Folsom v. Knutson ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 4, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
GLEN FOLSOM,
Plaintiff - Appellant,
v. No. 16-6296
(D.C. No. 5:13-CV-00632-D)
MARK KNUTSON; TRACY (W.D. Okla.)
MCCOLLUM; JANET DOWLING; DAN
DAVIS; CHANDA GRICE; FELICIA
HARRIS; MIKE MCDOUGAL; LT. LEE;
JIM FARRIS; MR. FRANCIS,
Defendants - Appellees.
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ORDER AND JUDGMENT*
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Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges.
_________________________________
Glen Folsom, a state prisoner proceeding pro se, appeals the district court’s
Fed. R. Civ. P. 12(b)(6) dismissal of his 42 U.S.C. § 1983 civil rights action against
various Oklahoma prison officials. Adopting a magistrate judge’s 56-page Report
and Recommendation (R&R), the district court dismissed Mr. Folsom’s claims based
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
on failure to state a claim for relief, qualified immunity, and Eleventh Amendment
sovereign immunity. We affirm.
I. Background
We briefly summarize the allegations in Mr. Folsom’s amended complaint,
which are thoroughly described in the R&R. His allegations consist largely of vague
generalities without specific factual support. See Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991) (holding that “conclusory allegations without supporting
factual averments are insufficient to state a claim”).
Mr. Folsom alleged that defendant Dan Davis, a prison official at James
Crabtree Correctional Center (JCCC), sexually harassed him for several months by
commenting while Mr. Folsom showered. But he described only one instance,
alleging non-physical harassment while Mr. Folsom showered. See Amended
Complaint, ROA Vol I, Doc. 43. Mr. Folsom filed a grievance about this incident.
The JCCC warden, defendant Janet Dowling, told Mr. Folsom that JCCC’s Chief of
Security was investigating his grievance. Mr. Folsom admitted that, after he filed
this grievance, the harassment stopped and defendant Davis no longer worked at
JCCC. Mr. Folsom alleged without supporting facts that Warden Dowling knew
about the harassment and did nothing stop it.
Mr. Folsom was later found guilty of battery and menacing against another
inmate, and was placed in segregation.1 He alleged that defendant Felicia Harris, a
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His complaint alleged defendant Chanda Grice, another JCCC prison official,
filed false misconduct charges against him in retaliation for his grievance against Mr.
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JCCC law library employee, did not give him the policies or forms he needed to
appeal the misconduct charges and to file a grievance about his placement in
segregation.
Mr. Folsom was then transferred to the Oklahoma State Reformatory (OSR).
He alleged that defendant Warden Tracy McCollum allowed OSR staff to harass and
retaliate against him by not giving him access to law library materials, which caused
his grievances to be returned as deficient by defendant Mark Knutson, the Oklahoma
Department of Corrections Director’s Designee. He also alleged that he suffered a
mental breakdown at OSR and that Warden McCollum permitted staff to deny him
medical treatment and also transferred him to an overcrowded prison population with
no psychiatric care.
Mr. Folsom was next transferred to Lexington Correctional Center (LCC). He
alleged, all in conclusory terms, that on July 19, 2013, defendants Mike McDougal,
an LCC unit manager, and Josh Lee, an LCC officer, physically and verbally abused
him; defendant Jim Farris, the LCC warden, verbally abused him, started to beat him,
and had LCC staff beat him; and defendant Francis, the LCC Chief of Security,
verbally abused him and failed to intervene when LCC staff beat him. Mr. Folsom’s
Davis. The magistrate judge recommended that Mr. Folsom’s claims against Ms.
Grice be dismissed because she was not properly served. Mr. Folsom failed to timely
object to the recommendation. The district court adopted it and dismissed the claims
against Ms. Grice for failure to effect service. Mr. Folsom has waived any challenge
to this dismissal because he failed to object to the R&R. Casanova v. Ulibarri, 595
F.3d 1120, 1123 (10th Cir. 2010) (holding that we apply a firm waiver rule when a
party fails to timely and specifically object to the findings and recommendations of a
magistrate judge).
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complaint does not provide any detail about this alleged physical abuse. Mr.
Folsom’s five-page grievance form complaining about the events of July 19, attached
to his complaint, did not allege any physical abuse by any of the defendants.
Mr. Folsom claimed all the defendants violated either his Eighth Amendment
right to be free from cruel and unusual punishment or his Fourteenth Amendment
rights. He sought nominal, compensatory and punitive damages.
II. District Court’s Dismissal
“To state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the
alleged deprivation was committed by a person acting under color of state law.”
West v. Atkins, 487 U.S. 42, 48 (1988). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks omitted). “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.” Id.Mr. Folsom’s complaint did not state whether he was suing the defendants in
their official or individual capacities or both. Adopting the R&R, the district court
ruled the Eleventh Amendment barred any official capacity claim for money damages
against any of the state defendants and that such a claim must be dismissed for lack
of subject matter jurisdiction. See Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186,
1196 (10th Cir. 1998) (“[T]he Eleventh Amendment bars federal court jurisdiction
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over a state agency for both money damages and injunctive relief, or a state official
acting in her official capacity in a suit for damages. . . .”). It also dismissed all
individual capacity claims against the defendants for failure to state a claim because
Mr. Folsom failed to allege sufficient facts to show any alleged conduct plausibly
violated his constitutional rights. Specifically as to each defendant:
Mr. Davis: The district court, through adoption of the R&R, held that Mr.
