Greer v. Stitt

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF OKLAHOMA

TRAVIS LEMARR GREER, )

)

Plaintiff, )

)

v. ) No. CIV 20-221-JFH-SPS

)

KEVIN STITT and SCOTT CROW, )

)

Defendants. )

OPINION AND ORDER

Plaintiff Travis L. Greer (“Plaintiff”) is a pro se prisoner in the custody of the

Oklahoma Department of Corrections (“DOC”) who is incarcerated at William S. Key

Correctional Center in Fort Supply, Oklahoma. He has filed a civil rights complaint under

the authority of 42 U.S.C. § 1983, seeking relief for alleged constitutional violations

occurring in Oklahoma prisons (Dkt. No. 1). The defendants are Oklahoma Governor Kevin

Stitt and DOC Director Scott Crow (“Defendants”).

Plaintiff alleges the state of Oklahoma, through the defendants, has failed to comply

with the rulings in Battles [sic] v. Anderson, 376 F. Supp. 402 (E.D. Okla. 1974), which

required a lowering of the prison population and adequate medical care for prisoners. He

also claims it is a violation of the Eighth Amendment for any prisoner to be subject to a

COVID-19 infection.

Screening/Dismissal Standards

Federal courts must engage in a preliminary screening of cases in which prisoners

seek redress from a governmental entity or officer or employee of a governmental entity. 28

U.S.C. § 1915A(a). The Court must identify any cognizable claims and dismiss any claims

that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b);

28 U.S.C. § 1915(e)(2)(B).

The pleading standard for all civil actions was articulated in Bell Atl. Corp. v.

Twombly, 550 U.S. 544 (2007). See Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). To avoid

dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a complaint must present

factual allegations, assumed to be true, that “raise a right to relief above the speculative

level.” Twombly, 550 U.S. at 555. The complaint also must contain “enough facts to state

a claim to relief that is plausible on its face.” Id. at 570. A court must accept all the well-

pleaded allegations of the complaint as true, even if doubtful in fact, and must construe the

allegations in the light most favorable to the plaintiff. Id. at 555-56. “So, when the

allegations in a complaint, however true, could not raise a claim of entitlement to relief,” the

cause of action should be dismissed. Id. at 558. The Court applies the same standard of

review for dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii) that is employed for Fed. R. Civ.

P. 12(b)(6) motions to dismiss for failure to state a claim. Kay v. Bemis, 500 F.3d 1214,

1217-18 (10th Cir. 2007).

A pro se plaintiff’s complaint must be broadly construed under this standard.

Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972). The

generous construction given to the pro se litigant’s allegations, however, “does not relieve

the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could

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be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Notwithstanding a pro

se plaintiff’s various mistakes or misunderstandings of legal doctrines or procedural

requirements, “if a court can reasonably read the pleadings to state a valid claim on which

the plaintiff could prevail, it should do so . . . .” Id. A reviewing court need not accept “mere

conclusions characterizing pleaded facts.” Bryson v. City of Edmond, 905 F.2d 1386, 1390

(10th Cir. 1990). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not

need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions, and a formulaic recitation of

the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (quotations and

citations omitted). The Court “will not supply additional factual allegations to round out a

plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.” Whitney v. New

Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).

Plaintiff’s Allegations

Under the “Nature of Case” in the complaint, Plaintiff refers to the Battles v.

Anderson case from this Court, which concerned Oklahoma prison conditions (Dkt. No. 1

at 6). The actual name of the case was Battle v. Anderson, No. CIV 72-095 (E.D. Okla. Jan.

30, 2001), and it later was renamed Williams v. Saffle. Plaintiff asks the Court to analyze his

claims under that decision and to require Defendants to comply with the Williams orders.

That case, however, has been closed for all purposes, and all injunctions have been

dissolved. See Williams, No. CIV 72-095 (Jan. 30, 2001) (Dkt. No. 1852). Therefore,

Plaintiff cannot rely on the Williams injunctions to support his claims. The Court Clerk is

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directed to send Plaintiff a copy of the relevant order (Dkt. 1852) from Williams.

