Opinion
CIV-21-371-PRW
07-28-2022
MICHAEL L. SHIVERS, Plaintiff, v. STEPHENS COUNTY, et al., Defendants.
SUPPLEMENTAL REPORT AND RECOMMENDATION
GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner appearing pro se and in forma pauperis, brings this civil rights action under 42 U.S.C. § 1983 alleging violation of his constitutional rights. Plaintiff has also alleged jurisdiction pursuant to the Racketeer Influenced and Corrupt Organizations Act (“RICO”). United States District Court Judge Patrick R. Wyrick referred this matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B).
From December 2020 through April 2021, the period relevant to this action, Plaintiff was incarcerated in the Stephens County Detention Center (“SCDC”) as a pretrial detainee. Because the Eighth Amendment's prohibition against cruel and unusual punishment applies only to convicted prisoners, Plaintiff's civil rights claims arise under the Due Process Clause. Except for claims based on alleged excessive force, however, the standard for analyzing a due process civil rights claim is the same standard as that used to analyze a claim based on the Eighth Amendment. See, e.g., Strain v. Regalado, 977 F.3d 984, 98990 (10th Cir. 2020) (analyzing claim alleging deliberate indifference to medical needs of a pretrial detainee under Eighth Amendment standard for convicted prisoners, requiring a showing of both the objective and subjective prongs of that test).
Four separate dispositive motions are before the Court. This Supplemental Report and Recommendation is limited to consideration of the Motion to Dismiss and Brief in Support, Doc. No. 65, filed by Almeda Emerick, a former guard at SCDC, sued in both her individual and official capacities. Plaintiff has not responded to the Motion. For the reasons set forth herein, it is recommended that Defendant Emerick's Motion to Dismiss be granted in part and denied in part.
Defendant Emerick is identified in the Complaint as “Almeda LNU.”
I. Background and Issues Raised in Plaintiff's Complaint
As they pertain to Defendant Emerick, the factual bases of Plaintiff's first and third claims are the same. Plaintiff alleges Defendant Emerick used him to distribute methamphetamines, tobacco, and lighters to inmates. In his first claim, Plaintiff states:
From December 2020 to April 2021, [Defendant Emerick] . . . gave me contraband in the form of methamphetamines, tobacco and lighters altering my mind and destabilizing my judgment. This endangered my legal safety and the physical safety of myself and others throughout the jail. I have struggled with addiction and was sabotaged by the very people who work “corrections.” This caused me to fall under corrupt RICO operations and extortion schemes with less than nominal acuity, and endangered my future.Doc. No. 1 at 14.
In his third claim, Plaintiff states:
From December 2020 to April 2021 DO Almeda used progressive coercion (Claim 2) to entrap me in a slave status. Under this mindset I [ingratiated] myself to her by offering and conducting the sale of methamphetamines to inmates throughout the jail (which she brought in). We did this four times by having the purchaser use his outside people to place money on the institutional books of a female inmate who was the drug holder while I would deliver the dope after payment confirmation. The payment recipient would give it to Almeda once released. There was one instance of cash payment. This enterprise was fruit of my fearful slave status and endangered myself and the safety of inmates throughout the jail and subjected me to criminal prosecution.Doc. No. 1 at 15.
The legal bases of claims one and three are distinct only to the extent Plaintiff styles his first claim as “Deliberate Indifference / Dereliction of Duty” while he styles his third claim as “Abuse of Authority / Coerced Induction into trafficking of Drugs / Deliberate Indifference in a RICO Enterprise.” Doc. No. 1 at 14-15. In his second claim, Plaintiff alleges Defendant Emerick sexually harassed and ultimately raped him, threatening to tell his wife about their relationship if Plaintiff did not submit to her demands. Id. Defendant Emerick is not implicated in Plaintiff's fourth claim.
Defendant Emerick raises several defenses to Plaintiff's Complaint. She contends Plaintiff's entire Complaint should be dismissed for failure to comply with the exhaustion requirements of the Prison Litigation Reform Act (“PLRA”). Plaintiff's Complaint is deficient, according to Defendant Emerick, because it “does not contain any allegation indicating he exhausted the Stephens County grievance procedure prior to filing this lawsuit[.]” Doc. No. 65 at 12.
Failing dismissal for failure to exhaust administrative remedies, Defendant Emerick contends the claims lodged against her in her official capacity should be dismissed based upon a failure to state a claim upon which relief could be granted. She further asserts that Plaintiff's first and third claims, based in part on alleged violations of his constitutional rights, should be dismissed because (1) the PLRA precludes an award of damages for mental or emotional injury without a prior showing of physical injury; (2) Plaintiff lacks Article III standing; and (3) Defendant Emerick is entitled to qualified immunity. To the extent Plaintiff has attempted to state a civil RICO claim, Defendant Emerick contends Plaintiff has failed to allege sufficient facts to support all the required elements of such a claim.
