Opinion
CIV-21-371-PRW
08-01-2022
MICHAEL L. SHIVERS, Plaintiff, v. STEPHENS COUNTY, et al., Defendants.
SECOND 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 violations 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 and requiring a showing of both the objective and subjective prongs of that test).
This Second Supplemental Report and Recommendation is limited to consideration of the individual and official capacity claims brought against two named Defendants, both of whom were formerly employed as guards at the SCDC, Defendants Jennifer Smiddy and Bobbi Yeaney.
Plaintiff identifies Defendant Yeaney as a “former DO.” Doc. No. 1 at 11.
Defendant Smiddy was employed as a guard at SCDC during the period relevant to this action. She has filed a Motion to Dismiss and Brief in Support, Doc. No. 64, to which Plaintiff has not replied. Plaintiff has failed to serve Defendant Yeaney with process.
For the reasons set forth herein, it is recommended Defendant Smiddy's Motion to Dismiss be granted. It is further recommended that all claims against Defendant Yeaney be dismissed on screening pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) (providing for dismissal of claims asserted by a prisoner proceeding in forma pauperis “at any time” the court determines the action fails to state a claim on which relief may be granted.”).
I. Background and Issues Raised in Plaintiff's Complaint
Plaintiff implicates Defendant Smiddy in his first and fourth claims. He implicates Defendant Yeaney in the fourth claim only.
Plaintiff styles his first claim as “Deliberate Indifference / Dereliction of Duty.” Doc. No. 1 at 14. He alleges Defendant Smiddy used him to distribute methamphetamines, tobacco, and lighters to inmates:
From December 2020 to April 2021[, ] . . . [Defendant Smiddy] 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.Id.
Plaintiff styles his fourth claim as “Extortion / Abuse of Authority / Deliberate Indifference in a RICO Enterprise.” Id. at 15. As his claims pertain to Defendants Smiddy and Yeaney, Plaintiff states:
In March 2021[,] DO Jennifer Smiddy with the support of Supervisor Hanson accessed my property bag to transmit my Identification info to Bobbi Yeaney so she could utilize Turbo-Tax.com to file for a stimulus check in my name. This was done for an agreed upon upfront “fee” of $400.00. Over time Jennifer Smiddy became evasive and vague in her replies to my inquires even intimating “[She] would have to talk to Javier first” (Jail Administrator). DO's Noah and Jennifer as well as Supervisor Hanson were verbally evasive and essentially gave me the “run around” even stating, “You haven't pulled chain yet?” After a confrontation with all 3 DO's on 13 APR 2021[,] they gave me my login info for Turbo-Tax.com. On the 14th of April 2021 Javier Martinez tried to log on in front of me but the account was tied to an external cell phone. Jennifer Smiddy has done this to at least one other person. Her intent was to wait until I left to prison to keep the money. Their abuse of authority to extort a fee from me and others for filing what is rightfully ours is an illegal racketeering operation and caused
great stress and conflict upon my already debilitated slave status. How is this corrections?Doc. No. 1 at 15-16.
Defendant Smiddy 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 Smiddy, because it “does not contain any allegation indicating he exhausted the Stephens County grievance procedure prior to filing this lawsuit[.]” Doc. No. 64 at 11.
Failing dismissal for failure to exhaust administrative remedies, Defendant Smiddy contends the claims lodged against her in her official capacity should be dismissed. She further claims Plaintiff's first claim, 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 Smiddy is entitled to qualified immunity. Finally, to the extent Plaintiff has attempted to state a civil RICO claim, Defendant Smiddy contends Plaintiff has failed to allege sufficient facts to support all the required elements of such a claim.
The Court need not consider Defendant Smiddy's defenses based on alleged lack of Article III standing and qualified immunity as claims one and four 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 Smiddy first contends that the 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 lawsuit against Defendant Smiddy. He does indicate that he authored a sworn statement in relation to the dispute over his stimulus monies. [Doc. 1 p. 12] and [Doc. 1-1 p. 1]. But an “inmate who begins the grievance process but does not complete it is barred from pursuing a 1983 claim under PLRA for failure to exhaust his administrative remedies.” Jernigan at 1032. 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. 64 at 11. 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.
