McGinnes v. Rothrock

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

CALVIN LEE McGINNES, )

)

Plaintiff, )

)

v. ) Case No. 23-CV-0120-TCK-SH

)

KATIE ROTHROCK, Jail )

Administrator, )

MRS. GALARDO, Assistant Jail )

Administrator, )

KEVIN COHEN, Assistant Jail )

Administrator, )

KATHLEEN GORDON, LPN-Nurse, )

)

Defendants. )

OPINION AND ORDER

This civil rights action is before the Court on the Motion to Dismiss filed by Defendant

Kathleen Gordon on June 30, 2023 (Dkt. 22). Citing Federal Rule of Civil Procedure 12(b)(6),

Gordon contends that the Pro Se Prisoner Civil Rights Complaint filed by Plaintiff Calvin Lee

McGinnes on March 28, 2023 (Dkt. 1) fails to state any claims against her on which relief may be

granted. McGinnes did not file a response to the dismissal motion. Having carefully considered

the allegations in the Complaint, the Court finds that they are not sufficient to state any plausible

claims for relief against Gordon. The Court therefore grants Gordon’s Motion to Dismiss and

Dismisses the Complaint, in part, as to all claims asserted against Gordon.

I. Plaintiff’s allegations and claims

McGinnes, who appears pro se, has been detained or incarcerated at the Delaware County

Jail in Jay, Oklahoma since October 31, 2022. Dkt. 1, at 2, 5.1 He commenced this action in

March 2023, seeking relief under 42 U.S.C. § 1983 for violations of his constitutional rights arising

from allegedly inadequate dental care and unconstitutional conditions of confinement. Id. at 1-2,

5, 7-9. He purports to sue four defendants: (1) Katie Rothrock, Jail Administrator; (2) Mrs.

Galardo, Assistant Jail Administrator; (3) Kevin Cohen, Assistant Jail Administrator; and (4)

Kathleen Gordon, LPN-Nurse (collectively, “Defendants”).2 Id. at 3-4. McGinness identifies five

claims and provides supporting facts for each claim. Id. at 5, 7-9. McGinnes purports to sue each

defendant in his or her individual capacity only. Dkt. 4, at 1.3

A. Claim One: Deliberate Indifference to a Serious Dental Health Need

McGinness first claims Defendants violated his right to constitutionally adequate medical

care by being deliberately indifferent to his serious need for dental care. Dkt. 1, at 5, 7. McGinnes

alleges he arrived at the Delaware County Jail on October 31, 2022, and was assigned to Cell # 4.

Id. at 5. On November 7, 2022, he “started grieving to Medical and Jail Administration of a broken

1 For consistency, the Court’s citations refer to the CM/ECF header pagination. In addition,

when quoting from the Complaint, the Court follows conventional rules for capitalization and

grammar, corrects obvious spelling errors, and replaces references to “Kat Groden” with the

correct spelling of Defendant Kathleen Gordon’s name.

2 The Court previously dismissed from this action a fifth defendant, because that defendant

was a private actor and McGinnes did not plausibly allege that defendant acted under color of state

law to deprive McGinness of any federally protected rights. Dkt. 6, at 3-4.

3 In the Complaint, McGinnes purported to sue each defendant in his or her individual and

official capacities. Dkt. 1, at 5, 7-9. However, he subsequently filed a document entitled

“Defendants Amended” indicating that he intends to sue each defendant only in his or her

individual capacity. Dkt. 4. The Court construed that document as a correction to the Complaint.

Dkt. 6, at 1 n.1.

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tooth, and an abscess tooth on the left side of [his] mouth.” Id. at 5, 7. He grieved this issue

“personally to Jail Administrator Mrs. Galardo and Nurse [Kathleen Gordon], to no avail.” Id. at

7. McGinnes “was charged $26.00 for a medical visit.” Id. at 5. McGinness grieved this issue to

“again” to Katie Rothrock “on or around” November 17, 2022, “and was charged another $26.00

again for grieving.” Id. at 7. McGinnes grieved “this serious dental issue” to “Jail Administrators”

on December 12, 2022, and, as before, he was charged $26.00 for medical and dental treatment

“and still never received adequate or proper treatment.” Id. Instead, McGinnes was “just charged

over and over again for grieving.” Id. In describing his serious medical need and resulting injuries,

McGinnes alleges that he has “a broken tooth and a[n] abscess tooth and it hurts extremely bad

and is swelling [his] face up.” Id. He also alleges his “mental health” is in a “state of psychosis

and depression” and that the lack of dental care has been “traumatizing.” Id. He further alleges

that “all these staff know of this concern and have all simply disregarded this matter.” Id.

