Opinion
CIV-19-1137-D
08-31-2021
ALLEN ALEXANDER PARKS, Plaintiff, v. SHERIFF P.D. TAYLOR, et al., Defendants.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a prisoner appearing pro se and in forma pauperis, filed this action under 42 U.S.C. § 1983, alleging civil rights violations. (Doc. 46, Amended Complaint). United States Chief District Judge Timothy D. DeGiusti referred the matter to United States Magistrate Judge Gary M. Purcell for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 4). It was subsequently transferred to the undersigned Magistrate Judge. (Doc. 42).
Before the court are Defendant Robert Benjamin's Motion to Dismiss the Amended Complaint (Doc. 47), Defendant Matthew Yerby's Motion to Dismiss the Amended Complaint (Doc. 48), and Defendants Danny Honeycutt and P.D. Taylor's Motion to Dismiss the Amended Complaint (Doc. 49). Plaintiff has filed a response (Doc. 76), and the Motions are at issue. For the reasons set forth fully below, the undersigned recommends that the Motions to Dismiss be granted in part and denied in part.
On February 24, 2021, the undersigned granted Plaintiff's request to file a single brief of up to 75 pages in response to the three Motions to Dismiss. (Doc. 70). Plaintiff submitted a 164-page response brief (Doc. 76-1) with an unsigned Motion for Leave to file a 140
I. Procedural History and the Instant Motions
Plaintiff filed his original Complaint in this case on December 5, 2019, alleging eight constitutional violations arising from incidents and conditions of his incarceration at the Oklahoma County Detention Center (“OCDC”). (Doc. 1). The Complaint named seven defendants, including Defendants Benjamin and Yerby, OCDC detention officers; Defendant Taylor, the sheriff of Oklahoma County; and Defendant Honeycutt, the sheriff's general counsel. On June 29, 2020, Plaintiff filed a motion for leave of court to file an amended complaint. (Doc 27). Magistrate Judge Purcell denied the motion as moot, noting that Plaintiff could file an amended complaint without leave of court because of the case's procedural posture. (Doc. 29). Two motions to dismiss were subsequently filed on August 3, 2020, one by Taylor and Honeycutt (Doc. 34) and one by Benjamin and Yerby (Doc. 35). Plaintiff filed a motion in response, requesting leave of court for an extension of time to respond to the motions to dismiss and to amend his Complaint. (Doc. 37). Judge Purcell page response brief (Doc. 76). Plaintiff also separately submitted a signed version of the Motion. (Doc. 77). Plaintiff has frustrated the court's ability to timely manage his case by submitting lengthy, unnecessary material, including declarations and tables of contents, and seeking various extensions and leave to produce such superfluous material. Because consideration of the Motions to Dismiss has already been delayed significantly by Plaintiff's tactics, the court grants Plaintiff's request. (Doc. 77 is granted and Doc. 76 is denied as moot). However, Plaintiff is advised that for all future filings the court will only consider the number of pages Plaintiff is permitted to file by the local rules or previously granted leave of court. Pages submitted as tables of contents will be counted toward any page limit. granted in part and denied in part Plaintiff's motion, ordering Plaintiff to either file responses to the motions to dismiss or file an amended complaint. (Doc. 38).
Plaintiff received extensions of time from the court and eventually filed his Amended Complaint on November 6, 2020. (Doc. 46). Three Motions to Dismiss were filed on November 23, 2020, in response to the Amended Complaint - one by Benjamin (Doc. 47), one by Yerby (Doc. 48), and one by Taylor and Honeycutt (Doc. 49). Plaintiff received extensions to respond to the Motions to Dismiss (Docs. 53, 64, 68, 72) and then filed a single response to Defendants' Motions to Dismiss on May 19, 2020. (Doc. 76-1).
Plaintiff added 11 new defendants and 17 new federal claims. Defendants argue that Plaintiff's new claims should be dismissed because Plaintiff knew all the facts underlying these claims at the time he filed the lawsuit. (See, e.g., Doc. 47, at n.2). For support Defendants cite Leatherwood v. Rios, 705 Fed.Appx. 735, 740 (10th Cir. 2017). But Rios addressed the discretion of a magistrate judge to deny a motion to file a third amended complaint. Plaintiff, in contrast, was granted leave by Judge Purcell to file his Amended Complaint. The undersigned finds that Defendants have not adequately presented their argument that all of Plaintiff's new claims should be dismissed as untimely. Plaintiff also filed a motion for leave of court to supplement the Amended Complaint with three state law claims on November 6, 2020. (Doc. 45). The undersigned recommended denying the motion to supplement (Doc. 60), and the District Court adopted the recommendation. (Doc. 69).
II. Standard of Review
“To survive a motion to dismiss, a 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). In applying this standard, the court must “accept as true all well-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.” Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions[, and t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). 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).
“The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991) (emphasis added). The undersigned, therefore, has carefully considered the allegations in Plaintiff's Amended Complaint but has ignored any new factual assertions Plaintiff includes in his responses to Defendants' Motions to Dismiss.
III. Benjamin's Motion to Dismiss (Doc. 47)
Liberally construed, Plaintiff's Amended Complaint (Doc. 46) alleges four claims against Benjamin: excessive force in violation of the Fourteenth Amendment; unlawful retaliation in violation of the First Amendment; falsification of reports in violation of the Fourteenth Amendment; and conspiracy under § 1983. Plaintiff has indicated that he is suing Benjamin in his individual and official capacities. (Doc. 46-1, at 2). Plaintiff has requested monetary damages only. (Doc. 46, at 6-7; Doc. 46-2).
A. Plaintiff's Official Capacity Claims Against Benjamin Should Be Dismissed.
In Oklahoma, each organized county can sue and be sued through the board of county commissioners. Okla. Stat. tit. 19, §§ 1, 3, 4. Claims brought against individual municipal employees sued in their official capacities are considered to be claims for municipal liability against the county; therefore, the results of suing the individual defendants in their official capacities are the same as suing the county through its board of county commissioners. Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010) (“Suing individual defendants in their official capacities under § 1983 . . . is essentially another way of pleading an action against the county or municipality they represent.”); 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.”); see also Kentucky v. Graham, 473 U.S. 159, 166, 167 n. 14 (1985) (holding that “an official capacity suit is, in all respects other than name, to be treated as a suit against the entity;” holding that “[t]here is no longer a need to bring official-capacity actions against local government officials . . . [because] local government units can be sued directly”).
Plaintiff's claims against Benjamin in his official capacity are essentially a suit against his employer, OCDC. However, OCDC “is not a person or legally created entity that can be sued under § 1983.” Dutton v. City of Midwest City, 630 Fed.Appx. 742, 744 (10th Cir. 2015). Indeed, it “do[es] not have [a] legal identit[y] separate from that of Oklahoma County.” Willis v. Oklahoma Cty. Detention Ctr., 2019 WL 4397338, at *2 (W.D. Okla. Sept. 13, 2019). Thus, the claims against Benjamin in his official capacity are functionally claims for municipal liability. Because Plaintiff has asserted municipal liability claims against Oklahoma County by suing the Board of County Commissioners, the official capacity claims against Benjamin should be dismissed as redundant to the claims against the County.
