Huffman v. Gregory et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JARMAIL HUFFMAN, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-24-1268-R
)
CHARLES GREGORY et al., 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
Jarmail Huffman (Plaintiff), a state prisoner proceeding pro se and in
forma pauperis, seeks civil rights relief under 42 U.S.C. § 1983. Doc. 1.1 United
States District Judge David L. Russell referred the matter to the undersigned
Magistrate 	Judge 	for 	initial 	proceedings 	consistent 	with 	28 	U.S.C.
§ 636(b)(1)(B), (C). Doc. 4. The undersigned recommends partial dismissal of
Plaintiff’s claims, as set forth below.
I. 	Screening.
This Court must screen complaints filed by prisoners seeking relief
against 	a 	governmental 	entity 	or 	its 	officer 	or 	employee. 	28 	U.S.C.
§§ 1915(e), 1915A(a). The Court must dismiss the complaint, or any portion of
the complaint, if it “is frivolous, malicious, or fails to state a claim upon which
1 	Citations to a court document are to its electronic case filing designation
and pagination. Except for capitalization, quotations are verbatim unless
otherwise indicated.
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relief may be granted,” or “seeks monetary relief from a defendant who is
immune from such relief.” Id. §§ 1915(e), 1915A(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). “[A] 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); see also Gee v. Pacheco, 627
F.3d 1178, 1184-85 (10th Cir. 2010).
This Court construes “[a] pro se litigant’s pleadings . . . liberally,” holding
them “to a less stringent standard than formal pleadings drafted by lawyers.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v.
Kerner, 404 U.S. 519, 520 (1972) (per curiam)). The Court, however, may not
serve as Plaintiff’s advocate, creating arguments on his behalf. See Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
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II. 	Background and Plaintiff’s claims.
Plaintiff is incarcerated at the Lawton Correctional Facility (LCF), a
private prison facility which Defendant GEO Group, Inc. operates. Doc. 1, at
4-5. He alleges Defendants Charles Gregory and Gabriel Guitierrez, members
of the Certified Emergency Response Team at LCF, assaulted him on June 26,
2024. Id. at 4, 11-12. Plaintiff states that on this day members of the emergency
response team directed all inmates on his unit to lock down in their cells. Id.
at 13. Upon arriving at Plaintiff’s cell, they told him to wait at a table in the
day 	room 	while 	they 	searched 	his 	cell. 	Id. 	When 	Plaintiff 	went 	to 	the
microwave to heat up some food, they told him to sit back down at the table.
Id.
As Plaintiff was sitting down at the table, Defendants sprayed him from
fifteen 	feet 	away 	“with 	their 	chemical 	agent 	(‘O.C.’ 	spray; 	designed 	to
incapacitate 	a 	person 	. 	. 	., 	which 	is 	extremely 	painful, 	having 	a
burning/stinging 	sensation).” 	Id. 	at 	13-14. 	Defendants 	then 	handcuffed
Plaintiff’s hands behind his back and put him in the shower, “turn[ing] the
shower nozzle spray [ ] on directly, forcefully, and intentionally causing the
shower spray water to spray direction into [Plaintiff’s] face, nose nostrils, and
mouth for about three terrifying minutes.” Id. at 14. When Plaintiff told
Defendants that “he couldn’t breathe properly due to the combination of being
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pepper sprayed, the shower water coming into [his] nostrils/mouth and throat,”
exacerbated by his “medical problems from having a past open-heart surgery,”
Defendants “laughed saying, ‘Good, we hope you die!” Id. When they took
Plaintiff out of the shower, Defendants “slamm[ed] [] Plaintiff into the concrete
ground . . ., while bending [his] handcuffed arms . . . up and unnaturally
backwards.” Id. At some point, Plaintiff “inadvertently urinated on himself.”
Id. at 20.
During this “excessive force incident,” Plaintiff advised Defendants that
he intended to file an administrative grievance against them. Id. Defendants
“then briefly walked Plaintiff back down the staircase and then put Plaintiff
back in the shower (fully clothed and still handcuffed).” Id. at 20-21. When
Defendants walked Plaintiff back upstairs to his cell, he asked that they allow
him to change his wet clothes and take an “actual” shower without clothes and
with the benefit of soap before changing into clean dry clothes. Id. at 21. He
also asked that they provide him medical attention, having been advised by
other inmates that a nurse had arrived on the unit. Id. at 15, 21. Defendants
advised 	Plaintiff 	that “the []reason 	that they both [ 	] 	refused” 	to grant
Plaintiff’s requests was that Plaintiff “had just [ ] verbally advised Defendants
Gregory and Guitierrez that [he] would be filing an administrative grievance
complaint against both Defendants Gregory and Guitierrez about their [ ]
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unconstitutional behavior.” Id. at 21-22. Defendants then locked Plaintiff
inside his cell while still handcuffed and left him unattended for fifteen
minutes. Id. at 22.
After they returned and removed his handcuffs, they left Plaintiff in his
cell with wet, dirty, urine-soaked clothes for twenty-four hours while his unit
was on lockdown. Id. at 23. Plaintiff admits he had other clothing inside his
cell but claims those clothes “were dirty and unusable.” Id. at 21. During this
time, Plaintiff’s cell was air conditioned to the mid-sixties. Id. at 24. Plaintiff
states he could not sleep during this twenty-four-hour period, leading to,
among other problems, “an extraordinarily painful . . . migraine headache”
with a pain level of eight that lasted another twenty-four hours after the
lockdown was lifted. Id.
