Dixon v. Atwood

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

ANDREW JEROME DIXON,

Plaintiff,

v. Case No. 24-CV-002-RAW-DES

DEVRA ATWOOD, JENNY SAUNDERS,

MELISSA DARTER, CHRIS BRYANT,

DJ LONG, PAUL JOHNSON and KOLBY

CORBELL,

Defendants.

OPINION AND ORDER

This civil rights action, brought pursuant to 42 U.S.C. § 1983, is before the court on

Defendants Devra Atwood, Jenny Saunders, Melissa Darter, Chris Bryant, Paul Johnson and

Kolby Corbell’s (“Defendants”) Motion to Dismiss (“Motion”). Dkt. No. 23. The court has before

it for consideration Plaintiff’s Complaint [Dkt. No. 1], Defendants’ Motion [Dkt. No. 23],

Plaintiff’s Response [Dkt. No. 24] and Defendants’ Reply [Dkt. No. 26]. After careful review, the

court finds the Motion should be granted.

I. Background

At the time he filed the Complaint, Plaintiff was a pro se pretrial detainee being held at the

Carter County Detention Center (“CCDC”). See Dkt. No. 1 at 2. He filed this civil rights

complaint pursuant to 42 U.S.C. § 1983, seeking relief for alleged constitutional violations he

endured at CCDC. Plaintiff names six Defendants in both their individual and official capacities.

See id. at 3-5. Plaintiff contends Defendants committed the following constitutional violations:

1) violation of his right to bodily privacy; 2) failure to provide him with the PREA number; 3)

impermissible confiscation of his Bible; 4) failure to provide him with books; 5) interference with

his incoming mail; and 6) visitation restrictions. Dkt. No. 1. Defendants responded to the

Complaint by way of their Motion to Dismiss which is analyzed below. Dkt. No. 23.

II. Standard of Review

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint should be

dismissed for failure to state a claim upon which relief can be granted “only when it appears that

the plaintiff can prove no set of facts in support that would entitle him to relief, accepting the well-

pleaded allegations of the complaint as true and construing them in the light most favorable to the

plaintiff.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (quoting Yoder v.

Honeywell, Inc., 104 F.3d 1215, 1224 (10th Cir. 1997)). When determining whether to grant a

motion to dismiss, the district court is limited to assessing the legal sufficiency of the allegations

contained within the four corners of the complaint. Jojola v. Chaves, 55 F.3d 488, 494 (10th Cir.

1995).1 “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that

the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally

sufficient to state a claim for which relief may be granted.” Dubbs, 336 F.3d at 1201 (internal

quotations and citations omitted).

A request for dismissal pursuant to Rule 12(b)(6) requires the court to determine whether

the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

1 Throughout his Response, Plaintiff includes new allegations not contained in his Complaint.

See, e.g., Dkt. No. 24. The court declines to consider these new allegations, and, consistent with

the Tenth Circuit’s instructions, evaluates the sufficiency of the Complaint based upon the

allegations contained within its four corners.

Although the court is required to exercise a liberal interpretation of Plaintiff’s pleadings, Haines

v. Kerner, 404 U.S. 519, 520-21 (1972), the court need not assume the role of advocate for Plaintiff,

and he must present more than conclusory allegations to survive a motion to dismiss for failure to

state a claim, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). “[C]onclusory allegations

without supporting factual averments are insufficient to state a claim upon which relief can be

based.” Id. (citing cases). “[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.” Id.

III. Individual Capacity Claims

Plaintiff first alleges, “Paul Johnson keeps sending Kolby Corbell to my cell while I’m

using the bathroom to open my door. He stays at the door and stares and tr[ies] to hold a

conversation making me uncomfortable.” Dkt. No. 1 at 6.2 This claim implicates Plaintiff’s right

to personal privacy. The Tenth Circuit has recognized, “[t]he Constitution protects a prisoner from

being forced to unnecessarily expose their naked body[.]” Griffith v. El Paso County, Co., 129

F.4th 790, 824 (10th Cir. 2025).3 The Tenth Circuit has also recognized, “prisoners retain a limited

constitutional right to bodily privacy, ‘particularly as to searches viewed or conducted by members

of the opposite sex.’” Moore v. Atherton, 28 F. App’x 803, 806 (10th Cir. 2001) (unpublished)

2 To the extent this claim is lodged against Defendants Devra Atwood, Jenny Saunders, Melissa

Darter or Chris Bryant, the claim is dismissed as Plaintiff failed to allege any specific actions taken

by these Defendants to support his claim. Pahls v. Thomas, 718 F.3d 1210, 1226 (10th Cir. 2013)

(Plaintiff must “identify specific actions taken by particular defendants in order to make out a

viable § 1983” claim. (emphasis in original) (quoting Tonkovich v. Kan. Bd. of Regents, 159 F.3d

504, 532 (10th Cir. 2011)).

