Case: 5:13-cv-1191 As of: 02/17/2020 03:55 PM CST 1 of 7
CLOSED,ERWIN,_MR
U.S. District Court Western District of Oklahoma[LIVE] (Oklahoma City)
CIVIL DOCKET FOR CASE #: 5:13−cv−01191−D

Druley v. Jones et al Assigned to: Honorable Timothy D. DeGiusti Demand: $1,000,000 Case in other court: Tenth Circuit Court of Appeals, 14−06114 Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 11/07/2013 Date Terminated: 03/18/2015 Jury Demand: Plaintiff Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Jeanne Marie Druley

represented by Jeanne Marie Druley #152158 LEXINGTON−JHCC P O Box 548 Lexington, OK 73051 PRO SE

V. Defendant Justin Jones in his individual capacity Defendant Justin Jones in his official capacity
Defendant Don Suttmiller in his individual capacity
Defendant

represented by Kari Y Hawkins Attorney General's Ofc−NE 21STREET−OKC 313 NE 21st St Oklahoma City, OK 73105 405−522−2976 Fax: 405−521−4518 Email: kari.hawkins@oag.ok.gov ATTORNEY TO BE NOTICED
Wilson D McGarry US Attorney's Office−OKC 210 W Park Ave Suite 400 Oklahoma City, OK 73102 405/553−8700 Fax: 405/553−8888 Email: wilson.mcgarry@usdoj.gov ATTORNEY TO BE NOTICED
represented by Kari Y Hawkins Attorney General's Ofc−OKC 313 NE 21st St Oklahoma City, OK 73105 405−522−2976 Fax: 405−521−4518 Email: kari.hawkins@oag.ok.gov ATTORNEY TO BE NOTICED
Wilson D McGarry (See above for address) ATTORNEY TO BE NOTICED

Case: 5:13-cv-1191 As of: 02/17/2020 03:55 PM CST 2 of 7

Don Suttmiller in his official capacity

represented by Kari Y Hawkins (See above for address) ATTORNEY TO BE NOTICED

Wilson D McGarry (See above for address) ATTORNEY TO BE NOTICED

Defendant
Michael Addison in his individual capacity

represented by Kari Y Hawkins (See above for address) ATTORNEY TO BE NOTICED

Wilson D McGarry (See above for address) ATTORNEY TO BE NOTICED

Defendant
Michael Addison in his official capacity

represented by Kari Y Hawkins (See above for address) ATTORNEY TO BE NOTICED

Wilson D McGarry (See above for address) ATTORNEY TO BE NOTICED

Defendant
Buddy Honaker in his individual capacity

represented by Kari Y Hawkins (See above for address) ATTORNEY TO BE NOTICED

Wilson D McGarry (See above for address) ATTORNEY TO BE NOTICED

Defendant
Buddy Honaker in his official capacity

represented by Kari Y Hawkins (See above for address) ATTORNEY TO BE NOTICED

Wilson D McGarry (See above for address) ATTORNEY TO BE NOTICED

Defendant
James Keithley in his individual capacity

represented by Kari Y Hawkins (See above for address) ATTORNEY TO BE NOTICED

Wilson D McGarry (See above for address) ATTORNEY TO BE NOTICED

Defendant
James Keithley in his official capacity

represented by Kari Y Hawkins (See above for address) ATTORNEY TO BE NOTICED

Wilson D McGarry (See above for address) ATTORNEY TO BE NOTICED

Case: 5:13-cv-1191 As of: 02/17/2020 03:55 PM CST 3 of 7

Defendant Joel B McCurdy in his individual capacity
Defendant Joel B McCurdy in his official capacity

represented by Kari Y Hawkins (See above for address) ATTORNEY TO BE NOTICED
Wilson D McGarry (See above for address) ATTORNEY TO BE NOTICED
represented by Kari Y Hawkins (See above for address) ATTORNEY TO BE NOTICED
Wilson D McGarry (See above for address) ATTORNEY TO BE NOTICED

Date Filed 11/07/2013 11/07/2013 11/07/2013 11/07/2013 11/13/2013 11/21/2013
11/21/2013 12/10/2013 12/13/2013 12/13/2013 12/20/2013 01/21/2014 03/14/2014

