Brewer v. Gilroy , 625 F. App'x 827 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 1, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DANNY DEWAYNE BREWER,
Plaintiff - Appellant,
v. No. 15-7027
(D.C. No. 6:13-CV-00471-RAW-SPS)
DEANA GILROY, Sergeant; FNU (E.D. Oklahoma)
PAVLUKEVICK, Corrections Officer;
JIMMY MARTIN, Warden’s
Administrative Assistant; ART LIGHTLE,
Deputy Warden; TERRY CRENSHAW;
WILLIAM TAYLOR; JUSTIN JONES;
MARK KNUTSON; SHEARWOOD;
PARKER; CAPTAIN RIDDLE; KEN
YOTT; RANDY KNIGHT; OFFICER
PINLEY,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, LUCERO, and McHUGH, Circuit Judges.
_________________________________
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
*
This order and judgment is not binding precedent, except under the doctrines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 Rule 32.1 of the Federal Rules of Appellate
Procedure and Tenth Circuit Rule 32.1.
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.
Danny Dewayne Brewer, an Oklahoma State prisoner proceeding pro se,1
appeals the district court’s dismissal of his 42 U.S.C. § 1983 complaint, in which he
alleges that prison officials violated his constitutional rights. Exercising jurisdiction
under 28 U.S.C. § 1291, we AFFIRM.
I. BACKGROUND
This case arises out of Mr. Brewer’s complaint, filed in the United States
District Court for the Eastern District of Oklahoma, seeking relief pursuant to 42
U.S.C. § 1983 for alleged constitutional violations that occurred during Mr. Brewer’s
incarceration in the custody of the Oklahoma Department of Corrections (ODOC).
Mr. Brewer’s complaint alleges that while he was incarcerated in the Davis
Correctional Facility (DCF), Corrections Officer Sergeant Deanna Gilroy repeatedly
sexually assaulted him in violation of his Eighth Amendment rights. Mr. Brewer filed
a grievance with DCF setting forth his claims of sexual abuse against Defendant
Gilroy and requesting that “[Defendant] Gilroy . . . be investigated and the witnesses
that I mention be questioned.” Although DCF staff investigated the grievance,
Mr. Brewer claims two DCF employees, identified as Defendant Captain Riddle and
Defendant Corrections Officer Pinley, failed to properly investigate the alleged
1
Because Mr. Brewer proceeds pro se, we construe his filings liberally. See
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
2
sexual assault.2 Mr. Brewer charges that Defendants Riddle’s and Pinley’s
investigation exhibited deliberate indifference to the alleged assault and violated
Mr. Brewer’s constitutional rights under the Eighth and Fourteenth Amendments.
Mr. Brewer also raises a similar claim against a DCF employee identified as
Corrections Officer Fnu Pavlukevick.
In addition, the complaint alleges that after Mr. Brewer reported the sexual
assault, Jimmy Martin, the administrative assistant to the DCF Warden, conspired
with Internal Affairs Officers and Oklahoma State Penitentiary (OSP) Deputy
Warden, Art Lightle, to transfer Mr. Brewer to OSP in order to prevent him from
filing the instant lawsuit.
Mr. Brewer further claims the prison conditions at OSP violated his Eighth and
Fourteenth Amendment rights. Specifically, he asserts he was placed in various unlit
cells that smelled of urine, feces, and sewage. He also claims OSP officials did not
give him a mattress, bedroll, or adequate food and water.
Mr. Brewer infers that these prison conditions were the product of racial
discrimination. He claims there is a history of racial discrimination at OSP and that
all high-ranking corrections officers are white. According to Mr. Brewer, various
OSP employees, including Defendant Lightle, used racial epithets when referring to
President Barack Obama or African-American prisoners.
2
Mr. Brewer sometimes refers to Defendant Pinley as Officer Pentley.
3
Mr. Brewer claims he submitted to the ODOC several administrative
grievances challenging the prison conditions at OSP, two to Warden Randall
Workman and one to Director’s Designee Debbie Morton, but received no response.
Mr. Brewer also alleges he filed several emergency grievances to the ODOC
Director’s Designee, Defendant Mark Knutson, claiming racial discrimination and a
lack of water in his cell because the faucet was broken. Mr. Brewer claims Defendant
Knutson refused to address these grievances.