McGinnes alleges he “exhausted all of [his] available administrative remedies” as to this

issue as follows: “I’ve spoken with Katie Rothrock, Mrs. Galardo, Mr. Cohen, and Nurse

[Kathleen Gordon] . . . and received responses from all of these officials, and personally spoke

with all these medical staff and prison officials to no avail.” Id.

B. Claim Two: Deprivation of Outside Recreation, Fresh Air, and Exercise

Next, McGinness claims Defendants violated his right to constitutionally adequate

conditions of confinement by depriving him of outside recreation, fresh air, and exercise. Dkt. 1,

at 8. In support of this claim, McGinnes alleges he was booked into the Delaware County Jail on

October 31, 2022, that he has “remained in Cell # 9 and Cell # 4 and ha[s] not had any outside

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recreation, fresh air, sunlight, nor exercise for over (6) six months now and ongoing.” Id.

McGinnes further alleges that his “muscles have developed a muscle disease of ‘atrophy,’” and

that his constant confinement has caused him to suffer “mental health disorders of psychosis and

depression.” Id. He alleges he exhausted available administrative remedies as to this claim by

speaking with “Jail Administrators Katie Rothrock, Assistant Administrator Mrs. Galardo, Sheriff

Beck, Nurse [Kathleen Gordon].” Id.

C. Claim Three: Unsanitary and Overcrowded Jail Cells

In his third claim, McGinnes alleges he is being housed in unconstitutional conditions of

confinement because the jail is overcrowded and unsanitary. Dkt. 1, at 8. Specifically, he alleges

that since he arrived at the jail in October 2022, he has been housed in a “four-man cell,” Cell # 4,

with six, seven, or eight “people at a time.” Id. He alleges “there is mold growing on the walls,

no fire sprinkler, [and no] fire evac[uation] plan.” Id. He further alleges that prisoners must “wear

the same clothes that are degrading,” have “no sheets” and must “roll on dirty bare mats.” Id.

McGinness alleges these conditions have caused him to contract “colds, flu, athlete’s foot, staph

infections, rashes, insect bites, and other unidentified novel diseases.” Id.

According to McGinnes, Sheriff Beck, who is not identified as a defendant in this action,

and all Defendants “know of these filthy living conditions and have wrote acknowledged and

already addressed on all my grievances to no avail.” Id. He further alleges “these people just

don’t care.” Id.

D. Claim Four: Due Process Violation

McGinnes claims Defendants Rothrock, Cohen, and Galardo violated his Fourteenth

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Amendment right to due process. Dkt. 1, at 9. In support of this claim, McGinness alleges that he

has been detained at the Delaware County Jail since October 31, 2022, for a probation revocation,

that he was not granted a hearing within twenty days, that “no probation or parole officer has made

any statements, or recommendations on [his] behalf,” and that his “rights and all the rules and

policy of ‘entitled’ ‘probation and parole’ under Oklahoma Department of Corrections have been

broken and . . . violated.” Id. He further alleges that he “remain[s] a sentenced prisoner and a pre-

trial detainee with no court date, hearings, recommendations, nor sanctions.” Id. McGinnes

alleges he “grieved this serious concern for several months to no avail to Katie Rothrock, J.A.

Cohen, [and] Mrs. Galardo.” Id.

E. Claim Five: Free Exercise of Religion

In his fifth claim, McGinnes claims Defendants Rothrock, Galardo, and Cohen, and non-

defendant Sheriff Beck, have interfered with his First Amendment right to freely exercise his

religion. Dkt. 1, at 9. In support of this claim, McGinnes alleges he is “a ‘Christian Faith’ and

believe[s] in Jesus Christ.” Id. He alleges that since he arrived at the Delaware County Jail he has

“been denied [permission] to talk to [his] chaplain from the world, and [the] jail does not allow

[him] access to a chaplain.” Id. He alleges he has neither seen nor spoken to a jail chaplain for

six months. Id. McGinnes alleges he grieved this issue “to no avail to Jail Administration Katie

Rothrock, Mrs. Galardo, J.A. Cohen, [and non-defendant] Sheriff Beck.” Id.

