# Markham v. Rios

> District Court, W.D. Oklahoma · August 27, 2019

URL: https://www.frixlaw.com/law-library/cases/10387737

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** August 27, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

FLOYD MARKHAM, JR., )
)
Plaintiff, )
)
v. ) Case No. CIV-18-1247-G
)
HECTOR RIOS, JR., et al., )
)
Defendants. )

ORDER
This matter comes before the Court for review of the Report and Recommendation
(Doc. No. 14) issued by United States Magistrate Judge Suzanne Mitchell pursuant to 28
U.S.C. § 636(b)(1)(B) and (C). Plaintiff, a state prisoner appearing pro se, brought this
action under 42 U.S.C. § 1983, alleging civil rights violations and violations of state law.
On screening, Judge Mitchell has recommended partial dismissal of Plaintiff’s
claims for failure to state a claim upon which relief can be granted. See R. & R. at 1-2; 28
U.S.C. § 1915A(b)(1). Plaintiff has objected to the R&R. See Pl.’s Obj. to R. & R. (Doc.
No. 21).1 Plaintiff’s objection triggers de novo review by this Court of those portions of
the Report and Recommendation to which objection is made. See, e.g., United States v.
2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996); 28 U.S.C. § 636(b)(1); Fed. R. Civ.

1 Objections to the R&R were due April 25, 2019. See Order Granting Motion for
Extension of Time (Doc. No. 18), at 1. Subsequent to this deadline, Plaintiff requested
additional time to object (Doc. No. 20). Finding that good cause and excusable neglect
have been shown, see Fed. R. Civ. P. 6(b)(1)(B), the Court GRANTS Plaintiff’s request
for extension (Doc. No. 20) and accepts Plaintiff’s Objection (Doc. No. 21) as timely filed.
P. 72(b)(3). Issues or claims raised for the first time, however, are waived. Marshall v.
Chater, 75 F.3d 1421, 1426 (10th Cir. 1996).
I. Eighth Amendment Claim

Judge Mitchell recommends dismissal of Plaintiff’s Eighth Amendment claim
against the Doe Defendants,2 Defendant Thomas, and Defendant Rios.
A. Doe Defendants
With respect to the Doe Defendants, Judge Mitchell determined that Plaintiff failed
to plead facts demonstrating knowledge of and disregard for “an excessive risk to inmate

health or safety.” R. & R. at 7-8 (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
Specifically, she noted that Plaintiff did not allege any facts suggesting “that the Doe
Defendants were aware of Plaintiff’s dental condition at all.” Id. at 9.
In his Objection, Plaintiff rehashes his allegations that the Doe Defendants failed to
perform the duties required of them by the applicable prison regulations. See Pl.’s Obj. to

R. & R. at 4-5. But these allegations, as Judge Mitchell correctly observed, do not suggest
that the Doe Defendants “knew of and disregarded an excessive risk to Plaintiff’s health or
safety,” and Plaintiff has not demonstrated otherwise. R. & R. at 8-9. Accordingly, the
Court adopts Judge Mitchell’s recommendation to dismiss Plaintiff’s Eighth Amendment
claim against the Doe Defendants.

2 The term “Doe Defendants,” as used in this order, refers to three unnamed persons: (1)
Defendant Doe (Contract Monitor); (2) Defendant Doe (Medical Monitor); and (3)
Defendant Doe (Division Manager for West Institutions).
B. Defendant Thomas
Judge Mitchell determined that Plaintiff failed to state an Eighth Amendment claim
against Defendant Thomas because the sole allegation against her—i.e., that she

“provid[ed] an unfavorable response to a grievance”—does not establish her personal
participation in the alleged constitutional violation. R. & R. at 9.
In his Objection, Plaintiff complains that Defendant Thomas “failed to conduct an
independent investigation” regarding the adequacy of Plaintiff’s dental treatment. Pl.’s
Obj. to R. & R. at 6. Plaintiff’s failure-to-investigate theory is not mentioned in the

complaint, and the Court will not consider it for the first time in Plaintiff’s Objection. At
any rate, Plaintiff has not shown that Defendant Thomas was constitutionally obliged to
further investigate his treatment or that her failure to investigate rose to the level of
deliberate indifference. See Sherratt v. Utah Dep’t of Corr., 545 F. App’x 744, 747 (10th
Cir. 2013) (“failure to properly investigate or process grievances, without any connection

to the violation of constitutional rights alleged by the plaintiff, is not sufficient to establish
personal participation for purposes of a Section 1983 claim”). Therefore, the Court adopts
Judge Mitchell’s recommendation to dismiss Plaintiff’s Eighth Amendment claim against
Defendant Thomas.
C. Defendant Rios