Plaintiff alleges that the pepper spray caused him persistent “painful
blurred vision” and “inability to see correctly” for five to seven days, with a
pain level of seven out of ten; persistent “burning [and] stinging pain” on his
face and upper body for about five days, with a pain level of seven; and
persistent “burning [and] stinging” in his throat and lungs, with “suffocating
inability to breathe correctly,” for about five days, with a pain level of seven.
Id. at 15. He alleges persistent pain in his shoulders with a pain level of eight
for about seven days, after which the pain level subsided to a level of four, from
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Defendants’ handcuffing technique and their slamming him into the ground.
Id. at 15-16. He alleges that being made to wait out the twenty-four-hour
lockdown in wet and soiled clothing caused a “urine rash” on his “genitals,
buttocks, and lower thighs,” with a pain level of seven. Id. at 26.
Plaintiff also alleges ongoing moderate to severe anxiety and depression
manifesting in insomnia, migraine headaches, panic attacks, fear of GEO
Group prison staff, and inability to maintain healthy social relationship with
his family and friends. Id. at 16. Plaintiff alleges he has sought medical care
for all of these psychiatric and emotional problems. Id. at 17.
Plaintiff brings six claims for relief—four for violations of the Eighth
Amendment prohibition on cruel and unusual punishment, one for retaliation
for exercising his First Amendment right to access the courts, and one for
failure to train. See generally Doc. 1. Together with GEO Group, he names
Defendants Gregory, Guitierrez, and Hood in their individual and official
capacities. Id. at 4-5. For relief, he seeks only money damages. Id. at 19, 30,
40, 48, 56, 69.
III. 	The Court should dismiss Plaintiff’s claims against all individual
Defendants in their official capacities.
Plaintiff 	sues 	Defendants 	Gregory, 	Guitierrez, 	and 	Hood 	in 	their
individual and official capacities. But they are employees of a private prison,
not state officials. See, e.g., Jaquez v. Lawton Corr. Facility, No. CIV-11-1066-
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F, 2013 WL 5972413, at *1 (W.D. Okla. Nov. 8, 2013) (“Lawton Correctional
Facility is a private prison facility owned and operated by Geo Group, Inc.”).
So Plaintiff cannot assert official capacity claims under § 1983 against them.
See Jones v. Barry, 33 F. App’x 967, 971 n.5 (10th Cir. 2002) (“[T]he [private
prison] defendants are not state actors, and they do not have an ‘official
capacity’ . . . .”); Alamiin v. Patton, No. CIV-13-1001-F, 2016 WL 7217857, at
*6 n.6 (W.D. Okla. Dec. 13, 2016) (finding LCF employees were not state
officials and official capacity claims could not be asserted against them).
The undersigned therefore recommends the Court dismiss Plaintiff’s
claims against Defendants Gregory, Guitierrez, and Hood in their official
capacities with prejudice. See Miskam v. Sherrod, No. CIV-14-646-HE, 2015
WL 4717105, at *3 (W.D. Okla. Aug. 7, 2015) (“Plaintiff’s claims against the
[private prison] defendants in their official capacities seeking monetary relief
are dismissed with prejudice.”).
That leaves only Plaintiff’s claims against Defendant GEO Group,2 as
well as his claims against Defendants Gregory, Guitierrez, and Hood in their
individual capacities, which the Court addresses infra.
2 	Plaintiff also names GEO Group in its individual and official capacities.
But as a business entity, the private prison contractor has only one capacity in
which to be sued.
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IV. 	Eighth Amendment claims.
The Eighth Amendment’s prohibition on cruel and unusual punishments
means 	prison 	officials 	may 	not 	use 	“excessive 	physical 	force 	against 	a
prisoner.” Hudson v. McMillian, 503 U.S. 1, 4 (1992). They must also “[e]nsure
that 	inmates 	receive 	adequate 	food, 	clothing, 	shelter 	and 	medical 	care.”
Shannon v. Graves, 257 F.3d 1164, 1168 (10th Cir. 2001) (citing Farmer v.
Brennan, 511 U.S. 825, 832 (1994)). Plaintiff brings one claim for excessive
force and three related claims for constitutionally inadequate conditions of
confinement based on deprivation of adequate medical care, deprivation of
basic 	hygiene, 	and 	deprivation 	of 	adequate 	clothing. 	He 	names 	all 	four
Defendants.
A. 	Eighth 	Amendment 	claims 	against 	Defendants 	Gregory
and Guitierrez.
1. 	Plaintiff states a plausible excessive force claim.
The 	Eighth 	Amendment 	prohibition 	against 	cruel 	and 	unusual
punishment protects against “the unnecessary and wanton infliction of pain.”
