Smith v. Oklahoma County

1

DEREK DWANYE SMITH, Plaintiff, v. OKLAHOMA COUNTY, BOARD OF COUNTY COMMISSIONERS OF OKLAHOMA, et al., Defendants.

No. CIV-22-645-J

United States District Court, W.D. Oklahoma

February 28, 2023

REPORT AND RECOMMENDATION

SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE

Plaintiff appearing pro se and in forma pauperis, seeks relief for conduct he alleges occurred at the Oklahoma County Detention Center (OCDC). Doc. 17.^[1] United States District Judge Bernard M Jones has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), and (C). Docs. 4; 16, at 2. For the reasons discussed below, the undersigned recommends dismissing the amended complaint without prejudice for failure to state a claim.

I. Screening.

Federal law requires the Court to screen complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Because Plaintiff is proceeding in forma pauperis, the Court also has an ongoing duty to consider the sufficiency of his claims. See id. § 1915(e)(2); Doc. 7. The Court must dismiss the amended complaint, or any portion of the amended complaint, if it is “frivolous, malicious, or fails to state a claim upon which relief may be granted” or seeks monetary relief from a defendant who is immune from such relief. Id. §§ 1915A(b), 1915(e)(2)(B).

“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). The 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).

This Court construes “pro se plaintiffs' pleadings liberally.” Johnson v. Reyna, 57 F. 4th 769, 775 (10th Cir. 2023). If the Court “‘can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail,' [it] should do so.” Id. (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). The Court “will often excuse pro se plaintiffs' failure to cite proper legal authority, confusion of various legal theories, poor syntax and sentence construction, and unfamiliarity with the pleading requirements.” Id. (internal quotation marks omitted). The Court, may not, however, serve as Plaintiff's advocate by creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

II. Procedural history.

Plaintiff filed the original complaint on August 1, 2022, alleging he suffered Eighth Amendment violations while he was a pretrial detainee at the OCDC. Doc. 1. Plaintiff alleged his food trays had “bed bugs” on them and also complained about the cost of medical care for the treatment of bedbug bites. Id.; see also Doc. 13, at 3-4 (summarizing Plaintiff's claims). The undersigned recommended the complaint be dismissed because the named defendant-Food Service OCDC-is not a suable entity. Doc. 13, at 5.

Plaintiff filed a “Motion to Amend Petition to Change Named Party,” seeking to remove Food Service OCDC as a party and add the Board of County Commissioners of Oklahoma County, Oklahoma County, the County Jail Trust Authority and its Chairperson, and the Oklahoma County Sheriff as defendants. Doc. 14. Plaintiff also filed a “Motion to Amend Complaint” asserting “new facts about the defendants' conduct ha[d] emerged.” Doc. 15; see also id. Ex. 1 (Plaintiff's proposed amended complaint). Judge Jones granted Plaintiff's motions, “noting that Federal Rule of Civil Procedure 15(a) allows Plaintiff to amend his complaint without the Court's leave because Defendant has not yet been served.” Doc. 16, at 1. Further, Judge Jones directed the Clerk of Court to file the proposed amended complaint. Id. at 2; Doc. 17.

III. The parties and Plaintiff's claims.

At various points in his amended complaint, Plaintiff names Oklahoma County, the Board of County Commissioners of Oklahoma, and the County Jail Trust Authority as defendants (“County Entities”).^[2] Doc. 17, at 1, 5-8. Plaintiff also sues the Oklahoma County Sheriff in his official capacity, id. at 6-7, which is “the same as bringing a suit against” Oklahoma County. Martinez v. Beggs, 563 F.3d 1082, 1091 (10th Cir. 2009).

Plaintiff asserts his § 1983 claims “arise under the Fifth, Eighth[,] and Fourteenth Amendments to the United States Constitution.” Doc. 17, at 4. Plaintiff also asserts a violation of the Americans with Disabilities Act (ADA). Id. at 13-14 (citing 42 U.S.C. § 12132). And Plaintiff contends Defendants violated portions of the Oklahoma Administrative Code. Id. at 2-3. (citing Okla. Admin. Code §§ 310:285-3-9; 310:670-3-1; 310:670-5-7).

