David v. Crow

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

JEROME ADRIAN DAVID, )

)

Plaintiff, )

)

v. ) Case No. CIV-21-534-SLP

)

SCOTT CROW, et al., )

)

Defendants. )

O R D E R

Before the Court is the Second Supplemental Report and Recommendation [Doc.

No. 85] (R.&R.), issued by United States Magistrate Judge Gary M. Purcell pursuant to 28

U.S.C. § 636(b)(1)(B) and (C). Plaintiff, a state prisoner appearing pro se, seeks civil rights

relief, alleging violations of his federal constitutional rights under 42 U.S.C. § 1983. The

Magistrate Judge recommended granting in part, and denying in part, the Motion to

Dismiss of Defendants Scott Crow, Barbara Glover, Cheri Atkinson, Heidi Prather, Mark

Knutson and Susan Goodwin (collectively, Movants) [Doc. No. 64], after converting it to

a motion for summary judgment. The Magistrate Judge further recommended dismissal

on screening of Plaintiff’s claims against Defendants Linda Eike, Persli Elsi and Lonnie

Lawson (collectively Non-Movants) pursuant to 28 U.S.C. § 1915(e)(2)(B).

Plaintiff has filed an Objection [Doc. No. 93] to the R.&R. Also, Defendant

Atkinson has filed an Objection [Doc. No. 89] to the R.&R.1 Accordingly, the Court must

1 No responses to the objections were filed. See Fed. R. Civ. P. 72(b)(2).

make a de novo determination of those issues specifically raised by the Objections, and

may accept, modify, or reject the recommended decision. See 28 U.S.C. § 636(b)(1); Fed.

R. Civ. P. 72(b)(3).

I. Background

Plaintiff is a state prisoner in the custody of the Oklahoma Department of

Corrections (ODOC). At all times relevant to the claims raised in the Second Amended

Complaint [Doc. No. 23, 23-1, 23-2 and 23-3], Plaintiff was housed at William S. Key

Correctional Center (WSKCC).

Plaintiff brings claims pursuant to 42 U.S.C. § 1983 alleging Defendants have

violated his rights under the First, Eighth and Fourteenth Amendments to the United States

Constitution. Plaintiff purports to sue Defendants in both their individual and official

capacities.

Plaintiff alleges one or more Defendants knowingly allowed rat and pest infestation

in the kitchen; served spoiled milk and food; served food with rat droppings in them and/or

food from which rats have eaten; refused to provide him a heart healthy diet as ordered by

a physician; interfered with his ability to exhaust his administrative remedies; ordered him

to do jobs involving dangerous chemicals without training and while refusing to provide

personal protective equipment resulting in burns on his face, neck and hands; twice

terminated his employment in retaliation for reporting portions of the previous allegations;

and interfered with his use of the grievance process.

Movants seek dismissal and/or summary judgment on the following grounds: (1)

Plaintiff failed to exhaust administrative remedies on his claims regarding pest infestation,

medical diet, grievance interference, retaliation and chemicals; (2) Plaintiff failed to state

a claim for an Eighth Amendment violation regarding dental care; (3) Defendant Crow did

not personally participate in any constitutional violation; and (4) qualified immunity.2

II. Dispositive Rulings of the Magistrate Judge

The Magistrate Judge recommended granting summary judgment in favor of

Movants Prather, Glover and Goodwin as to the claims brought against each of them on

grounds Plaintiff failed to exhaust administrative remedies as required by 42 U.S.C.

§ 1997e(a). He similarly recommended dismissal on screening as to Plaintiff’s claims

against Non-Movants Eike, Elsi and Lawson based on Plaintiff’s failure to exhaust

administrative remedies. R.&R. at 27 and n. 9.3 The Magistrate Judge further found

Plaintiff had not been thwarted in his efforts to exhaust administrative remedies by

Defendants Lawson, Crow and Knutson. Id. at 24-25.

