Hodge v. Hamilton et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
DANNY HODGE, JR., )
)
Plaintiff, )
)
v. ) Case No. CIV-24-823-HE
)
CASEY HAMILTON, et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
Plaintiff Danny Hodge, Jr., proceeding pro se, seeks civil rights relief under 42
U.S.C. § 1983, claiming violations of his federal constitutional rights while incarcerated at
the Great Plains Correctional Center. United States District Judge Joe Heaton referred this
matter for initial proceedings under 28 U.S.C. § 636(b)(1)(B)-(C), and the case was later
reassigned to the undersigned Magistrate Judge. Docs. 4, 7.
The undersigned recommends that the Court partially dismiss Plaintiff’s Complaint
with prejudice as to:
• claims seeking monetary damages and retrospective injunctive relief
against all Defendants in their official capacities, as they are not
“persons” under § 1983; and
• claims for injunctive relief against Defendants in their individual
capacities because such relief is not available under § 1983.
The undersigned further recommends that the Court dismiss without prejudice:
• Plaintiff’s Eighth Amendment claim for failure to protect against
Warden Hamilton, Corrections Officer Day, and Case Manager
Mitchell in their individual capacities seeking monetary damages and
in their official capacities seeking prospective injunctive relief for
failure to state a claim; and
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• claims for failure to train, denied access to the courts, and retaliation
against all Defendants in their individual capacities seeking monetary
damages for failure to state a claim.
Adoption of this Report and Recommendation would dismiss all of Plaintiff’s
claims except for his claim alleging failure to protect against Deputy Warden Reynolds,
Lt. Williamson, Corrections Officer Clark, and Case Manager Cox seeking (1) monetary
damages in their individual capacities and (2) prospective injunctive relief in their official
capacities.
I. Relevant Background and Plaintiff’s Suit
Plaintiff’s claims arise from events allegedly occurring at the Great Plains
Correctional Center (“GPCC”) in Hinton, Oklahoma. Doc. 1 (“Compl.) at 1. GPCC is a
prison operated by the Oklahoma Department of Corrections. Plaintiff names the following
Defendants in the Complaint:
1) Warden Casey Hamilton,
2) Deputy Warden Bo Reynolds,1
3) Lieutenant Williamson,
4) Corrections Officer Clark,2
5) Corrections Officer Day,
6) Case Manager Cox, and
1 Plaintiff alternately spells the Deputy Warden’s last name as “Reyonalds” and
“Reynalds.” For consistency, the undersigned uses “Reynolds,” even when quoting
Plaintiff’s use of a different spelling.
2 Plaintiff identifies Defendants Clark and Day as “CO Clark” and “CO Day.” The
undersigned believes their title is Corrections Officer. Plaintiff also identifies Defendants
Cox and Mitchell as “CM Cox” and “CM Mitchell.” The undersigned believes their title
is Case Manager.
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7) Case Manager Mitchell.
Doc. 1-1 at 1. All Defendants are named in their individual and official capacities. Id.
Plaintiff’s claims arise from two alleged assaults at GPCC. As to the first assault,
around March 15, 2024, Plaintiff alleges two fellow inmates extorted him and his mother.
Id. at 2. When Plaintiff “stood up to them and said no more,” another inmate “pulled
[Plaintiff’s] pants [down] and sodomized [him] with a broken broom stick,” causing him
to bleed.3 Id. After his mother alerted the prison to the sexual assault, “deputy warden Bo
Reynolds and a Lt. came to get [Plaintiff],” but when Plaintiff told them what happened,
“they told [Plaintiff he] was lying and just high.” Id. After a negative drug test, the two
prison officials returned Plaintiff to the unit and the lieutenant “yelled to the pod ‘[y]ou
guys stop sticking broom sticks up this guy[’]s ass.’” Id. at 2-3. The next morning, the
inmate who had sodomized Plaintiff allegedly paid another inmate “to come over and teach
[Plaintiff] a lesson for telling on him.” Id. at 3. The inmate “punched [Plaintiff] one time
and split [his] lip in two pieces which required surgery.” Id. Plaintiff alleges Defendant
Cox declined to move him after the first assault, telling him he “was just in debt for drugs
and [] needed to pay [his] bills.” Id. at 3. Plaintiff also claims Defendants Cox,
Williamson, and Reynolds “failed to act to protect [him] and returned him to the unit in
which [he] was assaulted again the next day.” Id. at 3, 5.