Hudson, 503 U.S. at 5 (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)); see
also Est. of Booker v. Gomez, 745 F.3d 405, 419 (10th Cir. 2014) (“[C]laims of
excessive 	force 	involving 	convicted 	prisoners 	arise 	under 	the 	Eighth
Amendment.”). “To make out a claim that officers applied excessive force in
violation of the Eighth Amendment, a plaintiff must allege facts addressing
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‘whether 	force 	was 	applied 	in 	a 	good-faith 	effort 	to 	maintain 	or 	restore
discipline, or maliciously and sadistically to cause harm.’” Blake v. Wallace,
2024 WL 5087805, at *3 (10th Cir. 2024) (quoting Hudson, 503 U.S. at 7). While
a plaintiff need not show a serious physical injury, “the force [used] must be
‘objectively 	harmful 	enough 	to 	establish 	a 	constitutional 	violation.’” 	Id.
(quoting Wilkins v. Gaddy, 559 U.S. 34, 37-38 (2010)); see also Hudson, 503
U.S. at 7 (“When prison officials maliciously and sadistically use force to cause
harm, contemporary standards of decency always are violated. This is true
whether or not significant injury is evident.” (citing Whitley v. Albers, 475 U.S.
312, 327 (1986))). A plaintiff must also establish that the officers acted with a
purpose to cause harm rather than in a good faith effort to restore order and
discipline. See, e.g., Redmond v. Crowther, 882 F.3d 927, 936-37 (10th Cir.
2018) (“An official has a culpable state of mind if he uses force ‘maliciously and
sadistically for the very purpose of causing harm,’ rather than ‘in a good faith
effort to maintain or restore discipline.’” (quoting Whitley, 475 U.S. at 320-21)).
Plaintiff states a plausible excessive force claim against Defendants
Gregory and Guitierrez. Plaintiff alleges Defendants not only pepper sprayed
him but forced him under the shower stream while handcuffed and slammed
him into the ground. Doc. 1, at 9-18. He alleges Defendants’ actions resulted in
persistent “painful blurred vision” and “inability to see correctly” for five to
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seven days; persistent “burning [and] stinging pain” on his face and upper body
for about five days; persistent “burning [and] stinging” in his throat and lungs,
with “suffocating inability to breathe correctly,” for about five days; and severe
shoulder pain for about seven days, after which the pain lessened. Id. at 15-16.
He also alleges ongoing moderate to severe anxiety and depression manifesting
in insomnia, migraine headaches, panic attacks, fear of GEO Group prison
staff, and inability to maintain healthy social relationship with his family and
friends. Id. at 16.
These 	allegations 	are 	sufficient 	to 	satisfy 	the 	objective 	prong.
“[P]sychological harm, as well as physical injury, can implicate the Eighth
Amendment.” Colbruno v. Kessler, 928 F.3d 1155, 1162 (10th Cir. 2019).
Plaintiff has alleged both. And even “a minor injury can still support an Eighth
Amendment claim if the force used was ‘nontrivial and was applied maliciously
and sadistically to cause harm.’” Graham v. Sheriff of Logan Cnty., 741 F.3d
1118, 1123 (10th Cir. 2013) (quoting Wilkins, 559 U.S. at 39); see also Gilmore
v. Neph, 2024 WL 48989, *2 (10th Cir. 2024) (holding that the plaintiff’s
allegations “that while compliant and handcuffed, the deputy attempted to
throw him to the ground, put him in an armbar, bend his fingers back, and
then choked him against a wall” were sufficient to state a claim under the
objective prong of an excessive force claim).
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Plaintiff has also alleged facts to show the force Defendants Gregory and
Guitierrez used against him was not “applied in a good faith effort to maintain
or restore discipline.” Hudson, 503 U.S. at 7. Rather, he alleges he was sitting
down at a table, having followed Defendants’ directions to leave his cell and
then to sit down, when they pepper sprayed him. And he alleges they forced
him under the shower stream and slammed him into the ground, with no
mention of provocation or disorder on his part. Taking Plaintiff’s allegations as
true, these are sufficient to satisfy the subjective prong. At this early stage in
litigation, the undersigned concludes Plaintiff has stated a plausible excessive
force claim.
2. 	Plaintiff’s 	inadequate 	conditions 	of 	confinement
claims.
“An inmate making an Eighth Amendment claim for constitutionally
inadequate conditions of confinement must allege and prove an objective
component 	and 	subjective 	component 	associated 	with 	the 	deficiency.”
Shannon, 257 F.3d at 1168. “First, the deprivation alleged must be objectively
‘sufficiently serious,’ depriving the inmate of ‘the minimal civilized measure of
life’s necessities.’” Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998)
(quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). “Second, the official must
have a ‘sufficiently culpable state of mind,’ which in this context means the
official must exhibit ‘deliberate indifference’ to a substantial risk of serious
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harm to an inmate.” Id. (quoting Farmer, 511 U.S. at 834). This means the
prison official “knows of and disregards an excessive risk to inmate health or
safety.” Farmer, 511 U.S. at 837.
“An inquiry into conditions of confinement by necessity relies on the
particular facts of each situation.” DeSpain v. Uphoff, 264 F.3d 965, 974 (10th
Cir. 2001). These include the “‘circumstances, nature, and duration’ of the
challenged conditions.” Id. (quoting Johnson v. Lewis, 217 F.3d 726, 731 (9th
Cir. 2000)). “In general, the severity and duration of deprivations are inversely
proportional, so that minor deprivations suffered for short periods would not
rise to an Eighth Amendment violation, while ‘substantial deprivations of
shelter, food, drinking water, and sanitation’ may meet the standard despite a
shorter duration.” Id. (quoting Johnson, 217 F.3d at 732).
a. 	Plaintiff 	states 	a 	plausible 	claim 	for 	the
deprivation of adequate medical care.