2 At the time the Motion was filed, Movants pointed out that the following additional Defendants

had not yet been served: Lonnie Lawson, Tammy Foster, Carrie Bridges, Persli Elsi, Linda Eike,

Paul Haines, Rhodona Thomas, T. Lauer, FNU Pludau, T. Hastings Siegfried, Joe M. Allbaugh

and FNU Aitson. See Mot. at 8, n. 2. When the Magistrate Judge ruled on the Motion, he noted

that Defendants Bridges, Thomas, and Pludau were not named in the Amended Complaint and

were not parties to the action. He further noted that all remaining Defendants had been served

except for Defendants Elsi, Allbaugh, Aitson and Lauer. The Magistrate Judge addressed

Plaintiff’s claims against Defendant Elsi, but not the claims against Defendants Allbaugh, Aitson

and Lauer. See R.&R. at 3, n. 1. The latter claims have been addressed by separate orders.

3 Specifically, the Magistrate Judge found Plaintiff did not complete the exhaustion process as to

his Eighth Amendment claims based on kitchen conditions and chemical exposure against

Defendants Eike, Elsi, Glover, Goodwin and Prather. R.&R. at 24-27. Although Defendants Eike,

Elsi and Lawson did not move for dismissal and/or summary judgment, the Magistrate Judge

recommended their claims be dismissed without prejudice for failure to exhaust. See id. at 27, n.

9. The Magistrate Judge further found Plaintiff failed to exhaust his First Amendment retaliatory

discharge claims arising from his kitchen and bathroom orderly positions against Defendants Eike,

Goodwin and Lawson. Id. at 24.

Separately, the Magistrate Judge found Plaintiff’s Fourteenth Amendment claims

against Defendants Crow, Lawson and Knutson, alleging that they interfered with

Plaintiff’s grievance process, should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)

for failure to state a claim upon which relief may be granted. Id. at 46-47.

As to Plaintiff’s Eighth Amendment claims regarding dental care, the Magistrate

Judge recommended granting summary judgment in favor of Defendant Crow. Id. at 44-

45. The Magistrate Judge further recommended granting summary judgment in favor of

Defendant Atkinson as to Plaintiff’s claim based on any delay and/or denial of dental

treatment, characterizing this claim as an “individual capacity” claim. Id. at 38-44. But

the Magistrate Judge recommended denying summary judgment as to Plaintiff’s claim

against Defendant Atkinson based on inadequate dental care staffing, characterizing this

claim as an “official capacity” claim. Id. at 32-44.

III. Plaintiff’s Objection

In his Objection, Plaintiff does not challenge any of the above findings of the

Magistrate Judge. Accordingly, Plaintiff has waived his right to appellate review of the

factual and legal issues addressed in the R.&R. See, e.g., Williams v. Denmar, LLC, No.

23-1029, 2024 WL 340656 at *2 (10th Cir. Jan. 20, 2024) (citing Morales-Fernandez v.

I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005)). Furthermore, neither exception to the firm

waiver rule applies. Id. First, Plaintiff was advised of the time period and consequences

of failing to object. See R.&R. at 50. Second, the interests of justice exception does not

apply. Factors the Court must consider include: “(1) a pro se litigant’s effort to comply;

(2) the force and plausibility of the explanation for his failure to comply; and (3) the

importance of the issues raised.” Morales-Fernandez, 418 F.3d at 1120.

Plaintiff contends he was denied access to the law library and, therefore, could not

timely and properly respond to Defendants’ Motion to Dismiss. The record reflects that

on March 28, 2022, Movants filed their Motion to Dismiss. The following day, on March

29, 2022, the Magistrate Judge entered an Order [Doc. No. 65] advising Plaintiff of his

opportunity to respond on or before April 18, 2022, and further advising Plaintiff of Rule

56 of the Federal Rules of Civil Procedure, permitting conversion of a motion to dismiss

to a motion for summary judgment. The Order was mailed to Plaintiff at Jackie Brannon

Correctional Center (JBCC) in McAlester, Oklahoma, where he was then housed. See

Notice of Change of Address [Doc. No. 52] (filed March 8, 2022). Plaintiff did not respond

to the Motion and on June 1, 2022, the Magistrate Judge entered the pending Second

Supplemental R.&R.

