finding inmate stated a claim for relief under the Eighth Amendment where “the prison medical staff repeatedly prescribed surgery to rectify a medical problem and prison officials with no medical training allegedly disregarded this recommendation”
How later courts described this case
- finding inmate stated a claim for relief under the Eighth Amendment where “the prison medical staff repeatedly prescribed surgery to rectify a medical problem and prison officials with no medical training allegedly disregarded this recommendation”
- “Knowledge of [the plaintiff inmate’s] medical condition, coupled with the alleged failure to inform him of medical appointments or to arrange transportation, may give rise to an inference that defendants acted with deliberate indifference.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
RAHEEM LA’MONZE PLATER, )
)
Plaintiff, )
)
v. ) CIV-22-780-R
)
CHRISTINE TOPPING et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
Plaintiff, a state prisoner appearing and , brings this action
pursuant to 42 U.S.C. § 1983 alleging a violation of his constitutional rights. The matter
has been referred to the undersigned magistrate judge for initial proceedings consistent
with 28 U.S.C. § 636(b)(1)(B). Before the Court is Defendant Gayle Rowley’s Second
Motion for Summary Judgment (ECF No. 87) to which Plaintiff has filed a Response. (ECF
No. 91). Also before the Court is Plaintiff’s Motion for Summary Judgment (ECF No. 90)
to which Defendant Rowley filed a Response. (ECF No. 92). Based on the foregoing
reasons, the undersigned recommends Defendant Rowley’s Motion be granted and
Plaintiff’s Motion be denied.
I. Procedural background
In his Second Amended Complaint, Plaintiff asserts that after he suffered an
alleged sexual assault by a cellmate at the Lawton Correctional Facility (LCF), and that
Defendant Rowley, in his individual capacity, displayed deliberate indifference toward
Plaintiff’s serious mental health needs in violation of the Eighth Amendment. Defendant
Rowley has filed a Motion for Summary Judgment arguing that the record does not
establish a genuine issue of material fact in support of this claim. (ECF No. 87). Mr. Plater
has requested summary judgment based on his contention the record establishes
Defendant Rowley is liable. (ECF No. 90).
II. Standard of Review
Summary judgment is a means of testing in advance of trial whether the available
evidence would permit a reasonable jury to find in favor of the party asserting a claim.
The Court must grant summary judgment when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a).
When considering a motion for summary judgment, the Court views the evidence
and the inferences drawn from the record in the light most favorable to the non-moving
party. , Inc., 431 F.3d 1241, 1255
(10th Cir. 2005). While the Court construes a pro se litigant's pleadings liberally, such a
litigant nevertheless is held to the same rules of procedure as are binding on other
litigants. , 500 F.3d 1214, 1218 (10th Cir. 2007).
A party that moves for summary judgment has the burden of showing that the
undisputed material facts require judgment as a matter of law in its favor.
, 477 U.S. 317, 322–23 (1986). If this burden is met, the non-movant must
come forward with specific facts, supported by admissible evidence, which demonstrate
the presence of a genuine issue for trial. , 962 F.2d
2
1517, 1526 n.11 (10th Cir. 1992). Although all facts are construed in favor of the non-
movant, he still has a responsibility to “go beyond the pleadings and designate specific
facts so as to make a showing sufficient to establish the existence of an element essential
to [his] case in order to survive summary judgment.” , 422 F.3d 1184,
1187 (10th Cir. 2005) (internal quotation marks omitted).
A non-movant must “identify specific facts that show the existence of a
genuine issue of material fact.” ., 221 F.3d 1160, 1164
(10th Cir. 2000) (internal quotation marks omitted). Conclusory allegations are
insufficient to establish an issue of fact that would defeat the motion.
., 711 F.3d 1173, 1180 (10th Cir. 2013).
Parties may establish the existence or nonexistence of a material disputed fact
through:
• citation to “depositions, documents, electronically stored information, affidavits
or declarations, stipulations . . . , admissions, interrogatory answers, or other
materials” in the record; or
• demonstration “that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible evidence
to support the fact.”
Fed. R. Civ. P. 56(c)(1)(A)-(B).
And while the court liberally construes a plaintiff’s complaint, that plaintiff
must adhere to the same rules of procedure that are binding on all litigants. , 500
F.3d 1214, 1218 (10th Cir. 2007). Thus, strict adherence by a plaintiff to the
requirements of Federal Rule of Civil Procedure 56 is required. With respect to those
3
requirements, the Supreme Court instructs that the plain language of Rule 56 mandates
the entry of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of
proof at trial. , 477 U.S. 317, 322–23 (1986). In such a situation, there can
be “no genuine issue as to any material fact,” since a complete failure of proof concerning
an essential element of the nonmoving party’s case necessarily renders all other facts
immaterial.