F. Requests for relief

In his request for relief, McGinnes seeks permanent injunctive relief and $7,000,000 in

damages. Id. at 10-11.

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II. Discussion

Defendant Kathleen Gordon seeks dismissal of the Complaint, under Fed. R. Civ. P.

12(b)(6), asserting that McGinnes fails to state any plausible constitutional claims against her.

Dkt. 22, at 1-9. In reviewing a Rule 12(b)(6) motion to dismiss, a court must accept as true all the

well-pleaded factual allegations of the complaint and determine whether the complaint contains

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp., 550 U.S. at

555, 570. Dismissal is appropriate “when the allegations in a complaint, however true, could not

raise a claim of entitlement to relief.” Id. at 558. When, as here, a plaintiff appears pro se, a court

must liberally construe the complaint. Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). This

“means that if the court can reasonably read the pleadings to state a valid claim on which the

plaintiff could prevail, it should do so.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

But the rule of liberal construction does not relieve a pro se plaintiff of his or her “burden [to]

alleg[e] sufficient facts on which a recognized legal claim could be based.” Hall, 935 F.2d at 1110.

And, in applying the rule of liberal construction, a 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).

To survive a motion to dismiss for failure to state claim, a plaintiff seeking relief under

§ 1983 must plausibly allege: “(1) a violation of rights protected by the United States Constitution

or created by federal statute or regulation, (2) proximately caused (3) by the conduct of a ‘person’

(4) who acted under color of any statute, ordinance, regulation, custom[,] or usage, of any State or

Territory or the District of Columbia.” Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir.

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2002) (alteration in original) (citation omitted). As previously noted, McGinnes sues each

defendant in his or her individual capacity only. See supra n. 3. “A § 1983 defendant sued in an

individual capacity may be subject to personal liability and/or supervisory liability.” Brown v.

Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011). As Brown explains,

Personal liability “under § 1983 must be based on personal involvement in

the alleged constitutional violation.” Foote v. Spiegel, 118 F.3d 1416, 1423 (10th

Cir. 1997).

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.” Dodds v. Richardson, 614 F.3d 1185, 1199

(10th Cir. 2010), cert. denied, 563 U.S. 960, 131 S. Ct. 2150, 179 L.Ed.2d 935

(2011) (quotation omitted).

Section 1983 does not authorize liability under a theory of respondeat

superior. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 56

L. Ed. 2d 611 (1978). Instead, to establish supervisory liability, a plaintiff must

show that “(1) the defendant promulgated, created, implemented or possessed

responsibility for the continued operation of a policy that (2) caused the complained

of constitutional harm, and (3) acted with the state of mind required to establish the

alleged constitutional deprivation.” Dodds, 614 F.3d at 1199.

Id. at 1163-64 (footnote omitted); see also Schneider v. Grand Junction Police Dep’t, 717 F.3d

760, 767 (10th Cir. 2013) (requiring a plaintiff to show an “affirmative link” between the

supervisor and the alleged constitutional violation).

Having carefully considered the allegations in the Complaint, the Court finds it most

reasonable to read those allegations as asserting three claims against Gordon, in her individual

capacity: (1) a deliberate indifference claim arising from the alleged failure to provide adequate

dental or medical care, as asserted in Claim One; (2) a deliberate indifference claim arising from

the alleged deprivation of outdoor exercise, as asserted in Claim Two; and (3) a deliberate

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indifference claim arising from the allegedly unsanitary and overcrowded jail conditions, as

asserted in Claim Three. However, for the following reasons, the Court finds that none of these

claims states a plausible claim for relief against Gordon.

A. Claim One: Deliberate Indifference to a Serious Dental Health Need

First, as Gordon contends, the factual allegations in support of Claim One are not sufficient

to state a plausible claim for relief against Gordon for deliberate indifference to a serious dental

health need. Dkt. 22, at 4-7.

