The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
EZEKIEL DAVIS,
Plaintiff,
v. Case No. 18-CV-396-JFH-SPS
CORE CIVIC, INC. et al.,
Defendants.
OPINION AND ORDER
Plaintiff is a pro se prisoner in the custody of the Oklahoma Department of Corrections
(“DOC”) who is incarcerated at Davis Correctional Facility (“DCF”) in Holdenville, Oklahoma.
He brings this action under the authority of 42 U.S.C. § 1983, seeking relief for alleged
constitutional violations during his incarceration at DCF.
The remaining DCF defendants are: Core Civic, Inc.; James Yates, Warden; Kevin Brown,
Chief of Security; J. Dorman, Chief; Mr. Perez, Assistant Warden; Mr. Gentry, Assistant Warden;
Tiffany Ade, Max Unit Manager; Ray Larimer, Health Service Administrator; Fred Sanders, M.D.;
Mr. Pfaff, Max Unit Case Manager; Mr. Pfaff, Max Unit Counselor; Ms. Boggs, Max Unit
Counselor; Wayda Stamey, Correctional Officer; Joshua Phillips, Correctional Officer; Rhoda
Shivley, Nurse; Sam Hussan, Law Library Supervisor; J. Morales, Mailroom Supervisor; Maria
Martinez, Mailroom Clerk; Mr. Collins, Correctional Officer; Sgt. Robinson, Disciplinary
Supervisor; Mr. Key, Disciplinary Officer/Investigator; Susan Burkhalter, Nurse Practitioner;
Serena Brewer, Nurse Practitioner; Diana Jones, Manager of Operations Finance; Terry
Underwood, Grievance/ Misconduct Coordinator; Dr. Keith Ivens, Director, Correctional Medical
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Associates Physician; and Dr. Yvonne Nean, a.k.a. Dr. Yvonne Neau, Correctional Medical
Associates Physician (“DCF Defendants”).
The remaining defendants from OSP and DOC are: Mark Knutson, Director’s Designee;
Johnny Blevins, Inspector General; DOC General Counsel; Joe Allbaugh, DOC Director; Mike
Carpenter, OSP Warden; Buddy Honaker, DOC Medical Service Administrator; Capt. T. Clellen,
Correctional Officer; Dr. Marlar, OSP Medical Director; Jerry Perry, OSP H-Block Unit Manager;
Lisa Williams, OSP H-Block Case Manager; Margaret Green, OSP C-Unit Manager; Kent
Goodyear, OSP C-Unit Case Manager; Sgt. Graham, Correctional Officer; Sgt. Kelley,
Correctional Officer; Cpl. Boswell, Correctional Officer; Cpl. Branson, Correctional Officer; Lt.
Thorp, Supervisory Officer; Mr. Price, OSP Chief of Security; and Dr. Deakins, OSP Physician
(“OSP/DOC Defendants”).
The Court has before it for consideration Plaintiff’s amended complaint [Dkt. No. 11],
special reports prepared by Core Civic/DCF and DOC officials at the direction of the Court, in
accordance with Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) [Dkt. Nos. 144, 147],
Defendants’ motions to dismiss or for summary judgment [Dkt Nos. 145, 148], Plaintiff’s
responses to the motions [Dkt. Nos. 152, 159], and Plaintiff’s motions for temporary restraining
order and preliminary injunction [Dkt. Nos. 154, 164].
Standards of Review
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
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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.
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 to be 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 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); see also Twombly, 550
U.S. at 555. 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).
Summary judgment is appropriate when “there is no genuine dispute as to any material fact
and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is
genuine if the evidence is such that “a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it “might
affect the outcome of the suit under the governing law.” Id. In making this determination, “[t]he
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evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his
favor.” Id. at 255. A party opposing a motion for summary judgment, however, may not simply
allege there are disputed issues of fact; rather, the party must support its assertions by citing to the
record or by showing the moving party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c). Thus, the inquiry for this Court is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson, 477 U.S. at 251-52.
Plaintiff’s Allegations
Plaintiff has listed his allegations as follows:
1. On May 30, 2017, Plaintiff was transferred to DCF from Lawton Correctional
Facility, where he was diagnosed with lumbar and cervical degenerative disc disease with probable
spinal stenosis. After the transfer, he was denied adequate medical care by Dr. Fred Sanders, who
failed to provide follow-up care to determine which discs are deteriorating, the severity of the
spinal stenosis, and the extent of his radiculopathy. [Dkt. No. 11 at 27].
2. In September 2017, DCF medical personnel began to delay his requests for medical
care and had him see Susan Burkhalter, a nurse practitioner, who could not assess his medical
needs. Id.
3. In order to silence Plaintiff, Terry Underwood, DCF Grievance/Misconduct
Coordinator, refused to assist him in correcting an affidavit while Plaintiff was on grievance
restriction. Id.
4. After Plaintiff filed a lawsuit in Davis v. Core Civic, CIV-17-JHP-SPS in this Court,
DCF Attorney Darrell Moore directed Dr. Fred Sanders, the DCF physician, not to provide
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specialist care without Moore’s approval. Id.
5. In May 2018, Plaintiff was housed on EA-Pod-Cell 106, Max Unit, when Ms.
Edwards intentionally denied him access to the research computer. When he filed a grievance
about her actions, she and Ms. Hassan, the law library supervisor, wrote false misconducts in
retaliation. Ms. Edwards called him a “rat’ and a “snitch” in the presence of other inmates, thereby
endangering his health and safety. Plaintiff’s grievance against her was not processed because Mr.
Underwood would not help him correct a necessary affidavit for his grievance restriction. Id.
6. In May-October 2018, Defendants Morales, the mailroom supervisor, and Maria
Martinez, the mailroom clerk, retaliated against Plaintiff with false misconducts after learning he
had filed a complaint against them. Id. at 28.
7. Mr. Key, the misconduct investigator, did not conduct an impartial investigation
concerning the false misconducts, even when there was camera evidence. In July 2018, Ms.
Morales wrote a false misconduct claiming Plaintiff had assaulted her by pulling on two pieces of
paper she slid through the crack of a door. She asserted Plaintiff had pulled on it so fast that she
hit her finger against the door jamb, injuring her. In May 2018, Ms. Martinez wrote another false
misconduct claiming Plaintiff had written her a love letter. These misconducts were written in
retaliation to punish him for exercising his constitutional right to file a grievance. Id.
8. Supervisor Staff Chief J. Dorman, Warden Yates, Chief Brown, Mr. Perez, Gentry,
and Terry Underwood maintained a policy and custom that allowed DCF staff to violate his
constitutional rights by failing to remedy wrongs after learning of them. They also showed reckless
disregard for his health and safety and deliberate indifference to his serious medical needs,
maintained a code of silence about staff misconduct, and directly participated in retaliation as
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reprisal for Plaintiff’s grievances by allowing the grievance process to become an adversarial
process. Johnny Blevins, DOC Inspector General, refused to investigate Plaintiff’s being set up to
be attacked on September 27, 2019, and why he was the only inmate placed in the segregation
housing unit (“SHU”). Id.
9. Mark Knutson, DOC Director’s Designee, has shown a reckless disregard for
Plaintiff’s health and safety. He failed to remedy the violations of Plaintiff’s constitutional rights
in June 2017 and November 2018 by not ensuring that Defendants Underwood, Yates, Key,
Robinson, Ade, Dorman and Brown were following DOC policies. Knutson also refused to
conduct an independent investigation of his grievance and misconduct issues, relying instead on
decisions made by DCF staff, thus denying Plaintiff his rights of redress, access to the courts, equal
protection, and the prohibition against cruel and unusual punishment. Id. at 29.
