Opinion
CIV-22-645-J
02-28-2023
DEREK DWANYE SMITH, Plaintiff, v. OKLAHOMA COUNTY, BOARD OF COUNTY COMMISSIONERS OF OKLAHOMA, et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Plaintiff, appearing pro se and in forma pauperis, seeks relief for conduct he alleges occurred at the Oklahoma County Detention Center (OCDC). Doc. 17. United States District Judge Bernard M. Jones has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), and (C). Docs. 4; 16, at 2. For the reasons discussed below, the undersigned recommends dismissing the amended complaint without prejudice for failure to state a claim.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
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 amended complaint, or any portion of the amended 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. Id. §§ 1915A(b), 1915(e)(2)(B).
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). 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).
This Court construes “pro se plaintiffs' pleadings liberally.” Johnson v. Reyna, 57 F. 4th 769, 775 (10th Cir. 2023). If the Court “‘can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail,' [it] should do so.” Id. (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). The Court “will often excuse pro se plaintiffs' failure to cite proper legal authority, confusion of various legal theories, poor syntax and sentence construction, and unfamiliarity with the pleading requirements.” Id. (internal quotation marks omitted). The Court, may not, however, serve as Plaintiff's advocate by creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
II. Procedural history.
Plaintiff filed the original complaint on August 1, 2022, alleging he suffered Eighth Amendment violations while he was a pretrial detainee at the OCDC. Doc. 1. Plaintiff alleged his food trays had “bed bugs” on them and also complained about the cost of medical care for the treatment of bedbug bites. Id.; see also Doc. 13, at 3-4 (summarizing Plaintiff's claims). The undersigned recommended the complaint be dismissed because the named defendant-Food Service OCDC-is not a suable entity. Doc. 13, at 5.
Plaintiff filed a “Motion to Amend Petition to Change Named Party,” seeking to remove Food Service OCDC as a party and add the Board of County Commissioners of Oklahoma County, Oklahoma County, the County Jail Trust Authority and its Chairperson, and the Oklahoma County Sheriff as defendants. Doc. 14. Plaintiff also filed a “Motion to Amend Complaint” asserting “new facts about the defendants' conduct ha[d] emerged.” Doc. 15; see also id. Ex. 1 (Plaintiff's proposed amended complaint). Judge Jones granted Plaintiff's motions, “noting that Federal Rule of Civil Procedure 15(a) allows Plaintiff to amend his complaint without the Court's leave because Defendant has not yet been served.” Doc. 16, at 1. Further, Judge Jones directed the Clerk of Court to file the proposed amended complaint. Id. at 2; Doc. 17.
III. The parties and Plaintiff's claims.
At various points in his amended complaint, Plaintiff names Oklahoma County, the Board of County Commissioners of Oklahoma, and the County Jail Trust Authority as defendants (“County Entities”). Doc. 17, at 1, 5-8. Plaintiff also sues the Oklahoma County Sheriff in his official capacity, id. at 6-7, which is “the same as bringing a suit against” Oklahoma County. Martinez v. Beggs, 563 F.3d 1082, 1091 (10th Cir. 2009).
Plaintiff also notes that the OCDC and Oklahoma County Sheriff's Office are the County's “subsidiaries” or subdivisions. Doc. 17, at 5, 7-8. The undersigned does not construe the amended complaint as naming these entities as separate defendants. Instead, Plaintiff appears to allege that the actions of the OCDC or sheriff's office employees are attributable to Oklahoma County. See id. at 6 (“Oklahoma County, Board of County Commissioners of Oklahoma, County Jail Trust Authority, it's chairperson, (ie)... The Sheriff of Oklahoma County, et al., and each of them, were responsible for the policies, practice, supervision, custom, implementation, and conduct of all O.C.D.C. matters and was and are responsible for the appointment, training, supervision, and conduct of all O.C.D.C.'s personnel.”). If Plaintiff seeks to include these entities as separate defendants, they should be dismissed because the OCDC does not “possess a legal identity separate from the county it serves” and is “not a suable entity in a § 1983 action.” Doc. 13, at 5 (citing Aston v. Cunningham, 2000 WL 796086, at *4 n.3 (10th Cir. Jun. 21, 2000); Hinton v. Dennis, 362 Fed.Appx. 904, 907 (10th Cir. 2010)). The Oklahoma County Sheriff's Office also cannot be sued in this Court. See Lindsey v. Thomson, 275 Fed.Appx. 744, 747 (10th Cir. 2007) (noting that a county sheriff's department had “no apparent legal existence”).