Plaintiff further alleges—several months later, when an inmate was threatening him
again—that he “notified CM Mitchell that [Plaintiff] was not going back on the unit.” Id.
3 For ease of reading, the undersigned has altered some capitalization in quotes from
Plaintiff’s filings.
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at 5. Plaintiff claims that Defendant Clark then “said in front of everyone on EF ‘[t]he
reason you don’t want to go back to the unit is your caching [sic] out!’” Id. at 5. According
to Plaintiff, he told Defendant Mitchell about Defendant Clark’s prior comments and said,
“out of frustration,” that Plaintiff “fe[lt] like punching CO Clark in the mouth for
endangering [him] & trying to get [him] butt raped again.” Id. at 5. Plaintiff claims he
was then placed in segregation, where he had been for more than sixty days at the time of
filing. Id. at 4-5. Plaintiff claims he is “so scared of inmates,” he fears future assaults, and
“staff . . . keep torturing [him] telling [him] they are going to send [him] back to the yard.”
Id. Finally, Plaintiff alleges that Defendant Hamilton “has allowed these things to happen
to [him] and numerous others” and is “aware” of these assaults. Id. at 4.
Liberally construed, Plaintiff claims Defendants’ actions amounted to failure to
protect, failure to act, and failure to train, all in violation of his Eighth Amendment rights.
Compl. at 3. He also claims Defendants violated his Fourteenth Amendment rights by
denying him access to the courts and his First Amendment rights by retaliating against him
for availing himself of the prison administrative grievance process. Id. Plaintiff seeks
monetary damages and injunctive relief “to prevent [himself] & others from further harm.”
Id. at 5.
II. Screening
When a plaintiff proceeds in forma pauperis, the Court has a duty to screen the
complaint and dismiss any part that is frivolous or malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief against a defendant immune from
such relief. 28 U.S.C. § 1915(e)(2)(B). The Court has the same duty when a prisoner seeks
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relief against a governmental entity or an officer or employee of a governmental entity. 28
U.S.C. § 1915A(a)-(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). When evaluating whether a complaint adequately states a claim
under § 1983, the Court “must accept the allegations of the complaint as true and construe
those allegations, and any reasonable inferences that might be drawn from them, in the
light most favorable to the plaintiff.” Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007)
(internal quotation marks omitted) (discussing standard of review for failure to state a claim
under 28 U.S.C. § 1915(e)(2)(B)(ii)); see also Requena v. Roberts, 893 F.3d 1195, 1204-
05 (10th Cir. 2018) (discussing standard of review for failure to state a claim under
28 U.S.C. § 1915A(b)(1)). Importantly, a complaint may not offer only “naked assertions
devoid of further factual enhancement,” but instead “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) (cleaned up). Given this requirement for well-pled facts, the
Court will not accept legal conclusions unsupported by adequate factual allegations. Id.
Instead, the Court will review a complaint to determine whether a plaintiff has pled “factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id.
To that end, a plaintiff must “state [his] claims intelligibly so as to inform the
defendants of the legal claims being asserted.” Mann v. Boatright, 477 F.3d 1140, 1148
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(10th Cir. 2007). The “complaint must explain what each defendant did to [the plaintiff];
when the defendant did it; how the defendant’s action harmed [the plaintiff]; and, what
specific legal right the plaintiff believes the defendant violated.” Nasious v. Two Unknown
B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). While “[a] pro se litigant’s
pleadings are to be construed liberally and held to a less stringent standard than formal
pleadings drafted by lawyers,” pro se plaintiffs must still comply with these minimal
pleading requirements. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). “[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.” Id. The Court will not provide a plaintiff with
arguments or act as his advocate. Id.
III. Analysis
A. Claims against Defendants in their official capacities seeking monetary
damages and retrospective injunctive relief: the Court should dismiss
these claims because Defendants are not “persons” under § 1983.