B. Plaintiff Has Stated A Claim Against Benjamin for Excessive Force During the Alleged Assault on December 7, 2017.
Plaintiff alleges Benjamin violated the Fourteenth Amendment by using excessive force while attacking Plaintiff on December 7, 2017. (Doc. 46-3, at 1-2). See Estate of Booker v. Gomez, 745 F.3d 405, 419 (10th Cir. 2014) (“It is therefore well-established that the Fourteenth Amendment governs any claim of excessive force brought by a ‘pretrial detainee.'”). To show an excessive force violation, “a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015).
A court (judge or jury) cannot apply this standard mechanically. Rather, objective reasonableness turns on the “facts and circumstances of each particular case.” A court must make this determination from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight. A court must also account for the “legitimate interests that stem from [the government's] need to manage the facility in which the individual is detained, ” appropriately deferring to “policies and practices that in th[e] judgment” of jail officials “are needed to preserve internal order and discipline and to maintain institutional security.”Id. at 397 (citations omitted).
When determining whether the force used on a pretrial detainee was objectively unreasonable, the court considers the following non-exclusive factors:
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.Rowell v. Bd. of Cty. Comm'rs of Muskogee Cty., 978 F.3d 1165, 1171-72 (10th Cir. 2020) (internal quotation marks and citations omitted). “[A] pretrial detainee 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.” Kingsley, 576 U.S. at 398.
Plaintiff alleges that Benjamin used objectively unreasonable force by “striking the plaintiff . . . in the jaw as the plaintiff was calmly kneeling on the ground to simply grab of cookies which were at the foot of the entrance of the plaintiff's cell.” (Doc. 46-3, at 1). According to Plaintiff, he received permission from Benjamin to retrieve the cookies prior to reaching for them. (Doc. 46-4, at 2). Plaintiff alleges that Benjamin, along with two other OCDC employees, “punch[ed], kick[ed], and stomp[ed] upon the plaintiff's body” and “directly confessed to the plaintiff that the reason the defendants attacked the plaintiff was to retaliate against the plaintiff” for filing grievances against OCDC staff. (Doc. 46-3, at 1). Plaintiff alleges he suffered injuries including concussion symptoms, lower back pain, and a fractured jaw. (Doc. 46-4, at 25-26).
Benjamin argues that Plaintiff has failed to state an excessive force violation because he did not provide a “factual basis to gauge the amount of force used” and “failed to plead any facts showing the alleged use of force was disproportional.” (Doc. 47, at 6). Benjamin also argues that Plaintiff “admitted that he tried to grab the cookies, but deputies stopped him . . . Undoubtedly, no reasonable detention officer would have allowed [Plaintiff] to grab cookies that another inmate left outside his cell.” (Id.)
Viewing the factual allegations in the light most favorable to Plaintiff, he has pleaded an excessive force violation against Benjamin. Contrary to Benjamin's assertion, Plaintiff alleges that he received permission to reach for the cookies prior to doing so and did not at any time offer resistance against an OCDC officer. According to Plaintiff, he was compliant with Benjamin and did not take any action to provoke the use of any force. The force alleged by Plaintiff - punching, kicking, and stomping - and his resulting injuries also weigh in favor of finding the force used against him to be objectively unreasonable. Assuming Plaintiff's well-pleaded factual allegations to be true, the final three factors to be considered also counsel in favor of finding the force to be unreasonable, as Plaintiff alleges he was merely reaching for a bag of cookies after explicitly seeking permission. Thus, at the motion to dismiss stage, Plaintiff has adequately pleaded an excessive force violation against Benjamin.
Benjamin argues that Plaintiff's excessive force claim is also subject to dismissal because Benjamin is entitled to qualified immunity. “Qualified immunity protects government officials performing discretionary functions from individual liability in federal claims unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known.” Nielander v. Bd. of Cty. Comm'rs of Cty. of Republic, 582 F.3d 1155, 1166 (10th Cir. 2009) (internal quotation marks omitted). “The privilege is an immunity from suit rather than a mere defense to liability.” Shero v. City of Grove, 510 F.3d 1196, 1204 (10th Cir. 2007). “To survive a motion to dismiss based on qualified immunity, the plaintiff must allege sufficient facts that show - when taken as true - the defendant plausibly violated his constitutional rights, which were clearly established at the time of violation.” Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir. 2012).
Benjamin argues that Plaintiff's claims should be dismissed due to qualified immunity because Plaintiff has not “demonstrate[ed] that his constitutional rights were violated and that Defendant Benjamin was affirmatively linked thereto.” (Doc. 47, at 10). But the undersigned finds that Plaintiff has stated a claim that Benjamin used excessive force against Plaintiff in violation of the Fourteenth Amendment. So the court must consider whether Plaintiff has shown that Benjamin's alleged use of excessive force violated clearly established law. “Determining whether the law is clearly established usually requires a Supreme Court or Tenth Circuit decision on point.” Nielander, 582 F.3d at 1167. Clearly established law “do[es] not require a case directly on point, ” but “existing precedent must have placed the statutory or constitutional question beyond debate.” White v. Pauly, 137 S.Ct. 548, 551 (2017) (internal quotation marks omitted). The court must be careful “not to define clearly established law at a high level of generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). “But when a public official's conduct is so egregious even a general precedent applies with obvious clarity, the right can be clearly established notwithstanding the absence of binding authority involving materially similar facts.” Ullery v. Bradley, 949 F.3d 1282, 1291 (10th Cir. 2020) (internal quotation marks omitted); see also Taylor v. Riojas, 141 S.Ct. 52 (2020).
Liberally construed, Plaintiff has stated a violation of clearly established constitutional law - the use of gratuitous force against a non-resisting inmate. “[T]here undoubtedly is a clearly established legal norm precluding the use of violent physical force against a criminal suspect or detainee who already has been subdued and does not present a danger to himself or others.” Estate of Booker v. Gomez, 745 F.3d 405, 428 (10th Cir. 2014) (internal quotation marks omitted). The use of “gratuitous” force against a plaintiff “without provocation, ” even if the plaintiff is behaving “disruptive[ly], ” is a violation of clearly established law. Nosewicz v. Janosko, 754 Fed.Appx. 725, 734-35 (10th Cir. 2018) (holding that jail officer violated clearly established law by slamming plaintiff's head into wall and hitting him in the chest when plaintiff was not obeying commands but not actively resisting). Further, Benjamin was “on notice that “that a reasonable jury could find [him] liable under § 1983 for engaging in ‘[f]orce inspired by malice or by unwise, excessive zeal amounting to an abuse of official power that shocks the conscience.'” Estate of Booker, 745 F.3d at 429 (quoting Christiansen v. City of Tulsa, 332 F.3d 1270, 1279 (10th Cir. 2003)).