The Eighth Amendment’s prohibition on cruel and unusual punishment requires prison

officials to provide adequate medical care to convicted inmates. Estelle v. Gamble, 429 U.S. 97,

104 (1976). “[T]o state a cognizable [Eighth Amendment] claim, a prisoner must allege acts or

omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Id.

at 106. “The Fourteenth Amendment prohibits deliberate indifference to a pretrial detainee’s

serious medical needs.” Strain v. Regalado, 977 F.3d 984, 987 (10th Cir. 2020). “And [courts]

apply the same deliberate indifference standard no matter which amendment provides the

constitutional basis for the claim.” Id. at 989.4 As Strain explains,

This standard includes both an objective component and a subjective component.

Clark v. Colbert, 895 F.3d 1258, 1267 (10th Cir. 2018). To establish the objective

component, “the alleged deprivation must be ‘sufficiently serious’ to constitute a

deprivation of constitutional dimension.” Self v. Crum, 439 F.3d 1227, 1230 (10th

Cir. 2006) (quoting Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L.

Ed. 2d 811 (1994)). “A medical need is [objectively] serious if it is one that has

4 It is not entirely clear from the Complaint which amendment McGinnes relies on because

he identifies himself both as a pretrial detainee and as a convicted and sentenced state prisoner.

Dkt. 1, at 2, 9. However, as Strain states, the same deliberate indifference standard applies

regardless of which constitutional amendment applies. 977 F.3d at 989.

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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.”

Clark, 895 F.3d at 1267 (alteration in original and citation omitted). The subjective

component requires Plaintiff to establish that a medical “official knows of and

disregards an excessive risk to inmate health or safety; the official must both be

aware of facts from which the inference could be drawn that a substantial risk of

serious harm exists, and [s]he must also draw the inference.” Mata v. Saiz, 427

F.3d 745, 751 (10th Cir. 2005) (alteration in original) (quoting Farmer, 511 U.S. at

837, 114 S. Ct. 1970).

Strain, 977 F.3d at 989-90.

McGinnes alleges he arrived at the Delaware County Jail on October 31, 2022, and that he

“started grieving to Medical and Jail Administration of a broken tooth, and an abscess tooth on the

left side of [his] mouth” on November 7, 2022. Id. at 5, 7. McGinnes alleges his tooth “hurts

extremely bad and is swelling [his] face up.” Id. at 7. He also alleges the lack of dental care has

traumatized him and negatively impacted his “mental health.” Id. He alleges he grieved this issue

“personally to . . . Nurse [Kathleen Gordon], to no avail.” Id. at 7. McGinnes further alleges that

on an unidentified date he “was charged $26.00 for a medical visit”; that “on or around” November

17, 2022, he “was charged another $26.00 again for grieving” this issue; and that on December 12,

2022, he grieved “this serious dental issue” to “Jail Administrators, he was charged $26.00 for

medical and dental treatment, and he “still never received adequate or proper treatment.” Id. at 5,

7. He further alleges that “all these staff know” about his need for dental treatment “and have all

simply disregarded this matter.” Id. at 7.

Accepting McGinnes’s factual allegations as true, the Court finds them sufficient to

describe a serious need for dental care and to show that Gordon was aware that he requested

treatment. But his allegations suggest that he received medical and dental treatment on at least

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two, and possibly three, occasions. And, while McGinnes asserts that he “never received adequate

or proper treatment,” he does not allege facts describing the alleged inadequacies or improprieties

in his treatment. Critically, “an individual ‘who merely disagrees with a diagnosis or a prescribed

course of treatment does not state a constitutional violation.’” Strain, 977 F.3d at 994 (quoting

Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 811 (10th Cir. 1999)). Moreover, even if

McGinnes’s allegations could be liberally construed as alleging more than a mere disagreement

with a prescribed course of treatment, none of his allegations identifies what role, if any, Gordon

had in either providing or failing to provide constitutionally adequate treatment to McGinnes. See

Foote, 118 F.3d at 1423 (explaining that personal liability “under § 1983 must be based on personal

involvement in the alleged constitutional violation”). At most, his allegations show that Gordon

was aware of his request for dental care. But deliberate indifference requires more than awareness,

it requires a knowing disregard for an excessive or substantial risk to the plaintiff’s health. Strain,

977 F.3d at 990. On the facts alleged, and for the reasons just discussed, McGinnes fails to state

a plausible deliberate indifference claim against Gordon arising from the alleged failure to provide

dental treatment.