10. On September 14, 2018, Tiffany Ade, DCF Max Unit Manager, spoke with
Counselor Pfaff. Counselor Boggs placed Plaintiff in a Max Unit cell EC-Pod. Plaintiff was on
the top bunk, because another inmate already was in the cell. The other inmate was a “Playboy
Crip” gang member, however, Plaintiff had a separatee against security threat groups (“STG”) and
had asked not be to housed in a cell with them. Id.
On September 25 and 27, 2018, Rhoda Shivley told the cellmate that Plaintiff was a rat and
a snitch, and on September 27, 2018, the cellmate stabbed Plaintiff near his right eye and stabbed
him several times in the left eye, stating he didn’t stay with rats. Defendant Wayda Stamey,
Correctional Officer, looked in the cell and saw Plaintiff bleeding and dodging the weapon. She
left the cell, returned about 10 or 15 minutes later, then left again. Stamey claimed in his Incident
Report that he went to get Case Manager Pfaff, although he could have radioed for assistance.
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Stamey’s actions demonstrated a reckless disregard for his health and safety. Id.
Defendant Ade ordered that Plaintiff be placed in the SHU when he was the victim in the
attack. The cellmate was rewarded by being allowed to stay in EC-13 and watch his television.
Within two hours of the incident, Defendant Ade had issued Plaintiff two misconducts for fighting
and for having a weapon. The weapon misconduct later was dismissed. Plaintiff was found guilty
of fighting in October 2018, and Warden Yates refused to revisit the misconduct after he had
affirmed it. Id. at 30.
Defendant Ade continued to attempt to place Plaintiff in a cell without honoring his bottom
bunk restriction or his request to be separated from STG. Plaintiff began to believe she repeatedly
had put his life in danger, and he suspected she had set him up to be attacked on September 27,
2019. He claims Ade made a concerted effort with Counselor Boggs, Counselor Pfaff, Case
Manager Pfaff, and C.O. Collins. Plaintiff refused to be placed first in a cell, because Ade had
told him she would move whomever she wanted to cell with him. Because Plaintiff was in fear for
his life, he refused to leave the SHU where he was in a single cell. The supervisory staff of Warden
Yates, Chief Brown, Assistant Wardens Perez and Gentry, Chief Dorman, Ade, and Underwood
refused to take the necessary steps to ensure he would not be attacked by other inmates because
staff were calling him a rat and a snitch. Id.
11. Plaintiff wrote Chief Brown, Warden Yates, and DOC Inspector General Blevins,
outlining the September 27, 2018, incident and why he believed he was set up. He requested an
investigation, but this supervisory staff refused to remedy the wrong, showing a reckless disregard
for Plaintiff’s health and safety. They also continued to allow Ms. Ade to make wrongful cell
assignments and to fail to document Plaintiff’s separatee request. Id. at 31.
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12. In October 2018, Ms. Ade told Case Manager Pfaff to initiate a transfer package
for Plaintiff. Ade advised Plaintiff that the DOC told Warden Yates to put in the transfer packet.
Plaintiff believes he was set up so he could be transferred after his September 17, 2018, MRI.
After the MRI was read, he was attacked on September 18, 2018, denied adequate medical care,
and told he would see a neurologist, but he received no treatment after the attack. He was
transferred to OSP on January 9, 2019, and his prescriptions were discontinued there. Id.
13. DOC Director Joe Allbaugh indirectly participated in the above incident, because
he failed to oversee the people who violated Plaintiff’s rights or failed to adequately train and
monitor private prison officials. DCF officials submitted an affidavit admitting to a memorandum
concerning two policies that were created to “differ slightly.” Id.
14.1 The website states that Plaintiff escaped. Id. at 32.
15. When Plaintiff was transferred to OSP on January 9, 2019, his pain medication was
discontinued. When he saw Dr. Marlar on January 14, 2019, the doctor claimed he did not know
anything about Plaintiff’s spinal condition, because his DCF medical records had not been
received. Dr. Marlar advised Plaintiff to write to Pam Weddal in OSP Medical, however, her
January 16, 2019, response stated his medical records with the MRI report were in his OSP medical
record. Id.
Dr. Marlar said he was not Dr. Sanders, and he did not prescribe narcotics to inmates.
Further, Plaintiff would have to “twist his arm” to get Tylenol or ibuprofen. Dr. Marlar also told
Plaintiff that he would not submit a referral for care by a neurologist. Plaintiff submitted sick call
1 Plaintiff’s amended complaint does not include Claims 14 or 15.
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slips but was told there was nothing that could be done. Id.
16. Plaintiff’s case manager, Lisa Williams, saw him on January 16, 2016, and he
attempted to tell her that he wanted to be separated from STG because of his previous attack. Ms.
Williams advised that if he did not know the full name of the particular STG inmates, she would
not document his request. She also allegedly refused to document his bottom bunk restriction,
because she did not have directions form Medical. Id.
On January 18, 2019, Ms. Williams placed Plaintiff in a cell in C-Unit on the top bunk. On
January 29, 2019, he experienced chest pains with a heart rate of 156 bpm. He was treated with
nitroglycerine and Coumadin and held for three days of observation. Id. at 33.
OSP supervisory staff Margaret Green, Kent Goodyear, and Jerry Perry disregarded the
risk to his health and safety when they would not allow him to document that he wanted to be
separated from STG. When Plaintiff was released from Medical on February 1, 2019, Margaret
Green refused to discuss his STG request and told Jerry Perry to place him on H-Block after Nurse
Chris emailed Green about his bottom bunk restriction. Id.
17. Plaintiff was taken to H-Block on February 1, 2019, because Green was upset of
his unwillingness to consent to being on C-Unit in a top bunk. Id.
18. On February 1, 2019, Jerry Perry, the H-Block Unit Manager, placed Plaintiff in a
cell with a gang member from the Neighborhood Crip. Id.
19. On February 5, 2019, after Plaintiff had filed an emergency and sensitive grievance,
Perry had him moved to a new cell where he would have had to walk past the cell of a gang member
named Markus Stevens. Plaintiff was concerned that if Stevens saw him, Plaintiff’s cellmate
would be alerted to attack Plaintiff. When Plaintiff refused to move, he was pepper-sprayed
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without warning on Lt. Thorp’s instructions. He then was taken to Medical where he was placed
on suicide watch. OSP still has not documented his request for separation from STG. Id. at 33-
34.
20. On February 7, 2019, Perry placed Plaintiff in another cell with a gang member
form the Hoover Crip, and on February 11, 2019, Perry moved him again to a cell with a gang
member from the Blood. Id. 34.
21. On February 14, 2019, Plaintiff was taken to Medical to see Dr. Marlar, and upon
his return, he was assaulted by Cpl. Branson in the presence of Sgt. Kelly. Branson could have
removed his handcuffs, but instead opened the cell door, removed the leg irons and tightened the
handcuffs too tightly. Branson then placed the leg irons cuff on the handcuff chain, forced Plaintiff
to his knees, and pulled Plaintiff’s arms out through the food port, causing him extreme pain. On
March 7, 2019, Plaintiff received an allegedly false misconduct for lying to staff. Id.
