Opinion
CIV-23-1006-F
06-28-2024
FRANK THOMAS, Plaintiff, v. ROSS FISHER et. al., Defendants.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner appearing pro se, brings this action pursuant to 42 U.S.C. § 1983. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Having reviewed the sufficiency of the Second Amended Complaint, pursuant to 28 U.S.C. § 1915A, the undersigned recommends Plaintiff's action be partially DISMISSED.
I. Factual Allegations
Plaintiff is currently incarcerated at Lawton Correctional Facility (“LCF”) located in Lawton, Oklahoma. (ECF No. 19 at 3). In his Second Amended Complaint, Plaintiff names the following Defendants: Ross Fisher, LCF Chief Medical Officer; Emily Timm, Correctional Health Service Administrator Nurse; Dr. Michael Boger; Raelynn Marchant, LCF Director of Nursing; David Cole, LCF Warden; Kristine Kusner, LCF Nurse; Paige Fox, LCF Nurse; Major Hood, LCF Chief of Security; Mr. West, LCF Unit Manager; Major Hartsock, LCF Unit Manager; John Does, LCF security and medical staff; John Does, LCF Unit Managers. (Id. at 3-4, 17). Plaintiff names each Defendant in their individual and official capacities. (Id. at 3-4).
Though Plaintiff does not identify Defendants Hartsock and West in his list of party Defendants (ECF No. 19 at 3-4), in asserting his sixth cause of action, he formally names the two of them as Defendants. (Id. at 17).
In Claims One and Two, Plaintiff asserts Defendants Boger, Marchant, Fox, Kusner, and John Doe medical staff members violated his Eighth Amendment right to adequate medical care by failing to properly prescribe and administer his insulin medication, required to control his diabetes. (Id. at 5-11). In Claim Three, he contends Defendants Boger, Marchant, Kusner, and John Doe medical staff violated his Eighth Amendment rights by failing to properly care for multiple medical conditions, including GERD/acid reflux and chronic gastroparesis. (Id. at 12-13).
Plaintiff's allegations supporting Claim Three are also related to the administration of his insulin medication. (Id.)
In Claims Four and Five, Plaintiff asserts additional Eighth Amendment claims based on Defendants Fisher, Boger, Timm, and Marchant's alleged failure to train or supervise staff to properly administer his insulin medication and otherwise control his diabetes. (Id. at 12-17). Finally, in Claim Six, Plaintiff contends Defendants West, Cole, Hartsock, Hood, and John Doe security staff violated his Eighth Amendment rights by failing to protect him from known safety risks. (Id. at 17-20). For each claim, Plaintiff seeks monetary and injunctive relief. (Id. at 20).
II. Screening of Prisoner Complaints
The Court must review each complaint in which a prisoner seeks redress against a governmental entity, officer, or employee and each case in which a plaintiff proceeds in forma pauperis. 28 U.S.C. § 1915A(a). The Court is required to dismiss the complaint or any portion of the complaint that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915A(b); see also Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007) (indicating that a court uses same analysis for complaint's sufficiency whether performed sua sponte or pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)).
III. Defendant Fisher
In Claims Four and Five, Plaintiff contends Defendant Fisher, inter alia, violated his right to adequate medical care based on a failure to train or supervise subordinates to properly administer said care. (ECF No. 19 at 13-17). The United States Supreme Court has held that an inmate advancing an Eighth Amendment claim under 42 U.S.C. § 1983 based on inadequate provision of medical care must establish “deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). The “deliberate indifference” standard has two components: “an objective component requiring that the pain or deprivation be sufficiently serious; and a subjective component requiring that the offending officials act with a sufficiently culpable state of mind.” Miller v. Glanz, 948 F.2d 1562, 1569 (10th Cir. 1991).
Additionally, Section 1983 does not allow the imposition of liability upon a defendant-supervisor based on “a theory of respondeat superior.” Cox v. Glanz, 800 F.3d 1231, 1248 (10th Cir. 2015). A supervisor is liable only if he is “personally involved in the constitutional violation, and a sufficient causal connection [ ] exist[s] between the supervisor and the constitutional violation.” Serna v. Colo. Dep't of Corr., 455 F.3d 1146, 1151 (10th Cir. 2006) (quotations omitted); see also Schneider v. Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir. 2013) (requiring a plaintiff to show an “affirmative link” between the supervisor and the constitutional violation). “Thus, [ ] Plaintiff must base supervisory liability ‘upon active unconstitutional behavior' and ‘more than a mere right to control employees.'” Davis v. Okla. Cnty., No. CIV-08-0550-HE, 2009 WL 2901180, at *4 (W.D. Okla. Sept. 3, 2009) (quoting Serna, 455 F.3d at 1153).