# Docket Text
1 COMPLAINT against All Defendants filed by Jeanne Marie Druley. (Attachments: # 1 Exhibit 1 − Summary of Medical Info, # 2 Exhibit 2 − DOC Info, # 3 Civil Cover Sheet)(ap) (Entered: 11/08/2013)
2 MOTION for Preliminary Injunction, MOTION for Temporary Restraining Order by Jeanne Marie Druley. (ap) (Entered: 11/08/2013)
3 MEMORANDUM IN SUPPORT re 2 MOTION for Preliminary Injunction, MOTION for Temporary Restraining Order by Jeanne Marie Druley. (ap) (Entered: 11/08/2013)
4 MOTION for Leave to Proceed in forma pauperis by Jeanne Marie Druley. (Attachments: # 1 Offender Statement Report)(ap) (Entered: 11/08/2013)
5 ORDER REFERRING CASE to Magistrate Judge Shon T. Erwin.. Signed by Honorable Timothy D. DeGiusti on 11/13/2013. (mb) (Entered: 11/13/2013)
6 REPORT AND RECOMMENDATION recommending that the 4 MOTION for Leave to Proceed in forma pauperis filed by Jeanne Marie Druley be denied and that she be ordered to prepay the full $400.00 filing fee for this action to proceed. Objections to R&R due by 12/9/2013. This R&R terminates the referral to the Magistrate Judge in this matter. Signed by Magistrate Judge Shon T. Erwin on 11/21/13. (ch) (Entered: 11/21/2013)
Magistrate Judge Shon T. Erwin no longer assigned to case pursuant to R&R of 11/21/13. (ch) (Entered: 11/21/2013)
7 Receipt for Money Received from State of Oklahoma on behalf of Jeanne Marie Druley in the amount of $400.00, receipt number OKW5000367963 regarding 1 Complaint. (cpp) (Entered: 12/10/2013)
8 ORDER finding as moot 4 Motion for Leave to Proceed in forma pauperis; finding as moot 6 Report and Recommendation. Case referred to Magistrate Shon T. Erwin. Signed by Honorable Timothy D. DeGiusti on 12/13/2013. (mb) (Entered: 12/13/2013)
CASE REFERRED to Magistrate Judge Shon T. Erwin. (mb) (Entered: 12/13/2013)
9 ORDER FOR SPECIAL REPORT. Signed by Magistrate Judge Shon T. Erwin on 12/20/13. (ch) (Entered: 12/20/2013)
MOTIONS REFERRED: 2 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order Motions referred to Shon T. Erwin. (mb) (Entered: 01/21/2014)
10 MOTION to Compel Service of Process by Jeanne Marie Druley. Motions referred to Shon T. Erwin. (Attachments: # 1 Exhibit 1 − Costs Summary and Envelope)(cpp) (Entered: 03/17/2014)

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03/25/2014 03/28/2014
04/01/2014 04/07/2014
04/07/2014
04/08/2014 04/08/2014 04/09/2014 04/10/2014 04/10/2014 04/10/2014 04/10/2014 04/14/2014 05/02/2014 05/08/2014 05/09/2014