Assuming the truth of Plaintiff's well-pled factual allegations, Plaintiff has alleged a violation of clearly established law. Plaintiff claims Benjamin used excessive force by gratuitously beating Plaintiff and causing serious injury when Plaintiff was not resisting or presenting any security concern. Therefore, the Court should find that Plaintiff has stated an excessive force violation against Benjamin based upon the alleged assault on December 7, 2017, and that Benjamin is not entitled to dismissal based on qualified immunity.
C. Plaintiff Has Stated A Claim Against Benjamin for First Amendment Retaliation.
Plaintiff alleges that he was retaliated against “for exercising the right of freedom of speech and access to the courts (via by . . . submitting typed-printed complaints and grievances . . .).” (Doc. 46-3, at 13). A claim for retaliation in violation of the First Amendment consists of three elements:
(1) that the plaintiff was engaged in constitutionally protected activity; (2) that the defendant's actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the defendant's adverse action was substantially motivated as a response to the plaintiff's exercise of constitutionally protected conduct.Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000) (internal quotation marks omitted).
Plaintiff alleges that Benjamin, acting on orders from Defendants Taylor and Honeycutt, committed the December 7, 2017, assault against Plaintiff as retaliation for filing grievances and lawsuits. (Doc. 46-3, at 14). Plaintiff's filing of grievances and lawsuits is constitutionally protected activity. See Gee v. Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010) (holding that plaintiff's activity of “filing specific grievances against Defendants and filing a particular habeas petition with the court” satisfied the first prong of retaliation claim).
Benjamin argues that Plaintiff's retaliation claim should be dismissed because Plaintiff does not allege “specific facts that would allow the Court to infer retaliatory conduct, ” “facts . . . that Defendant Benjamin was aware of specific grievances, ” or “any dates or details concerning the alleged retaliation vis-a-vis [Plaintiff's] submission of particular grievances.” (Doc. 47, at 7). Benjamin understates the number of facts alleged by Plaintiff in his Amended Complaint, which the court must accept as true at this stage of proceedings.
Plaintiff alleges that as Benjamin began the December 7, 2017, assault, Benjamin yelled: “This is what happens when you . . . write grievances on my fellow officers, Parks!” (Doc. 46-4, at 3). Plaintiff's recounting of the assault includes numerous alleged statements by the offending officers, including Benjamin, explicitly stating that Plaintiff was being beaten because he regularly filed grievances. Further, Plaintiff has stated that during the period he was housed at OCDC, less than two years, he filed “438 recorded grievance processes.” (Doc. 46-4, at 105). Thus, Plaintiff has alleged that Benjamin was aware of Plaintiff's filing of grievances, a protected activity; that he engaged in assault and battery against Plaintiff, an activity that would chill an ordinary person from continuing to file grievances; and that he articulated that he was substantially motivated by Plaintiff's filing of grievances. This adequately states a retaliation claim.
Benjamin also asserts that Plaintiff's retaliation claim should be dismissed because Benjamin is entitled to qualified immunity. However, as stated above, the Court should find that Plaintiff has alleged a First Amendment violation against Benjamin, and it is clearly established law that “[p]rison officials may not retaliate against or harass an inmate because of the inmate's exercise of his constitutional rights.” Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (internal quotation marks omitted); see also Allen v. Avance, 491 Fed.Appx. 1, 6 (10th Cir. 2012) (“It is well settled that prisoners cannot be retaliated against when they exercise their First Amendment rights.”). Thus, the Court should find Plaintiff has stated a claim for First Amendment retaliation against Benjamin, and that Benjamin is not entitled to qualified immunity at the motion to dismiss stage. Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir. 2012) (“To survive a motion to dismiss based on qualified immunity, the plaintiff must allege sufficient facts that show - when taken as true - the defendant plausibly violated his constitutional rights, which were clearly established at the time of violation.”).
D. Plaintiff Has Not Stated A Due Process Claim Against Benjamin for Falsification of Reports.
Plaintiff alleges that Benjamin, after the December 7, 2017, assault, “falsif[ied] [his] incident reports and misconduct rule violation report, for the direct purpose to conceal and suppress . . . [the] violently brutal act of excessive force” against Plaintiff, violating his due process rights. (Doc. 46-3, at 32). Specifically, Plaintiff alleges the reports falsely stated Plaintiff tried to run out of his cell to justify the use of force against Plaintiff. (Id.) Plaintiff claims that Benjamin told Plaintiff he would “just make up a lie and falsely claim that [Plaintiff] tried to run outta' [his] cell.” (Doc. 46-4, at 15). Plaintiff further alleges that Benjamin continued to detail how the grievance process would be manipulated in order to falsely find Plaintiff guilty. (Id. at 16-22). Plaintiff received two disciplinary charges, a “2-8” and an “11-1, ” because of the disciplinary reports. (Doc. 46-4, at 92).
“The Due Process Clause guarantees due process only when a person is to be deprived of life, liberty or property.” Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994). A Fourteenth Amendment due process claim requires “there exist[] a constitutionally cognizable liberty or property interest with which the state has interfered.” Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006). “Finding such a violation in the prison setting is particularly daunting.” Chambers v. Colo. Dep't of Corrs., 205 F.3d 1237, 1242 (10th Cir. 2000). Liberally construed, Plaintiff's Amended Complaint attempts to allege a protected liberty interest. “[P]rotected liberty interests are at issue when the prison inmate is subjected to: (1) conditions that ‘impose atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life,' or (2) disciplinary actions that ‘inevitably affect the duration of his sentence.'” Marshall v. Morton, 421 Fed.Appx. 832, 837 (10th Cir. 2011) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)).
Plaintiff has failed to show Benjamin's alleged conduct implicates a protected liberty interest. Plaintiff alleges that Benjamin said he planned to write a false report to justify the December 7, 2017, assault (Doc. 46-4, at 15), and that the hearing officer confirmed to Plaintiff that video showed Plaintiff was not guilty of the resulting infractions. (Doc. 46-4, at 88-89). Nevertheless, according to Plaintiff, the hearing officer found Plaintiff guilty of the 2-8 violation and dismissed the 11-1 violation due to pressure from superiors to find Plaintiff guilty. (Doc. 46-4, at 92). Although Plaintiff alleges that one of the officers, Defendant McKeehan, “desired to cause [Plaintiff] . . . to be thrown into disciplinary segregation, ” Plaintiff has not alleged any facts regarding how his status was actually affected by the disciplinary charges. (Doc. 46-3, at 32-33). Plaintiff's allegations of false reports therefore fail to implicate a protected liberty interest, because he has not shown that being found guilty of a violation imposed an atypical and significant hardship on him or affected the duration of his sentence. Thus, the Court should find that Plaintiff has failed to state a Due Process claim against Benjamin related to the alleged falsification of disciplinary reports.
