Savage v. Fallin et al

RESPONSE to Defendant's Objections to the Magistrate Judge's Report and Recommendation

W.D. Okla.January 2, 2018

1 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF OKLAHOMA KENT G SAVAGE, ) ) Plaintiff, ) ) v. ) Case No.: CIV-15-1194-HE ) MARY FALLIN, Governor, et al., ) ) Defendants. ) PLAINTIFF’S RESPONSES TO DEFENDANT’S OBJECTIONS TO THE MAGISTRATES REPORT AND RECOMMENDATION Plaintiff, by and through counsel, pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, files this Response to Defendant’s Objections, Doc. no. 75, to the Magistrate Judge’s Report and Recommendation, Doc. no. 74.1 In support of this Response, Plaintiff states as follows: Overcrowding and Eighth Amendment Response Defendants claim that the Report and Recommendation relies incorrectly on Brown v. Plata, 563 U.S. 493 (2011), because the goal was only to reduce but not come 1 Plaintiff notes that he filed an Unopposed Motion for Extension of Time, Doc. no. 76, for two days, but in light of the fact that Plaintiff’s counsel filed it on the due date around 2:00 p.m. which counsel respects is a last-minute filing, and since Plaintiff has not heard from the Court, Plaintiff through counsel has filed this brief Response out of an abundance of caution so that Plaintiff may respond to Defendant’s Objections, Doc. no. 75. Fed.R.Civ.P. 72(b)(2). Plaintiff through counsel would ask for an additional five- page response to be filed no later than two days after the court rules on the Motion for Extension of Time, Doc. no. 76, unless the Court rules this Response moots the Motion for Extension of Time, Doc. no. 76. Plaintiff and undersigned counsel preys this court allows an additional five-page supplemental response to be filed within two days of a ruling on the Motion For Extension. Case 5:15-cv-01194-HE Document 77 Filed 01/02/18 Page 1 of 7 2 into direct compliance completely with overcapacity issues. Doc. no. 75 at 2. While it is true that the goal was to reduce capacity to 137.5%, as Defendants’ note in their objection, the capacity in Brown was 200% and sometimes as high as 300%. Doc. no. 75 at 2. Thus, the goal was to vastly reduce the overcrowding, which is also the goal in this case. The fact that JCCC was 131% of capacity is no excuse to argue that the reduction to 111% of capacity somehow is permissible under Brown. Doc. no. 75. Brown’s goal was to reduce overcrowding to stop serious deficiencies and to cap the capacity at 137.5% from a 200% capacity. 563 U.S. at 501, 521, 530-542. The reduction was reasonable but drastic compared to the numbers cited by Defendant’s in their Objection, Doc. no 72 at 1 (citing ECF 74:14 and ECF 61-5:4). Defendants’ have not shown any evidence that ODOC or Defendants have done anything to remedy the overcrowding that even ODOC’s own director has stated, as Plaintiff cited and the Magistrate Judge’s Report and Recommendation notes, has caused dangerous overcrowding and understaffing. Doc. no. 74 at 12 (citing ECF No. 37:31). The goal in Brown was to have a positive affect that was achievable. Brown, 563 U.S. 539-540. ODOC and Defendants’ should have the same goal, and under Brown it would have to reduce its prison overcrowding much more than Defendants’ claim in their objection. Doc. no. 75 at 2. Defendants’ argument that Plaintiff’s claims of over overcrowding and understaffing are only actionable when they endanger Plaintiff’s health and safety, citing Wilson v. Seiter, 501 U.S. 294, 298 (1991) and Rhodes v. Chapman, 452 U.S. 337, 345- 48 (1981), lack merit. As the Report and Recommendation notes, the Tenth Circuit Case 5:15-cv-01194-HE Document 77 Filed 01/02/18 Page 2 of 7 3 found that Savage alleged sufficient facts to support that overcrowding and understaffing “posed a risk to his personal safety.” Doc. no. 74 at 13. Moreover, Mr. Savage pointed out Director Allbaugh’s statements on OETA that overcrowding and understaffing created unsafe conditions. Doc. no. 74 at 12 (citing ECF No. 37:31). Thus, the Magistrate was correct to note that “Governor Fallin clearly appreciates the serious issues facing the Oklahoma Prison System,” and reliance on newspaper articles, as the Report and Recommendation discusses, Doc. no. 74 at 13, is not improper as the Defendant’s have suggested, Doc. no. 75 at 73, citing New England Mut. Life Ins. Co. v. Anderson, 888 F.2d 646, 650 (10th Cir. 1989). That case dealt with completely different facts and noted that the newspaper articles were excluded because New England did not lay a proper foundation as to whether or not Anderson “had ever acquiesced in the newspaper account,” or read the article itself. Id. at 650. Nowhere does the court say that newspaper articles cannot be cited, and the fact is Director Allbaugh has made statements specifically about the articles cited by Plaintiff Savage supporting the articles statements. The fact that the articles are based on statistics in no way shows the Report and Recommendation relied improperly on these articles. Moreover, the Facts of New England are completely inapposite, and the Article the Court relied on is not necessarily used to prove the truth of the matter asserted, but rather to show that Defendants were on notice of the serious risk to Mr. Savage that they failed to remedy, as the Tenth Circuit found in any event. Doc. no. 74 at 13. Case 5:15-cv-01194-HE Document 77 Filed 01/02/18 Page 3 of 7 4 Finally, the Report and Recommendation is correct that Plaintiff produced enough evidence to demonstrate genuine and material fact questions as to the severity and safety of inmates considering the guard to inmate ratio and overcrowding and understaffing issues noted by the Report and Recommendation. Doc. no. 74 at 15. Thus, the Magistrate was correct that Mr. Savage’s Eighth Amendment Claim should survive summary judgment, and nothing Defendants’ cite in their Objections shows otherwise. Doc. no. 