22. When Plaintiff arrived at OSP on January 19, 2019, he was targeted by OSP staff
who had been told about him from the defendants in another lawsuit against DCF and DOC
defendants. The OSP personnel harassed him as soon as he arrived, withheld his legal and personal
property until February 15, 2017, then only gave him some of his personal items. Id.
23. The OSP physician has not diagnosed him, instead using “chart reviews” and
determinations by DCF doctors who have an agenda not to recommend further treatment because
of the lawsuit against them. Dr. Marlar will not prescribe pain medication for personal reasons
that are unrelated to Plaintiff’s spinal condition and pain. In addition Dr. Marlar considers
Neurontin and Balcofen, medications Plaintiff has taken over the past ten years, to be narcotics.
Plaintiff contends Dr. Marlar is deliberately indifferent to his serious medical needs and that he
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was transferred by DOC in retaliation for filing an earlier lawsuit. He also believes his life is in
danger. Id. at 35.
24. Plaintiff filed an emergency and sensitive grievance to Warden Mike Carpenter
concerning his permitted legal and personal property, the use of excessive force on February 1 and
14, 2019, and his placement with a cellmates who are gang members. He is on grievance restriction
and could not file an affidavit as required by policy because of his withheld property. He,
therefore, was ignored. Id.
25. On February 1, 2019, after his release from medical observation, he was told by
guards that Margaret Green, the C-Unit manager, would speak to him on C-Unit. When he went
to the unit, however, Ms. Green refused to talk to him, and Kent Goodyear would not listen to his
concerns about being on a top bunk or his requests for separatees against an inmate who threatened
to kill him. Goodyear allegedly yelled at Plaintiff and said he would not document his separatee
request. Id. at 36.
Green told Jerry Perry, the H-Block Unit Manager, to place Plaintiff on H-Block after
Medical emailed her about a bottom bunk for him. Sgt. Graham came to escort him to H-Block
after he sat on the floor because his concerns were being ignored. He contends the staff were
intentionally trying to provoke him. While twisting Plaintiff’s waist on the trip to H-Block, Sgt.
Graham said he should have fought it out with his cellmate. Once Plaintiff was in H-Block, Perry
refused to document his concerns and placed him in the cell with a Neighborhood Crip. Id.
These defendants showed a reckless disregard to his health and safety, and at the time of
the amended complaint, he was in a cell with an STG who was told to attack him. Id.
26. On February 5, 2019, Lt. Thorp ordered Plaintiff to be pepper-sprayed in his cell
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after Perry ordered Plaintiff and his cellmate to be moved to NW-2-G. Plaintiff knew that if he
had walked past NW-2-G, Inmate Markus Stevens would have told Plaintiff’s cellmate to attack
him. Id.
27. Plaintiff’s grievances to Warden Carpenter were ignored, because Plaintiff is on
grievance restriction and did not have his required property to comply with the restriction. On
January 11, 2019, he personally told Carpenter that he did not have his property. Plaintiff states
Carpenter and the OSP staff have failed to remedy the problem, have vilified him as the “bad guy”
and “trouble maker,” and have acted in concert with DCF staff, showing a reckless disregard for
his health and safety. Id. at 36-37.
28. Capt. T. McClellen directly participated in conspiring to cover up the use of
unnecessary force by Cpl. Branson and Cpl. Bosell on February 14, 2019. Plaintiff claims he was
maliciously and sadistically assaulted for no reason. McClellen conspired to cover up this
unnecessary use of force when his handcuffed hands were in the food port. During the incident,
Sgt. Kelly smiled at Plaintiff and said, “Happy Valentine’s Day” before walking away. Id. at 37.
On March 7, 2019, Capt. McClellen compounded the Eighth Amendment violation by
issuing Plaintiff a fabricated misconduct alleging he had lied to staff. Mr. Price, Chief of Security,
claimed he viewed the camera footage, however, the prison officials maintain a code of silence
concerning staff misconduct. Id.
29. The defendants are in violation of Plaintiff’s equal protection rights. He has two
other civil matters pending concerning the private prison’s denial of Plaintiff’s access to the courts.
He has shown that DOC and OSP officials are acting in concert with the defendants in the other
cases. He further claims he has shown supervisory liability in the defendants’ personal
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involvement. Buddy Honaker ignored his emergency and sensitive grievance, and when Plaintiff
told Honaker that he did not have his legal documents to comply with the grievance restriction
requirement, Honaker extended the grievance restriction requirement. Id. at 38.
30. Dr. Deakins refused to provide adequate medical care in February 2009. When
Plaintiff described the pain in his hands, Dr. Deakins did nothing to treat him. Id.
Exhaustion of Administrative Remedies
The DCF Defendants have filed a motion for summary judgment, [Dkt. No. 145], and the
OSP/DOC Defendants have filed a motion to dismiss or for summary judgment [Dkt. No. 148].
The defendants allege, among other things, that Plaintiff has failed to exhaust the administrative
remedies for any of his claims. “No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a). Inmates are required to exhaust available administrative remedies, and suits
filed before the exhaustion requirement is met must be dismissed. Booth v. Churner, 532 U.S.
731, 740-41 (2001); Yousef v. Reno, 254 F.3d 1214, 1216 n.1 (10th Cir. 2001). “An inmate who
begins the grievance process but does not complete it is barred from pursuing a § 1983 claim under
PLRA for failure to exhaust his administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030,
1032 (10th Cir. 2002) (citation omitted). In deciding a motion to dismiss based on nonexhaustion,
the Court can consider the administrative materials submitted by the parties. See Steele v. Fed.
Bureau of Prisons, 355 F.3d 1204, 1212 (10th Cir. 2003), abrogated in part on other grounds,
Jones v. Bock, 549 U.S. 199 (2007).
According to the DOC Offender Grievance Process, OP-090124, which is applicable to
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both state and private prisons in Oklahoma, an inmate first must attempt to resolve his complaint
informally by communicating with staff within three days of the incident. If that is unsuccessful,
he may submit a Request to Staff (RTS) to the appropriate staff member within seven calendar
days of the incident, alleging only one issue or incident per form. If the offender does not receive
a response to his RTS within 30 calendar days of submission, he may submit a grievance to the
Review Authority, asserting only the issue of the lack of response to the RTS. If the complaint is
not resolved after the response to the RTS, the offender then may file a grievance, attaching the
RTS with the response from the staff member. Grievances that are sensitive or concern a
substantial risk of personal injury, sexual assault, or other irreparable harm may be submitted
directly to the Reviewing Authority. If the grievance does not resolve the issue, the inmate may
appeal to the DOC Administrative Review Authority (ARA), personal identity ARA, or Medical
ARA (“MARA”), whichever is appropriate. The administrative process is exhausted only after all
of these steps have been taken. [DOC OP-090124; Dkt. Nos. 145-3; 145-4; 147-32].
This policy also instructs that if the inmate does not follow instructions as explained in the
policy provision and on the grievance forms, the grievance may be returned to him unanswered
for proper completion. If the inmate is allowed to resubmit the grievance, he must properly
resubmit the grievance within ten days of receipt. The continued failure to follow instructions may
result in restrictions being imposed on the inmate. Id.
DCF Defendants
The DCF Defendants allege Plaintiff did not exhaust any issue he has brought before the
Court. He submitted multiple grievances during his incarceration at DCF from May 31, 2017 to
January 9, 2019. His grievance records for that time consist of 423 pages of materials. [Dkt. No.