III. Undisputed Facts
1. Plaintiff alleges that in August, September, or October 2020, or February
2021, while incarcerated at LCF, he was sexually assaulted by his cellmate, Claiborne
Johnson, II, when they were both housed in Unit 6 Cell 205. (ECF No. 34-3:1, 3, 5; ECF
No. 90-1:11).
2. Defendant Rowley became Plaintiff’s LCF Case Manager on or about April
25, 2022. (ECF No. 87-3:3).
3. Plaintiff did not report inmate Johnson’s sexual assault until late April or
early May 2022, when he referenced it in a Grievance he submitted to LCF Case Manager
Sandi Ghannam. (ECF No. 34-3:1, 5; ECF No. 34-4:1-2).
4
4. During the subsequent investigation conducted pursuant to the Prison Rape
Elimination Act (PREA), Plaintiff explained,
[B]etween midnight to morning, I was housed in 6A205 with Clayton
Johnson II. I left the top bunk to use the restroom. No blanket was available
to hide myself while using the restroom. So I pulled my pants down, sat on
the toilet and my then cellmate approached me with a sharpened
instrument and forced me to perform oral sex upon him.
(ECF No. 34-4:3; ECF No. 34-2:34).
5. On May 3, 2022, Plaintiff saw Dr. Kimberly Weaks after LCF Security
referred him for a Mental Health PREA Interview. ( at 34-35).
6. Plaintiff described the sexual assault and explained that he had not
previously reported it because he feared retaliation. ( at 34).
7. Plaintiff denied suicidal ideation and symptoms of Post Traumatic Stress
Disorder (PTSD).1 Dr. Weaks discussed mood elevation and coping/stress management
strategies with Plaintiff. She also discussed the chronic behavioral triangle for trauma
reactions. (ECF No. 34-2:34)
8. On June 6, 2022, Plaintiff saw Dr. Ahsan Khan and in discussing the sexual
assault, reported experiencing anxiety, paranoia, and nightmares regarding the sexual
assault. ( at 37).
9. In his Medical Assessment, Dr. Khan noted a “suspected” diagnosis of PTSD,
added two medications to Plaintiff’s regimen, and scheduled a two-month follow up. ( )
1 Plaintiff testified during the present litigation that he cannot identify PTSD symptoms. (ECF No.
90-1:3).
5
10. On June 29, 2022, Plaintiff was seen in medical again after reporting that
he had not been receiving help with his PREA concerns. The corresponding progress note
provided:
[H]ousing is his biggest issue[] and although the alleged perp was moved,
[Plaintiff] has to stay on same unit with triggers of the alleged assault and
passes alleged perp in hallway weekly, which is also triggering. He stated
he is sleeping better, but experiences panic attacks, feels overwhelmed and
helpless. He stated he would prefer to be in a different environment. Patient
asked about diagnosis – this was discussed as well as coping/stress
management tools.
( at 38).
11. In late June 2022, LCF Case Manager Ghannam told Plaintiff that he had
been diagnosed with PTSD. (ECF No. 90-1:5).
12. Plaintiff testified that Ms. Ghannam told him that she sent an email on June
27, 2022, informing Defendant Rowley of this diagnosis and that Plaintiff needed to move
to Unit Five. ( at 7).2
13. Plaintiff never told Defendant Rowley that he had been diagnosed with
PTSD. Instead, he told Defendant Rowley about symptoms he was experiencing at that
time. ( at 6).
14. On July 21, 2022, Plaintiff submitted a Request to Staff (RTS) addressed to
Dr. Weaks in which he stated that he had been receiving inadequate assistance from LCF
officials, including Defendant Rowley, to change his housing. (ECF No. 34-4:42-43).
2 Neither Plaintiff nor defense counsel can locate and/or produce Ms. Ghannam’s June 27, 2022
email to Defendant Rowley. (ECF No. 87-6:2).
6
15. Plaintiff also explained that he refused housing on July 1, 2022, because
LCF officials had not moved him from the area in which the alleged assault occurred. He
requested Dr. Weaks consult with LCF officials so that his housing refusal might be
excused based on mental health reasons. ( ).
16. The RTS response provided, “Dr. Weaks consulted ODOC Chief Mental
Health and mental health will not be excusing the misconduct for mental health reasons.”
( ).
17. In Plaintiff’s subsequent Grievance, he stated that Defendant Rowley never
executed his move to a different housing assignment or his assailant’s move to a housing
assignment different from Plaintiff’s. He also stated that his previous refusal of housing
was “to mitigate [PTSD] [] treated by Dr. Asan Khan.” ( at 45).
18. On August 11, 2022, Plaintiff submitted a RTS in which he stated that he
was not refusing housing and that instead, he was waiting for Defendant Rowley to rectify
the situation by moving him to a different unit. He also stated that on June 27, 2022, Ms.