11 ORDER denying Plf's 10 Motion to Compel Service of Process. Signed by Magistrate Judge Shon T. Erwin on 3/25/14. (ch) (Entered: 03/25/2014)
12 REPORT AND RECOMMENDATION recommending that the Plf's 2 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed by Jeanne Marie Druley be denied. Objections to R&R due by 4/14/2014. This R&R does not dispose of all issues referred to the Magistrate Judge in this matter. Signed by Magistrate Judge Shon T. Erwin on 3/28/14. (ch) (Entered: 03/28/2014)
13 WAIVER OF SERVICE Returned Executed by Defendant Don Suttmiller. Don Suttmiller(in his official capacity) waiver sent on 3/25/2014, answer due 5/27/2014. (LS−USMS, ) (Entered: 04/01/2014)
14 ENTRY of Appearance by Kari Y Hawkins on behalf of Michael Addison(in his individual capacity), Michael Addison(in his official capacity), Buddy Honaker(in his official capacity), Buddy Honaker(in his individual capacity), Don Suttmiller(in his individual capacity), Don Suttmiller(in his official capacity) (Hawkins, Kari) (Entered: 04/07/2014)
15 ENTRY of Appearance by Wilson D McGarry on behalf of Michael Addison(in his individual capacity), Michael Addison(in his official capacity), Buddy Honaker(in his official capacity), Buddy Honaker(in his individual capacity), Don Suttmiller(in his individual capacity), Don Suttmiller(in his official capacity) (McGarry, Wilson) (Entered: 04/07/2014)
16 ENTRY of Appearance by Wilson D McGarry on behalf of James Keithley(in his official capacity), James Keithley(in his individual capacity), Joel B McCurdy(in his individual capacity), Joel B McCurdy(in his official capacity) (McGarry, Wilson) (Entered: 04/08/2014)
17 ENTRY of Appearance by Kari Y Hawkins on behalf of James Keithley(in his official capacity), James Keithley(in his individual capacity), Joel B McCurdy(in his individual capacity), Joel B McCurdy(in his official capacity) (Hawkins, Kari) (Entered: 04/08/2014)
22 MOTION for Extension of Time by Jeanne Marie Druley. Motions referred to Shon T. Erwin. (cpp) (Entered: 04/10/2014)
18 WAIVER OF SERVICE Returned Executed by Defendant Michael Addison. Michael Addison(in his official capacity) waiver sent on 3/25/2014, answer due 5/27/2014. (LS−USMS, ) (Entered: 04/10/2014)
19 WAIVER OF SERVICE Returned Executed by Defendant Buddy Honaker. Buddy Honaker(in his official capacity) waiver sent on 3/25/2014, answer due 5/27/2014. (LS−USMS, ) (Entered: 04/10/2014)
20 WAIVER OF SERVICE Returned Executed by Defendant Joel B McCurdy. Joel B McCurdy(in his individual capacity) waiver sent on 3/25/2014, answer due 5/27/2014. (LS−USMS, ) (Entered: 04/10/2014)
21 WAIVER OF SERVICE Returned Executed by Defendant James Keithley. James Keithley(in his official capacity) waiver sent on 3/25/2014, answer due 5/27/2014. (LS−USMS, ) (Entered: 04/10/2014)
23 ORDER granting 22 Motion for Extension of Time to File Objection to R&R. Objections due 5/14/2014. Signed by Honorable Timothy D. DeGiusti on 4/14/2014. (mb) (Entered: 04/14/2014)
24 OBJECTION TO REPORT AND RECOMMENDATION 12 filed by Jeanne Marie Druley. (Attachments: # 1 Letter, # 2 Envelope)(cla) (Entered: 05/05/2014)
25 SUMMONS RETURNED EXECUTED as to Non−Party for Summons/Complaint served on Robert Patton on 05/02/2014. (LS−USMS, ) (Entered: 05/08/2014)
26 ORDER denying 2 Motion for Preliminary Injunction; denying 2 Motion for TRO; adopting Report and Recommendations re 12 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 5/9/2014. (mb) (Entered: 05/09/2014)

Case: 5:13-cv-1191 As of: 02/17/2020 03:55 PM CST 5 of 7

05/13/2014 05/13/2014 05/27/2014
05/27/2014
05/29/2014 05/30/2014 05/30/2014 05/30/2014 05/30/2014 06/03/2014 06/19/2014 06/20/2014
06/23/2014 07/01/2014 07/18/2014