Folsom’s allegation describing only the one incident of non-physical harassment by
Mr. Davis, “[a]lthough . . . concerning,” R&R at 15, ROA Vol. II, Doc. 179, did not
objectively rise to the level of seriousness required under well-established precedent
to state an Eighth Amendment violation for cruel and unusual punishment. See
Barney v. Pulsipher, 143 F.3d 1299, 1310 n.11 (10th Cir. 1998) (holding that verbal
harassment alone is insufficient to state an Eighth Amendment claim); Northington v.
Jackson, 973 F.2d 1518, 1524 (10th Cir. 1992) (recognizing that “verbal threats and
harassment” are “excluded from the cruel and unusual punishment inquiry”).
Warden Dowling: The court concluded that Mr. Folsom failed to adequately
allege personal participation by Warden Dowling as to any of his claims. See Dodd
v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010) (holding that a § 1983 plaintiff
must plausibly plead each defendant’s personal participation in a constitutional
violation “by virtue of his own conduct and state of mind”). Mr. Folsom made only
conclusory allegations against Warden Dowling. He failed to present factual
allegations indicating Ms. Dowling had knowledge of Mr. Davis’s conduct before
Mr. Folsom filed his grievance, any role in alleged retaliatory misconduct charges,
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any involvement in Mr. Folsom’s placement in segregation, any retaliatory motive
related to Mr. Folsom’s transfer to OSR, or any knowledge of risk that the transfer
allegedly posed to Mr. Folsom’s health and safety.
Ms. Harris, Warden McCollum, Mr. Knutson: The court ruled Mr. Folsom
failed to allege facts showing that Ms. Harris’s alleged actions of giving him
incorrect forms contributed to deficiencies in his grievance filings, impeded his
ability to exhaust his administrative remedies, or denied him access to the courts.
See Lewis v. Casey, 518 U.S. 343, 351-52 (1996) (holding prisoner must allege facts
showing defendant’s actions hindered his ability to proceed with an actual non-
frivolous legal claim). Similarly, it ruled that Mr. Folsom’s claims alleging that
Warden McCollum, Mr. Knutson, and other defendants gave him incorrect legal
forms or impeded his access to prison libraries lacked any specific factual allegation
that any action by any of these defendants impeded him from pursuing his
administrative remedies or his access to the courts.
The court also determined that Mr. Folsom’s conclusory allegation that
Warden McCollum denied him medical care was insufficient to show Mr. Folsom had
any serious medical need or that Warden McCollum knowingly disregarded a
substantial risk of harm to Mr. Folsom. See Farmer v. Brennan, 511 U.S. 825, 847
(1994) (holding that a prison official may only be liable under the Eighth
Amendment if he knew of, and disregarded, a substantial risk of a serious risk of
harm to the inmate). It further found the remainder of Mr. Folsom’s allegations
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against Warden McCollum were simply recitations of legal cases without any
connecting factual allegations about Warden McCollum.
Mr. McDougal, Lt. Lee, Mr. Francis, and Mr. Farris: The court ruled that Mr.
Folsom’s conclusory allegations that defendants Mr. McDougal, Lt. Lee, Mr. Francis,
and Mr. Farris beat him or failed to intervene to stop the use of excessive force were
insufficient to state a plausible Eighth Amendment claim. Mr. Folsom provided no
factual allegations that described the amount of force used, the extent of any physical
injury, or any of the relevant circumstances. See Hudson v. McMillian, 503 U.S. 1, 7
(1992) (describing factors considered in evaluating an excessive force claim).
III. Appeal
We review the district court’s grant of a motion to dismiss de novo. See
Broker’s Choice of America, Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1102 (10th
Cir. 2017). Because Mr. Folsom is a pro se litigant, we construe his pleadings
liberally, but we do not serve as his advocate. Hall, 935 F.2d at 1110. On appeal,
Mr. Folsom presents no meritorious arguments challenging the district court’s
rulings. He repeats the same allegations in his complaint, cites numerous cases, and
summarily asserts that dismissal was improper.
We have liberally reviewed all pertinent materials, including the complaint,
briefing on the motions to dismiss, the R&R, the district court’s dismissal order, and
the briefing on appeal. We agree with the district court, for substantially the same
reasons stated in the magistrate judge’s September 4, 2015 R&R, that Mr. Folsom’s
complaint fails to state any plausible constitutional violation by any of the
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defendants, and that the official capacity claims were properly dismissed for lack of
subject matter jurisdiction due to Eleventh Amendment immunity.
The district court denied Mr. Folsom’s motion to proceed in forma pauperis
(IFP) based on its conclusion that an appeal could not be taken in good faith. See
Fed. R. App. P. 24(a)(3)(A). Mr. Folsom has renewed his IFP application on appeal,
but he has not presented a reasoned, non-frivolous argument. Accordingly, we deny
his application to proceed IFP on appeal, find his appeal frivolous, and assess a
“strike” for purposes of 28 U.S.C. § 1915(g). Mr. Folsom must pay in full both his
district court filing fee and his appellate filing and docketing fee to the Clerk of the
District Court for the Western District of Oklahoma.
IV. Conclusion
We affirm the district court’s judgment.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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