E. Plaintiff Has Not Stated A Claim Against Any Defendant for Conspiracy in Violation of § 1983.
Liberally construed, allegations throughout Plaintiff's Amended Complaint also claim that the named Defendants have conspired to make OCDC conditions unbearable for the purpose of coercing inmates to plead guilty and thereby leave the facility. (See, e.g., Doc. 46-3, at 5-6; Doc. 46-4, at 59-67). Plaintiff alleges this conspiracy existed between Taylor, Honeycutt, OCDC employees, the Board of County Commissioners, and individuals at the Oklahoma County District Attorney's Office. (Doc. 46-3, at 6). According to Plaintiff, the Defendants received financial compensation for pressuring inmates to plead guilty. (Id. at 7).
In support of his claim, Plaintiff recounts alleged conversations where Defendants confessed to the conspiracy's existence. For example, Plaintiff alleges Defendant Neal said,
Prater, the Board, Taylor, and Honeycutt told me that they know that a good [assault] will . . . scare you and these other . . . inmates into pleading guilty to all ya'lls state criminal charges . . . And that's a ‘win win' . . . Because we ALL subsequently get paid back, big money, from ya'lls court costs, fines, probation fees, and even from private prisons, whenever you [inmates], PLEAD GUILTY TO YOUR STATE CRIMINAL CHARGES IN OUR OKLAHOMA COUNTY!(Doc. 46-4, at 31-32). Plaintiff details additional confessions to the alleged conspiracy from Defendant Hendershot (id. at 50), Assistant District Attorney Collins (id. at 71-79), OCDC employee Keith Jackson (id. at 97), and OCDC employee Hanson (id. at 100-02).
Plaintiff lists 42 U.S.C. § 1985 (as well as criminal statutes that do not provide him a cause of action) as a basis for his claims. (Doc. 46, at 2). However, Plaintiff has not alleged a cognizable conspiracy claim under § 1985. Section 1985(1) applies to persons holding federal office, and § 1985(2) applies to obstructing federal court proceedings. Plaintiff has not stated any facts that would implicate either of these sections. Section 1985(3) claims have four elements: “(1) a conspiracy; (2) to deprive plaintiff of equal protection or equal privileges and immunities; (3) an act in furtherance of the conspiracy; and (4) an injury or deprivation resulting therefrom.” Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993). “[Section] 1985(3) does not ‘apply to all tortious, conspiratorial interferences with the rights of others,' but rather, only to conspiracies motivated by ‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus.'” Id. (quoting Griffin v. Breckenridge, 403 U.S. 88, 101-02 (1971)). Plaintiff's conspiracy allegations have not satisfied this discriminatory animus standard. Thus, Plaintiff has not alleged a conspiracy under § 1985.
We liberally construe Plaintiff's Amended Complaint as an attempt to allege a conspiracy claim under § 1983. “To state a conspiracy claim under § 1983, a plaintiff must plead that he was deprived of a constitutional right as a result of a conspiracy comprised of or including conspirators acting under color of state law.” Leatherwood v. Rios, 705 Fed.Appx. 735, 739 (10th Cir. 2017).
Allegations of conspiracy may, indeed, form the basis of a § 1983 claim. Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994). However, a plaintiff must allege specific facts showing an agreement and concerted action amongst the defendants. Id. “Conclusory allegations of conspiracy are insufficient to state a valid § 1983 claim.” Id. (quotation omitted).Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 533 (10th Cir. 1998). Plaintiff has failed to allege specific facts as necessary to state a conspiracy claim under § 1983. Plaintiff's only evidence in support of his conspiracy claim is the alleged confessions by OCDC employees and Assistant District Attorney Collins. Although Plaintiff has stated the purpose of the alleged conspiracy, he has not provided any specific facts that demonstrate the existence of an agreement or concerted action by the alleged participants. The confessions Plaintiff alleges are largely structured to recite the formula of a conspiracy cause of action and are insufficient to nudge his claim beyond “conclusory allegations.” The undersigned recommends dismissing Plaintiff's conspiracy claims against all Defendants.
IV. Yerby's Motion to Dismiss (Doc. 48)
Liberally construed, Plaintiff's Amended Complaint (Doc. 46) alleges three claims against Defendant Yerby: unlawful retaliation in violation of the First Amendment; failure to protect in violation of the Fourteenth Amendment; and conspiracy under § 1983. In his response to Defendants' Motions to Dismiss, Plaintiff argues that the Court should find he has also stated claims against Yerby for denial of adequate medical care in violation of the Fourteenth Amendment and falsification of medical records in violation of the Fourteenth Amendment. (Doc. 76-1, at 116-17). Plaintiff has indicated that he is suing Yerby in his individual and official capacities. (Doc. 46-1, at 2). Plaintiff has requested monetary damages only. (Doc. 46, at 6-7; Doc. 46-2).
A. Plaintiff's Official Capacity Claims Against Yerby Should Be Dismissed.
For the reasons stated above in Section III(A), Plaintiff's official capacity claims against Yerby, an OCDC employee, are functionally claims for municipal liability. Because Plaintiff has asserted municipal liability claims against Oklahoma County by suing the Board of County Commissioners, the official capacity claims against Yerby should be dismissed as redundant to the claims against the County.
B. Plaintiff Has Stated A Claim Against Yerby in his Individual Capacity for First Amendment Retaliation.
Plaintiff alleges that Yerby retaliated against him by “refus[ing] to untighten the handcuffs which were deeply embedded into [Plaintiff's] wrists” on December 7, 2017. (Doc. 46-3, at 18). According to Plaintiff, Yerby stated that he only refused to loosen the handcuffs because he wanted to retaliate against Plaintiff for filing grievances. (Id.)
Yerby argues that Plaintiff's retaliation claim should be dismissed because Plaintiff does not allege “specific facts that would allow the Court to infer retaliatory conduct, ” “facts . . . that Defendant Yerby was aware of specific grievances, ” or “any dates or details concerning the alleged retaliation vis-a-vis [Plaintiff's] submission of particular grievances.” (Doc. 48, at 5). Like Benjamin, Yerby understates the number of facts alleged by Plaintiff in his Amended Complaint, which the court must accept as true at this stage of proceedings.
Plaintiff alleges that when he asked Yerby to loosen the handcuffs, Yerby responded: “If it were anybody else than you, I would loosen those cuffs up ..... You're the guy who files grievances on all my fellow deputies. And I'm gonna' hold that against you.” (Doc. 46-4, at 5-6). Thus, Plaintiff has alleged that Yerby was aware of Plaintiff's filing of grievances, a constitutionally protected activity, Gee, 627 F.3d at 1189; that he refused to loosen excessively painful handcuffs, an activity that would chill an ordinary person from continuing to file grievances; and that he articulated that he was substantially motivated by Plaintiff's filing of grievances. This adequately states a retaliation claim.
Yerby also asserts that Plaintiff's retaliation claim should be dismissed because Yerby is entitled to qualified immunity. (Doc. 48, at 7-8). However, as stated above, the Court should find that Plaintiff has alleged a First Amendment violation against Yerby, and it is clearly established law that “[p]rison officials may not retaliate against or harass an inmate because of the inmate's exercise of his constitutional rights.” Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (internal quotation marks omitted); see Section III(C), above. Thus, the Court should find that Plaintiff has stated a claim for retaliation against Yerby, and that Yerby is not entitled to qualified immunity at the motion to dismiss stage. Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir. 2012).