Defendants Crenshaw, Jones, 3 Knutson, Parker, Sherwood, Taylor, and Lightle
filed a motion to dismiss on the ground that Mr. Brewer failed to establish their
personal participation in any constitutional violations. Defendants Riddle and Pinley
also filed a motion to dismiss, arguing that Mr. Brewer had failed to properly exhaust
his administrative remedies as to them. In response, Mr. Brewer filed three motions
to amend his complaint, asserting in relevant part that he should be entitled to name
additional defendants, including Internal Affairs Officers Randy Knight and Ken
Yott.4
The district court agreed with Defendants Crenshaw, Jones, Knight, Knutson,
Parker, Sherwood, Taylor, and Lightle that Mr. Brewer’s claims of constitutional
violations were vague, conclusory, and failed to sufficiently assert that these named
3
The complaint names former ODOC Director Justin Jones, but Mr. Brewer
does not identify any allegations of specific misconduct on the part of this defendant.
4
Neither Officer Knight nor Officer Yott was served with the complaint. But
Officer Knight entered an appearance in the district court.
4
defendants had personally violated Mr. Brewer’s constitutional rights. See Brewer v.
Gilroy, No. CIV 13-471-RAW-SPS, 2015 U.S. Dist. LEXIS 33393, at *19 (E.D.
Okla. Mar. 18, 2015) (“Personal participation is an essential allegation in a § 1983
claim.” (quoting Bennett v. Passic, 545 F.2d 1260, 1262–63 (10th Cir. 1976))). The
district court also dismissed without prejudice Mr. Brewer’s claims that Defendants
Riddle and Pinley failed to properly investigate the sexual assault allegations against
Defendant Gilroy because Mr. Brewer had failed to exhaust his administrative
remedies with respect to those claims.5 Id. at *12-*13, *22. Ultimately, the court
found the complaint frivolous,6 dismissed the action in its entirety, and assessed a
strike against Mr. Brewer.7 Id. at *23; see Smith v. Veterans Admin., 636 F.3d 1306,
1313 (10th Cir. 2011) (“Under the PLRA, prisoners obtain a ‘strike’ against them for
purposes of future IFP eligibility when their action or appeal in a court of the United
States . . . [is] dismissed on the grounds that it is frivolous, malicious, or fails to state
a claim upon which relief may be granted . . . .” (first and third alterations in original)
5
The district court dismissed without prejudice Mr. Brewer’s claims against
Defendants Gilroy, Pavlukevick, and Martin because the United States Marshals
Service was unable to serve them due to Mr. Brewer’s failure to provide their current
addresses. See Fed. R. Civ. P. 4(m); 12(b)(5) (permitting dismissal for insufficient
service of process). Mr. Brewer has not challenged the court’s dismissal of the claims
against these defendants and we do not consider them further.
6
In dismissing the case as frivolous, the district court also found “there are no
allegations that Internal Affairs Officers Knight and Yott personally participated in
constitutional violations against plaintiff.” Brewer v. Gilroy, No. CIV 13-471-RAW-
SPS, 2015 U.S. Dist. LEXIS 33393, at *19 (E.D. Okla. Mar. 18, 2015).
7
Mr. Brewer has not challenged the district court’s imposition of a strike
against him on appeal.
5
(internal quotation marks omitted)); see also Childs v. Miller, 713 F.3d 1262, 1266
(10th Cir. 2013) (“In this circuit, it is immaterial to the strikes analysis that the
dismissal was without prejudice.”).
Mr. Brewer timely appealed, and the district court, which had granted
Mr. Brewer leave to file his complaint in forma pauperis (IFP) under 28 U.S.C.
§ 1915 (see Dkt. No. 5),8 also granted Mr. Brewer leave to proceed IFP on appeal.
See Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (“[I]n order to
succeed on a motion to proceed IFP, the movant must show a financial inability to
pay the required filing fees, as well as the existence of a reasoned, nonfrivolous
argument on the law and facts in support of the issues raised in the action.”).
II. DISCUSSION
On appeal, Mr. Brewer challenges the district court’s exhaustion ruling and
persists in his claim that Defendants Crenshaw, Jones, Knight, Knutson, Parker,
Sherwood, Taylor, and Lightle violated his constitutional rights during his
incarceration at OSP. In addition, he argues the district court improperly overlooked
his claim of civil conspiracy against DCF and OSP employees for allegedly
conspiring to transfer him to OSP to prevent him from filing the instant lawsuit. He
also claims the district court should have permitted him to amend his complaint to
cure any deficiencies rather than to dismiss it with prejudice. We first consider the
district court’s exhaustion ruling before turning to the merits of Mr. Brewer’s
8
All references to district court docket numbers will be in the format “Dkt.
No. __” and refer to the district court filings in this case.
6
constitutional claims. Finally, we address whether the district court properly
dismissed Mr. Brewer’s complaint without permitting him to amend.
