# Christian v. Thompson

> District Court, W.D. Oklahoma · October 3, 2019

URL: https://www.frixlaw.com/law-library/cases/10387881

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** October 3, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10387881

## How later opinions describe it (automated extraction)

- affirming dismissal of conspiracy claim against unknown employees of detention center under Rule 12(b)(6
- noting that if a state defendant raises Eleventh Amendment immunity, “addressing the threshold jurisdictional matter [is] obligatory”
- holding that Eleventh Amendment immunity “can be waived” but “constitutes a bar to the exercise of federal subject matter jurisdiction” when effectively asserted

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

DELORAY C. CHRISTIAN, )
)
Plaintiff, )
)
v. ) Case No. CIV-18-699-G
)
B.J. THOMPSON et al., )
)
Defendants. )

ORDER
Now before the Court is the Motion to Dismiss (Doc. No. 33) filed by Defendants
B.J. Thompson, Shirley May, and Oklahoma Department of Corrections (“ODOC”).
Plaintiff Deloray C. Christian, a state prisoner appearing pro se, has responded in
opposition (Doc. No. 37), and Defendants have replied (Doc. No. 39).
PLAINTIFF’S CLAIMS
Plaintiff is presently incarcerated at North Fork Correctional Center (“NFCC”), an
ODOC facility in Sayre, Oklahoma. The claims of Plaintiff’s Amended Complaint (Doc.
No. 11) arise from events that transpired at NFCC beginning in September 2017. Plaintiff
asserts claims under 42 U.S.C. §§ 1983 and 1985, alleging that Defendants violated his
constitutional rights under the Eighth, Sixth, and Fourteenth Amendments to the United
States Constitution by: (1) denying him necessary medical care—specifically, a hip and
knee arthroplasty, tertiary treatment, rehabilitation therapy, and appropriate
accommodations; and (2) failing to properly administer the grievance procedure
established by ODOC. See Am. Compl. at 4-5.
Defendants Thompson and May are sued in both their individual and official
capacities. See id. at 3. Plaintiff seeks compensatory and punitive damages in this action.
See id. at 5, 6, 8.

ANALYSIS
I. Defendants’ Immunity to Suit
Citing the Eleventh Amendment, Defendants move to dismiss Plaintiff’s claims to
the extent they seek money damages from ODOC and from Defendants Thompson and
May in their official capacities. See Defs.’ Mot. to Dismiss at 10-11; see also Fed. R. Civ.

P. 12(b)(1). The undersigned therefore is obligated to address whether these Defendants
enjoy immunity from suit. See U.S. ex rel. Burlbaw v. Orenduff, 548 F.3d 931, 942 (10th
Cir. 2008) (noting that if a state defendant raises Eleventh Amendment immunity,
“addressing the threshold jurisdictional matter [is] obligatory”); Fent v. Okla. Water Res.
Bd., 235 F.3d 553, 558-59 (10th Cir. 2000) (holding that Eleventh Amendment immunity

“can be waived” but “constitutes a bar to the exercise of federal subject matter jurisdiction”
when effectively asserted).
Pursuant to the doctrine of sovereign immunity, as adopted in the Eleventh
Amendment, a federal court may not hear a claim brought by a private citizen against a
U.S. state. U.S. Const. amend. XI; Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 65

(1996).
But Eleventh Amendment immunity is not absolute. There are three
exceptions. First, a state may consent to suit in federal court. Second,
Congress may abrogate a state’s sovereign immunity by appropriate
legislation when it acts under Section 5 of the Fourteenth Amendment.
Finally, under Ex parte Young, 209 U.S. 123 (1908), a plaintiff may bring
suit against individual state officers acting in their official capacities if the
complaint alleges an ongoing violation of federal law and the plaintiff seeks
prospective relief.

Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012) (citations
omitted). Eleventh Amendment immunity applies to any state agencies considered to be
“arms of the [s]tate.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70-71 (1989). A
defendant’s status as an arm of the state is a question of federal law, but courts make this
determination by analyzing the “nature of the entity created by state law.” Steadfast Ins.
Co. v. Agric. Ins. Co., 507 F.3d 1250, 1253 (10th Cir. 2007) (internal quotation marks
omitted).
“Oklahoma has not consented to be sued in federal court.” Berry v. Oklahoma, 495
F. App’x 920, 921 (10th Cir. 2012); accord Callahan v. Poppell, 471 F.3d 1155, 1159
(10th Cir. 2006). Nor has Congress abrogated states’ sovereign immunity through
enactment of 42 U.S.C. § 1983. Berry, 495 F. App’x at 921-22. Thus, the State of