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145-4]. In her affidavit, Terry Underwood, DCF Grievance Coordinator, outlined in detail when
the grievance was filed, when it was responded to or returned, and whether the grieved issue was
exhausted. [Dkt. No. 145-2]. According to Ms. Underwood, Plaintiff properly used the
administrative remedies process in only two instances. Id. at ¶ 30 and ¶ 33. Neither of those
grievances, however, concerned the issues alleged in his amended complaint. [Dkt. No. 145-4 at
141-52, 176-87]. Ms. Underwood’s affidavit is set forth below in pertinent part, and the referenced
grievance records are at Dkt. 145-5 through 145-12.
On June 20, 2017, Mr. Davis submitted Grievance No. 2017-148. The grievance
was initially returned to him unanswered noting that it was not an issue of a
sensitive nature. Plaintiff was told he could correct and resubmit within ten (10)
days. Instead of correcting and resubmitting the Grievance, Mr. Davis submitted
an appeal to the Administrative Review Authority at DOC. That appeal was
returned to him unanswered on July 10, 2017, noting that it had been determined
that the grievance was not of a sensitive nature and noting that since he had failed
to follow proper procedures he was out of time. This record is at Grievance
Records, Part 1, Pgs. 1-5.
Mr. Davis was placed on grievance restriction on June 29, 2017 because he had
repeatedly submitted Requests to Staff about issues that had previously been
addressed by staff. He had submitted more than 21 Requests to Staff during June
2017. The placement on grievance restriction is at Grievance Records, Part 1, Pg.
6.
On July 11, 2017 Mr. Davis submitted an appeal to the Administrative Review
Authority concerning his placement on grievance restriction. The DOC ARA
designated that appeal number ARA 17-183. The appeal/request was returned to
Mr. Davis on July 21, 2017 and his appeal/request to be removed from grievance
restriction was denied by DOC ARA. That record is at Grievance Records, Part 1,
Pgs. 7-13.
On June 29, 2017, Mr. Davis submitted a Request to Staff to Assistant Warden
Gentry regarding the facility law library. On June 30, 2017 Assistant Warden
Gentry responded. Mr. Davis submitted Grievance No. 2017-171 on July 10, 2017
and attached the Request to Staff that had been submitted to Assistant Warden
Gentry. The grievance was returned to Mr. Davis unanswered on July 26, 2017,
noting that the action requested in the Request to Staff did not match the Grievance
relief sought, that the Grievance was not specific as to dates, places, and personnel
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involved, and that Mr. Davis was on grievance restriction and the necessary
affidavit was not correct. Mr. Davis was given 10 days to correct and re-submit but
he did not do so. That record is at Grievance Records, Part 1, Pgs. 14-22.
On June 29, 2017, Mr. Davis submitted a Request to Staff to the Health Services
Administrator. The Health Services Administrator responded on July 3, 2017. Mr.
Davis submitted Grievance 2017-172 on July 10, 2017 asking for shoes, a thicker
mattress, a chair for his cell, and recreation. The grievance was returned to him
unanswered on July 26, 2017. That record is at Grievance Records, Part 1, Pgs. 23-
31.
Mr. Davis submitted a Request to Staff on July 25, 2017 to Library Supervisor
Burney. Ms. Burney responded on July 26, 2017 to that RTS noting that she had
informed Mr. Davis when she picked up his copies what day the copies would be
returned, and that Mr. Davis had agreed. Plaintiff submitted Grievance No. 2017-
194 on August 8, 2017. The Grievance was returned unanswered on August 9,
2017. The return memorandum contained specifics about Plaintiff’s submission
errors. That record is at Grievance Records, Part 1, Pgs. 32-40.
Plaintiff submitted a Request to Staff to the Library Supervisor on July 31, 2017.
She responded on August 1, 2017. Plaintiff submitted Grievance No. 2017-195.
That Grievance was returned unanswered and noted that Plaintiff could correct and
resubmit the grievance within 10 days. He did not do so. That record is at Grievance
Records, Part 1, Pgs. 41-50.
Plaintiff submitted a Request to Staff to Warden Yates on July 31, 2017
complaining that he had been subjected to retaliation when he was placed on
grievance restriction. Warden Yates responded to the Request to Staff on August
1, 2017. Plaintiff submitted Grievance No. 2017-203 on August 9, 2017. The
grievance was returned unanswered on August 9, 2017 noting that he was on
grievance restriction and had not properly submitted the grievance. Mr. Davis was
given 10 days to correct and re-submit but he did not do so. That record is at
Grievance Records, Part 1, Pgs. 51-58.
Mr. Davis submitted a Request to Staff to Warden Yates on November 6, 2017.
Mr. Davis then submitted Grievance No. 2017-323 on November 30, 2017
regarding mailroom procedures. The grievance was returned to him unanswered
on November 30, 2017. Mr. Davis was provided specifics regarding the return and
was provided 10 days to correct and re-submit. Mr. Davis resubmitted Grievance
No. 2017-323 on December 6, 2017. The grievance was again returned unanswered
on December 12, 2017 noting that he was on grievance restriction and his affidavit
was incorrect and because of his failure to properly submit, he was now out of time.
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That record is at Grievance Records, Part 2, Pgs. 59-76.
Mr. Davis submitted a Request to Staff to Chief Dorman on May 3, 2018. The
Request to Staff was responded to the same day by Ms. Hassan, noting that it was
a duplicate submission. Mr. Davis submitted Grievance No. 2018-125 on May 17,
2018. That Grievance was returned unanswered on May 22, 2018. Mr. Davis was
provided 10 days to correct and resubmit, but he failed to do so. That record is at
Grievance Records, Part 2, Pgs. 77-84.
Mr. Davis submitted a Request to Staff to the Warden on May 4, 2018 regarding a
misconduct he had received. That Request to Staff was responded to by Unit
Manager Ade, noting that misconducts are not grievable, but telling Mr. Davis that
he could request a hearing. Mr. Davis submitted Grievance No. 2018-126 on May
17, 2018. The grievance was returned unanswered on May 22, 2018 noting that
misconducts are not grievable and that he was on grievance restriction and his
submission had not been proper. That record is at Grievance Records, Part 2, Pgs.
85-92.
The Oklahoma DOC inmate/offender grievance policy clearly states that if the
policy instructions are not followed, an inmate’s submitted grievance may not be
answered, and the grievance is to be returned
Mr. Davis submitted a Request to Staff to Ms. Hassan on May 3, 2018. Ms. Hassan
responded on May 3, 2018. Mr. Davis submitted Grievance No. 2018-127. That
grievance was returned unanswered on May 22, 2018 noting that Mr. Davis is on
grievance restriction and his submission was not properly made. He was given 10
days to correct and resubmit but did not do so. That record is at Grievance Records,
Part 2, Pgs. 93-100.
Mr. Davis submitted a Request to Staff to Ms. Dorman on May 3, 2018. Ms. Hassan
responded to the Request to Staff on May 3, 2018 noting that the request was a
duplicate. Mr. Davis submitted Grievance No. 2018-128. That grievance was
returned unanswered on May 22, 2018 and he was given 10 days to correct and
resubmit, but he did not do so. That record is at Grievance Records, Part 2, Pgs.
101-108.
Mr. Davis submitted a Request to Staff to Warden Yates on April 30, 2018. Warden
Yates responded on May 10, 2018. Plaintiff submitted Grievance No. 2018-129.