“A prison official’s deliberate indifference to an inmate’s serious medical
needs violates the Eighth Amendment.” Sealock v. Colorado, 218 F.3d 1205,
1209 (10th Cir. 2000). “The objective component is met if the deprivation is
‘sufficiently serious.’” Id. (quoting Farmer, 511 U.S. at 834). “A medical need is
sufficiently serious ‘if it is one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would
easily recognize the necessity for a doctor’s attention.’” Id. (quoting Hunt v.
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Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999)). “The subjective component is
met if a prison official ‘knows of and disregards an excessive risk to inmate
health or safety.’” Id. (quoting (quoting Farmer, 511 U.S. at 837).
Plaintiff’s 	allegations 	satisfy 	both 	the 	objective 	and 	subjective
requirements. Plaintiff describes stinging eyes, blurred vision, and trouble
breathing from the pepper spray, and severe shoulder pain from Defendants’
handcuffing technique and “bodyslamming” him into the ground. Doc. 1, at 13-
16 & 20; see also id. at 32-39. Liberally construed, Plaintiff’s allegations of
stinging eyes, trouble breathing, and possible dislocated shoulders coupled
with his request for attention from the nurse who had arrived on his unit
suggest outward signs of an obvious need for medical attention. Compare
Dorantes v. Nye, No. CIV-22-50-D, 2023 WL 3922658, at *6 (W.D. Okla. Feb.
14, 2023) (Plaintiff’s allegations of a “split head, which was actively bleeding”
along with headaches and extreme pain, are sufficient to satisfy the objective
component of the Eighth Amendment claim.”), adopted, 2023 WL 3340068
(W.D. Okla. May 10, 2023), with Goodson v. Bryant, No. CIV-13-1322-D, 2014
WL 4744774, at *5 (W.D. Okla. Sept. 23, 2014) (finding defendants were
entitled 	to 	summary judgment 	because plaintiff 	did “not allege that his
symptoms 	caused 	any 	outward 	signs 	that 	would 	objectively 	indicate 	a
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substantial risk of serious harm to him prior to the time he collapsed on the
floor at the jail,” where plaintiff alleged flu-like symptoms and a high fever).
Plaintiff 	also 	alleges 	he 	requested 	“medical 	attention 	(due 	to 	[his]
injurie(s) 	suffered 	from 	Defendants[] 	Gregory’s 	and 	Guitierrez’ 	excessive
force(s), and [his] urinating on [him]self) from medical staff.” Doc. 1, at 21.
Defendants refused his request despite a nurse having arrived on Plaintiff’s
unit during the “excessive force incident.” Id. at 15, 21-22. Plaintiff has
plausibly alleged Defendants disregarded a known risk to his safety. See Gray
v. 	Geo 	Grp., 	Inc., 	727 	F. 	App’x 	940, 	945 	(10th 	Cir. 	2018) 	(“[Plaintiff’s]
allegations that he notified the named defendants of the persistent medication
errors and their potential consequences and of his deteriorating mental health
and that they did not take action to abate these conditions satisfies the
subjective 	component 	of 	this 	deliberate 	indifference 	claim 	against 	these
defendants.”).
b. 	Plaintiff does not state a plausible claim for his
alleged deprivation of basic hygiene.
Plaintiff alleges Defendants Gregory and Guitierrez deprived him of
basic hygiene by refusing to let him take a shower unclothed and with soap,
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meaning he had to stay in wet clothes soiled with urine during his unit’s
twenty-four-hour lockdown. Doc. 1, at 23-26; see also id. at 42-48.3
“The Constitution . . . ‘does not mandate comfortable prisons’ and only
those deprivations denying ‘the minimal civilized measure of life’s necessities’
are 	sufficiently 	grave 	to 	form 	the 	basis 	of 	an 	Eighth 	Amendment
violation.” Wilson 	v. 	Setter, 	501 	U.S. 	294, 	298 	(1991) 	(quoting Rhodes 	v.
Chapman, 452 U.S. 337, 349, 347 (1981)). Because “length of exposure” to
allegedly unconstitutional conditions “is often of prime importance,” situations
involving “filthy cells” do not rise to the level of a constitutional violation when
endured only for forty-eight hours, DeSpain, 264 F.3d at 974, nor does “four
nights and five days in a stripped basement intake cell . . . with minimal
clothing and bedding, no personal hygiene items, and no cleaning supplies for
the 	cell,” 	Estrada 	v. 	Kruse, 	38 	F. 	App’x 	498, 	498-99 	(10th 	Cir. 	2002).
Considering the nature of the filth endured—Plaintiff’s own urine—the Court
finds Plaintiff’s allegations of twenty-four hours in wet, urine-soiled clothes
while the prison was on lockdown do not rise to the level of a constitutional
violation.
3 	Plaintiff does not adequately explain why he did not change into the
other dry but “dirty” clothing he admits he had in cell, only describing them as
“unusable.” Doc. 1, at 21.