Oklahoma’s Eleventh Amendment immunity from suits seeking money damages in federal
court remains intact.
Here, the relevant state agency is ODOC, both as a named Defendant and because
the individual Defendants were employed by that agency during the events giving rise to
this lawsuit. See Am. Compl at 1, 2-3. “ODOC is . . . shielded by sovereign immunity

because it is an arm of the state.” Berry, 495 F. App’x at 922 (citing Eastwood v. Dep’t of
Corr. of Okla., 846 F.2d 627, 631-32 (10th Cir. 1988)). And “it is well-established that
‘the Eleventh Amendment precludes a federal court from assessing damages against state
officials sued in their official capacities because such suits are in essence suits against the
state.’” Peterson v. Lampert, 499 F. App’x 782, 786 (10th Cir. 2012) (quoting Hunt v.
Bennett, 17 F.3d 1263, 1267 (10th Cir. 1994)). ODOC’s immunity therefore extends to
Plaintiff’s § 1983 claims against ODOC employees who are sued in their official capacities

for damages. See Cleveland v. Martin, 590 F. App’x 726, 730 (10th Cir. 2014).
Defendant ODOC and Defendants Thompson and May, as employees of ODOC in
their official capacities, therefore are protected by Eleventh Amendment immunity to the
extent damages are sought by Plaintiff under 42 U.S.C. § 1983. See id.; Eastwood, 846
F.2d at 632. As noted above, Plaintiff seeks only money damages in this lawsuit; there is

no demand for “prospective relief.” Muscogee (Creek) Nation, 669 F.3d at 1166.
Accordingly, Plaintiff’s § 1983 claims against ODOC and against Defendants Thompson
and May in their official capacities are barred by the Eleventh Amendment and shall be
dismissed.
II. Plaintiff’s Individual-Capacity Claims

A. Applicable Standard
While the Court construes a pro se litigant’s pleadings liberally, all parties must
adhere to applicable procedural rules. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir.
2007). Under such rules, the complaint must contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Court

reviewing the sufficiency of a complaint “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, 1175 (10th Cir. 1997).
Defendants move to dismiss certain of Plaintiff’s claims pursuant to Federal Rule
of Civil Procedure 12(b)(6) for “failure to state a claim upon which relief can be granted.”
See Fed. R. Civ. P. 12(b)(6). In analyzing a motion to dismiss under Rule 12(b)(6), the

court “accept[s] as true all well-pleaded factual allegations in the complaint and view[s]
them in the light most favorable to the plaintiff.” Burnett v. Mortg. Elec. Registration Sys.,
Inc., 706 F.3d 1231, 1235 (10th Cir. 2013). A complaint fails to state a claim on which
relief may be granted when it lacks factual allegations sufficient “to raise a right to relief
above the speculative level on the assumption that all the allegations in the complaint are

true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted). Bare legal conclusions in a complaint are not entitled to the assumption
of truth; “they must be supported by factual allegations” to state a claim for relief. Ashcroft
v. Iqbal, 556 U.S. 662, 679 (2009).
“[A] pro se plaintiff requires no special legal training to recount the facts

surrounding his alleged injury, and he must provide such facts if the court is to determine
whether he makes out a claim on which relief can be granted.” Hall v. Bellmon, 935 F.2d
1106, 1110 (1991); see also Whitney, 113 F.3d at 1173-74. Whether a complaint contains
sufficient facts to avoid dismissal is context-specific and is determined through a court’s
application of “judicial experience and common sense.” Iqbal, 556 U.S. at 679.

B. Defendants’ Assertion of the Affirmative Defense of Nonexhaustion
The Prison Litigation Reform Act provides that no action under 42 U.S.C. § 1983
may be brought by a prisoner regarding conditions of confinement “until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see also
Woodford v. Ngo, 548 U.S. 81, 90, 93-103 (2006). This Court previously advised
Defendants that “a dispositive motion based on the affirmative defense of failure to exhaust
administrative remedies is typically considered a motion for summary judgment.” Order

of Sept. 12, 2018 (Doc. No. 14) at 3 n.1. The Court expressly instructed Defendants that
if they wished to obtain judgment on the basis of this affirmative defense, they could seek
leave to file an initial motion for summary judgment based solely upon lack of exhaustion,
with only limited relevant discovery permitted. See id.
Defendants did not seek such leave or otherwise request summary judgment.