Plaintiff states in his Objection that he “filed” a Motion for Extension of Time,

which he attaches as Exhibit 1(A) [Doc. No. 93-1], but that it is not reflected on the Court’s

docket. See Obj. at 5. For the very reason that the purported filing is not shown on the

docket, the Court rejects Plaintiff’s contention that it was “filed.” Additionally, a review

of Exhibit 1(A) demonstrates that it does not seek an extension of time to respond to the

Motion to Dismiss addressed in the Second Supplemental R.&R., but instead addresses a

purported “Motion to dismiss from Defendant’s representative for failure to serve seven

(7) defendants.” Doc. 93-1 at 2.4

Most importantly, however, the Court did receive Plaintiff’s Motion for Extension

of Time [Doc. No. 76] filed May 27, 2022 in which he sought an extension of time within

which to respond to the Motion to Dismiss addressed in the Second Supplemental R.&R.

The Magistrate Judge struck the Motion. See Order [Doc. No. 76]. The Magistrate Judge

addressed, and rejected, several of the same arguments Plaintiff makes in his Objection

regarding his alleged impeded access to the law library. Id.5 Additionally, the Magistrate

Judge noted that Plaintiff had not complied with Rule 11(a) of the Federal Rules of Civil

Procedure because he failed to sign the Motion. Id.

Plaintiff did not timely seek relief with respect to the Magistrate Judge’s Order. See

Fed. R. Civ. P. 72(a) (addressing referral of non-dispositive matters to a magistrate judge

and providing that objections must be filed within fourteen days and further providing that

“[a] party may not assign as error a defect in the order not timely objected to”). And the

Court’s independent review of the record supports the Magistrate Judge’s rejection of

Plaintiff’s request for an extension of time.

The Court finds no basis for applying the interest of justice exception to the firm

waiver rule. As the Magistrate Judge determined, Plaintiff did not adequately make an

4 Based on the Court’s review of the docket, no motion to dismiss on this basis exists.

5 In his Objection, Plaintiff contends his access to court was hindered during the months of March,

April and May, 2022. See Obj. at 11. But the Court’s docket reflects multiple filings made by

Plaintiff during that time period. See, e.g., Doc. Nos. 52, 53, 58, 61, 69, 72, 76.

“effort to comply” and the “force and plausibility” of his explanation is uncorroborated.

As to the “importance of the issues” factor, Plaintiff has wholly failed to address the

grounds for granting summary judgment and/or dismissing his claims against Defendants

as set forth in the R&R. Upon independent review of the record and applicable law, the

Court finds no plain error with respect to the recommendations of the Magistrate Judge.

IV. Defendant Atkinson’s Objection

Plaintiff brings an Eighth Amendment claim against Defendant Atkinson, the

Medical Services Administrator for the ODOC, based on inadequate dental staffing and a

delay and/or denial of dental care. He alleges that Defendant Atkinson “provided only one

dentist and one dental assistance at WSKCC with a prison population of 700 plus inmates.”

Sec. Am. Compl., Att. A [Doc. No. 23-3] at 5. He claims as a result there were “constraints

in the Dental Emergencies for inmates.” Id. He further contends Defendant Atkinson knew

about the condition of his teeth “through D.D.S. Paul Haines Dental chart examination and

investigation.” Id.

As set forth, the Magistrate Judge recommended granting summary judgment in

favor of Defendant Atkinson as to Plaintiff’s claim based on any delay and/or denial of

dental treatment, characterizing this claim as an “individual capacity” claim. Id. at 38-44.

The Magistrate Judge found Defendant Atkinson did not personally participate in the denial

of his dental care. Id. Plaintiff did not object to this finding and for the reasons previously

discussed, the Court adopts this finding.

