Opinion
CIV-23-484-R
09-25-2023
GARLAND M. MANNING, Plaintiff, v. OFFICER DEAN, et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Plaintiff, a pretrial detainee appearing pro se and in forma pauperis, has filed this action under 42 U.S.C. § 1983 alleging officers at the Garfield County Detention Center violated his constitutional rights. Doc. 1. United States District Judge David L. Russell has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), and (C). Doc. 3. Plaintiff sues “Garfield County Detention Officer ‘Dean'” and “Daylon Rivers (Supervisor)” in their official and individual capacities. Doc. 1, at 5.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
In his caption, Plaintiff states he will name the “Garfield County Detention Center” as a defendant “possibly after discovery.” Doc. 1, at 2. He makes no allegations against that entity in his complaint.
For the reasons discussed below, the undersigned recommends the Court dismiss Plaintiff's claims against both Defendants in their official capacities, dismiss Plaintiff's claims against Defendant Rivers in his individual capacity, and dismiss Plaintiff's Prison Rape Elimination Act (PREA) claim for failure to state a claim. The undersigned further recommends the Court find Plaintiff has stated a claim against Defendant Dean in his individual capacity.
I. Screening.
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). Because Plaintiff is proceeding in forma pauperis, the Court also has an ongoing duty to consider the sufficiency of his claims. See id. § 1915(e)(2); Doc. 7. The Court must dismiss the complaint, or any portion of the complaint, if it is “frivolous, malicious, or fails to state a claim upon which relief may be granted” or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 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). 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).
This Court construes “[a] pro se litigant's pleadings . . . liberally,” holding 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. Plaintiff's claims.
In Claim One, Plaintiff sues Defendant Dean for violating his due process rights under the First, Fifth, and Fourteenth Amendments. Doc. 1, at 10. He alleges Defendant Dean “assaulted [him] mentally, physically, [and] sexually” while Plaintiff was “bathing.” Id. at 11.
In support of his claim, Plaintiff states that he was taking a shower on April 14, 2023, when Defendant Dean, a person Plaintiff describes as “7'3 and 340 LBs,” opened the curtain and yelled at him to “GET OUT NOW!” Id. at 6. Defendant Dean asked Plaintiff if he had “contraband” in his cell and then ordered him out of the shower. Id. at 6, 8-9. Plaintiff was naked and Defendant Dean was blocking the exit to the shower. Id. at 6. While still blocking the exit, Defendant Dean “got into [the] shower with [Plaintiff]” and tried to pull him out even though Plaintiff was naked and other inmates could see him. Id. at 67.
Plaintiff attaches three unsworn affidavits from other inmates who state they witnessed the incident. Doc. 1, Att. 1.
Plaintiff alleges Defendant Dean repeatedly pushed him and punched him once above the waist. Id. at 7. He then “sexually assaulted” Plaintiff by “repetitiously making contact and grabbing [him] below the waistline.” Id. Plaintiff claims Defendant Dean “grabbed the deep of [his] buttock and either penetrated with a digit, one of four in [his] rectum, or with his opposable thumb on the other side of [his] glute, gripping, then pulling the under-cheek, [which] caused a tear to [his] anus.” Id. After grabbing and pulling Plaintiff, Defendant Dean stepped back and twice sprayed pepper spray at Plaintiff, covering Plaintiff's “whole naked body” with the stinging liquid which “thickly coat[ed] [him] and [ran] down to [his] anus cavity,” causing him pain. Id. at 6, 8-9.
Plaintiff states that, only when Defendant Rivers came to the scene was Plaintiff allowed to put on his underwear. Id. at 8.
Plaintiff asks the Court to “mak[e]” Defendant Dean “stay away” from Plaintiff's “POD C,” go on “administrative leave,” and “attend battery class.” Id. at 11. He also seeks $1.5 million in punitive damages and $200,000 in compensatory damages from Defendant Dean. Id.