75. Exhaustion of Administrative Remedies Response Defendants simply attempt to rehash their arguments on exhaustion in their objections. Doc. no. 75 at 4-8. While Plaintiff agrees the Defendants are correct when they claim that the Prison Litigation Reform Act (PLRA) requires inmates to exhaust their administrative remedies before filing a §1983 challenge to prison conditions, (Doc. no. 75 at 4-8), Plaintiff notes that “an inmate need exhaust only such administrative remedies as are available,” to that inmate. See Ross v. Blake, 136 S. Ct. 1850, 1862 (2016) (“An inmate need exhaust only such administrative remedies as are “available.”) Indeed, the Tenth Circuit has recognized there are exceptions to the exhaustion requirement, stating: We have previously noted that the PLRA only requires the exhaustion of “available” administrative remedies. Jernigan, 304 F.3d at 1032; 42 U.S.C. § 1997 e(a) (requiring exhaustion of “such remedies as are available”). In fact, we have stated that district courts are “obliged to ensure that any defects in exhaustion were not precured from the action or inaction of prison officials” before dismissing a claim for failure to exhaust. Aquilar- Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007). Where prison officials prevent, thwart, or hinder a prisoner’s efforts to avail himself of an administrative remedy, they render that remedy “unavailable” and a court Case 5:15-cv-01194-HE Document 77 Filed 01/02/18 Page 4 of 7 5 will excuse the prisoner’s failure to exhaust. See Lyon v. Vande Krol, 305 F.3d 806, 808 (8th Cir. 2002) (en banc) (“We have held that inmates cannot be held to the exhaustion requirement of the PLRA when prison officials have prevent them from exhausting their administrative remedies.”)). Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010); see also Ross, 136. S.Ct. at 1862. Here Plaintiff meets the exhaustion requirement because it is clear that exhaustion was not “available to him.” The simple fact is Defendants’ simply want to ignore the Decision in Ross and refuse to admit that the grievance policy does not allow Plaintiff’s like Mr. Savage to actually grieve. As the Report and Recommendation clearly notes, Plaintiff has no control over when RTSs and Grievances are moved from the inbox and sent to the proper place, and Mr. Savage showed that prison officials did not take serious overcrowding and understaffing issues to be “nonspecific or not grievable,” as the Magistrate correctly points out. Doc. no. 74 at 16. Further, another grievance the Report and Recommendation sets forth states clearly even though Mr. Savage made his complaint clear, “that the overcrowding and understaffing were endangering his health,” Doc. no. 74 at 16 (citing ECF No. 61-23:2), his complaint was denied initially due to it not be specific enough, even though the Report and Recommendation points out Mr. Savage clearly laid out his complaint. Doc. no. 74 at 16. Then, on appeal, the issues were considered not grievable, as the Report points out, noting that therefore he had no available remedy and Ross clearly controlled. Id. The Report and Recommendation was correct to follow Ross and Defendants’ simply attempt to ignore it. Case 5:15-cv-01194-HE Document 77 Filed 01/02/18 Page 5 of 7 6 Qualified Immunity Despite Defendants’ claims to the contrary, the fact is, as the Report and Recommendation notes, the Tenth Circuit already “determined that Mr. Savage stated an Eighth Amendment claim that ODOC defendants were deliberately indifferent to a substantial risk of serious harm caused by overcrowding and understaffing.” Doc. no. 74 at 20. Further, Mr. Savages right to personal safety, as the Report and Recommendation notes, was clearly established by 1977. Doc. no. 74 at 20 (citing Battles v. Anderson, 564 F.2d 388, 391-92 (10th Cir. 1977)). Moreover, it has been established since Farmer v. Brennen, 511 U.S. 825, 832 (1994), that prisoners have the right to receive “adequate food, clothing, shelter, and medical care, and must take reasonable steps to guarantee the safety of the inmates.” Further, contrary to the Defendants’ arguments, the Report and Recommendation did not define clearly established law at a high level of generality. Doc. 75 at 14. Farmer, Brown v. Plata, and Battles v. Anderson, have made clear that inmates have a right to reasonable safety measures. The Governor and ODOC Defendants were well aware and fact questions remain as to whether she could have acted administratively to correct problems of serious overcrowding and understaffing. The Report and Recommendation did not error in recommending that Defendants’ Motions for Summary Judgment be dismissed. Doc. no. 74 at 20, 23. Conclusion For the reasons stated above, the District Court should adopt the Magistrate Judge’s Report and Recommendation and deny Defendants’ Motions for Summary Judgment. Case 5:15-cv-01194-HE Document 77 Filed 01/02/18 Page 6 of 7 7 CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of January, 2018, I electronically transmitted the attached document to the Clerk of Court using the ECF System for filing. Based on the records currently on file, the Clerk of Court will transmit a Notice of Electronic Filing to the following ECF registrants: Kari Y. Hawkins, OBA 19824 Assistant Attorney General Attorney General’s Office 313 NE 21st Street Oklahoma City, Oklahoma 73105 (405) 521-4274 kari.hawkins@oag.ok.gov Attorney for Defendants I further certify that on this 2nd day of January, 2018, I mailed this Entry of Appearance, US mail prepaid, to my client, Kent G. Savage, since he is not a registered ECF user or able to receive this filing through the ECF system. I mailed this document to the following address: Kent G Savage, DOC # 646862 North Fork Correctional Center 1605 E. Main Street Sayre, OK 73662 s/Max David Hellman Max David Hellman Case 5:15-cv-01194-HE Document 77 Filed 01/02/18 Page 7 of 7