Plaintiff asserts his § 1983 claims “arise under the Fifth, Eighth[,] and Fourteenth Amendments to the United States Constitution.” Doc. 17, at 4. Plaintiff also asserts a violation of the Americans with Disabilities Act (ADA). Id. at 13-14 (citing 42 U.S.C. § 12132). And Plaintiff contends Defendants violated portions of the Oklahoma Administrative Code. Id. at 2-3. (citing Okla. Admin. Code §§ 310:285-3-9; 310:670-3-1; 310:670-5-7).
Plaintiff seeks: 1) “a judgment declaring Defendants' policy, practice, procedure, and customs unconstitutional”; 2) an award of compensatory damages “in an amount in excess of [$]3,000,000.00”; 3) an award of punitive damages; 4) “an order enjoining defendants from implementing or enforcing such policy, practice(s), procedures and customs on inmates or pretrial detainees; 5) an award of attorney's fees and costs; and 6) other relief as the Court finds just and proper. Doc. 17, at 3, 16.
Plaintiff is no longer housed at the OCDC. See Doc. 9. Thus, Plaintiff's claims for injunctive and declaratory relief are moot. See Toevs v. Milyard, 563 Fed.Appx. 640, 645 (10th Cir. 2014) (“Transfer generally moots an inmate's claims for remedies of declaratory and injunctive relief.”).
IV. Analysis.
A. Plaintiff's § 1983 claims should be dismissed for failure to state a claim.
Liberally construing the amended complaint, Plaintiff makes § 1983 claims related to an infestation of bedbugs at the OCDC and the failure to provide medical care for treatment of bug bites. He contends Defendants “instituted and affirmed a policy, practice, procedure & custom pursuant to which inmates at the Oklahoma County Detention Center are placed in uninhabitable living conditions due to infestation(s) of bed bugs.” Doc. 17 at 2. He alleges the OCDC was aware of the “infestation and that the bed bugs hide in the cracks in the walls and pinholes in the cinder blocks.” Id. at 10. He also asserts the OCDC sprayed for bedbugs when the lights were on, knowing that doing so would not kill the nocturnal bedbugs. Id. Thus, he argues the OCDC “failed to take adequate precautions knowing the suffering it was causing.” Id. at 12.
Plaintiff also asserts that when he reminded staff he needed a diabetic food tray, “the on duty guards brought Plaintiff a tray that was contaminated by a bed bug a long time after meal time.” Id. at 13-14. Plaintiff contends he “reported bed bugs in his cell and in his food and was made to deal with it without change or aid; a complete disregard for his safty and health.” Id. at 10.
Plaintiff states that the OCDC “continues to refuse inmates treatment for bed bug bites from their (OCDCs) on going infestation.” Id. at 11. He argues that “[t]he torment by being exposed to infestation with no way out places unforgetable conscious pain and suffering at its precipice, like torture.” Id. at 12.
For the reasons stated below, Plaintiff's § 1983 claims should be dismissed on screening for failure to state a claim.
1. Plaintiff did not plead the violation of a policy sufficient to state a claim of municipal liability.
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 v. Dep't of Soc. Servs., 436 U.S. 658, 691-92 (1978)). “[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)).
A plaintiff must do more than “‘simply allege that there is a policy in place'”-he “‘must plead facts that, if true, would give rise to a plausible inference that such a policy exists.'” Gatlin v. CoreCivic, Inc., 2022 WL 474282, at *6 (D.N.M. Feb. 16, 2022) (quoting Griego v. City of Albuquerque, 100 F.Supp.3d 1192, 1213 (D.N.M. 2015)), aff'd on other grounds, 2022 WL 17333065 (10th Cir. Nov. 30, 2022); see also Lucas v. Turn Key Health Clinics, LLC, 58 F. 4th 1127, 1145 (10th Cir. 2023) (holding the plaintiff did not state a claim where there were “simply no facts in Plaintiff's complaint from which one can infer a policy or custom of cost-cutting”). For a formal policy, a plaintiff “‘can simply allege what the policy is and where it is codified.'” Gatlin, 2022 WL 474282, at *6 (quoting Griego, 100 F.Supp.3d at 1213). “As to informal customs, a plaintiff may plead either a pattern of multiple similar instances of misconduct or use other facts, such as jail official's statements attesting to the policy's existence.” Foreman v. Okla. Cnty. Sheriff, No. CIV-21-1062-F, 2022 WL 2513384, at *5 (W.D. Okla. July 6, 2022).
Plaintiff makes a conclusory assertion that Defendants “instituted and affirmed a policy, practice, procedure & custom pursuant to which inmates at the Oklahoma County Detention Center are placed in uninhabitable living conditions due to infestation(s) of bed bugs.” Doc. 17, at 2. He did not identify where the alleged policy is codified. Nor did he plead any specific facts about dates on which he was placed in a cell with bedbugs or more than general statements about one instance he claims he received a food tray “contaminated by a bed bug.” Id. at 14. Plaintiff did not assert the policy was a decision of a final policymaker or ratified by one. Nor did he contend the conditions came to be because of the failure to adequately train or supervise employees. Thus, the undersigned finds Plaintiff did not adequately identify a policy necessary to establish municipal liability.