C. Plaintiff's Claim Against Yerby for Failure to Protect Should be Construed as an Adequately Stated Claim for Excessive Force By Handcuffing.
Plaintiff alleges Yerby “fail[ed] to act to protect” Plaintiff in violation of the Fourteenth Amendment. (Doc. 46-3, at 25). Specifically, Plaintiff alleges that when he was being escorted by Yerby to the nurse's office, “Plaintiff verbally notified Yerby that the handcuffs were excessively embedded into [Plaintiff's] wrists, causing [him] extreme pain.” (Id.) Liberally construed, Plaintiff is alleging an excessive force violation against Yerby for refusing to loosen Plaintiff's handcuffs. “In some circumstances, unduly tight handcuffing can constitute excessive force where a plaintiff alleges some actual injury from the handcuffing and alleges that an officer ignored a plaintiff's timely complaints (or was otherwise made aware) that the handcuffs were too tight.” Cortez v. McCauley, 478 F.3d 1108, 1129 (10th Cir. 2007). “[I]n handcuffing cases, a plaintiff must establish some non-de minimis actual injury.” Fisher v. City of Las Cruces, 584 F.3d 888, 898 (10th Cir. 2009). Plaintiff claims he suffers “long term damage to [his] wrists hand area(s), such as carpel-tunnel syndrome, numbness, cramping, and painful tingling.” (Doc. 46-3, at 26).
In his Motion to Dismiss, Yerby argues that Plaintiff “failed to allege any facts to establish that Defendant Yerby observed the purported” December 7, 2017, assault and that Plaintiff's excessive force by handcuffing claim is identical to one made in an earlier lawsuit. (Doc. 48, at 6). Yerby is correct that Plaintiff has not alleged Yerby could have intervened to stop the assault, but Plaintiff has alleged that Yerby knew the handcuffs were too tight and refused to loosen them. And Yerby's argument that Plaintiff has previously alleged excessive force via handcuffing, resulting in similar injuries, is not sufficient to show Plaintiff's claim is frivolous. Besides referencing a lawsuit Plaintiff filed over seven years ago, Parks v. Watts, No. CIV-14-359-M, Yerby has not alleged any information suggesting Plaintiff's allegations are fictitious. In contrast, Plaintiff has alleged that he told Yerby the handcuffs were too tight, requested they be removed, and suffered physical injuries from the incident. Viewing the facts in the light most favorable to Plaintiff, Plaintiff has stated a claim for excessive force against Yerby based on the handcuffing.
Yerby also asserts that Plaintiff's excessive force claim should be dismissed because Yerby is entitled to qualified immunity. (Doc. 48, at 7-8). However, the undersigned recommends finding that Plaintiff has plausibly alleged Yerby used excessive force in violation of clearly established law. “[T]he right to be free from unduly tight handcuffing [has been] ‘clearly established' - as [have] the contours of the right.” Vondrak v. City of Las Cruces, 535 F.3d 1198, 1209 (10th Cir. 2008) (citing Cortez, 478 F.3d at 1129); see also Mglej v. Gardner, 974 F.3d 1151 (10th Cir. 2020), cert. denied, 209 L.Ed. 2D 548 (Apr. 19, 2021) (affirming denial of qualified immunity to deputy who applied overly tight handcuffs to plaintiff and refused to loosen them). Thus, the Court should find that Plaintiff has stated a claim for excessive force against Yerby, and that Yerby is not entitled to qualified immunity at the motion to dismiss stage. Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir. 2012).
The clearly established law regarding excessive force by handcuffing cited above arises under the Fourth Amendment rather than the Fourteenth Amendment. However, “even if there [is] some lingering ambiguity as to whether the Fourth or the Fourteenth Amendment applies in this precise context, the ‘legal norms' underlying [plaintiff's] claims nevertheless were clearly established.” Estate of Booker, 745 F.3d at 428 (10th Cir. 2014) (quoting Harris v. City of Circleville, 583 F.3d 356, 367 (6th Cir. 2009)).
D. Plaintiff Did Not Plead Claims for Denial of Medical Care and Falsification of Medical Records Against Yerby.
In his Amended Complaint, Plaintiff alleges claims for denial of adequate medical care and falsification of a medical record in violation of the Fourteenth Amendment against Defendant Tadasha Morris. (Doc. 46-3, at 26-28, 30-31). In his Response Brief, Plaintiff states that he “neglected to formally charge defendant Yerby” with these claims, but the court “should treat [the] complaint as raising [those] claim[s]” against Yerby. (Doc. 76-1, at 116-117). The undersigned recommends finding that Plaintiff has not “provide[d] adequate notice as to the nature” of claims against Yerby for denial of medical care and falsification of medical records. Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008). Although Plaintiff's Amended Complaint is to be liberally construed, “the burden rests on the plaintiffs to provide fair notice of the grounds for the claims made against each of the defendants.” Id. Plaintiff has not provided Yerby with fair notice in accordance with the pleading standards of Federal Rule of Civil Procedure 8 and thus has not stated claims against Yerby for denial of medical care and falsification of medical records.
Examination of Plaintiff's Amended Complaint (Doc. 46) supports this conclusion. In his Amended Complaint, Plaintiff has named nineteen defendants and listed twenty-five claims. Plaintiff has listed which defendants are being sued for each claim and has attached over one-hundred pages of “declarations” to the Amended Complaint. To allow Plaintiff to retroactively charge additional defendants with the listed claims would make defendants responsible for combing through the lengthy, rambling Amended Complaint and guessing what counts apply to them. Plaintiff cannot assert in his Response Brief that he is adding Yerby as a defendant to the claims for denial of medical care and falsification of medical records. Plaintiff's Amended Complaint does not demonstrate an intent to bring these charges against Yerby. To allow Plaintiff to add Yerby as a defendant to these claims, after Yerby has already briefed a Motion to Dismiss responsive to the charges against him, would prejudice Yerby. The Court should find that Plaintiff has not alleged claims for denial of medical care and falsification of medical records against Yerby.
E. Plaintiff Has Not Stated A Claim Against Any Defendant for Conspiracy in Violation of § 1983.
For the reasons stated in Section III(E), above, the undersigned recommends dismissing Plaintiff's conspiracy claim against Yerby.
V. Taylor and Honeycutt's Motion to Dismiss (Doc. 49)
Liberally construed, Plaintiff's Amended Complaint (Doc. 46) alleges fourteen claims against Defendants Taylor and Honeycutt: three counts of excessive force in violation of the Fourteenth Amendment by allegedly ordering detention officers to assault Plaintiff; three counts of excessive force by handcuffing in violation of the Fourteenth Amendment; three counts of unlawful retaliation in violation of the First Amendment; two counts of failure to train in violation of the Fourteenth Amendment; one count of destruction and suppression of evidence in violation of the Fourteenth Amendment; one count of failure to protect in violation of the Fourteenth Amendment; and conspiracy under § 1983. Plaintiff has indicated that he is suing Taylor and Honeycutt in their individual and official capacities (Doc. 46, at 4). Plaintiff has requested monetary damages only. (Doc. 46, at 6-7; Doc. 46-2).