That grievance was returned unanswered on May 22, 2018 noting that he was on
grievance restriction and his submission had not been proper. He was given 10 days
to correct and resubmit but did not do so. That record is at Grievance Records, Part
3, Pgs. 109-116.
17
Mr. Davis submitted a Request to Staff to Warden Yates on May 14, 2018. That
request was responded to by Chief Dorman. Plaintiff submitted Grievance No.
2018-134. The grievance was returned unanswered on May 30, 2018, noting that
classification movement requests to transfer are not grievable and noting that he
was on grievance restriction and his submission had not been proper. That record
is at Grievance Records, Part 3, Pgs. 117-124.
Mr. Davis submitted a Request to Staff to Warden Yates on May 14, 2018. That
Request was responded to on May 15, 2018 by Ms. Dorman. Mr. Davis submitted
Grievance No. 2018-135. That grievance was returned unanswered on May 30,
2018 with the submission errors specifically noted. That record is at Grievance
Records, Part 3, Pgs. 125-132.
Plaintiff submitted a Request to Staff to Chief Dorman on May 10, 2018. Chief
Dorman responded on May 15, 2018. Plaintiff submitted Grievance No. 2018-136
on May 24, 2018. The grievance was returned unanswered to Mr. Davis on May
30, 2018 with reasons for the return specified. Additionally, the grievance was
identified as a duplicate of an earlier submitted grievance. That record is at
Grievance Records, Part 3, Pgs. 133-140.
The one-year grievance restriction expired on June 29, 2018.
Mr. Davis submitted a Request to Staff on July 2, 2018 to Unit Manager Ade. She
responded on July 3, 2018. Mr. Davis submitted Grievance No. 2018-173 on July
16, 2018. The grievance was returned unanswered on July 18, 2018 and he had
10 days to correct and resubmit. The Grievance was re-submitted and was
answered on August 1, 2018, stating: After an investigation of the matter DOC
Policy OP-030115 states: The staff member is to provide security and supervision
of the law library and inmates who are using the library. The staff member may
assist inmates by showing them how to conduct legal research and may assign a
research assistant to help an inmate conduct research and draft pleadings that relate
to conditions of confinement or post-conviction relief. Policy does not say that
Inmate Davis has to give his personal legal information to the inmate research
assistant. The research assistant is there if needed to provide help regarding legal
issues. Mr. Davis was granted relief. That record is at Grievance Records, Part 3,
Pgs. 141-152. However, this Grievance did not exhaust any claim Mr. Davis has
brought forward to the Court in his Amended Complaint.
Mr. Davis submitted a Request to Staff on July 16, 2018, to the mailroom
supervisor. Ms. Morales responded to that Request to Staff on July 18, 2018. Mr.
Davis submitted Grievance No. 2018-180 on July 25, 2018. That grievance was
18
returned unanswered on July 31, 2018. The return memorandum additionally noted
that Mr. Davis was being warned that continued abuse of the process would result
in him being placed back on grievance restriction. Mr. Davis was given 10 days to
correct and resubmit and he did resubmit Grievance No. 2018-180 on August 8,
2018. His re-submission was returned unanswered on August 13, 2018 and the
reasons for the return were provided to him. That record is at Grievance Records,
Part 3, Pgs. 153-163.
Mr. Davis submitted a Request to Staff on July 19, 2018 to Ms. Hassan. Ms.
Morales responded on July 10, 2018 noting that his request was a duplicate request.
Mr. Davis then submitted Grievance No. 2018-181 on July 25, 2018. Plaintiff’s
grievance was returned unanswered on July 31, 2018 and he was again warned that
continued process abuse would result in him being placed on grievance restriction.
Mr. Davis resubmitted Grievance 2018-181 on August 8, 2018. That grievance was
returned unanswered on August 13, 2018 with the reasons for the return specified.
That record is at Grievance Records, Part 4, Pgs. 164-175.
Mr. Davis filed a Request to Staff on July 19, 2018 to Ms. Martinez in the mailroom.
Ms. Morales responded on July 18, 2018 stating that the Request to Staff was a
duplicate request. Mr. Davis submitted Grievance No. 2018-182 on July 25, 2018.
That grievance was returned unanswered on July 31, 2018 and gave Mr. Davis 10
days to correct and resubmit. He did so on August 8, 2018 and asked what had
happened to his legal documents. The requested grievance relief was granted,
noting that after investigation his documents had been mailed out on July 5, 2018,
certified mail, with a charge of $21.50. That record is at Grievance Records, Part
4, Pgs. 176-187. However, this Grievance did not exhaust any claim Mr. Davis has
brought forward to the Court in his Amended Complaint.
Mr. Davis filed a Request to Staff on July 17, 2018 to Chief Dorman. Chief Dorman
responded to that request on July 24, 2018. Mr. Davis submitted Grievance 2018-
183 on July 31, 2018. The grievance was returned unanswered on July 31, 2018
with specific reasons for the return noted. That record is at Grievance Records,
Part 4, Pgs. 188-193.
Mr. Davis submitted a Request to Staff to Health Services Administrator Larimer
on July 24, 2018. That Request to Staff was responded to by Ms. Lysinger. Mr.
Davis submitted Grievance No. 2018-188 on July 31, 2018. The grievance was
returned unanswered on August 13, 2018 and he was given 10 days to correct and
resubmit, but he did not do so. That record is at Grievance Records, Part 4, Pgs.
194-199.
Mr. Davis submitted a Request to Staff on July 30, 2018 to Warden Yates. The
19
Request to Staff was responded to on July 31, 2018 by Unit Manager Ade. Mr.
Davis then submitted Grievance No. 2018-193 on August 6, 2018. The grievance
was returned unanswered on August 13, 2018 with reasons specified for the return.
Mr. Davis was given 10 days to correct and resubmit, but he did not do so. That
record is at Grievance Records, Part 4, Pgs. 200-205.
On August 7, 2018, Warden Yates sent a letter to Mr. Davis notifying him that he
was being placed on Grievance Restriction for 12 months because of repeated abuse
of the administrative remedies process, i.e., the repeated submission of frivolous
grievances and repetitive request to staffs. That record is at Grievance Records,
Part 4, Pg. 206.
Mr. Davis submitted a Request to Staff on July 30, 2018 to me, the facility’s
Grievance Coordinator. The Request to Staff was responded to on July 31, 2018,
noting that OP-090124 states only 1 issue per grievance and 1 issue per Request to
Staff. Mr. Davis submitted Grievance No. 2018-194 on August 14, 2018. That
Grievance was denied on August 14, 2018 noting that only one issue per grievance
is allowed. Mr. Davis did not appeal the decision to the Administrative Review
Authority. That record is at Grievance Records, Part 5, Pgs. 207-211.
Mr. Davis submitted a Request to Staff on July 25, 2018 to Warden Yates. The
Request to Staff was responded to on July 31, 2018 by Warden Yates. Mr. Davis
submitted Grievance No. 2018-196 on August 8, 2018 and the Grievance was
returned unanswered on August 13, 2018. Mr. Davis was provided 10 days to
correct and resubmit, but he did not do so. That record is at Grievance Records,
Part 5, Pgs. 212-217.
Mr. Davis submitted a Request to Staff on July 25, 2018 to Warden Yates. The
Request to Staff was responded to on August 2, 2018 by Warden Yates. Mr. Davis
submitted Grievance No. 2018-197 on August 8, 2018. That grievance was
returned unanswered on August 13, 2018, with reasons for the return specified. Mr.