2. Plaintiff did not adequately plead an underlying constitutional violation.
Even if Plaintiff had properly identified an injury-causing policy, his claims fail because he fails to adequately allege a constitutional injury. See, e.g., Frey v. Town of Jackson, Wy., 41 F.4th 1223, 1239 (10th Cir. 2022) (“The crux of a municipal-liability claim is that a municipal policy or custom caused the plaintiff to suffer a constitutional injury.... Without a constitutional violation, Plaintiff has suffered no injury for which a municipality can be liable.”).
Plaintiff contends Defendants violated his Fifth, Eighth, and Fourteenth Amendment rights. Doc. 17, at 4. “While the conditions under which a prisoner is held are subject to scrutiny under the Eighth Amendment, the conditions under which a pretrial detainee is confined are scrutinized under the Due Process Clauses of the Fifth and Fourteenth Amendments.” Bai num v. Sedgwick Cnty. Comm'rs, 27 Fed.Appx. 965, 968 (10th Cir. 2001). Plaintiff does not specify in the amended complaint whether his claims arose as a pretrial detainee or after a conviction. But Plaintiff has not stated a claim under either circumstance.
“[A] prison official violates the Eighth Amendment only (1) if the constitutional deprivation is ‘objectively sufficiently serious' and (2) the prison official has a ‘sufficiently culpable state of mind.'” Ullery v. Bradley, 949 F.3d 1282, 1290 (10th Cir. 2020) (quoting Farmer, 511 U.S. at 834). The same test applies to Fourteenth Amendment claims of deliberate indifference. See Strain v. Regalado, 977 F.3d 984, 993 (10th Cir. 2020) (“We therefore join our sister circuits that have declined to extend Kingsley [v. Hendrickson, 576 U.S. 389 (2015)] to deliberate indifference claims and will apply our two-prong test to Plaintiff's claims.”); Hooks v. Atoki, 983 F.3d 1193, 1203 (10th Cir. 2020) (“Although our opinion in Strain addressed a claim of medical indifference, every aspect of its reasoning applies more broadly, to Fourteenth Amendment deliberate indifference claims . . . .”).
An injury is “sufficiently serious” if it denies an inmate “the minimal civilized measure of life's necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994).
The objective component is met if a defendant's “alleged wrongdoing was objectively harmful enough to establish a constitutional violation.” Ullery, 949 F.3d at 1290. The subjective component is met if a prison official “knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. “[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id.
Plaintiff's claims do not meet the objective component. He makes only general claims about an infestation of bedbugs while he was housed at the OCDC. Plaintiff contends he “reported bedbugs in his cell and in his food and was made to deal with it.” Doc. 17, at 10. He contends the OCDC knew that bedbugs hid in cracks in the walls and pinholes in cinder blocks. Id. He also appears to assert that jail staff attempted to remedy the situation but were ineffective in doing so. Id. (“O.C.D.C.... knows spraying a 15 to 30 min dissolvable spray in cells while the lights are on for eighteen hours a day doesn't kill nocturnal bedbugs, that only come out in the dark.”). While Plaintiff contends it is common knowledge that bedbugs “transmit a variety of diseases,” id. at 2, he does not assert he ever became infected with a disease due to bedbugs or even that a bedbug ever bit him. These facts are insufficient to state a constitutional violation.
Plaintiff asserts “medical openly refuses to treat indigent inmates” for bedbug bites, Doc. 17, at 11, but he does not assert either that he suffered bedbug bites or that he sought and was refused medical treatment. And while Plaintiff discusses “similarly situated” individuals, Doc. 17, at 3, 15, he cannot seek to bring an action on behalf of a class without an attorney. See Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000) (“We do not hesitate to affirm the district court's decision that Mr. Fymbo cannot adequately represent the putative class. . . . A litigant may bring his own claims to federal court without counsel, but not the claims of others.”).