The Court need not consider Defendant Emerick's defenses based on alleged lack of Article III standing and qualified immunity as claims one and three are subject to dismissal on other grounds.
II. Standard of Review
To survive a motion to dismiss, the two seminal Supreme Court cases, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), require a complaint to contain enough factual allegations that, taken as true, “state a claim to relief that is plausible on its face.” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Twombly, 550 U.S. at 570). Under this standard, “the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)). The “plausibility” standard announced in Twombly and Iqbal is not considered a “heightened” standard of pleading, but rather a “refined standard,” which the Tenth Circuit has defined as “refer[ring] ‘to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiff[] ha[s] not nudged [his] claims across the line from conceivable to plausible.'” Khalik, 671 F.3d at 1191 (quoting Robbins, 519 F.3d at 1247) (additional quotations omitted).
The Tenth Circuit has noted that the nature and specificity of the allegations required to state a plausible claim will vary based on context. Robbins, 519 F.3d at 1248. Thus, the court concluded the Twombly/Iqbal standard is “a middle ground between heightened fact pleading, which is expressly rejected, and allowing complaints that are no more than labels and conclusions or a formulaic recitation of the elements of a cause of action, which the Court stated will not do.” Id. at 1247 (citations and quotations omitted). Accordingly, in deciding Twombly and Iqbal, there remains no indication the Supreme Court “intended a return to the more stringent pre-Rule 8 pleading requirements.” Khalik, 671 F.3d at 1191 (citing Iqbal, 556 U.S. at 678). It remains true that “[s]pecific facts are not necessary; the statement need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555).
Finally, “a pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted.” Hall v. Bellmon, 935 F.2d 1106, 1110 (1991). Whether a complaint contains sufficient facts to avoid dismissal is context-specific and is determined through a court's application of “judicial experience and common sense[.]” Iqbal, 556 U.S. at 679. In analyzing a motion to dismiss under Rule 12(b)(6), the court “accept[s] as true all well-pleaded factual allegations in the complaint and view[s] them in the light most favorable to the plaintiff.” Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013). A complaint fails to state a claim on which relief may be granted when it lacks factual allegations sufficient “to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]” Twombly, 550 U.S. at 555 (citation omitted).
III. Exhaustion of Administrative Remedies
Defendant Emerick first contends that all three claims against her should be dismissed because Plaintiff did not allege that he had exhausted his administrative remedies:
Plaintiff's Complaint does not contain any allegation indicating he exhausted the Stephens County grievance procedure prior to filing this suit. Because he failed to allege exhaustion of the available administrative remedies, Plaintiff's Pro Se Prisoner Civil Rights Complaint should be dismissed and considered a “strike” pursuant to the provisions of PLRA.Doc. No. 65 at 12. This argument is without merit; it is well-settled that exhaustion of administrative remedies, while required by the PLRA, is an affirmative defense rather than a pleading requirement.
In deciding Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court examined cases to resolve a split in the circuit courts as to whether a prisoner's civil rights complaint is subject to dismissal for failure to plead exhaustion of administrative remedies. The Court found such a pleading requirement was untenable. Because “the PLRA does not itself require plaintiffs to plead exhaustion,” id. at 217, the Supreme Court held that a plaintiff's complaint is not subject to dismissal solely because he or she did not plead exhaustion of administrative remedies. Such a pleading requirement, Jones held, would have to “be obtained by the process of amending the Federal Rules, and not by judicial interpretation.” Id. Rather, non-exhaustion of administrative remedies, according to the Court, is an affirmative defense. The burden of proving the affirmative defense of non-exhaustion lies with the defendant. Roberts v. Barreras, 484 F.3d 1236, 1241 (10th Cir. 2007).
Defendant Emerick has not attempted to demonstrate Plaintiff failed to exhaust his administrative remedies before filing suit. Thus, Plaintiff's Complaint is not subject to dismissal on grounds of non-exhaustion.
