Shivers v. Stephens Cnty.

Full title: MICHAEL L. SHIVERS, Plaintiff, v. STEPHENS COUNTY, et al., Defendants.

Court: United States District Court, Western District of Oklahoma

Date published: Aug 3, 2022

No. CIV-21-371-PRW (W.D. Okla. Aug. 3, 2022)

Opinion

CIV-21-371-PRW

08-03-2022

MICHAEL L. SHIVERS, Plaintiff, v. STEPHENS COUNTY, et al., Defendants.

GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE

THIRD SUPPLEMENTAL REPORT AND RECOMMENDATION

GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE

Plaintiff, a state prisoner¹ 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).

1 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).

This Third Supplemental Report and Recommendation is limited to consideration of the alternative Motion to Dismiss or Motion for Summary Judgment² and Brief in Support, Doc. No.73, filed by Defendants Kyle Hansen,³Bruce Guthrie, and William Noah Anderson⁴ (“SCDC Defendants”), all of whom have been named in their individual and official capacities. The SCDC Defendants contend dismissal is proper because Plaintiff has failed to state a claim upon which relief may be granted. Plaintiff has not responded to the Motion. For the reasons set forth herein, it is recommended the Motion for Summary Judgment be granted.

2 The SCDC Defendants have filed a court-ordered Special Report. Doc. No. 70. Because the Court has relied on documents attached to the Special Report, the SCDC Defendants' motion will be considered as a Motion for Summary Judgment.

3 Defendant Hansen was identified as “Kyle Hanson” in the Complaint. The U.S. Marshals filed a return of service for Defendant Hansen on October 13, 2021. Doc. No. 36.

4 Defendant Anderson was identified as “Noah LNU” in the Complaint.

I. Background and Issues Raised in Plaintiff's Complaint

Plaintiff's fourth claim is the only claim implicating the SCDC Defendants. Plaintiff styles his claim as “Extortion / Abuse of Authority / Deliberate Indifference in a RICO Enterprise.” Doc. No. 1 at 15.

In March 2021, DO Jennifer Smiddy⁵ with the support of Supervisor Hanson accessed my property bag to transmit my identification info to

Bobbi Yeaney⁶ 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 inquiries 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 14^th 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.

5 Defendant Smiddy filed a separate Motion to Dismiss. Doc. No. 64. This Court previously recommended the claims against Defendant Smiddy be dismissed for failure to state a claim upon which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6). See Doc. No. 82.

6 Defendant Yeaney was never served with process. This Court previously recommended the claims against her be dismissed on screening pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted. See Doc. No. 82.

The SCDC Defendants contend Plaintiff's claims should be dismissed based on his alleged failure to exhaust his administrative remedies before filing this action. Alternatively, the SCDC Defendants contend the claims lodged against them in their official capacities should be dismissed based upon a failure to state a claim upon which relief could be granted; that Plaintiff has failed to establish a RICO claim against them; that considering the merits of his claim, Plaintiff has failed to state a claim upon which relief may be granted against any of them in their individual capacities; that Plaintiff has failed to state a claim against any of them in their official capacities; and that they are entitled to qualified immunity.⁷

7 The Court need not consider the SCDC Defendants' alternative bases for summary judgment as Plaintiff's claims against them are subject to dismissal on other grounds.

II. Standard of Review

Summary judgment is appropriate only if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Gutteridge v. Oklahoma, 878 F.3d 1233, 1238 (10th Cir. 2018). Applying this standard requires viewing the facts in the light most favorable to the nonmoving party and resolving all factual disputes and reasonable inferences in its favor. Cillo v. City of Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013).

However, “[t]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Scott v. Harris, 550 U.S. 372, 380 (2007). “The substantive law of the case determines which facts are material.” United States v. Simmons, 129 F.3d 1386, 1388 (10th Cir. 1997). A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or is so one-sided that one party must prevail as a matter of law. Id. at 251-52; Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000).

III. Exhaustion of Administrative Remedies

The SCDC Defendants contend Plaintiff failed to exhaust his administrative remedies before he filed suit against them. Their argument is sound.

The Prison Litigation Reform Act of 1995 (“PLRA”) mandates that an inmate exhaust “such administrative remedies as are available” before bringing suit to challenge prison conditions. 42 U.S.C. § 1997e(a) provides

No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.

The Supreme Court has often stated that the language of § 1997e(a) is mandatory: An inmate “shall” bring “[n]o action” absent exhaustion of administrative remedies. Ross v. Blake, 578 U.S. 632, 638-39 (2016) (citing Woodford v. Ngo, 548 U.S. 81, 85 (2006); Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under the PLRA”)). The mandatory language makes no allowances for “special circumstances.” Miller v. French, 530 U.S. 327, 337 (2000) (explaining that “[t]he mandatory ‘shall' . . . normally creates an obligation impervious to judicial discretion”). The sole exception to the PLRA's mandate is contained in the statute itself: an administrative remedy process must be “available.”

SCDC has a simple, one-step process:

A grievance shall be made in the form of a written statement by the inmate promptly following the incident, sealed in an unstamped envelope and addressed to the Jail Administrator. Such statement shall be delivered promptly and without interference to the Jail Administrator by a Detention Officer or staff member to whom the grievance is given.

Doc. No. 77-1. The grievance must contain the names of the Detention Officers involved, pertinent details of the incident, and names of witnesses. Id. If the Jail Administrator finds the grievance constitutes a prohibited act by a Detention Officer or staff member, a criminal act, or violation of the inmate's civil rights, the Jail Administrator will order a prompt investigation. Id. An inmate who submits a grievance to the Jail Administrator shall receive a response “within a reasonable period of time following the investigation of the grievance.” The response would include administrative findings and actions taken. Id.

According to the Declaration of Javier Martinez, the SCDC Jail Administrator, the records attached to the Special Report are “true and correct copies” of records maintained by the SCDC and Sheriff's Office. Doc. No. 74-5 at 1. Attached to the Special Report are copies of Statement Forms, Request to Staff Forms, and Grievance Forms, all filed by Plaintiff. The Plaintiff filed several grievances, but as the Special Report states, only one was related to the allegations in Plaintiff's Complaint. The Grievance form stated:

I'm contacting the OSBJ Office. Sexual harassment committed against me while in your custody, sexual assault, extortion, [racketeering], theft, was committed against me. When I said my life was in danger, I received no help from anyone of your staff, I ask for paperwork, I'm retaliated against, provoked, taunted, for reporting the crimes. I'm also max'd restrictions. I can't even call my attorney's number. I feel like all this is meant to be a threat towards me.

Doc. No. 74-18 at 1. Plaintiff's statement does not identify with particularity any staff member responsible for the incidents described in the Complaint. What is more, the Grievance form is dated April 28, 2021-eight days after Plaintiff filed his Complaint herein. Thus, even if the Grievance Form had identified the SCDC Defendants and explained each Defendant's involvement in the alleged constitutional violations, Plaintiff did not complete the administrative process before he filed suit as the PLRA requires. Thus, the SCDC Defendants are entitled to summary judgment based on Plaintiff's failure to comply with the PLRA's requirement that he exhaust his administrative remedies before filing suit.

RECOMMENDATION

For the reasons stated herein, it is recommended the SCDC Defendants' Motion for Summary Judgment (Doc. No. 73) be granted. The parties are hereby advised of their right to file an objection to this Third Supplemental Report and Recommendation with the Clerk of this Court by August 23^rd , 2022, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Third 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 Third Supplemental Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any motion pending should be deemed denied.