A. Exhaustion of Administrative Remedies
We review de novo the district court’s determination that Mr. Brewer’s
constitutional claims against Defendants Riddle and Pinley were barred for failure to
exhaust his administrative remedies. See Jernigan v. Stuchell, 304 F.3d 1030, 1032
(10th Cir. 2002). Under the Prison Litigation Reform Act (PLRA), prisoners are
required to exhaust their administrative remedies before initiating an action to
vindicate federally protected rights. See 42 U.S.C. § 1997e(a) (“No action shall be
brought with respect to prison conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are exhausted.”). The exhaustion
requirement is an affirmative defense. Therefore, defendants “bear the burden of
asserting and proving that the plaintiff did not utilize administrative remedies.”
Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011). “Once a defendant proves
that a plaintiff failed to exhaust, however, the onus falls on the plaintiff to show that
remedies were unavailable to him . . . .” Id.
Here, we have little difficulty concluding Mr. Brewer’s claims against
Defendants Riddle and Pinley are barred for failure to exhaust administrative
remedies. Although Mr. Brewer filed an administrative grievance regarding the
alleged sexual assault, he did not assert the constitutional claims he now brings
against these defendants for failure to adequately investigate his allegations. And
7
Mr. Brewer points to nothing that convinces us that acts of prison officials rendered
those administrative remedies unavailable. Cf. Little v. Jones, 607 F.3d 1245, 1250
(10th Cir. 2010) (holding that exhaustion is not required “[w]here prison officials
prevent, thwart, or hinder a prisoner’s efforts to avail himself of an administrative
remedy”). Rather, the administrative grievance process appears to have been
available to Mr. Brewer at both the DCF and OPS facilities. See Patel v. Fleming,
415 F.3d 1105, 1111 (10th Cir. 2005) (holding that a prisoner failed to exhaust
administrative remedies where, after he was transferred to a different facility, he
failed to timely file his grievance); Gonyea v. Mink, 206 F. App’x 745, 747 (10th Cir.
2006) (rejecting inmate’s claim that grievance process was unavailable where he
could have filed a grievance against a county prison after his transfer to a county jail
and in fact had filed multiple administrative requests with the jail).9 Thus, the district
court properly dismissed without prejudice Mr. Brewer’s claims against Defendants
Riddle and Pinley.
B. Dismissal for Failure to State a Claim
Next, we consider whether the district court properly dismissed Mr. Brewer’s
claims against Defendants Crenshaw, Jones, Knight, Knutson, Parker, Sherwood,
Taylor, and Lightle for failure to state a plausible claim that any named defendant
violated Mr. Brewer’s constitutional rights. The district court granted these
9
Though not binding, we find unpublished decisions from this court to be
persuasive. See 10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential,
but may be cited for their persuasive value.”).
8
defendants’ 12(b)(6) motion to dismiss these claims and, acting sua sponte, it also
dismissed Mr. Brewer’s IFP complaint as frivolous under 28 U.S.C. § 1915.10
We review de novo a district court’s dismissal pursuant to Rule 12(b)(6) and,
although we construe Mr. Brewer’s pro se complaint liberally,11 “our role is not to act
as his advocate.” Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009). We
also review de novo the district court’s decision to dismiss an IFP complaint under 28
U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. See Kay v. Bemis, 500 F.3d
1214, 1217 (10th Cir. 2007). And “[w]e apply the same standard of review for
dismissals under § 1915(e)(2)(B)(ii) that we employ for Federal Rule of Civil
Procedure 12(b)(6) motions to dismiss for failure to state a claim.” Id.; see also
McKinley v. Maddox, 493 F. App’x. 928, 931 (10th Cir. 2012) (same).
To determine under Rule 12(b)(6) whether Mr. Brewer has sufficiently stated
his claims, we accept as true the well-pled factual allegations and consider whether
he has provided “enough facts to state a claim to relief that is plausible on its face.”
See Hogan v. Winder, 762 F.3d 1096, 1104 (10th Cir. 2014) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 547 (2007)). Because Mr. Brewer is bringing his claims
pursuant to § 1983, his complaint “must plead that each Government-official
10
This Section provides that “the court shall dismiss the case at any time if the
court determines that . . . the action . . . is frivolous [or] fails to state a claim on
which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(i) & (ii).
11
“This liberal treatment is not without limits, and ‘this court has repeatedly
insisted that pro se parties follow the same rules of procedure that govern other
litigants.’” Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (quoting Garrett v.
Selby, Connor, Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005)).
9
defendant, through the official’s own individual actions, has violated the
Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). The complaint must
therefore “contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face’” as to the specific constitutionally impermissible actions
allegedly committed by each named defendant to survive a motion to dismiss as to
each defendant. Id. at 678 (quoting Twombly, 550 U.S. at 570). “Conclusory
allegations are not enough to withstand a motion to dismiss.” Gallagher, 587 F.3d at
1068.