A. Plaintiff's Official Capacity Claims Against Taylor and Honeycutt Should Be Dismissed.
Because Plaintiff has asserted municipal liability claims against the County by suing the Board of County Commissioners, Plaintiff's claims against Taylor in his official capacity should be dismissed as redundant. See Espinosa Hernandez v. Bd. of Cty. Commissioners of Oklahoma Cty., 2019 WL 3069430, at *2 (W.D. Okla. July 12, 2019) (“Plaintiff sued both the Board of County Commissioners and Sheriff Whetsel in his official capacity. . . . [T]he official capacity claim against Defendant Whetsel is a claim against Oklahoma County, and therefore is redundant.”). For the reasons stated in section III(A), Plaintiff's official capacity claims against Honeycutt, an OCDC employee, are functionally claims for municipal liability. These official capacity claims should also be dismissed as redundant to the claims against the County.
B. Plaintiff Has Stated Claims Against Taylor and Honeycutt for Excessive Force By Allegedly Ordering His Assault; However, Plaintiff's Excessive Force By Handcuffing Claims Should Be Dismissed As Redundant.
Plaintiff alleges three counts of excessive force against Taylor and Honeycutt related to three alleged assaults. According to Plaintiff, Defendants Benjamin, McKeehan, and Everhart “confessed to the plaintiff that Taylor and Honeycutt had directly ordered” the attack on December 7, 2017. (Doc. 46-3, at 2). Plaintiff also alleges that on February 9, 2018, Defendant Neal, on orders from Taylor and Honeycutt, “slammed the Plaintiff's head into his cell door.” (Id. at 42). Finally, Plaintiff alleges that on February 28, 2018, Hendershot “slammed the Plaintiff's face and chest into a concrete wall, . . . punched the Plaintiff, . . . and . . . attempted to break the bones of the Plaintiff's wrist and hand, ” as directed by Taylor and Honeycutt. (Id. at 63).
Plaintiff also alleges three counts of excessive force by handcuffing, related to: (1) Defendant Everhart intentionally handcuffing Plaintiff too tightly on December 7, 2017 (id. at 23-24); (2) Defendant Neal intentionally handcuffing Plaintiff too tightly on February 9, 2018 (id. at 45-46); and, (3) Defendant Hendershot intentionally handcuffing Plaintiff too tightly on February 28, 2018 (id. at 67). Plaintiff alleges that Everhart said he was trying to break Plaintiff's wrists, “pursuant to Taylor's and Honeycutt's direct order.” (Id. at 24). Plaintiff also claims that Taylor and Honeycutt “undertook the same virtually identical act(s) and/or omissions, ” resulting in Neal handcuffing Plaintiff too tightly in an attempt to cause injury. (Id. at 45). Regarding the February 28, 2018, handcuffing, Plaintiff alleges Taylor and Honeycutt “knowingly ordered and/or allowed Hendershot to commit the excessive force handcuffing.” (Id. at 67).
Taylor and Honeycutt argue that Plaintiff has failed to state an excessive force violation because he “fails to allege any specific facts that Defendants Taylor and/or Honeycutt personally participated in the violations of his constitutional rights.” (Doc. 49, at 9). Taylor and Honeycutt acknowledge that Plaintiff has alleged that, while committing the alleged assaults, the officers stated to Plaintiff that they were acting on orders from Taylor and Honeycutt, but argue that Plaintiff “fails to allege any facts to support this conclusory statement.” (Id.)
Contrary to Defendants' assertion, Plaintiff alleges facts - the statements made by the officers allegedly using excessive force against Plaintiff - that, accepted as true and viewed in the light most favorable to Plaintiff, state claims for excessive force against Taylor and Honeycutt. Specifically, Plaintiff has alleged that Taylor and Honeycutt personally participated in the three excessive force violations (December 7, 2017, February 9, 2018, February 28, 2018) by ordering the OCDC officers to physically harm Plaintiff. (See, e.g., Doc. 46-4 at 12, 29, 47). Thus, the undersigned recommends the Court find that, at the motion to dismiss stage, Plaintiff has stated these three claims against Taylor and Honeycutt for excessive force by ordering the alleged assaults.
Plaintiff's three allegations of excessive force by handcuffing against Taylor and Honeycutt, however, should be dismissed as redundant. As discussed above, unduly tight handcuffing can be an excessive force violation. Cortez, 478 F.3d at 1129. However, the handcuffing incidents Plaintiff alleges occurred during the assaults that Taylor and Honeycutt allegedly ordered on December 7, 2017, February 9, 2018, and February 28, 2018. Plaintiff's excessive force by handcuffing claims against Taylor and Honeycutt should thus be dismissed as duplicative of Plaintiff's excessive force assault claims against these Defendants.
Taylor and Honeycutt also argue that Plaintiff's excessive force claims are subject to dismissal because Defendants are entitled to qualified immunity. However, the undersigned recommends finding that Plaintiff has sufficiently alleged that Taylor and Honeycutt used excessive force in violation of clearly established law. As stated above in Sections III(B) and IV(C), clearly established law precludes both the use of violent physical force against a detainee who already has been subdued and does not present a danger to himself or others as well as unduly tight handcuffing. Plaintiff has pled that Taylor and Honeycutt personally participated in these alleged excessive force violations by ordering OCDC officers to commit the acts against Plaintiff. The undersigned recommends finding that Taylor and Honeycutt are not entitled to qualified immunity at the motion to dismiss stage. Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir. 2012).
C. Plaintiff Has Stated Claims Against Taylor and Honeycutt for First Amendment Retaliation.
Plaintiff alleges three counts of retaliation in violation of the First Amendment against Taylor and Honeycutt. Plaintiff's retaliation claims relate to: (1) the alleged assault by Benjamin, McKeehan and Everhart on December 7, 2017 (Doc. 46-3, at 13-14); (2) the alleged assault by Neal on February 9, 2018 (id. at 49); and, (3) the alleged assault by Hendershot on February 28, 2018, and Plaintiff's subsequent placement in administrative segregation (id. at 69-70). Specifically, Plaintiff alleges that “Taylor and Honeycutt directly ordered” physical assaults on Plaintiff “as a method of revenge/retaliation” for his grievance filing. (Id. at 14; see also Id. at 49, 69).