But the Magistrate Judge recommended denying summary judgment as to Plaintiff’s

claim based on inadequate dental care staffing, characterizing this claim as an “official

capacity” claim. Id. at 32-44. In denying summary judgment, the Magistrate Judge

rejected Defendant Atkinson’s argument that because she was not responsible for hiring

and firing decisions at WSKCC, Plaintiff’s claim against her had no basis in fact or policy.

R.&R. at 36 (citing Defs.’ Mot. at 22). The Magistrate Judge determined that Plaintiff’s

claim was not based on hiring and firing decisions, but instead on “a lack of dentists” at

WSKCC. Id. at 36 (emphasis in original). The Magistrate Judge further determined, upon

review of various ODOC policies, that Defendant Atkinson appeared to “play a key role,

possibly the primary role, in determining the number of WSKCC health care positions,

including dental care staff.” Id. at 37 (citing OP-140101, Organizational Responsibility of

Medical Services [Doc. No. 64-2]. The Magistrate Judge determined that a factual dispute

existed with respect to Defendant Atkinson’s role which precluded summary judgment.

The Magistrate Judge purported to make this determination in the context of

reviewing Plaintiff’s official capacity Eighth Amendment claim against Defendant

Atkinson. See R.&.R. at 32-33 (using the heading of “Official Capacity” and leading off

with the statement: “Plaintiff bases his official capacity Eighth Amendment claim on

inadequate dental care staffing.”). But a review of the analysis which follows shows that

the Magistrate Judge applied case law addressing individual liability under § 1983 against

a supervisor. See R.&R. at 33 (citing Schneider v. City of Grand Junction Police Dep’t,

717 F.3d 760, 767 (10th Cir. 2013); Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir.

2010)).6 This case law is wholly inapposite to the issue of official capacity liability under

6 “A § 1983 defendant sued in an individual capacity may be subject to personal liability and/or

supervisory liability.” Est. of Booker v. Gomez, 745 F.3d 405, 435 (10th Cir. 2014) (quotation

§ 1983. And the Magistrate Judge cites no case law addressing any official capacity

liability.

In her Objection Defendant Atkinson argues that she is the Medical Services

Administrator for the ODOC. She contends it is the chief medical officer and chief dental

officers – and not her – who are responsible for “the compliance and annual review and

revisions of procedures.” Obj. at 2. In other words, Defendant Atkinson argues that she

was not responsible for determining the number of dentists at any given facility.

As noted, Plaintiff did not respond to Defendant Atkinson’s Objection. But even

assuming Defendant Atkinson did play a primary role in determining the number of dentists

needed to provide dental treatment at WSKCC, the Court finds that fact is not dispositive.

According to the Magistrate Judge a question of fact exists as to whether “Defendant

Atkinson should have known that one dentist and assistant for over 700 inmates would lead

to constitutional delays and deficiencies in the dental care provided that would result in

injuries similar to Plaintiff’s.” Id. at 38 (emphasis added).7 But the Court respectfully

marks omitted). However, § 1983 “does not authorize liability under a theory of respondeat

superior.” Id. (quotation marks omitted). Thus, in the context of supervisory liability, “[t]he

plaintiff . . . must show an ‘affirmative link’ between the supervisor and the constitutional

violation.” Id. (quotation marks omitted). This requires “more than a supervisor's mere knowledge

of his subordinate's conduct.” Id. (quotation marks omitted). “Rather, a plaintiff must satisfy three

elements . . . to establish a successful § 1983 claim against a defendant based on his or her

supervisory responsibilities: (1) personal involvement; (2) causation; and (3) state of mind.” Id.

(alteration in original) (internal quotation marks omitted).

7 The Magistrate Judge appears to have improperly relied on the definition of deliberate

indifference in the context of municipal liability. See R.&R. at 37-38 (citing Burke v. Regalado,

935 F.3d 960, 998 (10th Cir. 2019) (addressing deliberate indifference of a “local government

policymaker”, i.e., a municipal or county policymaker). As the Tenth Circuit has explained: “‘In

the prison conditions context, deliberate indifference is a subjective standard requiring actual

knowledge of a risk by the official’ while ‘[i]n the municipal liability context, deliberate

disagrees that the record supports finding a sufficient factual dispute exists to preclude

summary judgment.