Mr. Brewer’s complaint, read liberally, asserts that (1) the prison conditions at
OSP constituted cruel and unusual punishment and denied him due process; (2) OSP
and ODOC prison officials refused to address grievances submitted through the
mandatory prisoner grievance process in violation of his Fifth and Fourteenth
Amendment due process rights; (3) OSP and ODOC prison officials racially
discriminated against him in violation of equal protection; and (4) DCF and OSP
employees conspired to transfer him to OSP to prevent him from filing the instant
lawsuit.
In considering the sufficiency of the allegations in the complaint supporting
these claims, we conclude the district court properly dismissed Mr. Brewer’s
complaint.
1. Challenge to the Prison Conditions at OSP
Mr. Brewer’s challenges to the prison conditions at OSP arise under the Eighth
and Fourteenth Amendments to the U.S. Constitution. “The Eighth Amendment,
10
which applies to the States through the Due Process Clause of the Fourteenth
Amendment, prohibits the infliction of cruel and unusual punishments on those
convicted of crimes.” Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 809 (10th Cir.
1999) (quoting Wilson v. Seiter, 501 U.S. 294, 296–97 (1991)). The Eighth
Amendment requires that prison officials “provide humane conditions of confinement
by ensuring inmates receive the basic necessities of adequate food, clothing, shelter,
and medical care and by taking reasonable measures to guarantee the inmates’
safety.” DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001) (internal quotation
marks omitted). Likewise, “[t]he Fourteenth Amendment prohibits any State from
depriving a person of life, liberty, or property without due process of law.” Perkins,
165 F.3d at 808 (quoting Meachum v. Fano, 427 U.S. 215, 223 (1976)). “A prisoner’s
liberty interests may arise . . . from state law.” Id. But state-created liberty interests
are generally limited to conditions that impose “atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life.” Id. (quoting Sandin v.
Conner, 515 U.S. 472, 484 (1995)). As noted, “[i]n determining whether a dismissal
is proper, we must accept the allegations of the complaint as true and construe those
allegations, and any reasonable inferences that might be drawn from them, in the
light most favorable to the plaintiff.” Kay, 500 F.3d at 1217 (internal quotation marks
omitted).
a. Abuses by prison employees not named as defendants
Mr. Brewer asserts prison officials at OSP violated his constitutional rights
when they placed him in unlit cells that smelled of urine, feces, or sewage, and
11
refused to give him a mattress, bedroll, or adequate food and water. According to
Mr. Brewer, he was denied food entirely for seven days. He further alleges that at
other times, prison employees threw food into his cell so that he would have to eat
off the floor.
Taken as true, these allegations might well support a plausible claim under the
Eighth or Fourteenth Amendments.12 However, Mr. Brewer’s claims based on these
allegations fail because the named defendants are not the individuals Mr. Brewer
claims were personally involved in these alleged abuses.
For instance, Mr. Brewer alleges that on the day of his transfer to OSP, March
4, 2012, a Sergeant Hammell and Corporal Crenshaw, the son of named defendant
Terry Crenshaw, denied him food at lunch and dinner. Other than the fact that Terry
Crenshaw and Corporal Crenshaw are father and son, respectively, Mr. Brewer
provides no explanation why the named defendant, Terry Crenshaw, should be liable
for the alleged conduct of Corporal Crenshaw, who is not named as a defendant.
12
Compare Barney v. Pulsipher, 143 F.3d 1299, 1311 (10th Cir. 1998) (finding
no constitutional violation where plaintiffs were temporarily placed in a filthy cell
with inadequate lighting and ventilation, there was a lack of enclosures around the
shower and toilet, the prison provided unappetizing food, and there was no access to
recreational facilities), with Mitchell v. Maynard, 80 F.3d 1433, 1442 (10th Cir.
1996) (concluding prisoner sufficiently alleged constitutional violation where he
claimed he was “provided no mattress, blankets or bedding of any kind, . . . not
allowed to leave his cell for exercise, not provided with writing utensils, not provided
with adequate ventilation, . . . and only sometimes allowed minimal amounts of toilet
paper,” and “[t]hese conditions supposedly lasted for a period of days, weeks and
months”).
12
Mr. Brewer further alleges that because the cell to which he was initially
assigned had no lights or working plumbing, Mr. Brewer covered the window to get
attention. He alleges a Captain Kennedy responded and moved him to another cell
that had functioning plumbing, but also lacked working lights. Mr. Brewer claims he
told Captain Kennedy he had not been fed, but Captain Kennedy responded that it
was 1:30 a.m. and the kitchen was closed. According to Mr. Brewer, he then went
seven consecutive days and nights without food.