3 The plaintiff in Griffith was a former pretrial detainee. Griffith, 129 F.4th at 803.

(quoting Hayes v. Marriott, 70 F.3d 1144, 1146 (10th Cir. 1995)).4 “[T]he frequency with which

prison guards watch inmates of the opposite sex undressing, using toilet facilities, and showering

is an important factor in assessing the constitutionality of prison practices.” Id. (internal quotations

and citations omitted). “[A] plaintiff can state a Fourteenth Amendment claim by alleging facts

supporting the inference that the exposure of [his] body was not rationally related to a legitimate

governmental objective or was excessive in relation to that purpose.” Griffith, 129 F. 4th at 824

(alterations, internal quotations and citations omitted).

Considering the Tenth Circuit has held similar viewing by members of the opposite sex did

not violate a plaintiff’s constitutional right, it follows Defendant Corbell’s viewing of Plaintiff, a

member of the same sex, was not unconstitutional. See Moore, 28 F. App’x at 806 (affirming

district court’s dismissal of male plaintiff’s privacy claim premised upon female prison staff

viewing him while using the toilet). Further, other courts which have analyzed similar situations

concerning individuals of the same sex have concluded such conduct does not rise to the level of

a constitutional violation. See, e.g., Thompson v. Lengrich, No. 18-CV-588, 2022 WL 1177840, at

*8 (D. Colo. Feb. 28, 2022) (analyzing plaintiff’s claim that being required to use communal

showers violated his right to bodily privacy and noting “courts have repeatedly rejected claims that

prisoners have a right to bodily privacy that protects them from being viewed by other inmates of

the same sex”); Guy v. Tanner, No. 12-CV-187, 2012 WL 1565425, *3 (E.D. La. Mar. 20, 2012)

(“As to plaintiff’s allegation that prison guards, both male and female, are able to view him on the

monitors undressing, using the bathroom, and taking showers, that allegation, even if true,

implicates no protected constitutional right.”); Grant v. Reynolds, No. 23-CV-461, 2025 WL

4 The court cites all unpublished decisions herein as persuasive authority. Fed. R. App. P. 32.1(a);

10th Cir. R. 32.1(A).

750614, *1, 3 (S.D. Ala. Feb. 12, 2025) report and recommendation adopted, 2025 WL 747518

(S.D. Ala. Mar. 7, 2025) (Plaintiff complained he was “arbitrarily forced [] to strip naked and

expose himself in front of other inmates[.]” District court concluded, “Plaintiff cannot state a

constitutional claim for being viewed naked by inmates or officers of the same sex without facts

much more egregious than here.”).

Here, Plaintiff does not provide any facts detailing which way he was facing, how close

Defendant Corbell was or the frequency of such incidents. See Moore, 28 F. App’x at 806.

Plaintiff has also failed to allege sufficient facts to allow this court to draw the inference that the

exposure was not rationally related to a legitimate governmental objective or excessive in relation

to that purpose. Griffith, 129 F. 4th at 824. Accordingly, Plaintiff has failed to state a claim for a

constitutional violation and Plaintiff’s privacy claim is dismissed.

Next, Plaintiff alleges the “PREA number is not posted and Paul Johnson won’t give it to

me. There’s no access to PREA period. It’s not acknowledge[d] at this facility.” Dkt. No. 1 at

6.5 This is not a cognizable claim. The Prison Rape Elimination Act (“PREA”) “does not create

any private right of action for prisoners to sue correctional staff for alleged sexual misconduct.”

Woodfork v. Nunn, No. 21-CV-492-HE, 2022 WL 3008480, at *6 (W.D. Okla. June 29, 2022)

(internal citations and quotations omitted) report and recommendation adopted 2022 WL 3006847

(W.D. Okla. Jul. 28, 2022); see also Manning v. Dean, 23-CV-484-R, 2023 WL 7030582, *4-5

(W.D. Okla. Sep. 25, 2023) report and recommendation adopted 2023 WL 7027988 (W.D. Okla.