B. Claims Two and Three: Outdoor Exercise and Conditions of Confinement

Second, as Gordon contends, McGinnes’s factual allegations in support of Claims Two and

Three fall short of plausibly showing that Gordon could be liable for the alleged denial of outdoor

exercise or the allegedly unsanitary and overcrowded conditions at the Jail. Dkt. 22, at 7-8.

The Eighth Amendment “imposes a duty on prison officials to provide humane conditions

of confinement, including adequate . . . clothing, shelter, [and] sanitation.” Tafoya v. Salazar, 516

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F.3d 912, 916 (10th Cir. 2008). And “denying outdoor exercise could violate the Constitution

under some circumstances.” Lowe v. Raemisch, 864 F.3d 1205, 1209 (10th Cir. 2017); see also

Apodaca v. Raemisch, 864 F.3d 1071, 1077 (10th Cir. 2017) (“Roughly three decades ago, we

recognized a consensus in the case law regarding the importance of outdoor exercise for

prisoners.”). However, to establish an Eighth Amendment violation, a plaintiff must demonstrate

that a prison official acted with “deliberate indifference” by knowingly disregarding an excessive

risk to an inmate’s health or safety. Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000);

Farmer, 511 U.S. at 837. Likewise, a plaintiff held in state custody as a pretrial detainee must

demonstrate that a jail official acted with deliberate indifference to establish that the officials acts

or omissions violated the Due Process Clause of the Fourteenth Amendment. Paugh v. Uintah

County, 47 F.4th 1139, 1153-54 (10th Cir. 2022).

In support of Claim Two, McGinnes alleges that, as of the date he filed his Complaint, he

had been deprived of “outside recreation, fresh air, sunlight, [and] exercise for over (6) six

months.” Dkt. 1, at 8. He further alleges that, because of this deprivation, his muscles have

atrophied, and his mental health has declined. Id. He alleges he spoke about this deprivation with

“Jail Administrators Katie Rothrock, Assistant Administrator Mrs. Galardo, Sheriff Beck, [and]

Nurse [Kathleen Gordon].” Id. In support of Claim Three, McGinnes alleges that since his arrival

at the jail in October 2022, he has been housed in a “four-man cell,” with six, seven, or eight

“people at a time.” Id. He further alleges “there is mold growing on the walls, no fire sprinkler,

[and no] fire evac[uation] plan,” and that prisoners must wear “degrading” clothes and “roll on

dirty bare mats” with “no sheets.” Id. McGinness alleges these overcrowded and unsanitary

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conditions have caused him to contract “colds, flu, athlete’s foot, staph infections, rashes, insect

bites, and other unidentified novel diseases.” Id. And he alleges that all Defendants “know of

these filthy living conditions” and “just don’t care.” Id.

The Court accepts as true McGinnes’s allegations: (1) that he has been deprived of outdoor

exercise for more than six months; (2) that he has been housed in unsanitary and overcrowded

conditions; and (3) that McGinnes alerted Gordon to the alleged deprivation and unconstitutional

conditions by speaking to her or filing grievances. But none of his allegations plausibly suggest

that Gordon, whom he describes as an “LPN-Nurse,” personally participated either in the alleged

deprivation of outdoor exercise or in any decisions that caused or failed to remedy the complained-

of conditions at the Jail. See Foote, 118 F.3d at 1423 (explaining that personal liability “under §

1983 must be based on personal involvement in the alleged constitutional violation”). Without

any allegations to plausibly suggest that Gordon personally participated in the constitutional

violations alleged in Claims Two and Three, McGinnes fails to state plausible claims against

Gordon.

III. Conclusion

For the reasons stated, the Court concludes that the allegations in the Complaint, even

accepted as true, fail to state any plausible claims for relief against Defendant Kathleen Gordon

that could be remedied under 42 U.S.C. § 1983. The Court therefore grants Gordon’s Motion to

Dismiss and dismisses the Complaint, in part, as to all claims asserted against Gordon.

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IT IS THEREFORE ORDERED that (1) the Motion to Dismiss filed by Defendant

Kathleen Gordon on June 30, 2023 (Dkt. 22) is granted; (2) the Complaint is dismissed, in part,

as to all claims asserted against Defendant Kathleen Gordon; and (3) Defendant Kathleen Gordon

shall be terminated as a party defendant.

DATED this 7th day of December, 2023.

TERENCE C. KERN

United States District Judge

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