Instead, citing records and policies included in the Special Report (Doc. No. 31),
Defendants’ Motion to Dismiss argues that Plaintiff failed to exhaust his administrative
remedies as to claims regarding his medical care and that those claims should therefore be
dismissed. See Defs.’ Mot. to Dismiss at 2-5.
Defendants offer no authority for the Court to consider such matters outside the

pleadings on a Rule 12(b)(6) motion, instead asserting, incorrectly, that because they raised
lack of exhaustion in their Motion “dismissal” on that basis “is not barred and is
appropriate.” See Defs.’ Reply at 1-2. Plaintiff properly points out that, since the issuance
of Jones v. Bock in 2007, a failure to exhaust is generally not considered a failure to state
a claim and is seldom a basis for dismissal on the pleadings. See Pl.’s Resp. at 2 (citing

Jones v. Bock, 549 U.S. 199, 216 (2007) (“Inmates are not required to specially plead or
demonstrate exhaustion in their complaints.”)).
This case is not one of the rare instances where the Court can “conclude from the
face of the complaint that a prisoner has not exhausted his administrative remedies and that
he is without a valid excuse.” Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th
Cir. 2007); see Am. Compl. at 8 (“Plaintiff . . . sought informal and formal relief from
appropriate prison administration officials regarding the acts stated in the allegations of

this [pleading].”). Accordingly, dismissal is not warranted on this basis.
C. Defendants’ Assertion of Qualified Immunity
Defendants Thompson and May nominally argue that they are entitled to qualified
immunity as to Plaintiff’s Eighth Amendment medical-care claims. “Qualified immunity
protects officials from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person would
have known.” Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014) (internal quotation
marks omitted). “In resolving a motion to dismiss based on qualified immunity, the court
considers (1) whether the facts that a plaintiff has alleged make out a violation of a
constitutional right, and (2) whether the right at issue was clearly established at the time of

defendant’s alleged misconduct.” Keith v. Koerner, 707 F.3d 1185, 1188 (10th Cir. 2013)
(internal quotation marks omitted). In making this assessment, the Court must construe
the complaint in the light most favorable to Plaintiff, accept all well-pleaded allegations as
true, and draw all reasonable inferences in Plaintiff’s favor. See Bella v. Chamberlain, 24
F.3d 1251, 1254 (10th Cir. 1994).

Defendants’ assertion of qualified immunity, however, does not challenge “whether
the facts that [Plaintiff] has alleged” in his pleading “make out a violation of” the Eighth
Amendment. Keith, 707 F.3d at 1188 (internal quotation marks omitted). Rather, they rely
entirely upon evidence outside the pleadings and cite summary-judgment standards to
attempt to show that Plaintiff has not suffered a violation of his constitutional rights. See
Defs.’ Mot. to Dismiss at 8-9. As with the affirmative defense discussed above, Defendants
offer no authority for the Court to consider such extraneous evidence at the Rule 12(b)(6)

stage, and Defendants have not shown that they are entitled to dismissal of any claims on
this basis.1
D. Plaintiff’s Conspiracy Claim
Citing 42 U.S.C. § 1985, Plaintiff alleges that Defendants Thompson and May
conspired, with each other and with another ODOC official, to “fabricate” and contravene

ODOC’s grievance process and to commit and “suborn[] perjury during [Plaintiff’s]
medical requests and grievance process.” Am. Compl. at 5. Plaintiff alleges that this
conspiratorial conduct was undertaken to deprive Plaintiff “of his due process rights, equal
protection or equal privilege to prison grievance process afforded to prisoners.”
“[A] § 1985(3) claim generally describes a conspiracy of two or more persons for

the purpose of depriving of another of equal protection of the laws or equal privilege and
immunities under the laws.” Dixon v. City of Lawton, 898 F.2d 1443, 1447 (10th Cir.
1990). “The essential elements of a § 1985(3) claim are: (1) a conspiracy; (2) to deprive
plaintiff of equal protection or equal privileges and immunities; (3) an act in furtherance of