Mr. Brewer identifies the person responsible for bringing his food as Sergeant
Spears13 and alleges Ms. Spears explained to him that Deputy Warden Art Lightle
had imposed a seven day sack lunch restriction on Mr. Brewer but the kitchen was
not sending the sack lunches. When Mr. Brewer asked for one of the trays of food
visible on Ms. Spears’ food cart, she allegedly refused, explaining that the sack lunch
restriction prohibited him from having a tray lunch, even if the kitchen was not
actually sending the sack lunches.
Mr. Brewer further asserts that an African American corrections officer,
Sergeant Richard Buie, brought Mr. Brewer sack lunches during his shifts. When
Mr. Brewer informed Lieutenant Glover, Ms. Spears’ superior, that Ms. Spears was
not bringing him food, Lieutenant Glover claimed to have seen Mr. Brewer receive
every meal over the security cameras. Mr. Brewer alleges that after Sergeant Buie
13
Mr. Brewer’s complaint makes allegations against two corrections officers
who are married to each other and are both identified as Sergeant Spears in the
record. For clarity and because the record does not provide a first name for
Ms. Spears, we refer to them as Mr. and Ms. Spears in this decision.
13
told the kitchen to send sack lunches to Mr. Brewer, Ms. Spears withheld them, even
when he could see his name and cell number on sack lunches on her cart. But
Mr. Brewer has not named Ms. Spears, Captain Kennedy, or Lieutenant Glover as
defendants in this action.
Mr. Brewer asserts he informed Chief Peters that he had not received his sack
lunches for seven days (except for, presumably, the lunches Sergeant Buie brought
him). In response, Chief Peters allegedly agreed to have his lieutenants personally
bring Mr. Brewer his lunches. Mr. Brewer contends Lieutenant Glover and
Lieutenant Jowels thereafter threw Mr. Brewer’s food into his cell so that he would
have to eat it off the floor, which he claims contained puddles of water from leaks in
the quad’s roof that had seeped in under the door of his cell. Mr. Brewer also failed
to name Lieutenant Jowels as a defendant in his complaint.
Mr. Brewer next alleges he was moved to a different quad where Ms. Spears’
husband, Sergeant David Spears, was responsible for food delivery. Mr. Spears and
an Officer Heartfield allegedly told the inmate “run man”14 on the quad that he would
fire him if he gave Mr. Brewer anything. Mr. Brewer claims his new cell again had
no functioning lighting, and he could see and smell raw sewage coming up from the
pipes. According to Mr. Brewer he was not provided with a mattress or bed roll for
seven days and was eating only every other day. When a new inmate run man was
14
“The run man is responsible for cleaning the Quad and passing out tea, juice,
milk, coffee, toilet tissue, clothing, and indigent hygiene items.” Brewer, 2015 U.S.
Dist. LEXIS 33393, at *16.
14
assigned to the quad, Mr. Brewer alleges Officer Heartfield repeated his instruction
that Mr. Brewer not be given anything from the cart.15 Mr. Brewer claims he
complained to corrections officers Sergeant Taylor16 and Sergeant Hands, who
refused to intervene. Mr. Spears, Officer Heartfield, Sergeant Taylor, and Sergeant
Hands are also not named as defendants in this action.
Mr. Brewer further alleges that a year after complaining about these issues,
Deputy Warden Art Lightle and Unit Manager William Taylor moved him to a high
max cell.17 According to Mr. Brewer, unnamed corrections officers again denied him
food for several days after the move. Mr. Brewer does not identify the prison officials
who allegedly withheld food from him while he was housed in a high max cell and
offers no allegations connecting these activities to any named defendants.
15
Mr. Brewer adds here an allegation that seems to imply that named
defendant Case Manager Sherwood joined Officer Heartfield in this statement to the
run man. However, this sole allegation in the complaint relating to Keith Sherwood
(reading, in its entirety, “also the case manager Sharewood!”) is simply too tenuous
to implicate him, even if the denial of access to items from the run man’s cart could
rise to the level of a constitutional violation.
16
Although it is unclear from the allegations in the complaint, this Sergeant
Taylor appears to be a different individual than the named Unit Manager William
Taylor, based on the plainest reading of the language in the complaint.
17
Although Mr. Brewer does not provide further details about this in his
complaint beyond noting that such a move is usually for punishment and he believes
he had not been guilty of any misconduct since he arrived at OSP, in one of the
grievance notices he attached to his complaint, he explains that he was moved to a
high max cell for allegedly throwing something on the run man.