IV. Official Capacity Claims
Defendant Emerick alleges the official capacity claims Plaintiff lodged against her should be dismissed. The Court agrees. When a person acting under color of state law deprives an individual of his constitutional rights, 42 U.S.C. § 1983 provides a path to sue. West v. Atkins, 487 U.S. 42, 48 (1988). A § 1983 plaintiff may sue a defendant in his personal capacity-that is, “to impose personal liability upon a government official for actions he takes under color of state law,” Kentucky v. Graham, 473 U.S. 159, 165 (1985)-or in his official capacity. An officialcapacity suit is, “in all respects other than name, to be treated as a suit against the entity” for which the individual acts as an agent, rather than against the individual herself. Id. at 166 (quotations omitted).
Because Plaintiff has also sued Stephens County through its Board of County Commissioners, Plaintiff's official capacity claim against Defendant Emerick is redundant and subject to dismissal on that ground alone. See, e.g., J.H. v. Williamson Cty., 951 F.3d 709, 715-16 (6th Cir.), cert. denied sub nom. J. H. v. Williamson Cty., 141 S.Ct. 849 (2020) (granting summary judgment to individual county officials sued in their official capacities as those claims and the claim against the county were redundant). Alternatively, municipalities and municipal entities are not liable under 42 U.S.C. § 1983 solely because their employees inflict injury on a plaintiff. Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 694 (1978); Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993)). Rather, to establish a municipality's liability, the plaintiff must demonstrate that a municipal policy or custom directly caused his injury. Id.
This Court previously considered Plaintiff's claims against the Stephens County Board of County Commissioners, determined that Plaintiff did not plead a policy or custom of the Board led to the alleged violation of his constitutional rights, and recommended all claims against the Board be dismissed for failure to state a claim upon which relief may be granted. See Doc. No. 78. Should the referring court adopt that recommendation, then the official capacity claims against Defendant Emerick must also be dismissed.
V. RICO Claims
Plaintiff has also attempted to state a civil RICO claim based on the allegations in his third claim that Defendant Emerick forced him into “drug trafficking” within the prison. Doc. No. 1 at 15. RICO “creates a civil cause of action for any person injured in his business or property by reason of a violation of [ 18 U.S.C.] section 1962.” Beck v. Prupis, 529 U.S. 494, 495 (2000) (quotations omitted). Section 1962 makes it unlawful for any person to engage in “a pattern of racketeering activity” that affects interstate commerce. 18 U.S.C. §§ 1962(c), 1961(4). “Racketeering activity” includes, among other predicate offenses, the act of “dealing in a controlled substance or listed chemical[.]” 18 U.S.C. § 1961(1)(A). A “pattern of racketeering activity” consists of two or more acts involving a predicate offense. Id. § 1961(5).
In this case, Plaintiff alleges Defendant Emerick brought methamphetamine into the jail at least four times for him to distribute. These allegations, if proven, could fit the definition of “a pattern of racketeering activity.”
Plaintiff did not, however, plead or attempt to demonstrate that drug dealing in the SCDC affected interstate commerce. What is more, Plaintiff has not pled or attempted to demonstrate that the so-called “racketeering activity” injured him “in his business or property.” Plaintiff has simply attempted to graft a civil RICO claim onto his civil rights claim against Defendant Emerick. As discussed, supra at 5, a complaint that contains no more than labels and conclusions is insufficient to state a claim for damages. Thus, to the extent Plaintiff is attempting to bring a civil RICO violation against Defendant Emerick, that claim should be dismissed for failure to state a claim upon which relief may be granted.
VI. Claim Two: Sexual Abuse
Plaintiff's second claim is based on allegations of sexual abuse and rape. Nonconsensual sexual abuse of a prisoner by a guard is, without question, a violation of a prisoner's “right to be secure in [his] bodily integrity[.]” Smith v. Cochran, 339 F.3d 1205, 1212 (10th Cir. 2003). Such claims are analyzed as excessive force claims. Graham v. Sheriff of Logan Cty., 741 F.3d 1118, 1123 (10th Cir. 2013) (“Sexual abuse of a prisoner by a guard is generally analyzed as an excessive-force claim.”).
A claim that a prison official has subjected a pretrial detainee to excessive force requires the plaintiff to demonstrate only the objective portion of the test for deliberate indifference. “[T]he appropriate standard for a pretrial detainee's excessive [] force claim is solely an objective one[.]” Brown v. Flowers, 974 F.3d 1178, 1182-83 (10th Cir. 2020) (quoting Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015)). The Tenth Circuit has stated that “sexual abuse is repugnant to contemporary standards of decency, and allegations of sexual abuse can satisfy the objective component of an . . . excessive force claim.” Smith, 339 F.3d at 1212.