1 This disposition “does not foreclose [Defendants] from reasserting their entitlement to
qualified immunity on a motion for summary judgment should [Plaintiff’s] allegations in
the complaint prove to be unfounded.” Seamons v. Snow, 84 F.3d 1226, 1238 (10th Cir.
1996). The Court makes no finding as to whether these Defendants, at the appropriate
stage, will be able to to show entitlement to qualified immunity when Plaintiff “can no
longer rest on the pleadings.” Thomas, 765 F.3d at 1194 (internal quotation marks
omitted).
the conspiracy; and (4) an injury or deprivation resulting therefrom.” Tilton v. Richardson,
6 F.3d 683, 686 (10th Cir. 1993) (citing Griffin v. Breckenridge, 403 U.S. 88, 102-03
(1971)); see also 42 U.S.C. § 1985(3) (providing a federal cause of action for conspiracy

to deprive a person of protected rights).
Here, Plaintiff fails to state a plausible claim that these Defendants conspired to
deprive Plaintiff of his rights. First, although Plaintiff implies that these Defendants had
“an agreement and concerted action” among them, even liberally construed the pleading it
alleges no specific facts to actually show such an agreement, as required to establish that a

conspiracy existed. Hunt v. Cent. Consol. Sch. Dist., 951 F. Supp. 2d 1136, 1177 (D.N.M.
2013) (internal quotation marks omitted); see Am. Compl. at 3-4, 5. “Mere conclusory
allegations with no supporting factual averments are insufficient; the pleadings must
specifically present facts tending to show agreement and concerted action.” Hunt, 951 F.
Supp. 2d at 1177 (alteration and internal quotation marks omitted). Further, although using

the terms “equal protection” and “equal privilege,” the Amended Complaint presents no
facts from which it could plausibly be inferred that the Defendants’ action “was motivated
by a class-based, invidiously discriminatory animus,” as required to prove a § 1985(3)
claim. Dixon v. City of Lawton, 898 F.2d 1443, 1147 (10th Cir. 1990).
Accordingly, Plaintiff's conspiracy claim should be dismissed in its entirety for

failure to state a claim upon which relief can be granted. See Iqbal, 556 U.S. at 678 (“A
pleading that offers labels and conclusions or a formulaic recitation of the elements of a
cause of action will not do.” (internal quotation marks omitted)); see also Kirby v. Dall.
Cty. Adult Prob. Dep’t, 359 F. App’x 27, 33-34 (10th Cir. 2009) (affirming dismissal of
conspiracy claim against unknown employees of detention center under Rule 12(b)(6) and
explaining that “the liberal pleading standard under the federal rules ‘does not unlock the
doors of discovery for a plaintiff armed with nothing more than conclusions’” (quoting

Iqbal, 556 U.S. at 678-79)).
E. Plaintiff’s Claim Regarding the Grievance Process
Citing the Sixth and Fourteenth Amendments, Plaintiff alleges that Defendants
violated his constitutional rights by “l[ying] to Plaintiff,” “encourag[ing] others to lie” to
Plaintiff, and refusing to comply with ODOC’s policy in the course of processing

Plaintiff’s administrative grievances. See Am. Compl. at 2, 5, 6. But Plaintiff cannot
establish a plausible constitutional claim based on these facts; indeed, he could not show a
violation of his due process rights or his right to access the courts even if he had been
prevented entirely from using ODOC’s grievance process. See Boyd v. Werholtz, 443 F.
App’x 331, 332 (10th Cir. 2011).

[T]here is no independent constitutional right to state administrative
grievance procedures. Nor does the state’s voluntary provision of an
administrative grievance process create a liberty interest in that process.
Instead, “[w]hen the claim underlying the administrative grievance involves
a constitutional right, the prisoner’s right to petition the government for
redress is the right of access to the courts, which is not compromised by the
prison’s refusal to entertain his grievance.” Flick v. Alba, 932 F.2d 728, 729
(8th Cir. 1991) (per curiam). Consequently, any alleged deprivation of the
prison grievance process here failed to implicate Mr. Boyd’s right of access
to the courts, and the district court was therefore correct to dismiss the
amended complaint for failure to state a claim.
Id. (second alteration in original) (citation omitted).
Accordingly, this claim should be dismissed pursuant to Rule 12(b)(6).
III. The John Doe Defendants
The body of the Amended Complaint includes a claim that “Defendants John Does
1-30, employees of either ODOC or NFCC” violated Plaintiff’s due process rights “during

the events leading up to and during [Plaintiff’s] medical treatment and grievance process.”
Am. Compl. at 3, 7-8. The pleading offers only boilerplate conclusions relevant to these
Defendants, however—it entirely fails to set forth any explanation as to how these
individuals violated Plaintiff’s constitutional rights. See, e.g., id. at 7 (“The Defendant
John Does, acting under color of law, caused the Plaintiff to be subjected to the deprivation