27 ENTRY of Appearance by Wilson D McGarry on behalf of Justin Jones(in his official capacity) (McGarry, Wilson) (Entered: 05/13/2014)
28 ENTRY of Appearance by Kari Y Hawkins on behalf of Justin Jones(in his official capacity) (Hawkins, Kari) (Entered: 05/13/2014)
29 SPECIAL REPORT. (Attachments: # 1 Attachment CRC Card, # 2 Attachment Facility Assignment Form, # 3 Attachment Affidavit of Joel McCurdy with Attachments, # 4 Attachment Medication List, # 5 Attachment Court Minute in Case #C−88−50 dated 10/20/88, # 6 Attachment Birth Certificates, # 7 Attachment Phyisical Identification Form, # 8 Attachment Grievance Dated 5/21/13 with Responses, # 9 Attachment OP−090124 Effective 1/29/13)(McGarry, Wilson) (Entered: 05/27/2014)
30 MOTION to Dismiss or, in the Alternative,, MOTION for Summary Judgment and Brief in Support by Michael Addison(in his individual capacity), Michael Addison(in his official capacity), Buddy Honaker(in his official capacity), Buddy Honaker(in his individual capacity), Justin Jones(in his official capacity), James Keithley(in his official capacity), James Keithley(in his individual capacity), Joel B McCurdy(in his individual capacity), Joel B McCurdy(in his official capacity), Don Suttmiller(in his individual capacity), Don Suttmiller(in his official capacity). Motions referred to Shon T. Erwin. (Attachments: # 1 Attachment Brewer v Mullin (unpublished), # 2 Attachment Qz'Etax v Ortiz (unpublished))(McGarry, Wilson) (Entered: 05/27/2014)
31 ORDER −− Plaintiff shall have until June 17, 2014 to file a response to Defendants Addison, Honaker, Jones, Keithley, McCurdy and Suttmillers Motion to Dismiss, ECF No. 30. Signed by Magistrate Judge Shon T. Erwin on 5/29/2014. (mc) (Entered: 05/29/2014)
32 NOTICE OF APPEAL as to 26 Order on Motion for Preliminary Injunction, Order on Motion for TRO, Order on Report and Recommendation by Jeanne Marie Druley. (Attachments: # 1 Envelope)(cla) (Entered: 05/30/2014)
33 MOTION for Leave to Proceed in forma pauperis by Jeanne Marie Druley. Motions referred to Shon T. Erwin. (Attachments: # 1 Envelope)(cla) (Entered: 05/30/2014)
34 PRELIMINARY RECORD LETTER − Electronic Transmission of Notice of Appeal with Preliminary Record sent to Tenth Circuit Court of Appeals re 32 Notice of Appeal (cla) (Entered: 05/30/2014)
35 Tenth Circuit Court of Appeals USCA Case Number 14−6114 for 32 Notice of Appeal filed by Jeanne Marie Druley. (cla) (Entered: 06/02/2014)
36 ORDER denying 33 Motion for Leave to Proceed in forma pauperis. Signed by Honorable Timothy D. DeGiusti on 6/3/2014. (mb) (Entered: 06/03/2014)
37 MOTION for Extension of Time to File Response/Reply as to 30 MOTION to Dismiss or, in the Alternative, MOTION for Summary Judgment and Brief in Support by Jeanne Marie Druley. Motions referred to Shon T. Erwin. (Attachments: # 1 Envelope)(cla) (Entered: 06/19/2014)
38 ORDER of USCA assessing costs and fees in the amount of $505 as to 32 Notice of Appeal filed by Jeanne Marie Druley. Appellant's custodian shall forward payments from appellant's account equal to 20 percent of the preceding month's income each time the account exceeds $10.00 until the filing fees are paid in full. The first payment shall be deducted and forwarded within 30 days of the date of this order. (cla) (Entered: 06/20/2014)
39 ORDER granting 37 Motion for Extension of Time to File Response/Reply Responses due by 7/17/2014; Plaintiff shall have until July 17, 2014 to file a response to Defendants Motion of Dismiss/Summary Judgment ECF No. 30. Signed by Magistrate Judge Shon T. Erwin on 6/23/14. (mc) (Entered: 06/23/2014)
40 LETTER − Record Sent Electronically to USCA Volume(s) 1 re 32 Notice of Appeal (cla) (Entered: 07/01/2014)
41 MOTION for Extension of Time to file objection to defendants Motion for Summary Judgment by Jeanne Marie Druley. Motions referred to Shon T. Erwin. (Attachments: # 1 Envelope)(pw) (Entered: 07/21/2014)

Case: 5:13-cv-1191 As of: 02/17/2020 03:55 PM CST 6 of 7

07/21/2014 07/31/2014 07/31/2014 07/31/2014 07/31/2014 07/31/2014 07/31/2014 07/31/2014 07/31/2014 08/21/2014
12/12/2014
01/21/2015
01/21/2015 02/03/2015 02/11/2015