Ghannam had sent an email to Defendant Rowley, directing him to move Plaintiff to Unit
Five. ( at 54-55).
19. On September 6, 2022, Plaintiff submitted a RTS complaining that LCF still
had not moved him from Unit Six, though they had moved other inmates. On the same
date, Sgt. Borges responded that Plaintiff had been moved to general population. ( at
62-63).
7
20. In the subsequent Grievance, in which Plaintiff was requesting an
appointment with Dr. Weaks, he acknowledged that LCF had granted Plaintiff’s request
and moved him to general population. ( at 64).
21. On November 28, 2022, LCF officials completed the PREA investigation into
Plaintiff’s sexual assault allegations. In its report, LCF concluded Plaintiff’s allegations
were unsubstantiated and noted that the timeliness of the investigation, or lack thereof,
constituted a staff failure. (ECF No. 34-3:1, 3).
IV. Analysis3
An inmate’s Eighth Amendment right to be protected from substantial risks of
sexual assault by fellow prisoners is well established. , 534 F.3d 1227,
1242 (10th Cir. 2008). Plaintiff’s claim against Defendant Rowley, however, is not based
on this legal principle but instead, on events taking place after an alleged sexual assault
occurred. Plaintiff contends that as a result of the assault, he suffered from PTSD. He
claims his PTSD symptoms were exacerbated by Defendant Rowley’s refusal to move him
3 In his Motion, Defendant Rowley failed to argue that he is entitled to qualified immunity because
Plaintiff’s right was not clearly established at the time of the alleged violation. Given the quality
of the summary judgment motions, the Court could understandably overlook a vaguely asserted
argument. , No. No. 99–8029, 2000 WL 1059444, at *9 (10th Cir. Aug. 2,
2000) (“Given the quality of the summary judgment motions on both sides of this lawsuit, we are
not surprised the district court was led astray.”). But having examined each Motion, the
undersigned is satisfied Defendant Rowley did not raise this issue. Therefore, the Court has not
addressed it. , No. 20-cv-00841-WJM-NYW, 2021 WL 4947353, at *17 (D.
Colo. Oct. 13, 2021) (“[B]ecause the CDOC Defendants do not argue that this right was not clearly
established at the time of the alleged violation, the court declines to address this prong of the
qualified-immunity analysis.” (internal citation omitted) (citing , 744 F. App’x 542
(10th Cir. 2018) (“[B]ecause [] Defendants mention the defense without engaging in the analysis,
they have failed to raise the affirmative defense of qualified immunity.”)).
8
from the unit in which the assault occurred and in which he came into frequent contact
with his assailant. He further asserts that during the period in which he refused to move
Plaintiff, Defendant Rowley transferred other inmates out of the same unit. Plaintiff claims
Defendant Rowley’s refusal to transfer him constituted deliberate indifference to his
serious mental health needs.
The Eighth Amendment prohibits the infliction of cruel-and-unusual punishments.
U.S. CONST. amend. VIII. This prohibition encompasses prison officials’ deliberate
indifference. , 534 F.3d at 1235 (citing , 429 U.S. 97, 105
(1976)). Deliberate indifference to a prisoner’s serious medical needs, including those
related to mental health, is proscribed by the Eighth Amendment. , 429 U.S. at
104-05; , 639 F.2d 559, 574 (10th Cir. 1980)). Though Defendant Rowley
is not among LCF medical personnel, in intentionally denying or delaying access to
medical care or intentionally interfering with medical treatment once prescribed, non-
medical prison officials may manifest deliberate indifference. , 429 U.S. at 104-05.
To state a cognizable claim, Plaintiff “must allege acts or omissions sufficiently
harmful to evidence deliberate indifference to serious medical needs.” ,
240 F.3d 1287, 1289 (10th Cir. 2001) (quoting , 429 U.S. at 106). This standard
includes both an objective component and a subjective component. , 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.” , 439 F.3d 1227, 1230 (10th Cir. 2006) (quoting
9
, 511 U.S. 825, 834 (1994)). “A medical need is [objectively] serious if it is one
that has 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.”