“[A] suit against a state official in his or her official capacity is not a suit against the
official but rather is a suit against the official’s office.” Will v. Mich. Dep’t of State Police,
491 U.S. 58, 71 (1989). Accordingly, a plaintiff’s § 1983 action seeking monetary
damages or retrospective injunctive relief against state officials in their official capacity
has two primary impediments to success.4 The first is the statutory hurdle that “[s]tates or
4 Plaintiff does not explicitly seek retrospective injunctive relief against Defendants, but
the undersigned liberally construes the Complaint to request such relief. Plaintiff does seek
prospective injunctive relief against Defendants, as discussed in Section III(C), infra.
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governmental entities that are considered ‘arms of the State’ for Eleventh Amendment
purposes” are not “persons” subject to suit under § 1983. Id. at 70-71 (quoting Mt. Healthy
Bd. of Ed. v. Doyle, 429 U.S. 274, 280 (1977)). The second is the constitutional hurdle that
due to a State’s “Eleventh Amendment immunity[,] . . . a State cannot be sued directly in
its own name regardless of the relief sought.” Kentucky v. Graham, 473 U.S. 159, 167 n.14
(1985).5
Plaintiff brings his claims against various Defendants, all of whom are “employees
of Great Plains Correctional Center.” Doc. 1-1 at 1. The GPCC is a state prison operated
by the Oklahoma Department of Corrections, which “is an arm of the [S]tate” of Oklahoma.
Eastwood v. Dep’t of Corrs. of State of Okla., 846 F.2d 627, 632 (10th Cir. 1988). Suing
Defendants in their official capacities is therefore “another way of pleading an action
against an entity of which an officer is an agent.” Graham, 473 U.S. at 165 (quoting Monell
v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)); see also Blue v. Uzuegbunem,
No. CIV-24-1045-R, 2024 WL 5265070, at *5 (W.D. Okla. Nov. 27, 2024) (R&R)
(treating claims against GPCC officers in their official capacities as claims against the
state), adopted, 2024 WL 5264464 (W.D. Okla. Dec. 31, 2024).
Plaintiff’s claims against arms of the state are therefore an action (1) against
defendants who are not “persons” subject to suit under § 1983 and (2) that seeks monetary
5 Exceptions to the sovereign immunity bar exist where a state waives Eleventh
Amendment immunity or when Congress has abrogated a state’s immunity. Pettigrew v.
Okla. ex rel. Okla. Dep’t of Public Safety, 722 F.3d 1209, 1212 (10th Cir. 2013). Neither
exception applies here. Quern v. Jordan, 440 U.S. 332, 345 (1979); Okla. Stat. tit. 51,
§ 152.1(B).
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damages or retrospective injunctive relief against defendants immune from such relief. The
Court has two separate options for dismissing these claims. “Some statutory questions are
both logically antecedent to and similar in scope to the Eleventh Amendment inquiry.”
Harris v. Owens, 264 F.3d 1282, 1288 (10th Cir. 2001). In such circumstances, courts “can
address whether a statute permits a suit against the state before deciding the Eleventh
Amendment question.” Id. (citing Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S.
765, 779-80 (2000) (ruling that it is “possible, and indeed appropriate, to decide the
statutory” question before the “Eleventh Amendment question”)).
With this framework in mind, the undersigned recommends that the Court first
consider the scope of § 1983 and dismiss with prejudice Plaintiff’s claims for damages and
retrospective injunctive relief because Defendants in their official capacities are not
“persons” subject to suit under § 1983. See Tufaro v. Okla. ex rel. Bd. of Regents of Univ.
of Okla., 107 F.4th 1121, 1135 (10th Cir. 2024) (affirming a district court’s dismissal with
prejudice of § 1983 damages claims against the University of Oklahoma and university
officials because “none of the defendants are a ‘person’ under § 1983” and “state officials
sued in their official capacities are treated as extensions of the state rather than ‘persons’
subject to § 1983”).
Alternatively, should the Court decide to dismiss only upon the grounds that
Plaintiff seeks monetary damages and retrospective injunctive relief against a party
immune from such relief under the Eleventh Amendment, the undersigned recommends
dismissal of the claims without prejudice against Defendants in their official capacities.
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See, e.g., Colby v. Herrick, 849 F.3d 1273, 1278 (10th Cir. 2017) (noting that “Eleventh
Amendment immunity is jurisdictional” and dismissal should be “without prejudice”).