Davis was provided 10 days to correct and resubmit but did not do so. That record
is at Grievance Records, Part 5, Pgs. 218-223.
Mr. Davis submitted a Request to Staff to Dr. Sanders on September 25, 2018. The
request to staff was responded to and then Mr. Davis submitted Grievance No.
2018-263 on October 5, 2018. That grievance was returned unanswered on October
10, 2018 with reasons for the return specified. Mr. Davis was given 10 days to
correct and resubmit, but he chose not to do so. That record is at Grievance
Records, Part 5, Pgs. 224-234.
Mr. Davis submitted a Request to Staff to Warden Yates and Unit Manager Ade
20
responded on September 26, 2018. Mr. Davis submitted Grievance No. 2018-264
on October 5, 2018. That Grievance was returned unanswered on October 10, 2018
with specific reasons for the return specified. He was given an opportunity to
correct and resubmit the grievance within 10 days and he resubmitted Grievance
2018-264 on October 30, 2018. The grievance was again returned unanswered on
October 31, 2018 and the reasons for the return were specifically noted. That record
is at Grievance Records, Part 5, Pgs. 235-257.
Mr. Davis submitted a Request to Staff to Dr. Sanders on September 19, 2018. That
Request to Staff was answered by Ms. Lysinger noting that Mr. Davis should set
out his request on a medical services form. Mr. Davis instead filed Grievance No.
2018-268 asking for his radiology report. That grievance was returned unanswered
on October 11, 2018 noting that he was on grievance restriction and that proper
documentation had not been submitted. Mr. Davis was provided 10 days to correct
and resubmit, but he did not do so. That record is at Grievance Records, Part 5,
Pgs. 258-267.
Mr. Davis submitted a Request to Staff to Dr. Sanders on October 2, 2018 asking
that Dr. Sanders verify that he conferred with Davis’ unit team regarding MRI
results and his medical condition. That Request to Staff was answered by Ms.
Lysinger. Mr. Davis filed Grievance No. 2018-271 stating that he needed
emergency medical attention. The grievance was returned unanswered on October
17, 2018 with specific reasons noted. Mr. Davis was allowed 10 days to correct
and resubmit, but he did not do so. That record is at Grievance Records, Part 6,
Pgs. 268-278.
Mr. Davis submitted a Request to Staff to Case Manager Pfaff on October 2, 2018.
That Request to Staff was responded to by Case Manager Pfaff and Mr. Davis then
submitted Grievance No. 2018-281. That Grievance was returned unanswered on
October 25, 2018. Mr. Davis was provided 10 days to correct and resubmit, but he
chose not to do so. That record is at Grievance Records, Part 6, Pgs. 279-287.
Mr. Davis submitted a Request to Staff to Diana Jones on October 18, 2018. The
Request to Staff was responded to by Ms. Jones. He then submitted Grievance No.
2018-301. That grievance was answered on November 2, 2018 as follows:
Inmate Davis wanted to know why Diana Jones was screening his
legal documents that he wanted copies of. I/M Davis wanted a copy
of everything for his personal records. After an investigation of the
matter by Diana Jones, Manager Operations Finance, DCF is not
required by DOC Legal or the courts to provide a copy to I/M Davis
of his filed documents. If I/M Davis wants a copy of what he files
21
with the court, he can handwrite himself a copy. Mrs. Jones is in
charge of controlling cost for the facility and this is why she was
consulted. DCF will copy and mail ONLY what is required by the
courts and DOC. Inmate Davis's RELIEF IS DENIED.
Mr. Davis appealed Grievance 2018-301 to the Oklahoma Department of
Corrections’ Administrative Review Authority. The appeal was returned
unanswered to him with the reasons for the return noted. Mr. Davis was given ten
days to correct and resubmit, but he did not do so. That record is at Grievance
Records, Part 6, Pgs. 288-308.
Mr. Davis submitted a Request to Staff to Diana Jones on October 23, 2018. That
Request was responded to by Ms. Jones on October 25, 2018. Mr. Davis then
submitted Grievance No. 2018-304 on November 5, 2018. That Grievance was
returned unanswered on November 8, 2018 and reasons for the return were
specified. Mr. Davis was given 10 days to correct and resubmit and he resubmitted
Grievance No. 2018-304. That Grievance was responded to on November 30, 2018
stating:
Inmate Davis wanted to know the name of the court and the
individual's name that Diana Jones spoke to concerning the issue of
copying Inmate Davis's legal documents. After an investigation of
the matter by Diana Jones, Manager-Operations Finance, Diana
Jones called the court that Inmate Davis had addressed his legal
documents to. She does not recall the name of the court. Mrs. Jones
did not write down the individual's name nor does she remember it.
Inmate Davis's RELIEF IS DENIED.
Mr. Davis appealed Grievance 2018-304 to the Oklahoma Department of
Corrections’ Administrative Review Authority. That appeal was returned
unanswered to him, with specific reasons for the return provide[d]. Mr. Davis was
given ten days to correct his errors and resubmit, but he did not do so. That record
is at Grievance Records, Part 6, Pgs. 309-334.
Mr. Davis submitted a Request to Staff to Unit Manager Ade on October 23, 2018.
Unit Manager Ade responded to the request to staff on October 24, 2018. Mr. Davis
filed Grievance No. 2018-310 asking to be placed in protective custody. That
Grievance was responded to as follows:
Inmate Davis wanted to be placed on Protective Custody Status.
After an investigation of the matter by Tiffany Ade, Echo Unit
Manager, due to the security regarding Maximum Security Inmates,
22
we do not place Max Inmates on Protective Custody. Inmate Davis
was offered a single cell on EC twice, which he refused. The
cellmate he got into a fight with is housed on EA. Section-06
Classification OP-060106 Page: 3 Effective Date: 08/20/2018 B.
Staff Initiated Separation c. Non-association inmates will not be
transferred to the same facility with the following exceptions: (1)
Male inmates assigned to maximum security will not be housed in
the same cell and if possible, will not be housed in the same area of
the facility. Inmate Davis’s RELIEF IS DENIED.
Mr. Davis appealed Grievance 2018-310 to the Oklahoma Department of
Corrections’ Administrative Review Authority. The appeal was returned
unanswered to him with reasons for the return noted. He was given ten days to
correct his errors and resubmit, but he did not do so. That record is at Grievance
Records, Part 7, Pgs. 335-355.
Mr. Davis submitted a Request to Staff to Chief Dorman on November 19, 2018.
That Request to Staff was answered by Chief Dorman on November 19, 2018. Mr.
Davis filed Grievance No. 2018-339 and that Grievance was returned to him
unanswered with reasons for the return. Mr. Davis was provided 10 days to correct
and resubmit, but he did not do so. That record is at Grievance Records, Part 7,
Pgs. 356-367.
Mr. Davis submitted a Request to Staff to Chief Dorman on November 19, 2018.
That Request to Staff was answered by Chief Dorman on November 19, 2018
stating that Davis’ level was dropped due to his continued refusal to house in Echo.
Mr. Davis filed Grievance No. 2018-348. That Grievance was returned unanswered
on December 10, 2018 noting that the grievance was not timely filed. Specifically,
he was demoted on September 1, 2018 and his Request to Staff was not submitted
until November 14, 2018. That record is at Grievance Records, Part 7, Pgs. 368-
376.
