously fails to act when presented with an obvious risk of constitutional harm which will almost inevitably result in constitutional injury of the type experienced by the plaintiff.” Burke, 935 F.3d at 998 (emphasis provided). Construing the facts in the light most favorable to Plaintiff, the Court concludes a question of fact exists as to whether Defendant Atkinson should have known that one dentist and one assistant for over 700 inmates would lead to constitutional delays and deficiencies in the dental care provided that would result in injuries similar to Plaintiff's.
As Defendant Atkinson's sole basis for requesting summary judgment against this portion of Plaintiff's claim is that she was not responsible for determining the number of dental care staff WKCC employed, and ODOC policy indicates otherwise, the Court should deny her request for summary judgment against this portion of Plaintiff's claim.
2. Individual Capacity
Second, Plaintiff asserts Defendant Atkinson was personally aware of his specific dental conditions and his need for treatment. Id. at 5. He further alleges that she knew he qualified for emergency dental care under WKCC policy but was not receiving it, and that she denied him access to the same. Id. Plaintiff states,
Medical Supervisor [Defendant] Atkinson knew of my teeth conditions through D.D.S. Paul Haines Dental chart examination and investigation. [Defendant] Atkinson said Plaintiff was receiving treatment which was not truth.... [Defendant] Atkinson denied Plaintiff relief from EMERGENCY Access to Health Care per OP-140117. This led to ongoing months of pain, infections and so forth.Doc. No. 23-2 at 5.
With regard to Defendant Atkinson's personal knowledge and denial of treatment, it appears Plaintiff is relying on her response to one of his grievances. On January 4, 2021, Plaintiff submitted a Request to Staff in which he requested certain dental treatment, including dental implants. Doc. No. 62-25 at 2-3. On January 13, 2021, Defendant Lauer responded to the same explaining requirements that must be met in order to qualify for dentures and that WKCC does not offer implants. Id. at 2. On January 21, 2021, Plaintiff submitted Grievance #21-03 raising similar concerns and describing his dental pain, discomfort, and related problems. Id. at 4-5. On January 28, 2021, Defendant Foster responded to Grievance #21-3 describing Plaintiff's dental records, WKCC policy regarding dental treatment, and finding Plaintiff's dental plan was in place and was being followed. Id. at 6.
On February 8, 2021, Plaintiff submitted an appeal from this denial raising various concerns regarding his dental care. Id. at 7-8. Defendant Atkinson responded to the appeal on April 12, 2021, stating,
The department's chief dental officer, Paul Haines, D.D.S., investigated your dental concerns. Dr. Haines concluded that you are receiving dental care and treatment in accordance with OP-140124.
According to OP-140124, in part, any highly specialized dental procedure, including implants and treatment associated with implants are not available through the Oklahoma Department of Corrections.Id. at 10.
As an initial matter, the Court notes that Defendant Atkinson did not state that “Plaintiff was receiving treatment . . .” as alleged by Plaintiff. Doc. No. 23-3 at 5. Instead, in her response to Plaintiff's appeal, Defendant Atkinson plainly stated that the chief dental officer, Dr. Haines, concluded that Plaintiff was receiving dental care. See, supra. This distinction is significant to Plaintiff's claim against her.
Personal participation is necessary for individual liability under § 1983. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976) (“Personal participation is an essential allegation in a [§] 1983 claim.”). Defendant Atkinson's only participation in Plaintiff's dental care appears to be the denial of his appeal. In her Motion, she argues that this denial is not adequate to establish personal participation in a constitutional violation. Doc. No. 64 at 22. The Tenth Circuit has concluded that “a denial of a grievance, by itself without any connection to the violation of constitutional rights alleged by plaintiff, does not establish personal participation under § 1983.” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (emphasis provided). However, Defendant Atkinson, as Medical Services Manager, was responding to an appeal regarding Plaintiff's contention that he was not receiving proper dental care, as well as describing the resulting pain and difficulties. Thus, the Court cannot conclude that the appeal was “without any connection” to the underlying constitutional violation. However, this is not the end of the inquiry.