Taylor and Honeycutt argue that Plaintiff's retaliation claim should be dismissed because Plaintiff does not allege “specific facts that would allow the Court to infer retaliatory conduct, ” “facts . . . that Defendants Taylor or Honeycutt were aware of specific grievances, ” or “any dates or details concerning the alleged retaliation vis-a-vis [Plaintiff's] submission of particular grievances.” (Doc. 49, at 22). Like Benjamin and Yerby, Taylor and Honeycutt understate the number of facts alleged by Plaintiff in his Amended Complaint, which the court must accept as true at this stage of proceedings.
Plaintiff alleges that on December 7, 2017, after the alleged assault, Benjamin told Plaintiff: “Sheriff Taylor and Danny Honeycutt personally gave me a direct order to come to your cell and beat [you up]. . . . to retaliate against you, in response to all your . . . grievances.” (Doc. 46-4, at 12). Plaintiff also alleges that McKeehan said that Taylor and Honeycutt “both possess[ed] and [were] fully aware of every single grievance and request to staff that that [sic] [Plaintiff had] filed, ” and Taylor “laughed in joy” upon reading Plaintiff's “grievances in September 2017.” (Id. at 13-14) (describing Plaintiff's grievances related to overcrowded cells). Regarding the February 9, 2018, assault, Plaintiff alleges Neal told Plaintiff “Sheriff Taylor and Danny Honeycutt told me to pick a time” to beat Plaintiff and that the three Defendants “had a special meeting about [Plaintiff], and [his] filing of grievances.” (Id. at 29-30). Plaintiff also alleges that on February 28, 2018, Hendershot said that “Sheriff Taylor and Danny Honeycutt told [him] awhile back to . . . [hurt Plaintiff] and break [his] wrists, because [he] won't, ‘obey,' to stop filing . . . grievances.” (Id. at 47).
Thus, Plaintiff has alleged that Taylor and Honeycutt were aware of Plaintiff's constitutionally protected activity of filing grievances; that they engaged in activity that would chill an ordinary person from continuing to file grievances, namely ordering assaults on Plaintiff; and that they articulated to the detention officer that they were substantially motivated by Plaintiff's filing of grievances. This adequately states a retaliation claim.
Taylor and Honeycutt also assert that Plaintiff's retaliation claims should be dismissed because Defendants are entitled to qualified immunity. (Doc. 49, at 13-15). However, as stated above, the Court should find that Plaintiff has alleged First Amendment violations against Taylor and Honeycutt. And it is clearly established that “[p]rison officials may not retaliate against or harass an inmate because of the inmate's exercise of his constitutional rights.” Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (internal quotation marks omitted); see Section III(C), above. Thus, the Court should find that Plaintiff has stated retaliation claims against Taylor and Honeycutt, and that Taylor and Honeycutt are not entitled to qualified immunity at the motion to dismiss stage. Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir. 2012).
D. Plaintiff Has Not Stated Claims Against Taylor and Honeycutt for Failure to Train.
Plaintiff has alleged two claims against Taylor and Honeycutt for failure to train in violation of the Fourteenth Amendment. (Doc. 46-3, 40-41, 56-57). Plaintiff's first failure to train claim alleges Taylor and Honeycutt (as well as Herron and the Board of Commissioners of Oklahoma County) failed
to adequately train Benjamin, McKeehan, and Everhart (as well as a vast majority of all the OCDC employees throughout the entire OCDC), to NOT unlawfully commit act(s) of excessive force, and/or retaliatory act(s) of excessive force upon OCDC inmates (such as [Plaintiff]), that directly led to (affirmative link) Benjamin, McKeehan, and Everhart executing not only the 12/07/2017 physical act(s) of excessive force upon [Plaintiff], but also a vast majority of all the excessive force attacks committed by a vast majority of OCDC employees upon a substantial amount of OCDC inmates throughout the entire OCDC.(Doc. 46-3, at 41). Plaintiff's second failure to train claim alleges Taylor and Honeycutt (as well as Herron and the Board of Commissioners of Oklahoma County) failed
to adequately train defendant Ronnie Neal and Christofer Hendershot (as well as a vast majority of all the OCDC employees throughout the entire OCDC), to NOT unlawfully commit act(s) of excessive force, and/or retaliatory act(s) of excessive force upon OCDC inmates (such as [Plaintiff]), that directly led to (affirmative link) Neal executing the excessive force act(s) upon [Plaintiff] ¶ 02/09/18, and Hendershot executing the excessive force act(s) upon [Plaintiff] on 02/28/18, as well as a vast majority of all the excessive force attacks committed by a vast majority of OCDC employees upon a substantial amount of OCDC inmates throughout the entire OCDC.(Id. at 57).
Liberally construed, these claims are redundant of each other. The Court should find that Plaintiff has alleged a single count of failure to train, naming Taylor, Honeycutt, Herron, and the Board of Commissioners of Oklahoma County as Defendants. Failure to train or supervise employees is one manner of demonstrating a municipal policy or custom in order to establish municipal liability for a violation of rights. Waller v. City and Cty. Of Denver, 932 F.3d 1277, 1283 (10th Cir. 2019). However, only Plaintiff's claims against Taylor and Honeycutt in their individual capacities for failure to train are currently at issue in the pending Motion to Dismiss. See Section V(A), above (recommending dismissal of official capacity claims against Taylor and Honeycutt as redundant to claims against the County).
“[Section] 1983 allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy the enforcement (by the defendant-supervisor or her subordinates) of which” deprives the plaintiff of constitutional protections. Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010). The plaintiff must show: “(1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation.” Id. Plaintiff alleges a policy of a sort in the form of deliberately indifferent training or supervision as to the use of excessive force. See Burke v. Regalado, 935 F.3d 960, 997-99 (10th Cir. 2019) (finding supervisory liability and municipal liability claims can have same elements). The state of mind requirement for a failure to train claim is “deliberate indifference as to [the action's] known or obvious consequences.” Waller, 932 F.3d at 1284 (10th Cir. 2019) (internal quotation marks omitted).
Plaintiff has alleged that Taylor, as sheriff of Oklahoma County, and Honeycutt, as the sheriff's general counsel, are responsible for failing to train OCDC staff, resulting in Plaintiff being subject to excessive force. However, Plaintiff has not identified a specific training deficiency in Defendants' training or supervision that is necessary to prevent constitutional violations of the sort that Plaintiff alleges. See Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010) (“[A] plaintiff must identify a specific deficiency that was obvious and closely related to his injury.”) (emphasis added) (internal quotation marks omitted). Plaintiff alleges these Defendants failed to train OCDC employees “to NOT unlawfully commit act(s) of excessive force, and/or retaliatory act(s).” (Doc. 46-3, at 41). This blanket allegation is too vague and broad to adequately state a claim for failure to train. Furthermore, Plaintiff has not offered any evidence in support of finding Honeycutt to have responsibility as a policymaker other than assertions that Honeycutt is treated as a “second sheriff.”
Finally, Plaintiff cannot show this generalized training and supervision deficiency caused his specific harm - being subject to uses of excessive force. Plaintiff alleges elsewhere in his Amended Complaint that Taylor and Honeycutt directly instructed OCDC employees to use excessive force against Plaintiff as retaliation for his filing of grievances and lawsuits. Plaintiff therefore fails to state a claim that the alleged excessive force incidents were the result of a failure to train or supervise as opposed to Taylor and Honeycutt's purported specific instructions to OCDC employees to assault Plaintiff.