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c. 	Plaintiff does not state a plausible claim for his
alleged deprivation of adequate clothing.
Prison officials’ obligation to provide humane conditions of confinement
extends to adequate clothing. Barney, 143 F.3d at 1310. The core of Plaintiff’s
claim is that he was locked in a cell “air-conditioned in the approximate mid-
60’s” for more than twenty-four hours in wet, urine-soiled clothes. Doc. 1, at
52. Such a “short stay in a drafty cell” in wet but otherwise only mildly soiled
clothing does not amount to an Eighth Amendment violation. 	Ogbolu v.
McLemore, 107 F.3d 21, 1997 WL 49449, at *2 (10th Cir. 1997) (upholding
summary judgment for defendants where plaintiff was housed for two days in
a solitary confinement cell and was given only one blanket to both mop up
water from overflowing shower and cover himself).
d. 	Conclusion.
The 	undersigned 	concludes 	Plaintiff 	has 	stated 	a 	plausible 	Eighth
Amendment claim for denial of medical care but not for deprivation of basic
hygiene or deprivation of adequate clothing against Defendants Gregory and
Guitierrez 	in 	their 	individual 	capacities. 	The 	undersigned 	therefore
recommends dismissal of Plaintiff’s hygiene and clothing claims.
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B. 	Plaintiff does not state plausible Eighth Amendment claims
against Defendant Hood in her individual capacity.
Plaintiff 	alleges 	Defendant 	Hood, 	as 	Chief 	of 	Security 	at 	Lawton
Correctional 	Facility, 	is 	individually 	liable 	for 	each 	Eighth 	Amendment
violation by Defendants Gregory and Guitierrez. See Doc. 1, at 5. “Section 1983
does not authorize liability under a theory of respondeat superior.” Brown, 662
F.3d at 1164. In other words, “[p]ersonal liability ‘under § 1983 must be based
on personal involvement in the alleged constitutional violation.’” Id. at 1163
(quoting Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997)). And this
personal involvement must be something “more than a mere right to control
employees.” Serna v. Colo. Dep’t of Corr., 455 F.3d 1146, 1153 (10th Cir. 2006)
(quoting Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999)).
“[I]n a § 1983 lawsuit, supervisory liability allows a plaintiff to impose
liability upon a defendant-supervisor who creates, promulgates, or implements
a 	policy 	which 	subjects, 	or 	causes 	to 	be 	subjected 	that 	plaintiff 	to 	the
deprivation of any rights secured by the Constitution.” Cox v. Glanz, 800 F.3d
1231, 1248 (10th Cir. 2015) (brackets, ellipses, and internal quotation marks
omitted). But to adequately allege a supervisor’s personal liability, a Plaintiff
must put forth facts “showing [ ] an ‘affirmative link’ between a supervisor and
the alleged constitutional injury,” with “three related prongs: (1) personal
involvement, (2) sufficient causal connection, and (3) culpable state of mind.”
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Id., 800 F.3d at 1248-49 (quoting Dodds v. Richardson, 614 F.3d 1185, 1195
(10th Cir. 2010)); accord Schneider v. City of Grand Junction Police Dep’t, 717
F.3d 760, 767 (10th Cir. 2013). The state of mind prong requires “‘no less than
the 	mens 	rea 	required’ 	of 	the 	subordinates 	to 	commit 	the 	underlying
constitutional violation.” Booker, 745 F.3d at 435 (quoting Porro v. Barnes, 624
F.3d 1322, 1328 (10th Cir. 2010)).
Plaintiff has failed to establish an affirmative link between Defendant
Hood and the alleged Eighth Amendment violations by Defendants Gregory
and Guitierrez. Plaintiff puts forth only cursory allegations of Defendant
Hood’s 	involvement 	based 	on 	her 	role 	as 	final 	policymaker 	for 	security
operations and her responsibility to train all Lawton Correctional Facility
security staff, including Defendants Gregory and Guitierrez. E.g., Doc. 1, at 11
(Regarding excessive force: “In regards to security [staff] operations at Geo
L.C.F., Defendant Major Ms. Hood is the final policy-maker (of both, formal,
and informal, policies at GEO L.C.F.) Regarding all type(s) of contacts(s) that
security and C.E.R.T. staff have with inmates at GEO L.C.F.”); see also id. at
34-35 	(regarding 	deprivation 	of 	adequate 	clothing); 	id. 	at 	43 	(regarding
deprivation of basic hygiene); id. at 51 (deprivation of adequate clothing).
Plaintiff’s claims against Defendant Hood rest only on her supervisory
role at Lawton Correctional facility rather than her personal involvement in
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the deprivation of his rights. He therefore fails to state an Eighth Amendment
claim against Defendant Hood in her individual capacity, and the undersigned
recommends dismissal. See, e.g., Burke v. Regalado, 935 F.3d 960, 997 (10th
Cir. 2019) (“Section 1983 does not authorize respondeat superior liability for a
supervisor based solely on the actions of [her] subordinates.”).
C. 	Plaintiff does not state plausible Eighth Amendment claims
against Defendant GEO Group.
Plaintiff 	claims 	that 	Defendant 	GEO 	Group, 	as 	the 	private 	entity
operating 	Lawton 	Correctional 	Facility, 	is 	liable 	for 	the 	alleged 	Eighth
Amendment violations by Defendants Gregory and Guitierrez. See Doc. 1, at 5.