Mere exposure to-or even bites from-bedbugs does not state a claim of deliberate indifference. In Smith v. Whetsel, a plaintiff alleged “he suffered from bites from bedbugs” which caused “various physical symptoms, including dizziness, blurry vision and pain.” No. CIV-16-1487-HE, 2017 WL 1194712, at *1-2 (W.D. Okla. Mar. 31, 2017). But the Court found the plaintiff did not state a claim because “[w]hile a bedbug infestation no doubt causes discomfort, it does not suggest a deprivation of the ‘minimal civilized measure of life's necessities.'” Id. at *3; see also Waller v. Ward, 2016 WL 7235832, at *3 (W.D. La. Oct. 19, 2016) (“[T]he mere presence of pests does not amount to a constitutional violation.”), adopted, 2016 WL 7240152 (W.D. La. Dec. 14, 2016); Robinson v. Milwaukee Secure Det. Facility, 2016 WL 3620770, at *2 (E.D. Wis. June 29, 2016) (“Individuals outside of prison are bitten by various insects thousands or millions of times per day, often resulting in skin irritation. Even luxury hotels and apartments have bedbugs, cockroaches, and other pests. Absent any allegation that the itching and bites were severe or anything out of the ordinary, an itch from insect bites does not rise to the level of harm necessary to demonstrate unconstitutional conditions of confinement.”). Plaintiffs contention about the ineffective efforts to mitigate the bedbug infestation does not change the result. See Walters v. Bosher, 2011 WL 252954, at *4 (D.N.J. Jan. 25, 2011) (“Ineffective efforts to eliminate the bed bug infestation at the halfway house amount to negligence, which does not satisfy the deliberate indifference standard.”).
Plaintiff also contends Defendants “allow[ed] aid to go unprovided and [did] not supply[] medical treatment.” Doc. 17, at 12. “A prison official's deliberate indifference to an inmate's serious medical needs” amounts to a constitutional violation. Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). “[A] medical need is sufficiently serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Id. (internal quotation marks omitted). “Where the necessity for treatment would not be obvious to a lay person, the medical judgment of the physician, even if grossly negligent, is not subject to second-guessing in the guise of an Eighth Amendment claim.” Id. Plaintiff does not assert a physician diagnosed him with a condition that mandated treatment, and he does not assert bedbugs caused him any particular ailment. The undersigned thus finds Plaintiff's general allegations cannot state a claim for failure to provide medical treatment.
B. Plaintiff did not adequately plead a claim under the ADA.
Plaintiff contends Defendants violated the ADA. Doc. 17, at 14 (citing 42 U.S.C. § 12132). Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. “This provision extends to discrimination against inmates detained in a county jail.” Est. of Beauford v. Mesa Cnty., Colo., 35 F.4th 1248, 1275-76 (10th Cir. 2022) (internal quotation marks omitted). “To state a claim under Title II, [Plaintiff] must show: (1) [he] is a qualified individual with a disability; (2) he was excluded from participation in or denied the benefits of [the OCDC's] services, programs, or activities; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability.” Id. at 1276 (internal quotation marks omitted).
Plaintiff contends he “is a diabetic and was on the list to receive a diabetic tray” at the OCDC. Id. at 13. He asserts that “while trays were provided for [him], they were forgotten on multiple occasions.” Id. When he “reminded staff of the repetitive mistake which was directly effecting [his] mental, and physical health; the on duty guards brought [him] a tray that was contaminated by a bed bug a long time after meal time.” Id. at 13-14. At minimum, this contention fails to establish that he was discriminated against or denied timely meals because of his disability.
The ADA “requires the plaintiff's disability be a but-for cause (i.e., “by reason of') of the discrimination.” Crane v. Utah Dep't of Corr., 15 F.4th 1296, 1313 (10th Cir. 2021). Plaintiff does not plead any facts suggesting his food trays would not have been forgotten but for his condition as a diabetic. He does not claim, for example, that food trays for non-diabetics were delivered timely. Nor does he plead facts suggesting he would not have received a tray with a bedbug on it but for his diabetes. To the contrary, Plaintiff asserts the OCDC was subject to a bedbug infestation-a situation unrelated to his condition. Thus, Plaintiff has failed to state a claim. See id. (affirming grant of motion for judgment on the pleadings where “the Amended Complaint fail[ed] to allege [the plaintiff's] disability was a but-for cause of the purported discrimination”).
C. The Court should decline to exercise supplemental jurisdiction over Plaintiff's state-law claims.
Plaintiff contends generally that Defendants' conduct violates the laws and constitution of the State of Oklahoma. Doc. 17, at 3. He also contends Defendants violated portions of the Oklahoma Administrative Code. Id. at 2-3. As much as Plaintiff seeks to bring independent claims based on violations of Oklahoma law, the Court should decline to exercise supplemental jurisdiction. See 28 U.S.C. § 1367(c)(3) (permitting district courts to decline to exercise supplemental jurisdiction where it “has dismissed all claims over which it has original jurisdiction”); Smith v. City of Enid ex rel. Enid City Comm'n, 149 F.3d 1151, 1156 (10th Cir. 1998) (“When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims.”).
V. Recommendation and notice of right to object.
The undersigned recommends the Court dismiss the Complaint without prejudice for failure to state a claim.
The undersigned advises Plaintiff of his right to object to this Report and Recommendation by March 21, 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 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 terminates the referral to the undersigned Magistrate Judge in this matter.