15
b. Allegations against named defendants
The district court correctly dismissed Mr. Brewer’s claims, despite his detailed
factual allegations, because he failed to allege that any named defendant personally
participated in the alleged deprivations. See Mitchell, 80 F.3d at 1441 (affirming
district court’s dismissal of claim where plaintiff failed to link the named appellees to
the unconstitutional action, and holding that supervisor status by itself is insufficient
to support liability). In the absence of specific allegations against one or more named
defendants, Mr. Brewer cannot maintain a claim with respect to the conditions at
OSP. See Bennett, 545 F.2d at 1262–63 (“Personal participation is an essential
allegation in a § 1983 claim.”).
To the extent Mr. Brewer has made allegations against the named defendants,
we agree with the district court that the specific allegations of misconduct against
Defendants Crenshaw, Sherwood, Taylor, and Lightle do not establish actionable due
process or Eighth Amendment violations. For example, placing Mr. Brewer on a
temporary sack lunch restriction does not implicate due process, see, e.g., Rogers v.
Holt, 49 F. App’x 231, 232 (10th Cir. 2002) (holding that there was no arguable due
process claim where the prisoner alleged the denial of recreation and substitution of
sack lunches for a period of five days), nor does the discretionary decision to transfer
him to a high-max cell, see, e.g., Meachum v. Fano, 427 U.S. 215 (1976) (ruling that
changes in prison security classifications do not implicate the Fourteenth Amendment
and, therefore, transfer to another, more restrictive prison does not violate due
process) and Twyman v. Crisp, 584 F.2d 352, 356–57 (10th Cir. 1978) (concluding
16
that discretionary intra state prison transfers and change of security status do not give
rise to due process rights).
Likewise, the allegation that Defendant Parker falsified Mr. Brewer’s prison
record in order to conceal a refusal to follow OSP policy regarding yard time and
showers, even if taken as true, is too vague to establish an actionable constitutional
claim. Indeed, Mr. Brewer’s complaint fails to provide any factual detail regarding
this claim. Without such information, it is impossible to tell whether the alleged
restrictions on yard time and showers implicate the Due Process Clause. Compare
Perkins, 165 F.3d at 810 (recognizing that the total denial of exercise for an extended
period of time could constitute cruel and unusual punishment), with Marshall v.
Morton, 421 F. App’x 832, 838 (10th Cir. 2011) (holding that “restrictions on an
inmate’s telephone use, property possession, visitation and recreation privileges are
not different in such degree and duration as compared with the ordinary incidents of
prison life to constitute protected liberty interests under the Due Process Clause”).
For these reasons, Mr. Brewer has failed to sufficiently allege that Defendants
Crenshaw, Jones, Knight, Parker, Sherwood, Taylor, or Lightle violated his
constitutional rights, and the district court correctly dismissed his due process and
Eighth Amendment claims against these named defendants.
2. Disposition of Grievances
Throughout this period at OSP, Mr. Brewer alleges he submitted a number of
grievances to the prison administration. During March 2012, when he alleges Mr. and
Ms. Spears were withholding his food and Lieutenants Glover and Jowels were
17
throwing his food onto his cell floor, Mr. Brewer claims he filed three grievances and
a “Request to Staff” with the prison administration. Mr. Brewer asserts he sent two
grievances to Warden Randall Workman and one to Director’s Designee Debbie
Morton. He claims he did not receive responses to these grievances and that he was
moved to a high max cell a year after making these complaints.18
Because he felt prison officials were inadequately addressing his complaints,
Mr. Brewer wrote directly to Deputy Director D.B. Parker. Mr. Brewer credits
writing to Deputy Director Parker with improving the situation because he was then
granted yard and exercise time, allowed showers three times a week, and provided
three meals every day. Mr. Brewer nevertheless filed further grievances with the
Director’s Designee Mark Knutson, one labeled an “emergency” grievance relating to
the allegedly broken water faucet in his high max cell and two others labeled
alternatively “emergency” and “sensitive” relating to racial discrimination he claimed
he was experiencing at that time. Mr. Brewer claims Mr. Knutson responded that his
broken water faucet was not an “emergency” and that Mr. Knutson “refused to
address the racism issues.”
The district court outlined the requirements of the mandatory grievance
process in use by the ODOC at the relevant time. See Brewer, 2015 U.S. Dist. LEXIS
18
Neither Randall Workman nor Debbie Morton is named as a defendant in
this case.
18
33393, at *10-*11.19 In addressing Mr. Brewer’s claims about deficiencies in the
disposition of his grievances, the district court considered the Martinez reports it had
ordered defendants to prepare. See id. at *1.20 The uncontroverted Martinez report
relating to OSP (Dkt. No. 61) included a sworn affidavit of Director’s Designee Mark
Knutson (Dkt. No. 61, Ex. 15). In his affidavit, Mr. Knutson addresses each of the
grievances filed by Mr. Brewer and the disposition of each according to the ODOC
19
The district court described the process as follows:
According to DOC Policy OP-090124, “Inmate/Offender Grievance
Process,” an inmate first must attempt to resolve his complaint
informally. If that is unsuccessful, he may submit a Request to Staff
(RTS). If the complaint still is not resolved, he then may file a
grievance. If the grievance also does not resolve the issue, the inmate
may appeal to the Administrative Review Authority or the Chief
Medical Officer. The administrative process is exhausted only after all
of these steps have been taken. . . . .