Jernigan v. Stuchell, 304 F.3d 1030 (10th Cir. 2003).
In deciding Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court examined cases to resolve a split in the circuits 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 Smiddy did not sustain her burden of proof that Plaintiff did not 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 Smiddy alleges Plaintiff's official capacity claims 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 official-capacity 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.
Because Plaintiff has also sued Stephens County through its Board of County Commissioners, Plaintiff's official capacity claims against Defendant Smiddy and Defendant Yeaney are 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 Soc. 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 Smiddy must also be dismissed. Also, the official capacity claims against Defendant Yeaney should be dismissed on screening for failure to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).
V. RICO Claims
Plaintiff has also attempted to state a civil RICO claim based on the allegations in his fourth claim-that Defendant Smiddy engaged in an extortion scheme to deprive him of his federal stimulus monies. Doc. No. 1 at 15-16. 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. §] 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 acts, any act involving “extortion . . . chargeable under State law.” 18 U.S.C. § 1961(1)(A)-(B). Under Oklahoma law, extortion is defined as “the obtaining of property from another with his consent, induced by a wrongful use of force or fear, or under color of official right.” Okla. Stat. tit. 21, § 1481. A “pattern of racketeering activity” consists of two or more acts of racketeering activity. 18 U.S.C. § 1961(5).
Plaintiff alleges that he agreed to pay Defendant Smiddy an “upfront fee of $400” in return for her help in filing an income tax return so that he could obtain stimulus money. According to the Complaint, Defendant Bobbi Yeaney was involved to the extent that she allegedly used her TurboTax account to file the return. Plaintiff does not state that he ever paid the $400.00, nor does he state that he was threatened by wrongful use of force or fear, or under color of official right. What is more, Plaintiff did not attempt to demonstrate that his agreement to pay Defendants Smiddy and Yeaney for a service he wished them to render had any effect on interstate commerce.
Because Plaintiff failed to state the necessary elements of a RICO claim, Defendant Smiddy's Motion to Dismiss should be granted on this claim. Additionally, Plaintiff's claim against Defendant Yeaney should be dismissed for failure to state a claim upon which relief may be granted under 28 U.S.C. § 1915(e)(2)(B)(ii).
VI. Civil Rights Claims
As noted, Plaintiff's first claim is based on allegations that Defendant Smiddy supplied Plaintiff with drugs and cigarettes for him to distribute to other inmates. The Court liberally construes this claim as alleging that, in providing him with cigarettes and methamphetamine, both of which he apparently used, Defendant Smiddy 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.
Defendant Smiddy contends, however, that this claim is subject to dismissal because Plaintiff did not allege that he sustained an actual physical injury in addition to his alleged mental injuries. 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 Smiddy'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.A. § 1997e(e). In this case, Plaintiff contends his use of the methamphetamine allegedly supplied by Defendant Smiddy “alter[ed] [his] mind,” “destabilize[ed] [his] judgment,” left him with “nominal mental acuity,” and “sabotaged” his efforts to fight addiction. Doc. No. 1 at 14.
This Court finds Plaintiff's allegations of injury in his first claim fall short of stating a due process claim. 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. Thus, Plaintiff's first claim, 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 Smiddy's alleged provision of contraband-a pleading requirement specified in the PLRA.
RECOMMENDATION
For the reasons stated herein, it is recommended Defendant Smiddy's Motion to Dismiss (Doc. No. 64) be granted. Plaintiff's claims against Defendant Smiddy should be dismissed without prejudice. It is further recommended that the claims against Defendant Yeaney be dismissed upon screening pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)
The parties are hereby advised of their right to file an objection to this Second Supplemental Report and Recommendation with the Clerk of this Court by August 22nd , 2022, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Second 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 Second Supplemental Report and Recommendation does not dispose of all issues referred to the undersigned Magistrate Judge in the captioned matter.