Oct. 25, 2023) (dismissing pretrial detainees § 1983 claim that his rights were violated by

defendant’s failure to post the PREA hotline number). Nor does the PREA provide Plaintiff with

5 To the extent this claim is lodged against Defendants Devra Atwood, Jenny Saunders, Melissa

Darter, Chris Bryant or Kolby Corbell, the claim is dismissed as Plaintiff failed to allege any

specific actions taken by these Defendants to support his claim. Pahls, 718 F.3d at 1226.

a private right of action, enforceable under § 1983, to challenge the processes afforded under the

PREA. See Johnson v. Garrison, 859 F. App’x 863, 863-64 (10th Cir. 2021) (unpublished) (“To

the extent Johnson’s due process claim is premised on processes afforded him under the PREA,

the district court correctly concluded Johnson has failed to show the PREA provides an inmate

with a private right of action, enforceable under § 1983, to challenge that process.”). Therefore,

Plaintiff’s claim premised upon failure to post the PREA number is dismissed.

In his second claim, Plaintiff alleges he is “not allowed any religious materials or reading

books.” Dkt. No. 1 at 6. He claims this is Defendant Bryant’s policy, his Bible was taken from

him when he arrived at the Carter County Detention Center, he asked Defendant Atwood if he

could have “it”, and she said no. Id.6 Addressing Plaintiff’s claim concerning his Bible first, “[t]o

state a claim for violation of the First Amendment’s Free Exercise Clause, a plaintiff must plead

facts that plausibly show or allow the inference that the prison regulation or action at issue

‘substantially burdened sincerely-held religious beliefs.’” Khan v. Barela, 808 F. App’x 602, 614

(10th Cir. 2020) (unpublished) (quoting Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007)).

Plaintiff must also “include sufficient facts to indicate the plausibility that the actions of which he

complains were not reasonably related to legitimate penological interests.” Ghailani v. Sessions,

859 F.3d 1295, 1304 (10th Cir. 2017) (emphasis in original) (quoting Gee v. Pacheco, 627 F.3d

1178, 1188 (10th Cir. 2010)).

Plaintiff has failed to state a cognizable claim against Defendant Bryant or Defendant

Atwood. He has not provided sufficient details to allow this court to draw the inference that the

lack of his Bible substantially burdened his sincerely held beliefs. Nor has he alleged facts to

6 To the extent this claim is lodged against Defendants Jenny Saunders, Melissa Darter, Paul

Johnson or Kolby Corbell, the claim is dismissed as Plaintiff failed to allege any specific actions

taken by these Defendants to support his claim. Pahls, 718 F.3d at 1226.

indicate the alleged prohibition on having his Bible was not reasonably related to a legitimate

penological interest. For example, Plaintiff does not reveal if his Bible has a hardcover or if there

were alternative means to read the Bible available to him. Therefore, his claim premised upon his

Bible being taken is dismissed.

Concerning the lack of “reading books,” Plaintiff does “have a First Amendment right to

receive information while in prison to the extent the right is not inconsistent with prisoner status

or the legitimate penological objectives of the prison.” Jacklovich v. Simmons, 392 F.3d 420, 426

(10th Cir. 2004); see also Khan , 808 F. App’x at 606-07 (applying the Jacklovich rule to a pretrial

detainee’s § 1983 claim that defendants deprived him of his First Amendment free-speech right to

read hardcover books, newspapers and newspaper clippings). However, as noted, Plaintiff “must

include sufficient facts to indicate the plausibility that the actions of which he complains were not

reasonably related to legitimate penological interests.” Gee, 627 F.3d at 1188 (emphasis omitted).

An inmate need not “identify every potential legitimate interest and plead against it.” Id. But he

must “plead facts from which a plausible inference can be drawn that the action was not reasonably

related to a legitimate penological interest.” Id. Plaintiff has not provided any facts regarding the

“reading materials” he wished to possess. Therefore, this court cannot draw the inference that the

action was not reasonably related to a legitimate penological interest. Accordingly, his claim

premised upon the lack of “reading books” is likewise dismissed.

In his third claim, Plaintiff alleges the “jail stopped giving us our mail. They started

scanning some mail. They aren’t scanning the envelope the mail came in. Some mail they put

straight into my property and didn’t notify me I had mail.” Dkt. No. 1 at 7. This claim fails

because Plaintiff has failed to allege any specific actions taken by any Defendant. Pahls, 718 F.3d

at 1226. Plaintiff named six Defendants in this action, yet he fails to identify which Defendant is

allegedly depriving him of his mail or scanning it erroneously. Nor does Plaintiff provide

sufficient factual details “to indicate the plausibility that the actions of which he complains were

not reasonably related to legitimate penological interests.” Gee, 627 F.3d at 1188. Plaintiff does

not reveal the nature of the mail (legal or regular). Nor can the court discern if plaintiff was wholly

deprived of his incoming mail or if he is simply dissatisfied with the manner he received it. For

these reasons, Plaintiff’s claim premised upon his receipt of mail is dismissed.