In unpublished decisions, the Tenth Circuit has held that prison officials may reasonably rely on the judgment of prison medical staff in responding to grievances and such reliance “negates rather than supports liability.” Arocho v. Nafziger, 367 Fed.Appx. 942, 956 (10th Cir. 2010) (initial emphasis provided); accord, Phillips v. Tiona, 508 Fed.Appx. 737, 744 (10th Cir. 2013). As a corollary, “unreasonable reliance on the advice of a medical professional will not excuse deliberate indifference to a prisoner's serious medical needs.” Weatherford ex rel. Thompson v. Taylor, 347 Fed.Appx. 400, 404 (10th Cir. 2009).
In Bowlds v. Turn Key Health, No. CIV-19-726-SLP, 2022 WL 193012 (W.D. Okla. Jan. 20, 2022), the court concluded that a jail administrator's denial of a grievance related to a plaintiff's dental care was sufficient to establish personal participation in an Eighth Amendment deliberate indifference claim arising from the same. Id. at *3-5. In Bowlds, the plaintiff submitted a request to staff to the jail administrator requesting emergency dental treatment, challenging the treatment he had been provided thus far, and describing chronic pain. Id. at *3. The administrator responded by stating that the plaintiff “had not been denied treatment for his dental condition but had seen the medical provider who had provided treatment.” Id. Later, the plaintiff submitted a grievance to the administrator seeking a response to a previous request to staff that he had submitted to the sheriff apparently regarding his dental care. Id. at *4. The administrator responded by “advising Plaintiff that both the Sheriff and the medical staff had responded and that the medical treatment he was receiving was as far as we can go unless your situation gets worse.” Id. (quotations omitted).
The plaintiff later asserted an Eighth Amendment deliberate indifference claim related to his dental care. In challenging the plaintiff's contention that these responses/denials constituted personal participation in the underlying violation, the administrator argued that “[p]rior to providing a response to Mr. Bowlds['] Offender Grievance Form dated May 27, 2019, I consulted with Turn Key Medical Staff of the LCDC . . . to confirm that the treatment he was being prescribed was the extent reasonably necessary unless his condition worsened.” Id. (citation omitted). The administrator asserted that because he reasonably relied on Turn Key medical staff, the court should not conclude he had personally participated in the constitutional violation. Id.
The court, however, disagreed, explaining,
Defendant Lester states in his Declaration that as a matter of practice at LCDC, Turn Key staff are consulted prior to responding to any inmate request to staff or grievance concerning a medical issue. Defendant Lester further states that he consulted with medical staff prior to responding to Plaintiff's April 26, 2019 Grievance. Defendant Lester provides no information about the date on which he consulted medical staff, who he consulted, or what he was told. The reasonableness of his reliance, therefore, cannot be determined on the present record.Id. The court also noted that the administrator made no reference to any consultation he undertook prior to responding to the plaintiff's previous request to staff. Id. at *3.
Like the administrator in Bowlds, Defendant Atkinson indicated in her response to Plaintiff's appeal that she had consulted with medical staff prior to responding. In contrast to the situation in Bowlds, however, although she does not say the date she consulted him, she specifically stated that she had consulted Dr. Haines, WKCC's chief dental officer, who had informed her that he was receiving dental care and treatment in accordance with ODOC's specific dental policy. Doc. No. 62-25 at 10. She further addressed Plaintiff's request for implants explaining that ODOC did not provide the same. Id. Based on the record, the Court concludes that Defendant Atkinson's reliance on her consultation with WKCC's chief denial officer appears reasonable and therefore, negates a finding of personal participation in any constitutional violation arising from Plaintiff's dental care. Accordingly, the undersigned recommends the Court grant Defendant Atkinson, in her individual capacity, summary judgment against Plaintiff's Eighth Amendment claim.