Plaintiff seeks: 1) “a judgment declaring Defendants' policy, practice, procedure, and customs unconstitutional”; 2) an award of compensatory damages “in an amount in excess of [$]3,000,000.00”; 3) an award of punitive damages; 4) “an order enjoining defendants from implementing or enforcing such policy, practice(s), procedures and customs on inmates or pretrial detainees; 5) an award of attorney's fees and costs; and 6) other relief as the Court finds just and proper.^[3] Doc. 17, at 3, 16.

IV. Analysis.

A. Plaintiff's § 1983 claims should be dismissed for failure to state a claim.

Liberally construing the amended complaint, Plaintiff makes § 1983 claims related to an infestation of bedbugs at the OCDC and the failure to provide medical care for treatment of bug bites. He contends Defendants “instituted and affirmed a policy, practice, procedure & custom pursuant to which inmates at the Oklahoma County Detention Center are placed in uninhabitable living conditions due to infestation(s) of bed bugs.” Doc. 17 at 2. He alleges the OCDC was aware of the “infestation and that the bed bugs hide in the cracks in the walls and pinholes in the cinder blocks.” Id. at 10. He also asserts the OCDC sprayed for bedbugs when the lights were on, knowing that doing so would not kill the nocturnal bedbugs. Id. Thus, he argues the OCDC “failed to take adequate precautions knowing the suffering it was causing.” Id. at 12.

Plaintiff also asserts that when he reminded staff he needed a diabetic food tray, “the on duty guards brought Plaintiff a tray that was contaminated by a bed bug a long time after meal time.” Id. at 13-14. Plaintiff contends he “reported bed bugs in his cell and in his food and was made to deal with it without change or aid; a complete disregard for his safty and health.” Id. at 10.

Plaintiff states that the OCDC “continues to refuse inmates treatment for bed bug bites from their (OCDCs) on going infestation.” Id. at 11. He argues that “[t]he torment by being exposed to infestation with no way out places unforgetable conscious pain and suffering at its precipice, like torture.” Id. at 12.

For the reasons stated below, Plaintiff's § 1983 claims should be dismissed on screening for failure to state a claim.

1. Plaintiff did not plead the violation of a policy sufficient to state a claim of municipal liability.

To state a § 1983 claim against a county or its employees in their official capacities, a plaintiff must identify “‘a government's policy or custom' that caused [him] injury.” See Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769 (10th Cir. 2013) (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691-92 (1978)). “[P]olicies meeting this standard [are] those arising from ‘a formal regulation or policy statement, an informal custom that amounts to a widespread practice, decisions of municipal employees with final policymaking authority, ratification by final policymakers of the decisions of subordinates to whom authority was delegated, and the deliberately indifferent failure to adequately train or supervise employees.'” Hinkle v. Beckham Cnty. Bd. of Cnty. Comm'rs, 962 F.3d 1204, 1239 (10th Cir. 2020) (quoting Pyle v. Woods, 874 F.3d 1257, 1266 (10th Cir. 2017)).

A plaintiff must do more than “‘simply allege that there is a policy in place'”-he “‘must plead facts that, if true, would give rise to a plausible inference that such a policy exists.'” Gatlin v. CoreCivic, Inc., 2022 WL 474282, at *6 (D.N.M. Feb. 16, 2022) (quoting Griego v. City of Albuquerque, 100 F.Supp.3d 1192, 1213 (D.N.M. 2015)), aff'd on other grounds, 2022 WL 17333065 (10th Cir. Nov. 30, 2022); see also Lucas v. Turn Key Health Clinics, LLC, 58 F. 4th 1127, 1145 (10th Cir. 2023) (holding the plaintiff did not state a claim where there were “simply no facts in Plaintiff's complaint from which one can infer a policy or custom of cost-cutting”). For a formal policy, a plaintiff “‘can simply allege what the policy is and where it is codified.'” Gatlin, 2022 WL 474282, at *6 (quoting Griego, 100 F.Supp.3d at 1213). “As to informal customs, a plaintiff may plead either a pattern of multiple similar instances of misconduct or use other facts, such as jail official's statements attesting to the policy's existence.” Foreman v. Okla. Cnty. Sheriff, No. CIV-21-1062-F, 2022 WL 2513384, at *5 (W.D. Okla. July 6, 2022).

Plaintiff makes a conclusory assertion that Defendants “instituted and affirmed a policy, practice, procedure & custom pursuant to which inmates at the Oklahoma County Detention Center are placed in uninhabitable living conditions due to...