Because “a pretrial detainee can prevail by providing only objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective,” Kingsley, 576 U.S. at 398, Plaintiff's second claim is supported by sufficient facts to state a claim upon which relief may be granted. Additionally, Defendant Emerick's sole basis for dismissal of Plaintiff's second claim is that he failed to exhaust his administrative remedies before filing this suit. Defendant Emerick misstated the law regarding exhaustion of administrative remedies and her Motion to Dismiss Plaintiff's second claim must be denied.
VII. Claims One and Three
As noted, Plaintiff's first and third claims are based on allegations that Defendant Emerick supplied Plaintiff with drugs and cigarettes for him to distribute to other inmates. The Court liberally construes these claims as alleging that, in providing him with cigarettes and methamphetamine, both of which he apparently used, Defendant Emerick was deliberately indifferent to Plaintiff's due process rights by disregarding a substantial risk of serious harm to him. A claim for deliberate indifference to a risk of serious harm ultimately requires a pretrial detainee to plead and prove both the objective and subjective components of the test for deliberate indifference. See, supra.
Defendant Emerick contends these claims are subject to dismissal because Plaintiff did not allege that he had sustained an actual physical injury in addition to the mental injuries he allegedly sustained. A prison official's “deliberate indifference” to a substantial risk of serious harm to an inmate violates the inmate's constitutional rights. Farmer v. Brennan, 511 U.S. 825, 828-29 (1994). See also Helling v. McKinney, 509 U.S. 25 (1993); Wilson v. Seiter, 501 U.S. 294 (1991); Estelle v. Gamble, 429 U.S. 97 (1976). In this case, it is difficult to conclude that Defendant Emerick's alleged provision of methamphetamine to Plaintiff does not meet at least the objective prong of the test for deliberate indifference to a risk of serious harm. As the Eighth Circuit recognized in the context of determining the applicable sentencing guideline in a drug trafficking case, drug dealing is inherently dangerous for all involved:
Drug dealing, in all its forms, creates a serious risk of potential harm to individuals and society. When it involves smuggling drugs into a correctional facility, however, additional and unique risks of harm to inmates and corrections staff arise.United States v. Akers, 476 F.3d 602, 606 (8th Cir. 2007).
To state a constitutional claim, however, the PLRA generally requires a plaintiff to allege he has suffered a physical injury; alleging mental or emotional injury alone is insufficient to state such a claim:
No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act[.]
42 U.S.C. § 1997e(e). In this case, Plaintiff contends his use of the methamphetamine allegedly supplied by Defendant Emerick “altered [his] mind,” “destabilized [his] judgment,” left him with “nominal mental acuity,” and “sabotaged” his efforts to fight addiction. See supra at 2-3.
This Court finds Plaintiff's allegations of injury in his first and third claims fall short of PLRA requirements. Plaintiff's allegation that he was “sabotaged” in his fight to overcome addiction is too vague to satisfy the PLRA's requirement of “a prior showing of physical injury[.]” Plaintiff did not plead physical injury, and he chose not to respond to Defendant Emerick's Motion to Dismiss. Had he done so, he might have given the Court a more detailed description of his alleged injuries. As his claims stand, any suggestion of injury arising from his alleged addiction to drugs is speculative at best. Thus, Plaintiff's first and third claims, based on alleged violation of his due process rights, should be dismissed based on his failure to assert that he sustained a “physical injury” related to Defendant Emerick's alleged provision of contraband-a pleading requirement specified in the PLRA.
RECOMMENDATION
For the reasons stated herein, it is recommended Defendant Emerick's Motion to Dismiss (Doc. No. 65) be granted in part and denied in part. Specifically, all claims asserted against Defendant Emerick in her official capacity should be dismissed as redundant to the claims brought against Stephens County through its Board of County Commissioners.
Plaintiff's civil RICO claims, included within his third claim, should also be dismissed for failure to state a claim upon which relief may be granted. Plaintiff has failed to assert all elements required of such a claim. Plaintiff's due process claims, included within his first and third claims and based on Defendant Emerick's alleged deliberate indifference to a risk of serious harm, should be dismissed based on Plaintiff's failure to plead that he sustained an actual physical injury as required by the PLRA.
With regard to his second claim, Defendant Emerick's Motion to Dismiss should be denied. Defendant Emerick's challenge to that claim is based on a misstatement of the law governing exhaustion of administrative remedies, and Plaintiff has pled sufficient facts to satisfy the objective prong of an excessive force claim.
The parties are hereby advised of their right to file an objection to this Supplemental Report and Recommendation with the Clerk of this Court by August 17th , 2022, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Supplemental Report and Recommendation will result in waiver of appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Supplemental Report and Recommendation does not dispose of all issues referred to the undersigned Magistrate Judge in the captioned matter.