E. Plaintiff Has Not Stated Due Process Claims Against Taylor and Honeycutt for Destruction and Suppression of Evidence. ]
Defendants did not specifically address this claim in their Motion to Dismiss. However, Plaintiff's Amended Complaint is subject to screening under 28 U.S.C. §§ 1915A(a), 1915(e)(2). The court's review of a complaint under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii) mirrors that required for reviewing a motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Thus, because all of Plaintiff's other claims against Taylor and Honeycutt are presently before the court, the undersigned has addressed this claim in the interest of judicial efficiency.
Plaintiff alleges that Taylor and Honeycutt have denied him due process in violation of the Fourteenth Amendment “as a result of systematic and/or purposeful and malicious destruction and/or suppression of evidence.” (Doc. 46-3, at 52). Specifically, Plaintiff alleges Taylor and Honeycutt violated due process by:
• Destroying or suppressing video recordings showing uses of force by staff and unconstitutional conditions of confinement at OCDC;
• Unlawfully confining prisoners to their cells, restricting access to grievance pods;
• Purposefully delaying answering grievances so that video evidence of constitutional violations would be erased;
• Falsely representing the contents of security video evidence;
• Destroying inmates' legal mail;
• Failing to sanction or prosecute acts of battery by OCDC employees on inmates; and
• Denying truthful allegations of excessive force and unconstitutional conditions at OCDC.(Id. at 53-54).
Plaintiff's allegation regarding restrictions on inmates' time outside of their cells is the subject of a different pending lawsuit filed by Plaintiff, Parks v. Taylor, 19-CIV-1188-D. This portion of the claim is thus not properly before the court in the present case.
As detailed in Section III(D), above, a Fourteenth Amendment due process violation must allege state interference with “a constitutionally cognizable liberty or property interest.” Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006). Liberally construed, Plaintiff attempts to allege a protected liberty interest in certain evidence related to the grievance process. Thus, Plaintiff must allege either “(1) conditions that ‘impose atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life,' or (2) disciplinary actions that ‘inevitably affect the duration of his sentence.'” Marshall v. Morton, 421 Fed.Appx. 832, 837 (10th Cir. 2011) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). Before taking an action affecting a protected liberty interest, a prison official must afford the inmate “(a) advance written notice of the charges; (b) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (c) a written statement by the factfinder of the evidence relied upon on and the reasons for the disciplinary action.” Wilson v. Jones, 430 F.3d 1113, 1117 (10th Cir. 2005)
Plaintiff has not alleged the duration of his sentence was affected by any disciplinary actions imposed on him. Liberally construed, Plaintiff alleges that he was subject to conditions imposing atypical and significant hardship in relation to the ordinary incidents of prison life. However, Plaintiff has failed to adequately allege specific instances of these conditions and how they have imposed hardships on him. Furthermore, Plaintiff has not provided any information regarding whether the prison failed to provide him with any form of due process. Plaintiff instead alleges a variety of malicious and unconstitutional behaviors not sufficiently supported by factual statements. Plaintiff has thus failed to adequately allege a plausible due process claim against Taylor or Honeycutt.
F. Plaintiff Has Not Stated Claims Against Taylor and Honeycutt for Failure to Protect.
Plaintiff alleges that Taylor and Honeycutt “deliberately indifferently undertook unconstitutional act(s) and/or omission(s) against each of their particular governmental dutie(s) and responsibilitie(s): to ensure that [Plaintiff] (and all OCDC inmates) remained safe [particularly - remained safe from being unlawfully physically attacked by OCDC employees at the OCDC].” (Doc. 46-3, at 59). Specifically, Plaintiff argues that Taylor and Honeycutt failed to provide a safe environment because they “ordered and/or allowed Benjamin, McKeehan, Everhart, Neal, and Hendershot to commit the physical act(s) of excessive force upon [Plaintiff].” (Id. at 60).
In addition to prohibiting the use of excessive force against convicted prisoners, the Eighth Amendment “imposes duties on [prison] officials, who must provide humane conditions of confinement . . . [and] 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) (internal quotation marks omitted). Plaintiff alleges that Taylor and Honeycutt failed to take necessary measures to provide for his safety from excessive force by OCDC employees.
Plaintiff's Fourteenth Amendment due process claim should be analyzed like an Eighth Amendment violation. See Blackmon v. Sutton, 734 F.3d 1237, 1241 (10th Cir. 2013) (“Conduct that violates the clearly established rights of convicts necessarily violates the clearly established rights of pretrial detainees.”).
But, as Plaintiff's claims for excessive force against Taylor and Honeycutt state, his allegations against these Defendants are not that they were deliberately indifferent to his safety or that they created conditions that allowed OCDC employees to use excessive force. Rather, Plaintiff has stated claims alleging that Taylor and Honeycutt were both actively involved in the excessive force attacks that are the basis of Plaintiff's action. Plaintiff cannot have it both ways. Because Plaintiff's allegations against Taylor and Honeycutt state a claim for excessive force violations, they do not state a claims for failure to protect or intervene. Plaintiff's claims against Taylor and Honeycutt for failure to protect should therefore be dismissed.
G. Plaintiff Has Not Stated A Claim Against Any Defendant for Conspiracy in Violation of § 1983.
For the reasons stated in Section III(E), above, the undersigned recommends dismissing Plaintiff's conspiracy claims against Taylor and Honeycutt.
VI. Recommendation and Notice of Right to Object.
Based on the foregoing, the undersigned recommends that the Court DISMISS the following claims:
• Plaintiff's claims against Benjamin, Yerby, Taylor, and Honeycutt in their official capacities;
• Plaintiff's § 1983 conspiracy claim against all Defendants;
• Plaintiff's Fourteenth Amendment claim against Benjamin for falsification of reports;
• Plaintiff's Fourteenth Amendment claims against Yerby for denial of medical care and falsification of medical records;
• Plaintiff's Fourteenth Amendment claims for excessive force by handcuffing against Taylor and Honeycutt;
• Plaintiff's failure to train or supervise claims against Taylor and Honeycutt;
• Plaintiff's Fourteenth Amendment claims against Taylor and Honeycutt for destruction and suppression of evidence; and
• Plaintiff's Fourteenth Amendment claims against Taylor and Honeycutt for failure to protect.
The undersigned additionally recommends finding that Plaintiff has adequately stated the following claims:
• Plaintiff's Fourteenth Amendment claims for excessive force against Benjamin, Taylor, and Honeycutt based on the alleged assaults;
• Plaintiff's Fourteenth Amendment claims for excessive force against Yerby for handcuffing; and
• Plaintiff's First Amendment retaliation claims against Benjamin, Yerby, Taylor, and Honeycutt.
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before September 21, 2021, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation does not terminate the referral in the present case.