B. Claims against Defendants in their individual capacities seeking
injunctive relief: the Court should dismiss these claims because such
relief is not available under § 1983.
“Section 1983 plaintiffs may sue individual-capacity [state-officer] defendants only
for money damages and official-capacity [state-officer] defendants only for injunctive
relief.” Brown v. Montoya, 662 F.3d 1152, 1161 n.5 (10th Cir. 2011); see also Hafer v.
Melo, 502 U.S. 21, 27, 30 (1991). Plaintiff may not seek injunctive relief from state
officials—like Defendants—in their individual capacities. The undersigned therefore
recommends that the Court dismiss with prejudice Plaintiff’s claims for injunctive relief
against all Defendants in their individual capacities. See, e.g., Johnson v. Crow, No. CIV-
20-426-R, 2020 WL 6051344, at *3 (W.D. Okla. July 30, 2020) (R&R) (recommending
dismissal with prejudice of § 1983 plaintiff’s individual-capacity claim seeking injunctive
relief against state officer), adopted, 2020 WL 6051306 (W.D. Okla. Oct. 13, 2020); Toles
v. Okla. Dep’t of Corr., No. CIV-17-150-SLP, 2017 WL 7734648, at *4 (W.D. Okla. July
27, 2017) (R&R) (recommending dismissal with prejudice for “any individual-capacity
claims for injunctive relief” against § 1983 state-officer defendants), adopted, 2018 WL
992046 (W.D. Okla. Feb. 20, 2018).
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C. Claims against Defendants Hamilton, Day, and Mitchell in their
individual capacities seeking monetary damages and in their official
capacities seeking prospective injunctive relief: the Court should
dismiss Plaintiff’s Eighth Amendment claim for failure to protect based
on a failure to state a claim.6
“A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to
an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828 (1994).
“A prison official who ‘knows of and disregards an excessive risk to inmate health or
safety’ is deliberately indifferent for these purposes.” Benefield v. McDowall, 241
F.3d 1267, 1271 (10th Cir. 2001) (quoting Farmer, 511 U.S. at 837). Therefore, “to
establish a cognizable Eighth Amendment claim for failure to protect, a plaintiff ‘must
show that he is incarcerated under conditions posing a substantial risk of serious harm,’ the
objective component, and that the prison official was deliberately indifferent to his safety,
the subjective component.” Id. (quoting Farmer, 511 U.S. at 834). “[T]he Eighth
Amendment may be implicated not only to physical injury, but also by the infliction of
psychological harm. The actual extent of any physical injury, threats or psychological
injury is pertinent in proving a substantial risk of serious harm.” Id. at 1272.
First, as to Defendant Hamilton, Plaintiff alleges the Warden “allowed [the assaults
and retaliation] to happen to [him] and numerous others” and that he is “aware” of the
6 Though Plaintiff alleges both failure to protect and failure to act, Compl. at 3, the
undersigned considers them together as one claim for failure to protect. See Farmer v.
Brennan, 511 U.S. 825, 842 (1994) (“[A]n Eighth Amendment claimant need not show
that a prison official acted or failed to act believing that harm actually would befall an
inmate; it is enough that the official acted or failed to act despite his knowledge of a
substantial risk of serious harm.”).
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alleged conduct at GPCC. Doc. 1-1 at 4. Under § 1983, however, a supervisor “may not
be held liable for the unconstitutional conduct of their subordinates under a theory of
respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Plaintiff may only
“succeed in a § 1983 suit against a defendant-supervisor by demonstrating: (1) the
defendant promulgated, created, implemented or possessed responsibility for the continued
operation of a policy that (2) caused the complained of constitutional harm, and (3) acted
with the state of mind required to establish the alleged constitutional deprivation.” Dodds
v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010).