Plaintiff alleges the following:

The defendants . . . are directly responsible for protecting the public

from a possible outbreak of a [sic] infectious disease outbreak reslulting [sic]

from the overcrowding inside Oklahoma Department of Corrections. They are

also responsible for protecting the inmate populations and the employees of

the state agency. The defendants are additionally required to provide medical

care adequate to the 8th Amendment proscription to cruel and unusual

punishment. The defendants are equally required to follow medical guidelines

set fourth [sic] by the federal government and the CDC in the COVID-19

pandemic outbreak. The failure of the defendants to comply with the rulings

of Battles v. Anderson have resulted in overcrowding that places the plaintiff

in substantial risk for serious infectious disease. The defendants can not

gaurentee [sic] in any effective resonable [sic] manner that they can meet with

these obligations in sight af the highly infectious nature of the COVID-10

contagion. These failures resulting from the failure to comply with the

mandate in Battles v. Anderson amount to a deprivation of the plaintiff’s rights

under the 14th Amendment to the United States Constitution, the loss of life

potential caused by overcrowding is a deprivation of the 14th Amendment.

(Dkt. No. 1 at 8). Plaintiff also claims that Mack Alford Correctional Center, where he

previously was housed, failed to create and submit a plan for the pandemic. Id. at 13.

Plaintiff asserts he “is seeking a class designation that includes members outside the

immediate prison population, for which there is no remedy available, or P.L.R.A.

requirement to exhaust.” Id. at 15. In addition, he “is seeking an order to conviene [sic] a

3-judge panel, pursuant to 18 U.S.C. § 3626(a)(3)(A),1 requesting they mandate immediate

lowering of prison population, in order to resolve the acute risk of [COVID-19] infection,

caused by overcrowding . . . .” Id. Plaintiff further states, “There is no available remedy in

1 18 U.S.C. § 3626 concerns prisoner release orders with respect to prison conditions.

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the Oklahoma Department of Corrections, under the scope of O.D.O.C. Policy OP-090124

to actualize this relief, and . . . the P.L.R.A.’s mandate only requires prisoners to pursue

available remedies.” Id.

After careful review, the Court finds Plaintiff’s allegations are conclusory and

unclear. Therefore, he must file a proper amended complaint as directed below.

Amended Complaint

Within twenty-one (21) days of the entry of this Opinion and Order, Plaintiff must file

an amended complaint on this Court’s form. The original complaint references persons

outside the immediate prison population (Dkt. 1 at 15), apparently in reference to a proposed

class action. The Court, however, will only consider claims “based upon the violation of a

plaintiff’s personal rights, and not the rights of someone else.” Archuleta v. McShan, 897

F.2d 495, 497 (10th Cir. 1990).

Furthermore, courts are reluctant to certify a class represented by a pro se litigant,

because a layman representing himself is considered “to be clearly too limited to allow him

to risk the rights of others.” Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975).

Although plaintiff, a pro se litigant, has the right to appear on his own behalf, he may not

represent another pro se plaintiff in federal court. 28 U.S.C. § 1654; see, e.g., United States

v. Grismore, 546 F.2d 844 (10th Cir. 1976); Herrera-Venegas v. Sanchez-Rivera, 681 F.2d

41, 42 (1st Cir. 1982); United States v. Taylor, 569 F.2d 448, 451 (7th Cir.), cert. denied,

435 U.S. 952 (1978). Therefore, the amended complaint must include only the claims that

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concern alleged constitutional violations against Plaintiff.