In Claim Two, Plaintiff sues Defendant Rivers for violating his due process rights by failing to keep him “safe from assault by his staff” and failing to “honor [the] grievance system by intentionally refusing to answer.” Id. He alleges Defendant Rivers “allowed” Defendant Dean to assault him and “refuses to punish” him. Id. at 12. He also alleges Defendant Rivers refuses to “hear [his] many kiosk requests, grievances, or remedies to talk it out,” and will not “allow [him] access to P.R.E.A. by posting number, and refuses to train and discipline staff.” Id.
In support of his claim, Plaintiff states that Defendant Rivers has “provid[ed] an acquiescence for these acts” by not “punishing” or “properly training” his staff. Id. at 9. Plaintiff also complains that Defendant Rivers “refuses to answer” his “many kiosk requests and grievances” regarding the incident. Id. And that Defendant Rivers' failure to post a number for the PREA hotline is a violation of state law and Plaintiff's right to call the crisis center. Id.
He asks the Court to compel Defendant Rivers “to properly train and punish his subordinates, post a PREA (Rape Prevention Hotline) and stop denying due process by not answering requests and grievances.” Id. at 12. He also seeks $300,000 in punitive damages and $195,000 in compensatory damages from Defendant Rivers. Id.
III. Analysis.
A. Plaintiff fails to state a claim against Defendants in their official capacities.
If a defendant is sued under § 1983 in his or her official capacity, the suit is generally treated as one against the governmental entity that the defendant represents. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); see Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010) (holding that a suit under § 1983 against an employee in their official capacity is “another way of pleading an action against the county or municipality they represent”). The relevant governmental entity here is a county, implicating municipal liability. See, e.g., Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978) (“[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.”); Cox v. Glanz, 800 F.3d 1231, 1254 (10th Cir. 2015) (applying Monell to a county); see also Martinez v. Beggs, 563 F.3d 1082, 1091 (10th Cir. 2009) (“To the extent [plaintiff] brings a claim against [the sheriff] in his official capacity, it is the same as bringing a suit against the county.”).
To sue a county in Oklahoma, a plaintiff must name as a defendant the “Board of County Commissioners of the County.” Okla. Stat. tit. 19, § 4. Or, if appropriate, the county officer in his or her official capacity. Id. In this case, the appropriate county officer is presumably the Garfield County Sheriff. See, e.g., Foreman v. Okla. Cnty. Sheriff, No. CIV-21-1062-F, 2022 WL 2513384, at *2 (W.D. Okla. July 6, 2022) (“[T]he Oklahoma County Sheriff is the appropriate county official to name as defendant because the county sheriff is responsible for training and supervision of jail personnel and has the final policymaking authority for the jail.” (citing Okla. Stat. tit. 19, §§ 513, 513.1 & Okla. Stat. tit. 57, § 47)). Plaintiff has not named either the Garfield County Board of County Commissioners or the Garfield County Sheriff as defendants in this case.
But a county “cannot be held liable solely because it employs a tortfeasor.” Monell, 436 U.S. at 691. Rather, to state a § 1983 claim against a county or its employees in their official capacities, a plaintiff must identify “‘a government's policy or custom' that caused [him] injury.” See Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769 (10th Cir. 2013) (quoting Monell, 436 U.S. at 691-92). “[P]olicies meeting this standard [are] those arising from ‘a formal regulation or policy statement, an informal custom that amounts to a widespread practice, decisions of municipal employees with final policymaking authority, ratification by final policymakers of the decisions of subordinates to whom authority was delegated, and the deliberately indifferent failure to adequately train or supervise employees.'” Hinkle v. Beckham Cnty. Bd. of Cnty. Comm'rs, 962 F.3d 1204, 1239 (10th Cir. 2020) (quoting Pyle v. Woods, 874 F.3d 1257, 1266 (10th Cir. 2017)).
After identifying such an official policy or custom, a plaintiff must then establish that the policy or custom either (1) directly violated a federal right of the plaintiff, or (2) was the “moving force” behind a county employee's violation of a federal right of the plaintiff. Id.; see Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006) (holding a plaintiff must establish “a direct causal link between the policy or custom and the injury alleged”). “The causation element is applied with especial rigor when the municipal policy or practice is itself not unconstitutional, for example, when the municipal liability claim is based upon inadequate training, [and] supervision.” Schneider, 717 F.3d at 770 (internal quotation marks omitted).