Mr. Davis submitted a Request to Staff to Dr. Sanders on November 16, 2018. That
Request to Staff was answered by Health Services Administrator Ray Larimer on
November 22, 2018. Mr. Davis then filed Grievance No. 2018-349 stating that he
wanted to be seen by a qualified physician--a neurologist. That Grievance was
returned unanswered with reasons for the return noted. Mr. Davis was given 10
days to correct and resubmit, but he did not do so. That record is at Grievance
Records, Part 7, Pgs. 377-386.
Mr. Davis submitted a Request to Staff to Diana Jones on November 23, 2018. That
Request to Staff was answered by Ms. Jones on November 28, 2018. Mr. Davis
23
filed Grievance No. 2018-357. That Grievance was returned unanswered noting
that Mr. Davis was on grievance restriction and had not included the proper
documentation and noting that the grievance issue had been addressed in Grievance
No. 2018-301. That record is at Grievance Records, Part 7, Pgs. 387-395.
Mr. Davis submitted a Request to Staff to me, the facility Grievance Coordinator,
on November 26, 2018. That Request to Staff was answered on November 28,
2018. Mr. Davis then filed Grievance No. 2018-358. The Grievance was returned
unanswered on December 11, 2018 and the reasons for the return were noted. Mr.
Davis was provided 10 days to correct and resubmit, but he chose not to do so. That
record is at Grievance Records, Part 8, Pgs. 396-404.
Mr. Davis submitted a Request to Staff to Dr. Sanders on November 28, 2018. That
Request to Staff was answered by Health Service Administrator Larimer on
November 30, 2018. Mr. Davis filed Grievance No. 2018-359 asking for an appeal
to ODOC Chief Medical Officer to review the MRI/Radiologist Report and to know
the reason the referral for Neurologist was disapproved. That grievance was
returned unanswered on December 10, 2018 and the specific reasons for the return
were noted. Mr. Davis was provided 10 days to correct and resubmit, but he did
not do so. That record is at Grievance Records, Part 8, Pgs. 405-413.
Mr. Davis submitted a Request to Staff to Warden Yates on November 20, 2018.
That Request to Staff was answered by Assistant Warden Perez on November 26,
2018 specifically stating why he had been taken to segregation. Mr. Davis filed
Grievance No. 2018-360. The Grievance was returned to Mr. Davis unanswered
on December 11, 2018 and specific reasons for the return were provided. That
record is at Grievance Records, Part 8, Pgs. 414-423.
[Dkt. No. 145-2 at 4-15 (paragraph numbering omitted) (emphasis in original)].
Plaintiff alleges in his response to the DCF Defendants’ motion for summary judgment
[Dkt. No. 159] that his constitutional rights were violated by these defendants, and he reiterates
the claims in his amended complaint. He claims the DCF Defendants’ motion was presented in
bad faith and is an act of fraud. He further claims he was impeded from exhausting his
administrative remedies when the defendants did not follow the grievance policy, because his
grievance restriction was unfounded.
24
The record shows that Plaintiff was placed on grievance restriction on June 29, 2017,
because he had repeatedly submitted RTSs about issues that previously had been addressed by
staff. In fact, he submitted more than 21 RTSs during June 2017. [Dkt. Nos. 145-2 at ¶ 12; 145-
5 at 7]. In response to his appeal of the restriction to the DOC ARA in No. 17-183, the appeal was
returned to him on July 21, 2017, and his request to be removed from the restriction was denied
by the DOC ARA. [Dkt. No. 145-5 part 1 at 9-14].
To the extent Plaintiff is complaining that DCF Defendants interfered in his ability to
exhaust his administrative remedies, “[w]here prison officials prevent, thwart, or hinder a
prisoner’s efforts to avail himself of an administrative remedy, they render that remedy
‘unavailable’ and a court will excuse the prisoner’s failure to exhaust.” Little v. Jones, 607 F.3d
1245, 1250 (10th Cir. 2010) ((citation omitted). In Plaintiff’s case, however, the Court finds
Plaintiff’s claims of interference are unsupported and conclusory.
After careful consideration of the pleadings and other submitted materials in this case, the
Court is of the view that there are no genuine issues of material fact concerning whether Plaintiff’s
claims are unexhausted. Therefore, summary judgment must be GRANTED to the DCF
Defendants pursuant to Fed. R. Civ. P. 56(a).
OSP/DOC Defendants
The OSP/DOC Defendants have moved for dismissal of Plaintiff’s claims against them,
alleging in part that Plaintiff failed to exhaust his administrative remedies for his claims. [Dkt.
No. 148]. In addition to the grievance process discussed above, the DOC has a misconduct appeal
process which governs the process by which inmates are disciplined. See DOC OP-060125. The
25
appeal process also sets forth an administrative remedy whereby inmates may appeal the outcome
of a disciplinary proceeding. [Dkt. No. 148-1].
Immediately upon an inmate’s being found guilty of a disciplinary violation, the head of
the facility imposing the discipline will conduct a sua sponte review of disciplinary proceedings
and either affirm, dismiss, modify or remand the outcome of disciplinary proceedings. Id. at Parts
VI(D) and VII(E). If the discipline is affirmed during the sua sponte review, the inmate may
initiate a formal appeal, or “Due Process Review”, which requires submission of an “Inmate
Misconduct Appeal Form” to the head of the facility where the disciplinary hearing was conducted.
Id. at VIII(A). If the discipline is affirmed, the facility head decision is final for Class A and Class
B violations. Id. at VIII(A)(9). If the violation at issue is a Class X misconduct or a Class A or B
violation wherein restitution was imposed as a sanction, the inmate then may appeal the facility
head’s decision to the DOC’s Administrative Review Authority. Id. at VIII(B). Only after each
of these steps is taken has an inmate exhausted administrative remedies regarding disciplinary
proceedings.
Plaintiff alleges the OSP/DOC Defendants violated his constitutional rights when they
conspired against him for filing grievances and lawsuits, denied him medical care, improperly
housed him with dangerous inmates, denied him a bottom bunk, modified agency policies, used
excessive force, filed false misconducts, and failed to supervise staff. He submitted the following
grievances, as set forth in the OSP/DOC Defendants’ motion to dismiss or for summary judgment:
Grievance MARA 19-7: On January 28, 2019, Plaintiff submitted an Emergency
& Sensitive Grievance to the DOC’s Medical Services Administrator Buddy
Honaker, requesting that the DOC’s Chief Medical Officer order DCF officials to
send his medical records to OSP. However, the Grievance was returned
26
unanswered because Plaintiff, who was on grievance restriction at the time, failed
to submit the proper documentation with the grievance. Special Report, Dkt. No.
147 (“S.R.”), Attachments 50-51, pages 373-377. There is no indication that the
grievance was resubmitted properly.
Grievance 19-46: On January 31, 2019, Plaintiff submitted an Emergency &
Sensitive Grievance to OSP Warden Mike Carpenter asking to have excess legal
property. In response, Plaintiff was advised that he could only have one cubic foot
of legal material in his cell. Plaintiff was also advised that excess property could
be stored and would be made available to him upon submission of a RTS. S.R.,
Att. 7 and 8, pages 60-64. Plaintiff did not appeal this grievance response. Affidavit
of Mark Knutson, S.R., Att. 33, pages 146-147.
Grievance 19-47: On January 31, 2019, Plaintiff submitted an Emergency &
Sensitive Grievance to OSP Warden Mike Carpenter asking that a chair be placed
in the law library at the research computer. In response, Plaintiff was advised that
chairs were placed in the library on February 4, 2019. S.R., Att. 9-10, pages 65-69.