Finally Plaintiff alleges, “[t]here is no personal visits. Only kiosk visits. We only get 1

free visit per month.” Dkt. No. 1 at 7. Once again, Plaintiff fails to allege which of the six

Defendants is allegedly responsible for limiting his visits. Pahls, 718 F.3d at 1226. For this reason

alone, Plaintiff’s claim fails. Additionally, “the Supreme Court has held that inmates have no right

to unfettered visitation. Rather, prison officials necessarily enjoy broad discretion in controlling

visitor access to a prisoner.” Peterson v. Shanks, 149 F.3d 1140, 1145 (10th Cir. 1998) (citing Ky.

Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989)); see also Block v. Rutherford, 468 U.S.

576, 589 (1984) (“[T]he Constitution does not require that detainees be allowed contact visits when

responsible, experienced administrators have determined, in their sound discretion, that such visits

will jeopardize the security of the facility.”). To the extent Plaintiff complains he has only been

permitted one, virtual visit a month, he fails to state a constitutional violation. See Kanatzar v.

Cole, No. 17-CV-3115, 2017 WL 5970836, at *5-6 (D. Kan. Dec. 1, 2017) (dismissing plaintiff’s

claim challenging video visitation and noting plaintiff “has no fundamental right to visitation, let

alone a right to an in-person visitation through glass windows as opposed to a video visitation”).

This claim is dismissed.

IV. Qualified Immunity

Defendants assert they are entitled to qualified immunity. See Dkt. No. 23 at 11-14. “If a

plaintiff fails to state a valid claim, we need not even reach the issue of the qualified immunity

defense.” Moore v. City of Wynnewood, 57 F.3d 924, 931 (10th Cir. 1995). Since the court

concludes Plaintiff failed to state a valid claim showing a deprivation of a constitutional right, the

court will not address the issue of qualified immunity.

V. Official Capacity Claims

Plaintiff alleges he is suing all Defendants in their official capacities as well. See Dkt. No.

1 at 5. A claim against a state actor in his official capacity “is essentially another way of pleading

an action against the county or municipality” he or she represents, and is considered under the

standard applicable to § 1983 claims against municipalities or counties. Porro v. Barnes, 624 F.3d

1322, 1328 (10th Cir. 2010). For a defendant to be held liable in his or her official capacity,

Plaintiff must establish that “(1) a municipal employee committed a constitutional violation, and

(2) a municipal policy or custom was the moving force behind the constitutional deprivation.”

Walker v. City of Orem, 451 F.3d 1139, 1152 (10th Cir. 2006) (internal quotations and citations

omitted). The absence of a constitutional violation by the officers of a municipality precludes a

finding of liability against the municipality itself. Hinton v. City of Elwood, 997 F.2d 774, 782

(10th Cir. 1993).

Defendants Atwood, Saunders, Darter Johnson and Corbell contend they do not have an

“official capacity” under Oklahoma law. Dkt. No. 23 at 5-6. Defendant Bryant argues Plaintiff

has failed to state a plausible official capacity claim against him. Id. at 117. Since the court

concludes Plaintiff has not stated a claim for a constitutional violation by any named Defendant,

7 Defendant DJ Long, in his official capacity as Sheriff of Carter County, was substituted in the

place of Chris Bryant, in all pending official capacity claims against Chris Bryant. Dkt. No. 32.

Accordingly, any official capacity claim originally asserted against Chris Bryant is now asserted

against DJ Long.

Plaintiff’s official capacity claims likewise fail. Plaintiff’s official capacity claims are dismissed.

VI. Conclusion

For the foregoing reasons, Defendants’ Motion to Dismiss [Dkt. No. 23] is GRANTED.

IT IS HEREBY ORDERED that:

1. Plaintiff’s § 1983 claims against Defendants Devra Atwood, Jenny Saunders,

Melissa Darter, Chris Bryant, DJ Long, Paul Johnson and Kolby Corbell are DISMISSED

WITHOUT PREJUDICE for failure to state a claim upon which relief may be granted pursuant to

Fed. R. Civ. P. 12(b)(6);

2. This dismissal shall count as a “prior occasion” or “strike,” pursuant to 28 U.S.C.

§ 1915(g); and

3. A separate judgment of dismissal shall be entered in favor of Defendants and

against Plaintiff.

Dated this 28th day of March, 2025.

__________________________________

RONALD A. WHITE

UNITED STATES DISTRICT JUDGE