For claims of inadequate training and supervision, “a plaintiff ‘must demonstrate that the municipal action was taken with deliberate indifference as to its known or obvious consequences.'” Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1284 (10th Cir. 2019) (quoting Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 407 (1997)). This is a “stringent standard of fault” which requires “proof that a municipal actor disregarded a known or obvious consequence of his action.” Id. (internal quotation marks omitted).
The deliberate indifference standard may be satisfied when the municipality has actual or constructive notice that its action or failure to act is substantially certain to result in a constitutional violation, and it consciously or deliberately chooses to disregard the risk of harm. In most instances, notice can be established by proving the existence of a pattern of tortious conduct. Deliberate indifference may be found absent a pattern of unconstitutional behavior only in a narrow range of circumstances where a violation of federal rights is a highly predictable or plainly obvious consequence of a municipality's action or inaction.Id. (internal citations, quotation marks, and alterations omitted).
Plaintiff alleges Defendant Rivers failed to properly train his staff and failed to discipline Defendant Dean for the shower incident. Doc. 1, at 9. But a “municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.” Waller, 932 F.3d at 1285 (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)). This is because “[w]ithout notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.” Id. (quoting Connick, 563 U.S. at 62).
A plaintiff who alleges a pattern of similar constitutional violations may establish deliberate indifference. See id. (“To satisfy the stringent deliberate indifference standard, a pattern of similar constitutional violations by untrained employees is ordinarily necessary.” (internal quotation marks and alterations omitted)). But Plaintiff has not alleged any facts establishing a pattern of similar constitutional violations in his complaint. So, the Court cannot plausibly infer that the county was on notice of a deficient course of training.
Absent allegations of a pattern of unconstitutional behavior, deliberate indifference may be found only “in a narrow range of circumstances, however rare, in which the unconstitutional consequences of a failure to train are highly predictable and patently obvious.” Id. Plaintiff's allegations, however, do not support an inference that Defendant Dean's alleged conduct was a highly predictable or patently obvious consequence of a failure to train. In fact, Plaintiff alleges Defendant Dean's conduct was “contrary to the staff or jailor's normal procedure and operations.” Doc. 1, at 8. Plaintiff has thus failed to allege a county policy or custom based on a failure to train. See, e.g., Foreman, 2022 WL 2513384, at *5 (finding plaintiffs had failed to allege a municipal policy or custom based on a failure to train because the facts alleged did not support an inference that the defendants' conduct “was a highly predictable or plainly obvious consequence of the alleged failure to train or supervise” (citing Waller, 932 F.3d at 1284)).
Plaintiff also alleges Defendant Dean was not properly disciplined for his conduct. Doc. 1, at 9. But “a subsequent failure to discipline cannot be the cause of a prior injury.” Waller, 932 F.3d at 1290. So Plaintiff has also not “plausibly alleged that he was injured by any municipal failure to properly discipline” Defendant Dean for his conduct. Id.
Plaintiff does not sufficiently allege a municipal liability claim. The Court should therefore dismiss the official capacity claims against Defendants Dean and Rivers.
B. Plaintiff has no private cause of action under § 1983 to enforce alleged PREA violations.
Plaintiff alleges Defendant Rivers violated his rights under the PREA because he failed to post a hotline number which prevented Plaintiff from filing a complaint about Defendant Dean's conduct. Doc. 1, at 9, 11-12. The Court should dismiss this claim.
The PREA was designed to “detect, prevent, reduce, and punish prison rape” in United States' prisons. 34 U.S.C. § 30302(6). One of the purposes of the PREA is to “protect the Eighth Amendment rights of Federal, State, and local prisoners.” Id. § 30302(7). But “the statute itself does not create any private right of action for prisoners to sue correctional staff for alleged sexual misconduct.” Woodfork v. Nunn, No. 21-492-HE, 2022 WL 3008480, at *6 (W.D. Okla. June 29, 2022) (internal quotation marks omitted), adopted, 2022 WL 3006847 (W.D. Okla. July 28, 2022); 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)). So Plaintiff has no substantive cause of action.