The requisite showing of an “affirmative link” between a supervisor and the alleged constitutional injury has “come to have three related prongs: (1) personal involvement, (2) sufficient causal connection, and (3) culpable state of mind.” Schneider, 717 F.3d at 767 (quoting Dodds v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010)); see also Garcia-Rodriguez v. Gomm, 169 F.Supp.3d 1221, 1234 (D. Utah 2016) (holding that allegations which stated only that plaintiff believed supervisors “personally directed the violation of constitutional rights” was “nothing more than a recital of the elements of a supervisory liability claim and [was] therefore insufficient to state a claim for relief.”). Further, any theory of liability against a supervisory defendant based solely upon mere “acquiescence” has been rejected by the United States Supreme Court. See Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (rejecting the respondent's argument that “under a theory of supervisory liability, petitioners can be liable for knowledge and acquiescence in their subordinates' use of discriminatory criteria to make classification decisions among detainees.” (quotations omitted)).
In his Second Amended Complaint, Plaintiff explains that Defendant Fisher is the immediate supervisor of Defendants Boger and Timm. (ECF No. 19 at 14, 16). According to Plaintiff, Defendant Fisher's personal participation in Plaintiff's medical care was limited to an email communication he sent to Defendant Timm, stating,
I did review [Plaintiff's] chart today & verified that he's administered his morning insulin . . . between 1-4 a.m.... this is much too early . . . I noticed today's evening insulin (Regular) was given at 12:58 p.m. today -way too early. What is clear to me is that the times his insulin is being made available to him recently is improper, inconsistent & likely NOT correctly timed to when he accesses his meals . . .(Id. at 15-16). Thus, Plaintiff's allegations against Defendant Fisher do not illustrate active involvement in a violation of Plaintiff's rights. Instead, Defendant Fisher notified Defendant Timm that Plaintiff's medication was being administered inappropriately. Plaintiff's claims against him are clearly based solely on his supervisory role and not on his own actions. Accordingly, Plaintiff's claims against Defendant Fisher, in his individual and official capacities, should be dismissed.
IV. Eighth Amendment Failure to Protect Claim
In Claim Six, Plaintiff asserts an Eighth Amendment failure to protect claim against Defendants West, Cole, Hartsock, Hood, and John Doe LCF security staff. (ECF No. 19 at 17-20). The Eighth Amendment imposes a duty upon prison officials to “take reasonable measures to guarantee the safety of inmates.” Farmer, 511 U.S. at 832 (citation omitted); see also Castillo v. Day, 790 F.3d 1013, 1020 (10th Cir. 2015) (“More than three decades ago, this court held that the Eighth Amendment imposes a duty on prison officials to protect prisoners from violence at the hands of other inmates.”) (citation omitted). However, it is not “every injury suffered by one prisoner at the hands of another that translates into constitutional liability for prison officials responsible for the victim's safety.” Farmer, 511 U.S. at 834. To establish a cognizable Eighth Amendment claim for failure to protect [an inmate from harm by other inmates], the plaintiff “must show that he is incarcerated under conditions posing a substantial risk of serious harm[,] the objective component, and that the prison official was deliberately indifferent to his safety, the subjective component.” Verdecia v. Adams, 327 F.3d 1171, 1175 (10th Cir. 2003) (quotations omitted).
In support of this claim, Plaintiff alleges that in late 2022, Defendant West, knowing Plaintiff was not affiliated with any gang, identified him as a member of the Hoover Crips Gang (“HCG”) and placed him in the unit in which the HCG was housed. (ECF No. 19 at 17). Plaintiff further contends Defendant West was aware the HCG members were “known to harm, extort, threaten, rob, jump, &/or kill, etcetera, those inmates not affiliated with them.” (Id. at 18). Plaintiff also alleges Defendants West and Hartsock placed him with a cellmate from the Neighborhood Crips Rollin gang (“NHG”), despite their awareness that Plaintiff's records included a prohibition against being housed with NHG members. (Id. at 19).
Additionally, Plaintiff asserts confusing allegations against Defendant Hood regarding a failure to ensure that his cell door was open so that he could leave to obtain his insulin medication. (Id. at 18-19). Finally, he contends Defendant Cole, as LCF Warden, knew that he was being housed inappropriately but did not take appropriate action. (Id. at 19).
Plaintiff does not allege that he was ever harmed or directly threatened by any gang members during this time, nor that he suffered any physical injury, apart from ongoing problems relating to his medical conditions, or psychological injury as a result of these housing placements. “While the risk of serious harm element does not require ‘the consummation of threatened injury,' conclusory allegations without supporting factual averments showing an objectively sufficiently serious threat do not suffice.” Helferrich v. New Mexico, No. 20-cv-1069-JCH-KK, 2022 WL 14812598, at *5 (D.N.M. Oct. 26, 2022) (quoting Riddle v. Mondragon, 83 F.3d 1197, 1205-06 (10th Cir. 1996)).