, 895 F.3d at 1267 (citation omitted). The subjective component requires Plaintiff to
establish that the defendant knew of and disregarded “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.” , 427 F.3d 745, 751 (10th Cir. 2005) (quoting , 511 U.S.
at 837). In his Motion, Defendant Rowley argues that the record does not create a
question of fact on the objective or subjective component of Plaintiff’s claim. As to the
subjective component, the undersigned agrees.4
There is no evidence in the record that a medical professional ever informed
Defendant Rowley that Plaintiff may suffer from PTSD and/or directed him to transfer
Plaintiff from Unit Six. Plaintiff himself admits that he never told Defendant Rowley this
information. (ECF No. 90-1:6). Instead, Plaintiff claims that in 2022, he informed
Defendant Rowley of mental health symptoms he was experiencing. Plaintiff testified to
the “perfect” example of how he shared his symptoms with Defendant Rowley:
I didn’t tell him I was exactly diagnosed with PTSD. I told him the symptoms
I guess you would say, I told him -- oh, I have a perfect explanation. Here
4 Based on this conclusion, it is unnecessary to determine whether a medical assessment in which
a physician notes that PTSD is suspected is sufficient to meet the objective prong of a deliberate
indifference claim. , 429 U.S. at 104.
10
we go. Okay. Rowley would try to lock me down and I had my cellmate and
they would try to lock me down and I would have to use the restroom and
I would pop out of my cell and make my cellie stand by my door when I
use the restroom. Ms. Davis, which was the C/O . . . told me I need to stop
popping out of my cell. I’m like, no, I’m not fixing to use the restroom with
him in my cell.
(ECF No. 90-1:6).
Plaintiff also relies on Ms. Ghannam’s alleged June 27, 2022 email informing
Defendant Rowley of said diagnosis and telling him that Plaintiff should be moved to Unit
Five. Courts have recognized that ignoring instructions from is a valid
basis for a deliberate indifference claim against a non-medical official. “[A] prison official
who disregards without justification the instructions of a medical professional regarding
the care and treatment of an inmate, thereby subjecting the inmate to an excessive risk
of serious harm, may be liable under the Eighth Amendment.”
, No. 12-CV-01340-PAB-MJW, 2013 WL 5510646, at *8 (D. Colo. Oct. 4, 2013)
(citing , 430 F.3d 1302, 1305 (10th Cir. 2005) (“Knowledge of [the
plaintiff inmate’s] medical condition, coupled with the alleged failure to inform him of
medical appointments or to arrange transportation, may give rise to an inference that
defendants acted with deliberate indifference.”); 12 F.
App’x 788, 790 (10th Cir. 2001) (ruling inmate stated claim for relief under the Eighth
Amendment where defendant prison officers assigned him to a top bunk and placed him
on heavy outdoor work detail despite note from doctors at a different facility indicating
that he should be permanently placed in a bottom bunk because of three pins and arthritis
in his hip); , No. 94-7183, 1995 WL 409351, at *2 (10th Cir. July 12,
11
1995) (finding inmate stated a claim for relief under the Eighth Amendment where “the
prison medical staff repeatedly prescribed surgery to rectify a medical problem and prison
officials with no medical training allegedly disregarded this recommendation”). Ms.
Ghannam, however, is not a physician or other medical personnel. (ECF No. 34-3:1, 5;
ECF No. 90-1:6).
Construing all inferences in Plaintiff’s favor, Plaintiff told Defendant Rowley that he
wanted to move from Unit Six because he was experiencing mental health difficulties and
Ms. Ghannam told Defendant Rowley that Plaintiff suffered from PTSD and should be
moved to Unit Five. Without more specific information as to mental health risks faced by
Plaintiff and a medical directive that Plaintiff must be moved out of Unit Six, Defendant
Rowley cannot be imputed with subjective knowledge of a substantial risk of serious
harm. There is no evidence in the record that by not transferring Plaintiff, Defendant
Rowley interfered with prescribed medical treatment. Without such evidence, Plaintiff’s
claim fails. , 430 F.3d at 1305; 12 F. App’x at 790. Accordingly, Defendant
Rowley, in his individual capacity, is entitled to summary judgment against Plaintiff’s
Eighth Amendment deliberate indifference claim.5
V. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based on the foregoing findings, the undersigned recommends Defendant
Rowley’s Second Motion for Summary Judgment (ECF No. 87) be GRANTED and
5 In light of the recommended disposition, it is unnecessary for the Court to address Defendant’s
remaining bases for his request for summary judgment.
12
Plaintiff's Motion for Summary Judgment (ECF No. 90) be DENIED. Adoption of this
Recommendation will effectively vacate the Order (ECF No. 86) wherein the undersigned
concluded it is appropriate to seek counsel for the Plaintiff. Accordingly, the Court should
also advise the Pro Bono Committee of the Federal Bar Association to cease recruitment
of an attorney to represent Plaintiff in these proceedings.
Plaintiff is advised of his right to file an objection to this Report and
Recommendation with the Clerk of this Court by September 9, 2024, in accordance
with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. Plaintiff is further advised
that failure to make timely objection to this Report and Recommendation waives the right
to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri,
595 F.3d 1120, 1123 (10th Cir. 2010).
VI. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in
this matter.
ENTERED on August 19, 2024.
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE
13