“Under 	Monell, 	a 	plaintiff 	may 	sue 	local 	governing 	bodies 	directly 	for
constitutional violations pursuant to the body’s policies.” Lucas v. Turn Key
Health Clinics, LLC, 58 F.4th 1127, 1144 (10th Cir. 2023) (citing Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978)). Municipal or “Monell” liability
“has been extended to ‘private entities acting under color of state law.’” Id.
(quoting Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003)).
To state a claim against Defendant GEO Group, Plaintiff must plead
facts showing (1) the existence of a policy or custom, and (2) a direct causal link
between the policy or custom and a constitutional injury. Prince v. Sheriff of
Carter Cnty., 28 F.4th 1033, 1048-51 (10th Cir. 2022). Qualifying policies may
be “those arising from ‘a formal regulation or policy statement, an informal
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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, 1239-40 (10th Cir. 2020) (quoting Pyle v. Woods, 874 F.3d 1257, 1266
(10th Cir. 2017)).
Plaintiff 	does 	not 	allege 	facts 	showing 	that 	the 	alleged 	Eighth
Amendment violations were directly caused by a custom or policy maintained
by 	Defendant 	GEO 	Group. 	Rather, 	Plaintiff 	puts 	forth 	only 	conclusory
allegations that Defendant GEO Group is responsible for Defendants Gregory
and Guitierrez’s actions because it employs them. E.g., Doc. 1, at 9 (regarding
excessive force, mentioning “decades of multiple GEO Corporation security
staff (correctional officer)[] failure(s)[, including] failing . . . to train security
staff adequately” and “unlawful informal police(s) of (A) ‘failing to protect
inmates 	adequately,’ 	(B) 	‘failing 	to 	train 	security 	staff 	adequately,’ 	(C)
‘excessive 	force 	committed 	against 	inmates,’ 	and 	(D) 	‘failing 	to 	provide
adequate medical care for injured [and/or post-use of force] inmates]”); see also
id. at 35 (Regarding deprivation of adequate medical care: “Defendant, GEO
Corporation, employs Defendants Hood, Gregory, and Guitierrez.”); id. at 43
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(Regarding deprivation of basic hygiene: “[I]nformal permission to commit any
and all of the above and foregoing unconstitutional act(s) and/or omission(s)
recorded in this complaint.”); id. at 52 (regarding deprivation of adequate
clothing).
Plaintiff’s claims against Defendant GEO Group rest only on its mere
employment of the other Defendants. He therefore fails to state a claim against
the private prison contractor, and the undersigned recommends dismissal.
V. 	First Amendment retaliation claim.
A. 	Plaintiff states a plausible First Amendment retaliation
claim against Defendants Gregory and Guitierrez.
Plaintiff claims Defendants Gregory and Guitierrez retaliated against
him for threatening to file an administrative grievance about their alleged
excessive force—pepper spraying him, bodyslamming him against the ground,
and placing him under the forceful shower spray while handcuffed. Doc. 1, at
20. Plaintiff also names Defendants Hood and GEO Group in this claim. Id. at
57.
Plaintiff 	alleges 	that 	when 	he 	advised 	Defendants 	Gregory 	and
Guitierrez of his intent to file a grievance about their excessive force, they
“briefly walked Plaintiff back down the staircase and then put Plaintiff back
in the shower (fully clothed and still handcuffed).” Id. at 20-21. Defendants
advised Plaintiff that the reason they would not provide him medical attention
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or allow him to take a shower unclothed and with soap was that Plaintiff “had
just [ ] verbally advised Defendants Greogry and Guitierrez that [he] would be
filing an administrative grievance complaint against both Defendants Gregory
and Guitierrez about their [ ] unconstitutional behavior.” Id. at 21-22.
“Prison officials may not retaliate against or harass an inmate because
of the inmate’s exercise of [a constitutional right].” Rhodes v. Shannon, 2024
WL 79964, at *3 (10th Cir. 2024) (quoting Smith v. Maschner, 899 F.2d 940,
947 (10th Cir. 1990)). This protection extends to the filing of administrative
grievances. See id. (“The filing of grievances is constitutionally protected
activity.” (quoting Requena v. Roberts, 893 F.3d 1195, 1211 (10th Cir. 2018)));
see also Banks v. Katzenmeyer, 645 F. App’x 770, 773 (10th Cir. 2016) (holding
that plaintiff had stated plausible claim by alleging retaliation for threatening
to pursue legal action: “By telling Captain Katzenmeyer that he planned to
pursue 	legal 	action, 	Mr. 	Banks 	engaged 	in 	constitutionally 	protected
activity.”).
A First Amendment retaliation claim requires: “(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
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plaintiff’s exercise of constitutionally protected conduct.” Shero v. City of
Grove, 510 F.3d 1196, 1203 (10th Cir. 2007).
Plaintiff has plausibly alleged a First Amendment retaliation claim
against Defendants Gregory and Guitierrez. First, Plaintiff alleges he was
engaged in a constitutionally protected activity, as he voiced his intention to
avail 	himself 	of 	the 	prison 	grievance 	process—a 	prerequisite 	to 	federal
litigation.