D. Defendant Crow
Plaintiff also asserts an Eighth Amendment claim against Defendant Crow based upon an ODOC policy related to dental care. Doc. No. 23-3 at 7. Plaintiff states that ODOC has a policy that fillings and restorative treatment, specifically dentures, will only be completed on inmates with over one year remaining on their sentence. Doc. No. 23-3 at 7. Defendants acknowledge ODOC's policy, describing it as creating a “priority classification system for provision of dental services to inmates.” Doc. No. 64 at 23. The policy provides, “Impressions to begin fabrication of dentures (complete or partial) will only be done if the inmate has at least one calendar year remaining before discharge from the correctional system.” Doc. No. 64-14 at 10.
It appears from his Amended Complaint that Plaintiff misreads this policy. He repeatedly states that it prevented him from obtaining dental care and/or was responsible for his delay in receiving said care. Doc. No. 23-3 at 7. However, this policy does not prohibit Plaintiff from receiving dentures as he currently has over one year remaining on his sentence. Doc. No. 62-1 at 2-3; Doc. No. 64-3. Thus, the policy upon which Plaintiff relies in asserting his claim against Defendant Crow has not, by its language, prevented Plaintiff from receiving the dental care he deems necessary. Accordingly, the Court should grant Defendant Crow's request for summary judgment.
VIII. Fourteenth Amendment (Interference with Grievance Process)
Plaintiff asserts Fourteenth Amendment claims against Defendants Crow, Lawson, and Knutson related to the grievance process. Doc. No. 23-3 at 11-12.Specifically, he contends Defendant Crow enacted procedures that prevented him from exhausting their administrative remedies. Id. at 11. He further complains Defendant Lawson “used a variety of improper and obstructive tactics to prevent Plaintiff from taking advantage of the grievance process, seeking relief.” Id. Finally, Plaintiff makes similar allegations against Defendant Knutson, including that he placed Plaintiff on grievance restriction without cause. Id. at 12.
Defendants requested summary judgment against this claim based solely upon Plaintiff's failure to exhaust administrative remedies. However, it is unnecessary to address that argument as the claim should be dismissed with prejudice for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). See Steele, 355 F.3d at 1212-13 (explaining that a dismissal for failure to state a claim is generally with prejudice unless “deficiencies in a complaint are attributable to oversights” or similar curable issues).
Interference with the administrative remedy process, standing alone, does not provide a valid basis for a constitutional claim because a prisoner has no constitutional right to a grievance procedure. See Green v. Corr. Corp. of Am., 401 Fed.Appx. 371, 375 n.4 (10th Cir. 2010) (explaining that prisoner had no constitutional right to use the prison grievance procedure); see also, cf., Sawyer v. Green, 316 Fed.Appx. 715, 717 (10th Cir. 2008) (holding that jail and sheriff's office authorities' lack of response to prisoner's grievances did not violate the constitution because procedurally, nothing more is required than the plaintiff's ability to raise his constitutional claims in the courts); Walters v. Corr. Corp. of Am., 119 Fed.Appx. 190, 191 (10th Cir. 2004) (holding that prisoner failed to state a claim for § 1983 relief where he alleged a denial of access to state administrative grievance procedures; “the prisoner's right to petition the government for redress is the right of access to the courts, which is not compromised by the prison's refusal to entertain his grievance”) (quoting Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991)).
This result is not changed by the PLRA's requirement that an inmate must exhaust all available administrative remedies before filing a civil rights complaint. The inmate can still file his civil rights complaint; a defendant's assertion that a plaintiff failed to exhaust administrative remedies is only an affirmative defense. Tuckel, 660 F.3d at 1254 (stating that failure to exhaust under the PLRA is an affirmative defense) (citing Bock, 549 U.S. at 212). As previously explained herein, once failure to exhaust administrative remedies is asserted and proven by defendants, “the onus falls on [Plaintiff] to show that remedies were unavailable to him[.]” Tuckel, 660 F.3d at 1254. If an inmate can demonstrate he was thwarted in his attempt to exhaust his administrative remedies, the court may consider the merits of his claim.