Plaintiff’s allegations fall short against Defendant Hamilton. To plead adequately
a failure-to-protect claim, Plaintiff must allege Defendant Hamilton acted or failed to act
with deliberate indifference to his safety. This means a defendant “must both be aware of
facts from which the inference could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.” Farmer, 511 U.S. at 837. Plaintiff’s allegation—
that the Warden is aware of assaults and other misconduct against Plaintiff and “numerous
others” and allowed them to continue—is a “[t]hreadbare recital[] of the elements of [his]
cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678;
compare Keith v. Koerner, 707 F.3d 1185, 1189 (10th Cir. 2013) (affirming district court’s
ruling, on a motion to dismiss, that the plaintiff had sufficiently alleged a defendant’s
supervisor liability based on, among others, “reports of at least 54 incidents of sexual
misconduct and 33 incidents of undue familiarity between 2005 and 2009 and to a 2005
lawsuit over strip searches at [the facility], suggesting that [the defendant-supervisor] may
have had knowledge of these accounts”).
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Further, to state a claim under § 1983, a complaint must describe how the defendant
was personally involved in the constitutional violation. Trujillo v. Williams, 465 F.3d
1210, 1227 (10th Cir. 2006); see also Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir.
1976) (“Personal participation is an essential allegation in a § 1983 claim.”). With multiple
defendants, “[i]t is particularly important in such circumstances that the complaint make
clear exactly who is alleged to have done what to whom, to provide each individual with
fair notice as to the basis of the claims against him or her.” Robbins v. Oklahoma, 519
F.3d 1242, 1250 (10th Cir. 2008). Plaintiff alleges only that “CO Day walked [him] to
medical” after getting punched in the lip, Doc. 1-1 at 3, and Plaintiff provides no factual
allegation about any failure to protect by Defendant Mitchell. Plaintiff’s Complaint does
not satisfy either component of the deliberate indifference test against Defendant Day and
Defendant Mitchell.
Accordingly, Plaintiff fails to state an Eighth Amendment failure-to-protect claim
against Defendants Hamilton, Day, and Mitchell in their individual capacities, and the
undersigned recommends that the Court dismiss Plaintiff’s claim against these Defendants
without prejudice.
Finally, Plaintiff’s request for prospective injunctive relief against Defendants in
their official capacities is tied to his allegations of failure to protect. Plaintiff seeks
injunctive relief “to prevent [himself] & others from further harm.” Compl. at 5. For the
reasons previously described in this section, the undersigned recommends that the Court
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dismiss any claim for prospective injunctive relief against Defendants Hamilton, Day, and
Mitchell in their official capacities.7
D. Claims against Defendants in their individual capacities seeking
monetary damages: the Court should dismiss Plaintiff’s claim of failure
to train for failure to state a claim.
Liberally construed, Plaintiff claims Defendants generally failed to train prison
officials to protect inmates. Doc. 1 at 3. Plaintiff does not explain, though, which
Defendants he believes were responsible for inadequately training other prison officials—
or what training they failed to provide. Plaintiff’s allegations do not satisfy the requirement
that “a complaint must explain what each defendant did to [the plaintiff]; when the
defendant did it; how the defendant’s action harmed [the plaintiff]; and, what specific legal
right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E.
Agents, 492 F.3d 1158, 1163 (10th Cir. 2007); see also Pahls v. Thomas, 718 F.3d 1210,
1226 (10th Cir. 2013) (noting “it is incumbent upon a plaintiff to identify specific actions
7 The undersigned liberally construes Plaintiff’s allegations against Defendants Reynolds,
Williamson, Clark, and Cox, see Doc. 1-1 at 2-5, and is not recommending disposition of
any failure-to-protect claim against these Defendants—either for monetary damages in
their individual capacities or for prospective injunctive relief in their official capacities.
Plaintiff alleges that each of these Defendants knew that Plaintiff had been sexually
assaulted with a broken broom handle and failed to protect him from that dangerous
situation, resulting in a second physical assault. See, e.g., Turner v. Okla. Cnty. Bd. of
Cnty. Comm’rs, 804 F. App’x 921, 926 (10th Cir. 2020) (explaining the subjective
component of a deliberate indifference claim is satisfied when a plaintiff’s allegations
establish that prison officials “possess enough details about a threat to enable them to
conclude that it presents a strong likelihood of injury, not a mere possibility”); Gilbert-
Mitchell v. Gerlach, No. CIV-17-732-HE, 2017 WL 9478509, at *5 (W.D. Okla. Sept. 22,
2017) (R&R) (“Sexual assault satisfies the ‘objective component’ required to state an
Eighth Amendment claim.” (collecting cases)), adopted, 2017 WL 6316634 (W.D. Okla.