Both DOC and CCA/DCF policies provide a specific remedy to an
inmate in the event of failure of staff to respond to a RTS. Pursuant to
DOC policy, if there has been no response within 30 calendar days of
submission, the inmate may file a grievance to the reviewing authority
with evidence of submitting the RTS to the proper staff member. The
grievance may assert only the issue of lack of response to the RTS.
Brewer, 2015 U.S. Dist. LEXIS 33393, at *10-*11. Moreover, the ODOC grievance
policies “permit a prisoner to circumvent the informal resolution processes and
submit a grievance without first talking to an appropriate official and submitting a
Request to Staff, provided that the grievance addresses a sensitive or emergency
matter. A prisoner must use a particular form and write the word ‘emergency’ at the
top of the form.” Smith v. Beck, 165 Fed. Appx. 681, 684 (10th Cir. 2006) (citation
omitted).
20
Although a “Martinez report may not be used to resolve disputed factual
issues,” in the Tenth Circuit, “an uncontroverted report may serve as the basis for a
dismissal” on a 12(b)(6) motion. Gallagher, 587 F.3d at 1068 n.7.
19
grievance procedures in effect at that time, including the reason that each grievance
was returned or denied.21
Mr. Brewer has no independent due process rights that arise out of OSP or
ODOC employees’ disposition of internal grievances. See, e.g., Gallagher, 587 F.3d
at 1069 (holding that allegations related to the denial of prisoner’s grievances were
insufficient to state a cognizable due process claim); Boyd v. Werholtz, 443 F. App’x
331, 332 (10th Cir. 2011) (holding that there is no independent constitutional right to
state prison administrative grievance procedures). And the uncontroverted Martinez
report relating to OSP reveals Mr. Brewer’s allegations of deficiencies in the
disposition of his grievances as specious. The district court therefore correctly
dismissed Mr. Brewer’s claims against Mr. Knutson.
3. Racial Discrimination at OSP
21
For example, Mr. Brewer’s “sensitive emergency grievance” of September
27, 2012 complaining of being placed on restriction was “unanswered due to the
issue not being of an emergency or sensitive nature,” and Mr. Brewer “was directed
to follow the standard grievance process.” Mr. Brewer’s May 30, 2013 “emergency
grievance” relating to the broken water faucet “went unanswered due to the issue not
being of an emergency nature,” and because Mr. Brewer had failed “to provide
information regarding any informal action taken to resolve the complaint.”
Mr. Brewer’s first grievance to Mr. Knutson about alleged racial discrimination,
dated September 17, 2013 and marked “sensitive,” was unacceptable under the
guidelines because it was not “of a sensitive nature,” and Mr. Brewer “was directed
to follow the standard grievance process.” Finally, Mr. Brewer’s second grievance
alleging racial discrimination, dated August 23, 2014, suffered from the “procedural
error of raising multiple issues in one grievance,” and this was indicated to
Mr. Brewer on the response form. (See Dkt. No. 61, Ex. 15, Affidavit of Mark
Knutson dated June 11, 2014, at ¶¶ 7-11.)
20
We also agree with the district court that Mr. Brewer has not sufficiently
alleged an equal protection violation. “Equal protection ‘is essentially a direction that
all persons similarly situated should be treated alike’.” Grace United Methodist
Church v. City of Cheyenne, 427 F.3d 775, 792 (10th Cir. 2005) (quoting City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)), vacated on rehearing
on other grounds by 451 F.3d 643 (10th Cir. 2006). Thus, to establish an equal
protection violation, Mr. Brewer must allege facts that show the defendants treated
him differently than other similarly situated prisoners. Fogle v. Pierson, 435 F.3d
1252, 1261 (10th Cir. 2006).22
Considering Mr. Brewer’s complaint under this standard, we conclude it fails
to state a plausible equal protection claim against any named defendant.