The PREA also does not provide Plaintiff with a private right of action, enforceable under § 1983, to challenge the processes that jail officials afforded 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.”). So Plaintiff's complaint that Defendant Rivers failed to follow “mandated state law” by failing to post a PREA hotline number is also not actionable under the PREA.
Plaintiff cannot sue Defendants, either substantively or procedurally, for violating the PREA. The undersigned therefore recommends the Court dismiss Plaintiff's PREA claim with prejudice.
Since the PREA provides no private right of action, it would be futile to allow Plaintiff to amend these claims. The Court should therefore dismiss them with prejudice. See, e.g., Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (“A dismissal with prejudice is appropriate where a complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend would be futile.”).
C. Plaintiff fails to state a claim against Defendant Rivers in his individual capacity.
“Individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation.” Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997). “Supervisory status alone does not create § 1983 liability.” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009).
Plaintiff does not allege Defendant Rivers had any personal involvement in the shower incident. Instead, he claims Defendant Rivers acquiesced in Defendant Dean's conduct by failing to properly train and discipline him. Doc. 1, at 9, 11-12
“A § 1983 defendant sued in an individual capacity may be subject to personal liability and/or supervisory liability.” Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011). But “a supervisor may only be held liable if he is affirmatively linked to the constitutional violation.” Hickey v. Okla. Cnty. Det. Ctr., No. CIV 20 1291-R, 2022 WL 1221645, at *5-6 (W.D. Okla. Feb. 23, 2022), adopted, 2022 WL 945319 (W.D. Okla. Mar. 29, 2022); see Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”). “Section 1983 does not authorize liability under a theory of respondeat superior.” Brown, 662 F.3d at 1164.
To impose supervisory liability, “a plaintiff must first establish that a subordinate violated a constitutional right.” Wise v. Caffey, 72 F.4th 1199, 1210 (10th Cir. 2023). A plaintiff must then “establish three elements to hold a supervisor liable personally: (1) personal involvement; (2) causation; and (3) state of mind.” Id.; see also Serna v. Colo. Dep't of Corrs., 455 F.3d 1146, 1151 (10th Cir. 2006) (holding a supervisor is liable only if he or she was “personally involved in the constitutional violation, and a sufficient causal connection [] exist[s] between the supervisor and the constitutional violation” (internal quotation marks omitted); Schneider, 717 F.3d at 767 (requiring a plaintiff to show an “affirmative link” between the supervisor and the constitutional violation). A plaintiff must base supervisory liability “upon active unconstitutional behavior and more than a mere right to control employees.” Serna, 455 F.3d at 1153 (internal quotation marks omitted).
Plaintiff's claims against Defendant Rivers turn on his alleged supervisory role at the jail. But Plaintiff does not allege any causal connection between Defendant Dean's alleged unconstitutional behavior and Defendant Rivers' own actions. Plaintiff argues that Defendant Rivers' improper training of his staff resulted in Defendant Dean's actions. But Plaintiff also states that Defendant Dean acted outside the “normal procedure and operations” by confronting him in the shower. Doc. 1, at 8. And he makes no allegations that Defendant Rivers was on notice that Defendant Dean had acted in the past or would act on this occasion in violation of those normal procedures. The undersigned therefore recommends dismissal of Plaintiff's excessive force claim against Defendant Rivers in his individual capacity based on a lack of personal participation in the alleged constitutional violation. Iqbal, 556 U.S. at 676; Serna, 455 F.3d at 1153.
Plaintiff identifies Defendant Rivers as the “supervisor” of the Garfield County Detention Center. Doc. 1, at 5.