of his rights, privileges, and immunities secured by the Constitution of the United States
and its laws.”). Consequently, these claims must be dismissed pursuant to this Court’s
screening obligation for failure to state a claim upon which relief may be granted. See 28
U.S.C. § 1915A(b)(1); 42 U.S.C. § 1997e(c)(1); see also Winkel v. Hammond, 704 F.
App’x 735, 736 (10th Cir. 2017) (“In determining whether a pro se complaint fails to state

a claim [under § 1915A(b)(1)], court apply the same standard applied under Fed. R. Civ.
P. 12(b)(6).”]; Robbins v. Oklahoma, 519 F.3d 1242, 1249-50 (10th Cir. 2008) (noting that
when a government agency and government actors are sued, “it is particularly important .
. . that the complaint make clear exactly who is alleged to have done what to whom, to
provide each individual with fair notice as to the basis of the claims against him or her”).

IV. Plaintiff’s Motion to Appoint Counsel
Plaintiff has filed a Motion to Appoint Counsel (Doc. No. 16), asking that the Court
obtain legal representation for him in this lawsuit. Plaintiff represents that he is in need of
an appointed attorney because he is indigent, he has limited knowledge of the law, there
are multiple claims and defendants involved, and he has very limited access to his facility’s
law library. See id. at 1; id. Ex. 1 (Doc. No. 16-1) at 1-2; id. Ex. 2 (Doc. No. 16-2) at 1-2;
id. Ex. 3 (Doc. No. 16-3) at 1.

Pursuant to 28 U.S.C. § 1915(e)(1), the Court may “request”—not order—legal
representation for civil litigants proceeding in forma pauperis. Plaintiff is not proceeding
in forma pauperis, however. Even if the statute were applicable, such a request is rare and
is not warranted at this preliminary stage of the proceedings. Despite his lack of training,
Plaintiff has drafted and filed pleadings outlining his factual allegations and legal claims.

Plaintiff also has been able to present various motions and other filings in articulate and
reasonably clear form, including discussion and citation of case law and statutes. Plaintiff
is in prison and representing himself, but these circumstances unfortunately do not
distinguish the present case from numerous others. See McCarthy v. Weinberg, 753 F.2d
836, 838 (10th Cir. 1985) (“The burden is upon the [in forma pauperis] applicant to

convince the court that there is sufficient merit to his claim to warrant the appointment of
counsel.”); Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004)
(noting that in determining whether the appointment of counsel for an indigent prisoner is
warranted, the court considers “the merits of a prisoner’s claims, the nature and complexity
of the factual and legal issues, and the prisoner’s ability to investigate the facts and present

his claims”). This Motion therefore shall be denied.
V. Plaintiff’s Discovery Motions
Plaintiff also has filed two Motions (Doc. Nos. 38, 45) that are copies of discovery
requests directed to Defendants. Such requests were premature while the Motion to
Dismiss was pending. See LCvR 26.3(a). And, discovery requests generally are served
directly upon the responding party, not filed with the Court. To any extent Plaintiff seeks
relief from the Court, these Motions shall be denied.

CONCLUSION
For the reasons outlined above, Defendants’ Motion to Dismiss (Doc. No. 33) is
GRANTED IN PART and DENIED IN PART. Specifically,
1. Plaintiff’s federal claims against Defendant Oklahoma Department of Corrections
and against Defendants B.J. Thompson and Shirley May in their official capacities

are dismissed without prejudice due to Eleventh Amendment immunity;
2. Plaintiff’s § 1985 conspiracy claim is dismissed in its entirety without prejudice
pursuant to Rule 12(b)(6);
3. Plaintiff’s § 1983 claims for violation of the Sixth and Fourteenth Amendment
against Defendants Thompson and May in their individual capacities are dismissed

without prejudice pursuant to Rule 12(b)(6); and
4. Plaintiff’s § 1983 claim for deliberate indifference in violation of the Eighth
Amendment shall proceed against Defendants Thompson and May in their
individual capacities.
Further,

1. Plaintiff’s claims against the “John Doe Defendants” are dismissed without
prejudice on screening for failure to state a claim upon which relief may be granted;
and
2. Plaintiff’s Motions (Doc. Nos. 16, 38, 45) are DENIED.
A separate scheduling order shall be entered as to Plaintiff's remaining Eighth Amendment
claim.
IT IS SO ORDERED this 3rd day of October, 2019.

CHARLES B. GOODWIN
United States District Judge

14

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10387881. Public record. Not legal advice.