Mr. Brewer’s generic allegations of racial discrimination at OSP—ungrounded in
specific factual averments that would show that he was treated differently from
similarly situated white prisoners—are insufficient to state a plausible equal
protection claim. Compare Abdulhaseeb v. Calbone, 600 F.3d 1301, 1322–23 (10th
Cir. 2010) (holding that plaintiff could not show an equal protection violation where
he made vague and conclusory allegations but failed to provide specific facts
22
Because Mr. Brewer asserts an equal protection claim based on race, it is
unnecessary for him to show that his treatment was not reasonably related to some
legitimate penological purpose. See Tennyson v. Carpenter, 558 F. App’x 813, 820
(10th Cir. 2014); cf. Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994)
(concluding that because the prisoner failed to allege disparate treatment on the basis
of any suspect classification, he was required to show that the distinction between
himself and other inmates was not reasonably related to some legitimate penological
purpose).
21
showing that white inmates were treated more favorably), with Tennyson v.
Carpenter, 558 F. App’x 813, 820 (10th Cir. 2014) (concluding that an equal
protection claim was not frivolous where the defendant alleged that he was the only
African American in the choir and the only member disciplined for conduct common
to all choir members, thereby alleging a suspect classification based on race). For this
reason, the district court correctly rejected Mr. Brewer’s claims that defendants
Crenshaw, Jones, Knight, Knutson, Parker, Sherwood, Taylor, or Lightle
impermissibly discriminated against him on the basis of his race.
4. Civil Conspiracy Claim
We also reject Mr. Brewer’s contention that he sufficiently pled a civil
conspiracy claim. Although the district court was required to read Mr. Brewer’s
complaint liberally, it was under no obligation to craft Mr. Brewer’s claims for him.
See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“[Although] a pro se
litigant’s pleadings are to be construed liberally and held to a less stringent standard
than formal pleadings drafted by lawyers[,]” it is improper for “the district court to
assume the role of advocate for the pro se litigant.”). Mr. Brewer’s complaint cannot
be fairly read to assert a plausible civil conspiracy claim, even under the most
generous reading. Rather, this claim consists of a few conclusory assertions of
conspiracy, without providing any specific facts that would establish any named
defendants took concerted action to transfer Mr. Brewer to OSP to prevent him from
filing the instant lawsuit. We agree with the district court that this is insufficient to
raise a civil conspiracy claim. See Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504,
22
533 (10th Cir. 1998) (explaining that although allegations of conspiracy can form a
§ 1983 claim, “a plaintiff must allege specific facts showing an agreement and
concerted action amongst the defendants[;] [c]onclusory allegations of conspiracy are
insufficient” (internal quotation marks and citation omitted)).
C. Dismissal Without Permitting Amendment
Finally, we consider whether the district court properly dismissed
Mr. Brewer’s complaint without permitting him leave to amend. A “district court
should allow a plaintiff an opportunity to cure technical errors or otherwise amend
the complaint when doing so would yield a meritorious claim.” Curley v. Perry, 246
F.3d 1278, 1284 (10th Cir. 2001). But the district court need not permit an
opportunity to amend when “it is obvious that the plaintiff cannot prevail on the facts
he has alleged and it would be futile to give him an opportunity to amend.” Perkins v.
Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999) (internal quotation marks
omitted).
Here, the district court found Mr. Brewer’s complaint frivolous, dismissing it
without granting him leave to amend. Brewer v. Gilroy, No. CIV 13-471-RAW-SPS,
2015 U.S. Dist. LEXIS 33393, at *23 (E.D. Okla. Mar. 18, 2015). Mr. Brewer did not
provide necessary additional factual averments in his filings with the district court to
make out plausible claims that any named defendants violated his constitutional
rights. Specifically, Mr. Brewer’s three motions to amend failed to identify any
allegations that would have cured the deficiencies in his complaint. See, e.g., Curley,
246 F.3d at 1284 (affirming a district court’s sua sponte dismissal of a complaint for
23
failure to state a claim where the plaintiff failed to file a motion to reconsider
explaining why the dismissal was erroneous). The district court did not abuse its
discretion in dismissing Mr. Brewer’s complaint without granting him leave to amend
because Mr. Brewer’s proposed amendments would have been futile. See Anderson v.
Suiters, 499 F.3d 1228, 1238 (10th Cir 2007) (“A proposed amendment is futile if the
complaint, as amended, would be subject to dismissal.” (internal quotation marks
omitted)).
III. CONCLUSION
We therefore AFFIRM the district court’s dismissal of Mr. Brewer’s complaint
and its assessment of one strike against Mr. Brewer.23 The district court permitted
Mr. Brewer leave to proceed in forma pauperis on appeal, but we remind him of his
obligation to continue making partial payments until the entire fee has been paid.
ENTERED FOR THE COURT
Carolyn B. McHugh
Circuit Judge
23
We affirm the strike assessed against Mr. Brewer because he did not
challenge it on appeal. But because we agree with the district court that Mr. Brewer’s
appeal is not frivolous, we do not impose a second strike. See Jennings v. Natrona
Cnty. Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999).
24