In Riddle, the Tenth Circuit held that allegations the “[p]laintiff is . . . constantly in fear of his life by physical assaults from other inmates who may discover his crime as sex offense at any time” were “merely conclusory allegations without supporting factual averments sufficient to state such a claim on which relief can be granted.” Riddle, 83 F.3d at 1205. Here, Plaintiff does not assert any factual allegations, conclusory or otherwise, in his Second Amended Complaint indicating he suffered either physical or psychological harm. Thus, Plaintiff's Eighth Amendment failure to protect claim should be dismissed. Cassanova v. Ulibarri, 622 Fed.Appx. 724, 729-30 (10th Cir. 2015) (holding that complaining in a “conclusory fashion of being afraid and aggravated without detailed specific circumstances” is insufficient to satisfy the objective element of a failure to protect claim (citing Street v. Fair, 918 F.2d 269, 272 (1st Cir.1990) (rejecting an Eighth Amendment failure to protect claim where “plaintiff has made no allegation that he was physically attacked,” and, he “complains in conclusory fashion of being ‘afraid' and ‘aggravated' . . . [but without] detailed [ ] specific circumstances that would necessarily support a claim of mental suffering”)).
V. John Doe Defendants
Liberally construing the Second Amended Complaint, Plaintiff names John Doe Defendants in Claims One, Two, Three, and Six. (ECF No. 19 at 5, 9, 12, 17). “Section 1983 plaintiffs may only ‘use unnamed defendants,' if they ‘provide[ ] an adequate description of some kind which is sufficient to identify the person involved so process eventually can be served.'” Mayfield v. Presbyterian Hosp. Admin., 772 Fed.Appx. 680, 686 (10th Cir. 2019) (quoting Roper v. Grayson, 81 F.3d 124, 126 (10th Cir. 1996)). Further, the mere naming of John Doe or unknown defendants, without allegations of personal involvement in violation of the Constitution is insufficient to state a claim upon which relief can be granted. See Fisher v. Lynch, 531 F.Supp.2d 1253, 1262 n.3 (D. Kan. 2008) (explaining that a plaintiff's claims against John Doe defendants are insufficient if he has “not alleged with [ ] specificity the claims which involved the John Doe defendants or what roles they might have played in the matter”).
Here, Plaintiff neither incudes identifying information regarding the John Doe Defendants beyond that they are LCF unit managers, or among the medical or security staff, nor does he assert what role they may have played in his alleged constitutional violations. Accordingly, Plaintiff has failed to state a legally sufficient claim against these Defendants and the Court should dismiss them from this lawsuit.
VI. Parties No Longer Named as Defendants
Prior to his current pleading, Plaintiff filed a Complaint and an Amended Complaint. (ECF Nos. 1, 11). Therein, Plaintiff named multiple parties as Defendants that he has not named as parties in his Second Amended Complaint. An amended complaint supersedes the prior complaints and renders them of no legal effect. See Predator Int'l, Inc. v. Gamo Outdoor USA, Inc., 793 F.3d 1177, 1180-81 (10th Cir. 2015) (explaining that "an amended pleading supersedes the pleading it modifies and remains in effect throughout the action unless it subsequently is modified” (quotations omitted)). Accordingly, to the extent Plaintiff attempts to assert claims against Defendants Mark Knutson, Cheri Atkinson, Helen Calhoun, Erin Pena, Steven Harpe, Dr. Willienell Pitts, and Fred Sanders, named in previous pleadings but not in the Second Amended Complaint, said claims should be dismissed and the parties terminated from this action.
VII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based on the foregoing findings, the undersigned recommends the following claims be dismissed, pursuant to 28 U.S.C. § 1915A, for failure to state a claim upon which relief can be granted:
(1) Plaintiff's Claims Four and Five against Defendant Fisher, in his individual and official capacities;
(2) Plaintiff's Claims One, Two, Three, and Six against John Doe Defendants, in their individual and official capacities; and,
(3) Plaintiff's Claim Six in its entirety.
As a result of this recommendation, Defendants Fisher, West, Cole, Hartsock, and Hood, in their individual and official capacities, should be dismissed from this lawsuit. Additionally, Defendants Knutson, Atkinson, Calhoun, Pena, Harpe, Dr. Pitts, and Sanders, in their individual and official capacities, should be terminated from this action as Plaintiff has not named them as Defendants in his Second Amended Complaint.
Plaintiff's Claims One and Two asserting Eighth Amendment violations against Defendants Boger, Marchant, Kusner, and Fox, in their individual and official capacities, Claim Three asserting Eighth Amendment violations against Defendants Boger, Marchant, and Kusner, in their individual and official capacities, and Claims Four and Five asserting Eighth Amendment violations against Defendants Boger, Marchant, Kusner, and Timm, in their individual and official capacities, should proceed at this time. For each claim, Plaintiff seeks monetary and injunctive relief.
Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by July 15, 2024, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. Plaintiff is further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VI. STATUS OF REFERRAL
This Report and Recommendation does not terminate the referral by the District Judge in this matter.