Second, Plaintiff describes injuries that would chill an ordinarily firm
person from filing a grievance. He alleges that they tossed him fully clothed
into the shower again, and he could not sleep during the twenty-four-hour
lockdown, having been denied clean clothes, a shower, or medical care. As a
result, he suffered “an extraordinarily painful . . . migraine headache” with a
pain level of eight that lasted an additional twenty-four hours after the
lockdown was lifted. Doc. 1, at 43-44. Plaintiff also alleges ongoing moderate
to 	severe 	anxiety 	and 	depression 	manifesting 	in 	insomnia, 	migraine
headaches, panic attacks, and fear of GEO Group prison staff. Id. at 16-17. The
undersigned concludes these injuries might chill a person of ordinary firmness
from proceeding with an administrative grievance. See Hines v. Allbaugh, No.
CIV-15-901-R, 	2017 	WL 	3315273, 	at 	*5-6 	(W.D. 	Okla. 	Aug. 	3, 	2017)
(“[D]epriving an inmate of hygiene supplies for these periods”—two weeks,
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then thirty days—“would chill a person of ordinary firmness from continuing
to appeal disciplinary actions.”); Sayed v. Courtney, 2013 WL 708115, at *6-7
(D. Colo. Feb. 5, 2013) (being made to endure pain severe enough to prevent
sitting or standing for twenty-five extra minutes “would be sufficient to deter
a person of ordinary firmness from exercising their constitutional rights”),
adopted, 2013 WL 690810 (D. Colo. Feb. 26, 2013).
Finally, as for substantial motivation, “close temporal proximity between
protected conduct and the ensuing disciplinary (or otherwise detrimental)
action may show that the disciplinary action was substantially motivated by
the exercise of a protected right.” Mackey v. Watson, 2017 WL 6016351, at *7
(D. Colo. Dec. 5, 2017) (first citing Lewis v. Clark, 577 F. App’x 786, 800 (10th
Cir. 2014), then citing Gee, 627 F.3d at 1189). And here, Plaintiff alleges that
Defendants Gregory and Guitierrez immediately revealed their motivation.
Doc. 1, at 21-22. The undersigned therefore concludes that at this early stage,
Plaintiff has stated a plausible claim for First Amendment retaliation against
Defendants Gregory and Guitierrez.
B. 	Plaintiff 	does 	not 	state 	a 	plausible 	First 	Amendment
retaliation claim against Defendants Hood or GEO Group.
Plaintiff does not fare so well against Defendants Hood and GEO Group.
Turning first to Defendant Hood, Plaintiff must establish her liability by
pleading facts to show an affirmative link between Defendant Hood and the
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alleged retaliation. See Cox, 800 F.3d at 1248-49; supra § IV.B. He makes only
conclusory allegations of her position as a final policymaker but does not
identify a policy or custom she ratified which caused the alleged retaliation.
Doc. 1, at 51-52. As for Defendant GEO Group, Plaintiff does not describe a
policy or custom sufficient to establish Monell liability. See Lucas, 58 F.4th at
1144; supra § IV.C. He merely states that GEO Group employs Defendants
Hood, Gregory, and Guitierrez. Doc. 1, at 52. This allegation cannot establish
liability.
The undersigned concludes Plaintiff has stated a First Amendment
retaliation 	claim 	against 	Defendants 	Gregory 	and 	Guitierrez 	in 	their
individual capacities only.
VI. 	Plaintiff does not state a plausible failure-to-train claim against
Defendants Hood or GEO Group.
Plaintiff claims Defendants Hood and GEO Group failed to properly
train Defendants Gregory and Guitierrez. Doc. 1, at 57-69. The undersigned
finds Plaintiff has failed to plausibly state a failure-to-train claim.
Turning first to Defendant Hood, Plaintiff must establish her liability for
failure 	to 	train 	by 	pleading 	facts 	to 	show 	an 	affirmative 	link 	between
Defendant Hood and the alleged constitutional violations. See Cox, 800 F.3d at
1248-49. As explained supra § IV.B., Plaintiff fails to establish an affirmative
link with the alleged Eighth Amendment violations. His allegations likewise
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fail 	to 	establish 	an 	affirmative 	link 	with 	the 	alleged 	First 	Amendment
violation. Supra § V.B. Plaintiff merely alleges that Defendant Hood “is
responsible 	for 	training 	Defendants 	Gregory 	and 	Guitierrez 	to 	have
committed” the described constitutional violations and that she gave them
“informal permission.” Doc. 1, at 60. These vague allegations do not suffice.
Compare with Chrisman v. Bd. of Comm’rs of Okla. Cnty., No. CIV-17-1309-D,
2018 WL 4291761, at *7 (W.D. Okla. Sept. 7, 2018) (finding plaintiff stated a
supervisor liability claim for excessive force where she alleged sheriff “publicly
admitted the policies and procedures at the jail, specifically the policy allowing
[specialized 	security] 	team 	members 	to 	self-train, 	was 	improper” 	and
specifically pleaded sheriff “was the creator of actual polices or customs giving
rise to the constitutional violations suffered by [the deceased], all of which is
supported by [sheriff’s] public statements that many policies which pre-dated
his tenure as sheriff were improper and in need of change”). At most, his
allegations amount to an accusation that she was aware that Defendants
Gregory and Guitierrez might commit such violations. See Schneider, 717 F.3d
at 767 (an affirmative link requires “more than a supervisor’s mere knowledge
of [her] subordinate’s conduct” (citing Iqbal, 556 U.S. at 677)); see also Iqbal,
556 U.S. at 677 (rejecting argument that “a supervisor’s mere knowledge of his
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subordinate’s discriminatory purpose amounts to the supervisor’s violating the
Constitution”).