42 ORDER granting 41 Motion for Extension of Time to File; Plaintiff shall have until August 1, 2014 to file a response to Defendants Motion to Dismiss/Summary Judgment ECF No. 30 . Signed by Magistrate Judge Shon T. Erwin on 7/21/14. (mc) (Entered: 07/21/2014)
43 RESPONSE in Opposition (Declaration in Opposition) re 30 MOTION to Dismiss or, in the Alternative, MOTION for Summary Judgment and Brief in Support filed by Jeanne Marie Druley. (Attachments: # 1 Envelope)(cla) (Entered: 07/31/2014)
44 NOTICE (other) Statement of Disputed Factual Issues by Jeanne Marie Druley (Attachments: # 1 Envelope)(cla) (Entered: 07/31/2014)
45 MOTION for Entry of Default of James Keithley by Jeanne Marie Druley. Motions referred to Shon T. Erwin. (cla) (Additional attachment(s) added on 8/1/2014: # 1 Envelope) (cla). (Entered: 08/01/2014)
46 DECLARATION in Suppport by Jeanne Marie Druley re 45 MOTION for Entry of Default. (cla) (Additional attachment(s) added on 8/1/2014: # 1 Envelope) (cla). (Entered: 08/01/2014)
47 MOTION for Entry of Default of Michael Addison by Jeanne Marie Druley. Motions referred to Shon T. Erwin. (Attachments: # 1 Envelope)(cla) (Entered: 08/01/2014)
48 DECLARATION in Support by Jeanne Marie Druley re 47 MOTION for Entry of Default. (Attachments: # 1 Envelope)(cla) (Entered: 08/01/2014)
49 MOTION for Entry of Default of Robert Patton by Jeanne Marie Druley. Motions referred to Shon T. Erwin. (Attachments: # 1 Envelope)(cla) (Entered: 08/01/2014)
50 DECLARATION in Support by Jeanne Marie Druley re 49 MOTION for Entry of Default. (Attachments: # 1 Envelope)(cla) (Entered: 08/01/2014)
51 RESPONSE in Opposition re 47 MOTION for Entry of Default, 45 MOTION for Entry of Default, 49 MOTION for Entry of Default filed by Michael Addison(in his individual capacity), Michael Addison(in his official capacity), Justin Jones(in his official capacity), Justin Jones(in his individual capacity), James Keithley(in his official capacity), James Keithley(in his individual capacity). (Hawkins, Kari) (Entered: 08/21/2014)
52 MOTION to Withdraw as Attorney by Michael Addison(in his individual capacity), Michael Addison(in his official capacity), Buddy Honaker(in his official capacity), Buddy Honaker(in his individual capacity), James Keithley(in his official capacity), James Keithley(in his individual capacity), Joel B McCurdy(in his individual capacity), Joel B McCurdy(in his official capacity), Don Suttmiller(in his individual capacity), Don Suttmiller(in his official capacity). Motions referred to Shon T. Erwin. (McGarry, Wilson) (Entered: 12/12/2014)
53 REPORT AND RECOMMENDATION −− recommending that Defendants Motion to Dismiss/Motion for Summary Judgment, 30 be GRANTED. It is further recommended that Plaintiffs Motions for Entry of Default Judgment, 45 , 47 , and 49 , be DENIED. Finally, it is recommended that Wilson D. McGarrys unopposed Motion to Withdraw as Counsel 52 ) be GRANTED. This Report and Recommendation disposes of all issues referred to the undersigned magistrate judge in the captioned matter. Objections to R&R due by 2/9/2015. Signed by Magistrate Judge Shon T. Erwin on 1/21/15. (mc) (Entered: 01/21/2015)
Magistrate Judge Shon T. Erwin no longer assigned to case. (mc) (Entered: 01/21/2015)
54 ORDER AND JUDGMENT of USCA as to 32 Notice of Appeal filed by Jeanne Marie Druley. Affirmed. Terminated on the merits after submissions without oral hearing. Written, signed, and unpublished. Mandate to issue. (cla) (Entered: 02/04/2015)
55 MOTION for Extension of Time to File Response/Reply as to 53 REPORT AND RECOMMENDATION re 47 MOTION for Entry of Default filed by Jeanne Marie Druley, 45 MOTION for Entry of Default filed by Jeanne Marie Druley, 52 MOTION to Withdraw as Attorney filed by Joel B McCurdy, James Keithley, Budd by Jeanne Marie Druley. (Attachments: # 1 Envelope)(cla) (Entered: 02/11/2015)