Dec. 11, 2017).
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taken by particular defendants in order to make out a viable § 1983 . . . claim” (internal
quotation marks omitted)).
Even assuming Plaintiff intended this claim to apply to Defendant Hamilton,
Defendant Reynolds, and Defendant Williamson—who, based on their titles, could
plausibly manage and train other prison officials—Plaintiff’s allegations still fail. “It is
not enough to allege general deficiencies in a particular training program.” Keith v.
Koerner, 843 F.3d 833, 838 (10th Cir. 2016) (internal quotation marks omitted). Instead,
“a plaintiff must identify a specific deficiency in the entity’s training program closely
related to his ultimate injury, and must prove that the deficiency in training actually caused
his jailer to act with deliberate indifference to his safety.” Id. (cleaned up). Plaintiff’s bare
allegations do not satisfy this pleading standard for deliberate indifference based on
inadequate training. Accordingly, Plaintiff fails to state a claim for failure to train against
Defendants, and the undersigned recommends that the Court dismiss this claim against all
Defendants in their individual capacities.
E. Claims against Defendants in their individual capacities seeking
monetary damages: the Court should dismiss Plaintiff’s claim of denied
access to the courts for failure to state a claim.
Plaintiff claims Defendants denied him access to the courts. He claims “all staff
involved” “prevented [him] from accessing the grievance procedure” and “retaliated
against [him] for trying to access the courts.” Doc. 1-1 at 4. Plaintiff alleges “CM [Case
Managers] & UMs [Unit Managers] have a habit of destroying grievances that expose”
their misdeeds. Compl. at 5. Plaintiff later avers that “UM [Unit Managers] typically will
destroy grievances of this nature.” Doc. 1-1 at 4.
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To assert a claim for denial of access to the courts under the Fourteenth Amendment,
Plaintiff must allege “that the denial of legal resources hindered the prisoner’s efforts to
pursue a nonfrivolous claim.” Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir. 1996).
Plaintiff generally alleges only obstruction of the administrative grievances process. Any
such interference, though, is not a denial of the right to access the courts because “there is
no independent constitutional right to state administrative grievance procedures.” Boyd v.
Werholtz, 443 F. App’x 331, 332 (10th Cir. 2011). “Nor does the state’s voluntary
provision of an administrative grievance process create a liberty interest in that process.”
Id.; accord Strange v. Oklahoma, No. CIV-20-1107-J, 2021 WL 867866, at *4 (W.D. Okla.
Feb. 8, 2021) (R&R) (collecting cases), adopted, 2021 WL 864146 (W.D. Okla. Mar. 8,
2021). As a result, “any alleged deprivation of the prison grievance process here fail[s] to
implicate [Plaintiff’s] right of access to the courts.” Boyd, 443 F. App’x at 332. Thus,
Plaintiff fails to state a claim against Defendants for denial of access to the courts, and the
undersigned recommends that the Court dismiss this claim without prejudice.
F. Claims against Defendants in their individual capacities seeking
monetary damages: the Court should dismiss Plaintiff’s retaliation
claim for failure to state a claim.
Plaintiff also claims Defendants retaliated against him for filing administrative
grievances with prison officials in violation of the First Amendment. Compl. at 3; Doc. 1-
1 at 4. He alleges he “filed grievances trying to exhaust remedies,” after which “it got
much worse for [him] and all involved retaliated.” Compl. at 5; see also Doc. 1-1 at 4
(claiming “all staff involved . . . retaliated against [him] for trying to access the courts and
prevented [him] from accessing the grievance procedure”). Plaintiff alleges “CM [Case
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Managers] & UM’s [Unit Managers] have a habit of destroying grievances that expose
these things.” Compl. at 5. And he claims “UM [Unit Manager] typically will destroy
grievances of this nature,” referring to his treatment while in custody. Doc. 1-1 at 4.