Plaintiff makes no allegations, nor is there is any evidence in the record, that any

inadequate dental staffing issues at WSKCC had previously been brought to the attention

of Defendant Atkinson.8 Accordingly, Plaintiff fails to demonstrate that Defendant

Atkinson acted with any sufficiently culpable state of mind. See Barney v. Pulsipher, 143

F.3d 1299, 1310 (10th Cir. 1988) (To establish Eighth Amendment claim, a prison official

must act with a sufficiently culpable state of mind and a prison official is liable only if the

official knows of and disregards an excessive risk to inmate health and safety. It is not

enough to establish that the official should have known of the risk of harm.” (internal

quotation marks and citation omitted)); see also Lobozzo v. Colo. Dept. of Corrs., 429 F.

App’x 707, 712 (10th Cir. 2011) (“Just numbers . . . without more, do not create an

inference that the CDOC Defendants had actual or constructive notice that their action or

failure was substantially certain to result in a constitutional violation, and they consciously

and deliberately chose to disregard the risk of harm.” (internal quotation marks and citation

omitted)); Verdecia v. Adams, 327 F.3d 1171, 1176 (10th Cir. 2003) (Th[e] [subjective]

awareness requirement exists because prison officials who lacked knowledge of a risk

indifference is an objective standard which is satisfied if the risk is so obvious that the official

should have known of it.’” George, on behalf of Bradshaw v. Beaver Cnty, by and through Beaver

Cnty Bd. of Comm’rs, 32 F. 4th 1246, 1258 n. 3 (quoting Barney, 143 F.3d 1299, 1307, n. 5)).

8 And with respect to Plaintiff bringing the issue to Defendant Atkinson’s attention, the Magistrate

Judge correctly determined that the fact Plaintiff raised the issue in a grievance submission

reviewed by Defendant Atkinson is an insufficient basis upon which to hold her individually liable.

See R.&R. at 40-44.

cannot be said to have inflicted punishment in a manner that violates the Eighth

Amendment.” (internal quotation marks and citation omitted). And there is no evidence

that inadequate staffing resulted in Plaintiff’s alleged delay or denial of dental treatment.

“A constitutional violation may not be established by reliance upon unsupported

assumptions.” Hovater v. Robinson, 1 F.3d 1063, 1068 (10th Cir. 1993). Plaintiff only

conclusorily alleges that the ratio of dentists to inmates resulted in a violation of his Eighth

Amendment rights. To this end, “[i]t is not the failure to have a doctor at a prison that

violates the Eighth Amendment; it is when that failure leads to deliberate indifference to

serious medical needs.” Daly v. Wiley, No. 08-CV-411-PAB-BNB, 2010 WL 935660 at

*2 (D. Colo. March 10, 2010).

In a separate Order, the Court has thoroughly reviewed Plaintiff’s claims involving

the alleged delay and/or denial of dental care at WSKCC.9 The record does not show that

inadequate staffing resulted in deliberate indifference to Plaintiff’s serious dental needs.

To the contrary, Plaintiff received continuous dental care during his period of incarceration

at WSKCC. The Court finds Plaintiff’s Eighth Amendment claim against Defendant

Atkinson based on inadequate staffing fails as a matter of law.10

Defendant Atkinson further asserts that any official capacity claim must be

dismissed on Eleventh Amendment immunity grounds. Defendant Atkinson did not move

9 The referenced Order addresses the Magistrate Judge’s Fifth and Sixth Supplemental Reports

and Recommendations. See Order [Doc. No. 179].