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02/13/2015
02/25/2015 03/18/2015
03/18/2015 03/30/2015 03/30/2015 04/13/2015

56 ORDER granting 55 Motion for Extension of Time to File Response re 53 REPORT AND RECOMMENDATION re 47 MOTION for Entry of Default filed by Jeanne Marie Druley, 45 MOTION for Entry of Default filed by Jeanne Marie Druley, 52 MOTION to Withdraw as Attorney filed by Joel B McCurdy, James Keithley, Budd Response due by 3/11/2015. Signed by Honorable Timothy D. DeGiusti on 2/13/2015. (mb) (Entered: 02/13/2015)
57 USCA MANDATE Issued re 32 Notice of Appeal filed by Jeanne Marie Druley. (cla) (Entered: 02/25/2015)
58 ORDER granting 30 Motion to Dismiss; granting 30 Motion for Summary Judgment; denying 45 Motion for Entry of Default; denying 47 Motion for Entry of Default; denying 49 Motion for Entry of Default; granting 52 Motion to Withdraw as Attorney. Adopting 53 Report and Recommendation. Signed by Honorable Timothy D. DeGiusti on 3/17/15. (cla) (Entered: 03/18/2015)
59 JUDGMENT in favor of Joel B McCurdy against Jeanne Marie Druley. Signed by Honorable Timothy D. DeGiusti on 3/17/15. (cla) (Entered: 03/18/2015)
60 MOTION for Order (Titled Motion for Independent Action for Relief from Judgment and/or Rehearing of the Court's Order) by Jeanne Marie Druley. (Attachments: # 1 Envelope)(cla) (Entered: 03/31/2015)
61 OBJECTION TO REPORT AND RECOMMENDATION 53 filed by Jeanne Marie Druley. (Attachments: # 1 Envelope)(cla) (Entered: 03/31/2015)
62 ORDER denying 60 Motion for Independent Action for Relief from Judgment and/or Rehearing of the Court's Order. Signed by Honorable Timothy D. DeGiusti on 4/13/2015. (mb) (Entered: 04/13/2015)

 
 Case 5:13-cv-01191-D Document 1 Filed 11/07/13 Page 1 of 8

IN THE UNITED STA :ES DISTRICT COURT FOR THE WESTERN DI TRICT OF OKLAHOMA

MS. JEANNE MARIE DRULEY, Plaintiff,

v.

JUSTIN JONES, in his Official

and Individual Capacity, et ai,

Defendants.