Judge Mitchell concluded that Plaintiff failed to state an Eighth Amendment claim
against Defendant Rios because the allegations against him—i.e., that he failed to “cause[]
an investigation” in response to Plaintiff’s grievance and that he failed to ensure his
subordinates’ “compli[ance] with DOC and LCF policies and law”—do not demonstrate
his personal participation in the alleged constitutional violation. R. & R. at 10.
In his Objection, Plaintiff asserts that Defendant Rios’ “failure to strictly adhere to

regulations . . . enabled [his subordinates] to continue their deliberate indifference.” Pl.’s
Obj. to R. & R. at 5. But this statement, like the allegations in Plaintiff’s complaint, does
not supply the requisite “affirmative link” between the alleged constitutional violation and
Defendant Rios’ “personal participation . . . exercise of control or direction, or . . . failure
to supervise.” Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993). To the

extent Plaintiff attempts to base liability on Defendant Rios’ alleged departure from prison
regulations, that attempt must fail, as Ҥ 1983 provides a cause of action only for violations
of federal law.” Walker v. Wilkerson, 310 Fed. App’x 284, 285 n.1 (10th Cir. 2009)
(emphasis in original); see also Koch v. Carlisle, No. CIV-15-811-HE, 2017 WL 7175960,
at *4 (W.D. Okla. Dec. 4, 2017), report and recommendation adopted, No. CIV-15-811-

HE, 2018 WL 632033 (W.D. Okla. Jan. 30, 2018) (“Plaintiff cannot successfully claim
relief under Section 1983 for the Defendants’ alleged violation of prison policies”).
Consequently, the Court adopts Judge Mitchell’s recommendation to dismiss Plaintiff’s
Eighth Amendment claim against Defendant Rios.
II. State Constitutional Claims

Judge Mitchell determined, based on recent statements by the Oklahoma Supreme
Court, that no private cause of action exists under Sections 7 or 9 of Article 2 of the
Oklahoma Constitution. See R. & R. at 11, 13. Because Plaintiff does not challenge this
determination, the Court adopts Judge Mitchell’s recommendation to dismiss Plaintiff’s
state constitutional claims.
III. Due Process Claims

Judge Mitchell liberally construed Plaintiff’s complaint as asserting a due-process
claim based on the lapse of time between the filing of Plaintiff’s administrative grievance
and the response provided by Defendant Thomas. See R. & R. at 12. Plaintiff does not
challenge the characterization of his claim or the recommendation that it be dismissed.
Accordingly, the Court adopts Judge Mitchell’s recommendation to dismiss Plaintiff’s due-

process claim.
IV. State Law Contract Claim
Judge Mitchell concluded that Plaintiff’s state law contract claim is barred by Okla.
Stat. tit. 57, § 566.4(B)(1), which states in relevant part: “Neither the state, any of its
agencies or boards, the Department of Corrections, any county jail, city jail, private

correctional company, nor their members, agents, servants or employees shall be liable for
any form of civil claim or action alleged to have arisen from any theory of contract law.”
See R. & R. at 13.
Because Plaintiff does not challenge this conclusion,3 the Court adopts Judge
Mitchell’s recommendation to dismiss his state law contract claim.

3 While Plaintiff maintains that “Defendant Harless breached the contract between ODOC
and [p]rivate prison vendors,” he offers no response to Judge Mitchell’s conclusion that his
contract claim is statutorily barred. Pl.’s Obj. to R. & R. at 6.
V. GTCA Claim Against Doe Defendants
Judge Mitchell correctly concluded that Okla. Stat. tit. 51 § 152.1(A) bars Plaintiff’s
GTCA claim against the Doe Defendants, who are alleged to be state employees acting

under the color of state law. See R. & R. at 13-14.
In his Objection, Plaintiff argues that: (1) “Title 51 O.S. § 153 et seq. [p]rovides no
immunity for state employees acting under color of state law”; and (2) “any conflict arising
between state and federal law, renders state law null, with no effect.” Pl.’s Obj. to R. & R.
at 7. Plaintiff’s first argument has no merit, as it is contrary to the plain language of the

statute. See Okla. Stat. tit. 51 § 152.1(A) (“The state, its political subdivisions, and all of
their employees acting within the scope of their employment . . . shall be immune from
liability for torts”). Plaintiff’s second argument fails because Plaintiff has not identified a
conflict between the GTCA and any federal law. Therefore, the Court adopts Judge
Mitchell’s recommendation to dismiss Plaintiff’s GTCA claims against the Doe

Defendants.
It is therefore ORDERED that the Report and Recommendation (Doc. No. 14) is
ADOPTED. The following claims are DISMISSED without prejudice:
1. All claims against the Doe Defendants;
2. All claims against Defendants Thomas and Rios except Plaintiff’s state law

medical negligence claim; and
3. All claims against Defendant Harless except Plaintiff’s Eighth Amendment
and state law medical negligence claims.
IT IS SO ORDERED this 27th day of August, 2019.

CHARLES B. GOODWIN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10387737. Public record. Not legal advice.