10 As the Court has discussed in its Order addressing the Magistrate Judge’s Fifth and Sixth

Supplemental Reports and Recommendations, it does not appear that Plaintiff exhausted any claim

regarding inadequate staffing. See Order [Doc. No. 179] at 33, n. 29.

for dismissal and/or summary judgment on grounds of Eleventh Amendment immunity.

However, the issue implicates the Court’s jurisdiction. See Havens v. Colo. Dep’t of

Corrs., 897 F.3d 1250, 1260 (10th Cir. 2018). And the Court has discretion to address the

issue sua sponte. See U.S. ex rel. Burlbaw v. Orenduff, 548 F.3d 931, 942 (10th Cir. 2008)

942 (permitting court to raise Eleventh Amendment sovereign immunity sua sponte); see

also 28 U.S.C. §§ 1915(e)(2)(iii), 1915A(b)(2); 42 U.S.C. § 1997e(c)(1).

The Oklahoma Department of Corrections (ODOC) is a state agency and, as such,

is an arm of the state to which Eleventh Amendment immunity applies. See, e.g., Eastwood

v. Dep’t of Corr. of Okla., 846 F.2d 627, 631-32 (10th Cir. 1988). Defendant Atkinson is

an employee of the ODOC. Plaintiff’s Eighth Amendment claim against Defendant

Atkinson in her official capacity is treated as a claim against the state itself. See Callahan

v. Poppell, 471 F.3d 1155, 1158 (10th Cir. 2006) (“When a suit alleges a claim against a

state official in his official capacity, the real party in interest . . . is the state, and the state

may raise the defense of sovereign immunity under the Eleventh Amendment.” (quotations

omitted)).

The Eleventh Amendment grants states immunity from suits brought pursuant to

§ 1983 unless such immunity is specifically waived or overridden by Congress. See Welch

v. Tex. Dep’t of Highways and Public Trans., 483 U.S. 468, 472-74 (1987) (finding federal

courts barred from considering § 1983 actions against states unless state’s sovereign

immunity is specifically waived or overridden by Congress). Congress did not abrogate the

states’ Eleventh Amendment immunity through the enactment of 42 U.S.C. § 1983. See

Quern v. Jordan, 440 U.S. 332, 345 (1979). Neither has the State of Oklahoma waived its

sovereign immunity except in limited circumstances not applicable here. See Ramirez v.

Okla. Dep’t of Mental Health, 41 F.3d 584, 589 (10th Cir.1994) (noting that “Oklahoma

has not waived its Eleventh Amendment immunity”).

Plaintiff can only seek prospective injunctive relief against Defendant Atkinson in

her official capacity. See, e.g., Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166

(10th Cir. 2012) (Under the Ex parte Young11 exception to Eleventh Amendment sovereign

immunity, “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.”). But Plaintiff seeks no such prospective relief. Instead, his

dental claims relate specifically to his period of incarceration at WSKCC.

The record reflects that WSKCC has been closed and Plaintiff is no longer

incarcerated there. See Special Report [Doc. No. 62] filed 3/28/22 at 4 (“David was housed

at WSKCC from November 2020 to July 2021. WSKCC was closed in 2021, and does not

currently operate as a functioning prison.” (citation omitted)); see also Notices of Change

of Address [Doc. Nos. 15, 52, 132, 161, 172, 175, 176]. Plaintiff’s transfer from WSKCC

renders his claim against Defendant Atkinson moot. See, e.g., Bacote v. Fed. Bureau of

Prisons, 94 F.4th 1162, 1167 (10th Cir. Mar. 5, 2024) (finding plaintiff’s claims moot

where “the location – and therefore conditions – of Plaintiff’s confinement have changed”

and the plaintiff had not asked any district court to relieve him of his current conditions).

Accordingly, Plaintiff’s official capacity claim is subject to dismissal.

11 Ex parte Young, 209 U.S. 123 (1908).

V. Official Capacity Claims against Defendants

The Magistrate Judge did not address Plaintiff’s official capacity claims against the

Movants or Non-Movants, other than Defendant Atkinson.12 Plaintiff’s Second Amended

Complaint indicates he sues all Defendants in both their individual and official capacities.