Plaintiff also alleges Defendant Rivers violated his due process rights by refusing to answer his “many kiosk requests and grievances” concerning the shower incident. Doc. 1, at 9. But the “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, 587 F.3d at 1069. And Plaintiff “has no independent due process rights that arise out of [a prison official's] disposition of internal grievances.” Brewer v. Gilroy, 625 Fed.Appx. 827, 838 (10th Cir. 2015); see also Boyd v. Werholtz, 443 F. App'x. 331, 332 (10th Cir. 2011) (“[T]here is no independent constitutional right to state administrative grievance procedures.”). So Plaintiff's claims against Defendant Rivers individually for failure to answer his grievances should also be dismissed for failure to state a claim.
D. Plaintiff's remaining claims against Defendant Dean in his individual capacity should be allowed to proceed.
As a pretrial detainee, Plaintiff's “claims regarding mistreatment while in custody fall within the ambit of ‘the due process clauses of the Fifth or Fourteenth Amendment and their protection against arbitrary governmental action by federal or state authorities.'” Wise, 72 F.4th at 1206 (quoting Porro, 624 F.3d at 1326). Because Plaintiff was in state custody, this Court assesses his claims under the Fourteenth Amendment. Id.
Plaintiff also cites a violation of the First Amendment regarding this claim. Doc. 1, at 10. But he makes no allegations pertinent to this Amendment. See U.S. CONST. amend. I.
“[T]he Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.” Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015) (internal quotation mark omitted). To prevail on a claim that his due process rights were violated, a pretrial detainee need not supply “proof of intent (or motive) to punish.” Id. at 398. Rather, he “can prevail by providing only objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose.” Id. In other words, “a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable.” Id. at 396-97.
“For Fourteenth Amendment excessive-force claims, [this Court] use[s] th[e] factors set out in Kingsley to determine ‘the reasonableness or unreasonableness of the force used.'” Wise, 72 F.4th at 1206 (quoting Kingsley, 576 U.S. at 397). These considerations include but are not limited to: (1) “the relationship between the need for the use of force and the amount of force used”; (2) “the extent of the plaintiff's injury”; (3) “any effort made by the officer to temper or to limit the amount of force”; (4) “the severity of the security problem at issue”; (5) “the threat reasonably perceived by the officer”; and (6) “whether the plaintiff was actively resisting.” Kingsley, 576 U.S. at 397.
Construing Plaintiff's allegations as true and applying the Kingsley factors to those allegations, the undersigned concludes Plaintiff has plausibly stated a claim that Defendant Dean used objectively unreasonable force against him.
Plaintiff states he was naked in the shower when Defendant Dean confronted him about having “contraband” in his cell. Id. at 6-8. Rather than allowing Plaintiff to exit the shower and dress, Defendant Dean attempted to physically “wrangle” him out before spraying him twice with pepper spray. Id. Plaintiff was apparently not resisting but, rather, Defendant Dean was blocking the exit. And Plaintiff alleges Defendant Dean injured him during the encounter and he was in pain for days. Id. at 7. For screening purposes, the undersigned concluded the Kingsley factors favor Plaintiff. Cf. Wise, 72 F.4th at 1207-08 (applying the Kingsley factors and holding that the plaintiff's allegations that a detention officer gave him a “knee strike” while he was subdued on the floor were sufficient to survive summary judgment on a Fourteenth Amendment claim of excessive force).
Because Plaintiff's allegations are sufficient to support a reasonable inference that Defendant Dean is liable for his alleged use of excessive force, the undersigned recommends the Court allow this claim to proceed against Defendant Dean in his individual capacity.
IV. Recommendation and notice of right to object.
The undersigned recommends the Court dismiss the official-capacity claims against both Defendants, dismiss the PREA claim with prejudice, dismiss the individual claims against Defendant Rivers, and find that Plaintiff has successfully stated a Fourteenth Amendment claim of excessive force against Defendant Dean in his individual capacity.
The undersigned advises Plaintiff of his right to object to this Report and Recommendation by October 16, 2023, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to make a timely objection waives his right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation does not terminate the referral to the undersigned Magistrate Judge in this matter.