When Plaintiff filed the complaint, he was incarcerated at Mack Alford Correctional

Center in Stringtown, Oklahoma, which is in the territorial jurisdiction of the Eastern District

of Oklahoma. Both defendants, however, are located within the Western District of

Oklahoma. In addition, it is not clear from the complaint where the alleged constitutional

violations occurred. Pursuant to 28 U.S.C. § 1391(b):

A civil action may be brought in--

(1) a judicial district in which any defendant resides, if all defendants are

residents of the State in which the district is located;

(2) a judicial district in which a substantial part of the events or omissions

giving rise to the claim occurred, or a substantial part of property that is the

subject of the action is situated; or

(3) if there is no district in which an action may otherwise be brought as

provided in this section, any judicial district in which any defendant is subject

to the court’s personal jurisdiction with respect to such action.

Id. The amended complaint must clearly state where and when each alleged constitutional

violation occurred, so the Court can determine whether venue is proper in the Eastern District

of Oklahoma.

The amended complaint also must set forth the full name of each person he is suing

under 42 U.S.C. § 1983, with each defendant listed in both the caption and the body of the

document. Further, the names in the caption of the amended complaint must be identical to

those contained in the body of the amended complaint, pursuant to Fed. R. Civ. P. 10(a).

Plaintiff is responsible for providing sufficient information for service of process. See Lee

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v. Armontrout, 991 F.2d 487, 489 (8th Cir. 1993) (plaintiff proceeding in forma pauperis and

pro se had responsibility to provide correct names and proper addresses for service of

process).

The amended complaint must include a short and plain statement of when and how

each named defendant violated Plaintiff’s constitutional rights and showing Plaintiff is

entitled to relief from each named defendant. See Fed. R. Civ. P. 8(a). “[T]he complaint

[must] 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, as distinguished

from collective allegations against the state.” Robbins v. Oklahoma, 519 F.3d 1242, 1249-50

(10th Cir. 2008) (emphasis in original).

Plaintiff also shall identify a specific constitutional basis for each claim. See id. He

is admonished that simply alleging that a defendant is an employee or supervisor of a state

agency is inadequate to state a claim. Plaintiff must go further and state how the named

defendant’s personal participation violated his constitutional rights. The “denial of a

grievance, by itself without any connection to the violation of constitutional rights alleged

by the plaintiff, does not establish personal participation under § 1983.” Gallagher v.

Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (citations omitted). Finally, as stated above,

Plaintiff may not rely on rulings in the Williams (Battle) case, because the orders in that case

no longer are in effect.

The amended complaint must include all claims and supporting material to be

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considered by the Court, See Local Civil Rule 9.2(c). It must be complete in itself, including

exhibits, and may not reference or attempt to incorporate material from the original

complaint or exhibits. Id. An amended complaint completely replaces the original

complaint and renders the original complaint of no legal effect. See Miller v. Glanz, 948

F.2d 1562, 1565 (10th Cir. 1991); Gilles v. United States, 906 F.2d 1386, 1389 (10th Cir.

1990). See also Local Civil Rule 9.2(c). Pursuant to Local Civil Rule 5.2(a), the amended

complaint must be clearly legible, and only one side of the paper may be used. In addition,

the margins on additional sheets of paper shall be a minimum of one (1) inch on the top,

bottom, and sides. See id. The Court Clerk is directed to send Plaintiff a form for filing an

amended complaint. Plaintiff is granted twenty-one (21) days to file his amended complaint.

ACCORDINGLY,

1. Plaintiff is directed to file within twenty-one (21) days an amended complaint

on the Court’s form as directed in this Opinion and Order.

2. The Court Clerk is directed to send Plaintiff a copy of the form for filing an

amended civil rights complaint in this Court.

3. The Court Clerk is directed to send Plaintiff a copy of the relevant order from

Williams v. Saffle, No. No. CIV 72-095 (E.D. Okla. Jan. 30, 2001) (Dkt. No. 1852, entered

on January 30, 2001).

4. Failure to comply with this Opinion and Order will result in dismissal of this

action without further notice.

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IT IS SO ORDERED this 10" day of September 2020.

□□ tt Lew

JOHN F. HEIL, III

UNITED STATES DISTRICT JUDGE