Turning next to Defendant GEO Group, Plaintiff must establish its
liability for failure to train by adequately pleading Monell liability. See Lucas,
58 F.4th at 1144.4 “In limited circumstances, a [governing body’s] decision not
to train certain employees about their legal duty to avoid violating [prisoners’]
rights may rise to the level of an official . . . policy for purposes of § 1983.”
Connick v. Thompson, 563 U.S. 51, 61 (2011). A plaintiff only meets this level
of liability, however, by proving that the “municipality’s failure to train its
employees” amounted to a “deliberate indifference to the rights of persons with
whom the [untrained employees] [came] into contact.” Id. (quoting Canton v.
Harris, 	489 	U.S. 	378, 	388 	(1989)). 	For 	that 	reason, 	“[a] 	municipality’s
culpability for a deprivation of rights is at its most tenuous where a claim turns
on a failure to train.” Id.; see also id. (“‘[D]eliberate indifference’ is a stringent
standard of fault, requiring proof that a municipal actor disregarded a known
4 	In addition to this discrete claim, Plaintiff pleads failure to train as a
basis for Defendant GEO Group’s liability in his Eighth Amendment and First
Amendment claims. As explained supra § IV.C., Plaintiff fails to establish
Defendant GEO Group’s liability for the alleged Eighth Amendment violations.
His allegations likewise fail to establish Defendant GEO Group’s liability for
the alleged First Amendment violation. Supra § V.B.
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or obvious consequence of his action.” (quoting Bd. of Comm’rs of Bryan Cnty.
v. Brown, 520 U.S. 397, 410 (1997))).
Plaintiff asserts Defendant GEO Group has maintained informal policies
that have allowed repeated constitutional violations like those suffered by
Plaintiff and have allowed those prison officials involved to go unpunished.
Doc. 1, at 67-68. Plaintiff alleges policies going back thirty years, enforced by
consecutive chiefs of staff, of whom Defendant Hood is only the latest. Id. First,
Plaintiff’s allegations of failure to punish past wrongdoers does not establish
GEO Group’s liability. Cf. Lynch v. Bd. of Comm’rs of Muskogee Cnty., 786 F.
App’x 774, 787 (10th Cir. 2019) (“Failing to adequately investigate or punish
does not count as ratification.”); Bryson v. City of Okla. City, 627 F.3d 784, 790
(10th Cir. 2010) (“[A] municipality will not be found liable under a ratification
theory 	unless 	a 	final 	decisionmaker 	ratifies 	an 	employee’s 	specific
unconstitutional actions, as well as the basis for these actions.”). As well, “[a]
pattern 	of 	similar 	constitutional 	violations 	by 	untrained 	employees 	is
‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of
failure to train.” Connick, 563 U.S. at 62 (quoting Bryan Cnty., 520 U.S. at
409). That said, other than his conclusory allegations, Plaintiff does not point
to specific training deficiencies, nor does he describe similar constitutional
violations committed by Defendants Gregory and Guitierrez.
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Plaintiff’s allegations are generally too vague to state a claim against
Defendants Hood and GEO Group for failure to train, so the undersigned
recommends dismissal.
VII. 	Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends partial
dismissal of Plaintiff’s complaint.
Specifically, 	the 	undersigned 	recommends 	the 	Court 	dismiss 	with
prejudice:
Plaintiff’s claims against Defendants Gregory, Guitierrez, and
Hood in their official capacities,
and dismiss without prejudice:
Plaintiff’s Eighth 	Amendment claims 	against 	Defendant GEO
Group and against Defendant Hood in her individual capacity;
Plaintiff’s 	Eighth 	Amendment 	claims 	for 	deprivation 	of 	basic
hygiene and deprivation of adequate clothing against Defendants
Gregory and Guitierrez in their individual capacities;
Plaintiff’s First Amendment retaliation claim against Defendant
Hood and GEO Group; and
Plaintiff’s claim for failure to train against Defendant Hood and
GEO Group.
Likewise, the undersigned recommends the Court retain:
Plaintiff’s 	Eighth 	Amendment 	claims 	for 	excessive 	force 	and
deprivation of adequate medical care against Defendants Gregory
and Guitierrez in their individual capacities; and
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Plaintiff’s First Amendment retaliation claim against Defendants
Gregory and Guitierrez in their individual capacities.
The undersigned advises Plaintiff of his right to file an objection to this
Report and Recommendation with the Clerk of this Court on or before April
17, 2025, in accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2).
The undersigned 	further 	advises 	Plaintiff that 	failure 	to make 	a timely
objection to this Report and Recommendation waives the right to appellate
review of both factual and legal questions contained herein. See Moore v.
United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation does not terminate the referral to the
undersigned Magistrate Judge in this matter.
ENTERED this 27th day of March, 2025.
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