Plaintiff did not appeal this grievance response. S.R., Att. 33, pages 146-147.
Grievance 19-48: On January 31, 2019, Plaintiff submitted an Emergency &
Sensitive Grievance to OSP Warden Mike Carpenter asking to be placed in a cell
with a bottom bunk and no cellmate. In response, Plaintiff was advised that he was
eligible for a bottom bunk but he was not restricted to a single cell. S.R., Att. 11-
12, pages 70-74. Plaintiff did not appeal this grievance response. S.R., Att. 33,
pages 146-147.
Grievance 19-83: On February 14, 2019, Plaintiff submitted an Emergency &
Sensitive Grievance to OSP Warden Mike Carpenter complaining about an alleged
assault committed by OSP staff. Plaintiff asked that the incident be investigated
and that the involved officers be reprimanded. The grievance was returned
unanswered because Plaintiff, who was on grievance restriction at the time, failed
to submit the proper documentation with the grievance. It was also rejected because
it included an improper request for staff discipline. Plaintiff was given 10 days to
properly resubmit his grievance. On February 26, 2019, Plaintiff attempted to
resubmit Grievance 19-83, again asking for an investigation into the alleged assault.
The grievance was again returned unanswered because Plaintiff, who was on
grievance restriction at the time, failed to submit the proper documentation with the
grievance. S.R., Att. 35 through 38, pages 175-184.
Grievance 19-76: On February 14, 2019, Plaintiff submitted an Emergency &
Sensitive Grievance to OSP Warden Mike Carpenter asking for an investigation
into a variety of concerns and requesting a bottom bunk, separatees and cessation
27
of harassment by staff. The grievance was returned unanswered because, inter alia,
Plaintiff failed to first submit a RTS, the grievance contained multiple issues and
because Plaintiff, who was on grievance restriction at the time, failed to submit the
proper documentation with the grievance. Plaintiff was given 10 days to properly
resubmit his grievance. On February 26, 2019, Plaintiff attempted to resubmit
Grievance 19-76 and asked for an investigation into staff, who were allegedly
placing his life in danger and withholding legal property. The grievance was again
returned unanswered because Plaintiff, who was on grievance restriction at the
time, failed to submit the proper documentation with the grievance. S.R., Att. 14
through 17, pages 78-87.
Grievance 19-77: On February 14, 2019, Plaintiff submitted an Emergency &
Sensitive Grievance to OSP Warden Mike Carpenter asking for separatees and for
OSP staff to refrain from retaliating against him. The grievance was returned
unanswered because, inter alia, Plaintiff failed to first submit a RTS, the grievance
contained multiple issues and because Plaintiff, who was on grievance restriction
at the time, failed to submit the proper documentation with the grievance. Plaintiff
was given 10 days to properly resubmit his grievance. On February 26, 2019,
Plaintiff attempted to resubmit Grievance 19-77 and asked for an investigation into
the underlying grievance and for staff to refrain from placing his life in danger.
The grievance was again returned unanswered because Plaintiff, who was on
grievance restriction at the time, failed to submit the proper documentation with the
grievance. S.R., Att. 18 through 21, pages 88 - 97.
Grievance 19-09: On February 14, 2019, Plaintiff submitted a Grievance to OSP
Warden Mike Carpenter and the Health Services Administrator asking to be seen
by a neurologist and for stronger pain medication. The grievance was returned
unanswered because Plaintiff, who was on grievance restriction at the time, failed
to submit the proper documentation with the grievance. S.R., Att. 52 and 53, pages
378-383.
Due Process Appeal 19-07: On April 3, 2019, Plaintiff submitted an appeal from
a disciplinary proceeding wherein he was found guilty of making false allegations
against staff. However, the appeal was returned unanswered because it was
incomplete. Plaintiff was given 10 days to correctly resubmit the grievance but
there is no indication that he did so. S.R., Att. 22-30, pages 98-118.
[Dkt. No. 148 at 11-14 (paragraph headings added)].
According to the affidavit of Mark Knutson, Manager of the ARA at the DOC, a review of
Plaintiff’s ARA records show that the ARA has not received a grievance or appeal from Plaintiff
28
regarding the above-referenced grievances and disciplinary proceedings. Therefore, he failed to
exhaust the administrative remedies for his claims. [Dkt. No. 147-33 at 2]. The Court, therefore,
finds Plaintiff has failed to exhaust the administrative remedies for his claims against the
OSP/DOC Defendants, pursuant to 42 U.S.C. § 1997e(a), and the OSP/DOC Defendants’ motion
to dismiss [Dkt. No. 148] is GRANTED.
Plaintiff’s Motions for Temporary Restraining Order and Preliminary Injunction
As a final matter, Plaintiff has filed three motions for a temporary restraining order and for
a preliminary injunction. [Dkt. Nos. 154, 164, and 180]. The motions are repetitive and vague
and essentially are asking for the relief that was sought in the amended complaint.
In the first motion, Plaintiff reiterates many of his Eighth Amendment claims in the
amended complaint, as set forth above, and requests that the Court enter an injunction to grant him
relief “to encompass the entire ODOC and all prisons owned by private companies.” [Dkt. No.
154 at 23].
The second motion alleges the OSP Defendants have violated his constitutional rights to
adequate medical care, to be free from assault by other inmates, and to be free from prison officials’
arbitrary actions. [Dkt. No. 164 at 1-2]. He again raises many of the claims in his amended
complaint, but also includes new claims.
Plaintiff’s third motion for temporary restraining order again raises his claims regarding
medical care, being called a snitch, excessive force, inciting violence, conspiracy, and false
misconducts, among other issues. [Dkt. No. 180]. Again, he is attempting to re-urge the claims in
the amended complaint or to raise new claims, but he is unclear about the relief he is requesting.
29
Further, to the extent he is attempting to raise new claims, he must present the new claim in a new
civil rights complaint.
A temporary restraining order is intended to preserve the status quo until the Court can rule
upon an application for preliminary injunction. Fed. R. Civ. P. 65(b); James Wm. Moore, Moore’s
Federal Practice, § 65.30 (3d ed. 2008). Because the Court is adjudicating plaintiff’s preliminary
injunction request with this Order, the Court concludes that a temporary restraining order is not
necessary.
“An injunction is a drastic and extraordinary remedy, which should not be granted as a
matter of course.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010). Furthermore,
to be entitled to injunctive relief, the movant must establish a violation of his constitutional rights.
Rizzo v. Goode, 423 U.S. 362, 377 (1976). Because the Court finds Plaintiff has failed to establish
that his constitutional rights have been violated, his requests injunctive relief cannot be granted.
Therefore, Plaintiff’s motions for a temporary restraining order and for a preliminary injunction
[Dkt. Nos. 154, 164, and 180] are DENIED.
THEREFORE,
1. The DCF Defendants’ motion for summary judgment [Dkt. No. 145] is
GRANTED.
2. The OSP/DOC Defendants’ motion to dismiss [Dkt. No. 148] is GRANTED.
3. Plaintiff’s motions for a temporary restraining order and for a preliminary
injunction [Dkt. Nos. 154, 164, and 180] are DENIED.
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4. Plaintiff’s motion for court order to send his legal documents to Davis Correctional
Facility [Dkt. No. 179] is DENIED AS MOOT.
IT IS SO ORDERED this 22nd day of April, 2021.
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