U~

E
!·:,JV 0 7 2013

83

1.) Ms. JEANNE MARIE DRULE is a citizen of Oklahoma who

presently resides at 1

Moffat Rd. P.O. Box 548

~~~~~~~~~~~~~~~~~~-

Lexin ton Ok. 73051-0

2.) Defendant Justin

citizen of Oklahoma City,

Oklahoma, and is

as Director for the Oklahoma Departmeni

of Corrections (ODOC). At the time the claims alleged

in this complaint aros was this defendantacting under ee~e~-e£-

color of state law?

Justin Jones is legally Responsible

under 57 O.S. 2011 §

et seq. for the ppperations of

each Institutions of

(ODOC) including Joseph Harp

Correctional

Defendant Jones is being sued

in Both h±d~

1 and Individual Capacity.

3.) Defendant Don

is a citizen of Ok~ahoma City,

~----~-------r

Oklahoma, and

d as Chief Medical Officer of (ODOC).

At the time the claims

in this complaint arose

the Defendant was actin under color of the state law.

Defendant Suttmille~~ i legally Responsible for the overall

supervision of operatio s of Medical Department od each

institution under (ODOC including (JHCC) under 57 O.S.

2011 § 513. Defendant uttmiller is b~ing sued ln both

his Official and Indivi ual Capacity.

4.) Defendant Michael Addis n is a citizen of Lexington, Oklahoma,

and is employed as the rden of Jose

Correctional

Center (JHCC).

(1

Case 5:13-cv-01191-D Document 1 Filed 11/07/13 Page 2 of 8

At the time the claims alleged 1n this complaint arose, Defendant

Addison waas acting under color of he state Law, because he 1S Responsible

for the care, custody, and supervis on of all Enployees, as set forth

under op-119205, including Defendan s Honaker, Keithlky, and McCurdy.

Defendant Addison is also Responsib e for investigating all claims of

e££eftae~s employees misconducts und (ODOC)-op-110205, which is made by

all offenders including the Plainti

Defendant Addison, also has th Responsiblity for e~~ the care,e£

custody, and supervision of all off ders at (JHCC) and has the Responsiblity

for the investigating of all claims offenders abuse, in any capacity, 


pur~uant to 5~9 57 O.S. 2011 § 511 d (ODOC)-op-010101. 


Defendant Addison, also has th Responsiblity for the investigatiogs 


and reviewing of all disciplinary c aims filed against (ODOC)-(JHCC) offender

pursuant to (ODOC)-op-060125, as we 1 as all administrative grievances

reviews under (ODOC)-op-090124.

Defendant Addison is being sue in both his Official and Individual

capacity.

5.) Defendant Buddy Honaker, s a citizen of Lexington, Oklahoma who

resides at 16161 Moffat Rd

548 Lexin on Ok. 73051-0548 and is

employed as Correctional Health Ser ice Administrator (CHSA) at (JHCC),

and is Responsible

on af all employees in the Medical

Service Department Division, and

tal Health Service Division at (JHCC),

under (ODOC)-op-140117 et seq.

Defendant Honaker is resp nsible for the Supervision of all

employees in the (JHCC), to asscert in that they Provide all the necessary

care for all of the offenders with "serious medical need" like the

Plaintiff, in Pursuant to (ODOC)-o 110205~ and ±94 140117 et seq.

Defendant Honaker is resp sible for the Provisions of an

aae~~e~e adequate system for ident fing offenders at (JHCC) with Medical

Needs, and making sure th t they are a±egesea diagnosed and

treated.

Defendant Honaker is res nsible for the Previsions of adequate

medical care at (JHCC) as ae£±fta defined by B-B~ewft-~7-

Bounds v. Smith, 97 S.ct. 1491 (1977); and, that the failure to

do so Constitutes "delibe ate indifference" under the E±~h9

Eighth Amendment of the U S. Consitution.

Defendant Honaker is also Responsible for asscertaining that

offenders receive Special zed Treatment as needed from an out­

side Medical Facility, if the offenders Medical Needs and

Condition is one that ca ot be treated at (JHCC), as required

(2 )

Case 5:13-cv-01191-D Document 1 Filed 11/07/13 Page 3 of 8

in 57 O.S. 2011 § 627.

Defendant Honaker also grievances based of in (ODOC)-op-090124

responsible for addressing all nial of Medical Care, as Required

Defendant Honaker is Individual Capacity.

sued 1n both his Official and

5.) Defendant James Keithl 1S a citizen of Lexington, Oklahoma,

and resides at (JHCC), 16 61 Moffat Rd. P.O. Box 548

ton

Ok. 73051-0548.

Defendant Keithley is the Psychologist assigned to render assistance to the Re5~deft e Residents of J-Unit, of which is

where the Plaintiff

anne Marie Druley Resides.

However Keithley is

he Internal Head of the (JHCC) Mental

Health Department, as of ly 1, 2013. Dr. Linda Evens, who was tr

chairmen of the (JHCC),

/Mental Health Department Resigned.

Moreover, as the Internal Head of the Mental Health Department,

Be~e Defendant Keithley i responsible for asscertaining that

sufficent staff is

provide the Mental Health Needs for