Thus, presuming without deciding that Defendants Crow, Lawson, and Knutson interfered with Plaintiff's grievance process, those actions standing alone did not violate Plaintiff's constitutional rights. See Stuart v. Steer, No. CIV-10-1026-R, 2011 WL 2491616, at *2 (W.D. Okla. Jun. 22, 2011) (holding that an inmate has no state-created right to a grievance response under Oklahoma law). See also Gallagher, 587 F.3d at 1069 (explaining that denial of grievances, alone, does not provide factual basis to support an alleged constitutional violation). Accordingly, the Court should dismiss with prejudice Plaintiff's Fourteenth Amendment claims against Defendants Crow, Lawson, and Knutson pursuant to 28 U.S.C. § 1915(e)(2)(B) based on his failure to state a claim upon which relief could be granted.
RECOMMENDATION
Based on the foregoing findings, the undersigned makes the following recommendations:
(1) Summary Judgment should be GRANTED in favor of Defendant Goodwin against Plaintiff's Eighth Amendment claims related to alleged chemical exposure based on Plaintiff's failure to exhaust his administrative remedies;
(2) Plaintiff's Eighth Amendment claims related to chemical exposure against Defendant Eike should be dismissed without prejudice pursuant to 28 U.S.C. §1915(e)(2)(B) based on Plaintiff's failure to exhaust administrative remedies and therefore, failure to state a claim upon which relief could be granted;
(3) Summary judgment should be GRANTED in favor of Defendant Goodwin against Plaintiff's First Amendment claim of retaliatory discharge from his bathroom orderly position based on Plaintiff's failure to exhaust his administrative remedies;
(4) Plaintiff's First Amendment claim of retaliatory discharge from his bathroom orderly position against Defendant Eike should be dismissed without prejudice pursuant to 28 U.S.C. §1915(e)(2)(B) based on Plaintiff's failure to exhaust administrative remedies and therefore, failure to state a claim upon which relief could be granted;
(5) Summary judgment should be GRANTED in favor of Defendants Glover and Prather against Plaintiff's Eighth Amendment claims related to kitchen conditions and/or infestation based upon Plaintiff's failure to exhaust his administrative remedies;
(6) Plaintiff's Eighth Amendment claims related to kitchen conditions and/or infestation against Defendant Elsi should be dismissed without prejudice pursuant to 28 U.S.C. §1915(e)(2)(B) based on Plaintiff's failure to exhaust administrative remedies and therefore, failure to state a claim upon which relief could be granted;
(7) Plaintiff's First Amendment claim of retaliatory discharge from his kitchen position against Defendant Lawson should be dismissed without prejudice pursuant to 28 U.S.C. §1915(e)(2)(B) based on Plaintiff's failure to exhaust administrative remedies and therefore, failure to state a claim upon which relief could be granted;
(8) Summary Judgment should be granted in favor of Defendant Atkinson, in her individual capacity, and Defendant Crow against Plaintiff's Eighth Amendment claim based on a denial/delay of dental care;
(9) Plaintiff's Fourteenth Amendment claims based upon alleged interference with the grievance procedure against Defendants Crow, Lawson, and Knutson should be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim upon which relief could be granted;
(10) Summary judgment should be DENIED as to Plaintiff's Eighth Amendment claim against Defendant Atkinson, in her official capacity, based upon inadequate dental care staffing.
Accordingly, Defendants Elsi, Eike, Glover, Prather, Lawson, Crow, Knutson, and Goodwin, in their official and individual capacities, and Defendant Atkinson, in her individual capacity, should be dismissed from this lawsuit.
Plaintiff is advised of the right to file an objection to this Second Supplemental Report and Recommendation with the Clerk of this Court by June 21st, 2022, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Second Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Second Supplemental Report and Recommendation partially disposes of issues referred to the undersigned Magistrate Judge in the captioned matter.