“[P]rison officials may not retaliate against or harass an inmate because of the
inmate’s exercise of his right of access to the courts.” Gee v. Pacheco, 627 F.3d 1178,
1189 (10th Cir. 2010) (internal quotation marks omitted). This includes a prisoner’s right
to file administrative grievances. Williams v. Meese, 926 F.2d 994, 998 (10th Cir. 1991)
(ruling that prison officials may not retaliate against a prisoner “for exercising his first
amendment rights” by “filing administrative grievances”); see also Booker v. S.C. Dep’t of
Corr., 855 F.3d 533, 542 (4th Cir. 2017) (“[A]lthough inmates do not have a constitutional
entitlement to and/or due process interest in accessing a grievance procedure, they have a
First Amendment right to be free from retaliation when they do file.”).
To state a plausible First Amendment retaliation claim, a plaintiff must allege:
“(1) that the plaintiff was engaged in constitutionally protected activity; (2) that the
defendant’s actions caused the plaintiff to suffer an injury that would chill a person of
ordinary firmness from continuing to engage in that activity; and (3) that the defendant’s
adverse action was substantially motivated as a response to the plaintiff’s exercise of
constitutionally protected conduct.” Shero v. City of Grove, 510 F.3d 1196, 1203 (10th
Cir. 2007).
Plaintiff’s “filing of a grievance qualifies as protected activity under the first
element” for a retaliation claim. Johnson v. Whitney, 723 F. App’x 587, 594 (10th Cir.
2018). Further, allegations with “facial plausibility” that “contain sufficient factual
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matter,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), of prison officials destroying
grievances in response to the prisoner’s attempts to file those grievances can satisfy the
second and third elements. See, e.g., Richards v. Perttu, 96 F.4th 911, 918-20 (6th Cir.
2024) (ruling that a state prisoner plausibly alleged that he suffered an adverse action by
claiming that he attempted to file grievances against a prison official but in response to the
grievances, the prison official allegedly destroyed the grievances).
Plaintiff’s allegations, however, do not contain sufficient factual matter to explain
how and why each Defendant allegedly retaliated against him. See Nasious v. Two
Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). Plaintiff alleges simply
that “all staff involved . . . retaliated against” him. Doc. 1-1 at 4. Plaintiff’s
“undifferentiated contention that ‘defendants’ infringed his rights,” Pahls v. Thomas, 718
F.3d 1210, 1226 (10th Cir. 2013), is insufficient to state a retaliation claim because he fails
to allege specific action by each prison official. Further, he speculates involvement by
Defendants based on claims that unidentified “CM [Case Manager] & UM’s [Unit
Managers] have a habit of destroying grievances that expose these things,” Compl. at 5,
and the unidentified “UM [Unit Manager] typically will destroy grievances of this nature,”
Doc. 1-1 at 4. Plaintiff does not make particularized allegations that his grievances
substantially motivated any Defendant to destroy his grievances or otherwise retaliate
against him. As a result, Plaintiff fails to state a claim for retaliation against Defendants,
and the undersigned recommends that the Court dismiss this claim without prejudice.
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IV. Recommendation and Notice of Right to Object
After screening Plaintiff’s Complaint, Doc. 1, the undersigned recommends for the
foregoing reasons that the Court DISMISS WITH PREJUDICE:
• claims seeking monetary damages and retrospective injunctive relief
against all Defendants in their official capacities because they are not
“persons” under § 1983; and
• claims for injunctive relief against Defendants in their individual
capacities because such relief is not available under § 1983.
The undersigned further recommends that the Court DISMISS WITHOUT
PREJUDICE:
• Plaintiff’s Eighth Amendment claim for failure to protect against
Defendants Hamilton, Day, and Mitchell in their individual capacities
seeking monetary damages and in their official capacities seeking
prospective injunctive relief for failure to state a claim; and
• claims for failure to train, denied access to the courts, and retaliation
against all Defendants in their individual capacities seeking monetary
damages for failure to state a claim.
Accordingly, adoption of this Report and Recommendation would dismiss all of
Plaintiff’s claims except for his claim for failure to protect against Defendants Clark,
Williamson, Reynolds, and Cox seeking monetary damages in their individual capacities
and prospective injunctive relief in their official capacities.
Plaintiff is advised of his right to object to this Report and Recommendation. See 28
U.S.C. § 636. Any objection must be filed with the Clerk of this Court by April 18, 2025.
See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to object timely waives the
right to appellate review of the factual and legal issues addressed in this Report and
Recommendation. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
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This Report and Recommendation does not terminate the referral in this matter.
ENTERED this 28th day of March, 2025.
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