See Sec. Am. Compl. The Court finds dismissal without prejudice of Plaintiff’s official

capacity claims is proper. For substantially the same reasons set forth above as to

Defendant Atkinson, Plaintiff’s official capacity claims are barred by Eleventh

Amendment immunity. Plaintiff does not seek prospective injunctive relief as to the claims

against these Defendants. And the claims arise from his incarceration at WSKCC where

he is no longer incarcerated. Accordingly, the Court dismisses the official capacity claims

against the Movants and Non-Movants.

VI. Conclusion

IT IS THEREFORE ORDERED that the Second Supplemental Report and

Recommendation [Doc. No. 85] is ADOPTED IN PART. The Court ADOPTS the

Recommendation and GRANTS Defendants’ Motion to Dismiss [Doc. No. 64], construed

as a motion for summary judgment, and finds judgment as a matter of law should be entered

as to the following claims:

12 As discussed supra, the Magistrate Judge purported to address an “official capacity” claim

against Defendant Atkinson, but actually addressed whether she could be held liable pursuant to

her supervisory authority.

(1) in favor of Defendant Goodwin as to Plaintiff’s Eighth Amendment claim

related to alleged chemical exposure based on Plaintiff’s failure to exhaust his

administrative remedies;

(2) in favor of Defendant Goodwin as to Plaintiff’s First Amendment retaliatory

discharge from his bathroom orderly position based on Plaintiff’s failure to exhaust his

administrative remedies;

(3) in favor of Defendants Glover and Prather as to Plaintiff’s Eighth

Amendment claims related to kitchen conditions and/or infestation based on Plaintiff’s

failure to exhaust his administrative remedies;

(4) in favor of Defendant Atkinson, in her individual capacity and Defendant

Crow as to Plaintiff’s Eighth Amendment claim based on a denial/delay of dental care.

IT IS FURTHER ORDERED that the Court DECLINES to ADOPT the Second

Supplemental Report and Recommendation to the extent it recommends that summary

judgment be denied as to Plaintiff’s Eighth Amendment claim against Defendant Atkinson

based on inadequate dental staffing. The Court grants summary judgment in favor of

Defendant Atkinson as to that claim.

IT IS FURTHER ORDERED that the Court DISMISSES WITHOUT PREJUDICE

Plaintiff’s official capacity claims against Defendant Atkinson based on Eleventh

Amendment immunity. Alternatively, the Court DENIES the claim as MOOT.

IT IS FURTHER ORDERED that the Court DISMISSES WITHOUT PREJUDICE

Plaintiff’s official capacity claims against Defendants Crow, Glover, Prather, Knutson,

Goodwin, Eike, Elsi and Lawson based on Eleventh Amendment immunity.

IT IS FURTHER ORDERED that the Second Supplemental Report and

Recommendation [Doc. No. 85] is ADOPTED and the following claims are DISMISSED

pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to exhaust administrative remedies:

(1) Plaintiff's Eighth Amendment claims related to chemical exposure against

Defendant Eike;

(2) Plaintiffs First Amendment claim of retaliatory discharge from his bathroom

orderly position against Defendant Eike;

(3) Plaintiffs Eighth Amendment claims related to kitchen conditions and/or

infestation against Defendant Elsi;

(4) ‘Plaintiff's First Amendment claim of retaliatory discharge from his kitchen

position against Defendant Lawson.

IT IS FURTHER ORDERED that the Second Supplemental Report and

Recommendation [Doc. No. 85] is ADOPTED and the following claims are DISMISSED

pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim upon which relief can be

granted:

(1) ‘Plaintiff's Fourteenth Amendment claims based upon alleged interference

with the grievance procedure against Defendants Crow, Lawson and Knutson.

A separate judgment will be entered.

IT IS SO ORDERED this 19th day of July, 2024.

SCOTT L, PALK

UNITED STATES DISTRICT JUDGE

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