all 1450 offenders

(JHCC), and that his failure to do so

constitutes "delibrate

ifference" to the Mental Health Needs

of the Plaintiff.

That because of the

ate Indifference to the Mental Health

~eeds of the Plaintiff, t

this treatment is in clear violation

of the Eighth Amendment,

Article II § 20, of the Oklahoma

Constitution, because it s grossly incompetent, inadequate or

excessive, as

conseience, aswell as "so inappropriate

as to evidence Intentiona Me!~~ee~~ee Maltreatment", and violates

the Eighth Amendment.

Defendant Keithley is

1n both his Official and

Individual Capacity.

6 • ) Defendant Joel B. McCur

is a citizen of Lexington, Okaahoma,

and Resides at (JHCC)

1 Moffat Rd. P.O. Box 548

Oklahoma 73051-0548.

Defendant McCurdy is empl

cronic clinic Doctor at

(JHCC)) and is responsibl

the supervision of all Medical

Prouiders at (JHCC) as de

by (ODOC)-op-140117, in order to

ensure that they are prov

all offenders with adequate Medical

Care, so that these offen rs are b not shown "Deliberate

Indifference"

rious Medical Needs".

Defendant

nsible for asscertaining that the

Plaintiff is Provided

the necessary treatment for her

(3

Case 5:13-cv-01191-D Document 1 Filed 11/07/13 Page 4 of 8

"Serious Medical Needs"

her case (GID) Gender Identity Disorder,

by either himself

provider, who is knowledgeable

and experenced in

of (GID) , and, that his failure

to do so

Indifference" to the Plaintiff's

"Serious Medical Need".

Defendant McCurdy is resp '

the Supervision of all

Medical Staff at (JHCC), rsuant to 42 U.S.C. § t98~3 1983,

and 57 O.S. 2011 § 151 et

In Order to asscertain they act

in a Professional Manner

Accordance with the Provisions and

Regulations of the Oklah a Health Care Act, and (ODOC)-op-140117

et seq.

Defendant McCurdy is

sued ln both his Official and Individual

Capacity.

B. )

OF THE CASE

1.) Briefly state the bac~~~~h of the case. Plaintiff is a Post­

opp-Transsexual who has

needed to complete

the Transformation from Ie to Female. She has already had her

Named changed legally,

her anatimey changed from Male to 


Female on her

to match her Gender Identity, and 


the two surgeries that sh

already went through are: 


1.) Breast Augmentatio, (Breast Implaints)

2.) Orchiectomy (Remov

Testicles)

And the Third

ed is called "Vaginoplasty" (Creating

a Vagin), and

tion will be complete.

Plaintiff has been taki

Sept. 1979 to March 1985

after being Diagnosed wi Gender Identity Disorder (GID) , also

known as Transsexualism, y her Doctor at the Tulsa Psychologist

center, in Tulsa, Ok ..

#21870, and then recommended to

Dr. Krenning at the Fami Practice Clinic in Tulsa, Ok. where

she started Receiving Ho

Then on Dec. 1, 1980 Dr. Hans P.

Norberg (surgen) prefo

a bi-lateral Orchiectomy/surgical

casteration.

April 26, 1984 Dr. Norberg, at St. John'~

Hospital Preformed a

lasity/ Breast Augmentation, Plaintiff's

Case 5:13-cv-01191-D Document 1 Filed 11/07/13 Page 5 of 8
Account #47836549. (see Exhibit "A" P.g. 2 tarting at 4, 6, In summary 1, and 3, then enter Gender Dsphor a/Transsexualism, Birth Certificate.) I was incarcerated on Ap il 15, 1986, about a year or two later I was at (OSR) Granite wh n Dr. Claravel put me on 2.5mg ofP~± Pr~mrin once a day in Pi 1 form, from 1987 to 1988, and then they changed Doctors, and the new Doctor cut off her Hormone Treatment, and she has been off her Hormone Treatment until 2012 when Dr. Conger a Psychologis helpped her get the Hormone Treatments started again.

C. CAUSE ACTION 


1.) I allege that

ng of my constitutional rights, Privilege

or immunities have been iolated and that the following facts

form the basis of my

(If necessary you may attach

up to two additional

to explain any allegation

or to list additional

orting facts.)

A) (1) Count I: My Eighth ndment Rights has been violated to be free from Cruel and Hh U usal Punishment by Providing inadequate Medical Care, and Starti g and Stopping Hormone Therapy, and not giving me the Proper Dos ge for the last two years of taking Hormones.

(2) Supporting Facts: (Inc ude all facts you consider inportant, including names of pers s involved, places and dates. Describe exactly how each Defend t is invalved. State the facts clear!y in your own words withou citing legal authority or argument.)

Dr. Joel B. McCurdy ordered Hormones, on 3-16-2011, and I received

them on 3-19-2ffi11, and then

e were~ti ~ti~~O~~ suppost to be raised

every 30 day until they reach d the Max Dosage of 8mg per day,of

Estrace. But for the first 6 days he had gaven me 2mg twice per day,

for a total of 4mg per day. ut he then stopped it saying that it

was a mistake, that I was onl suppost to be getting 2mg per day,

which I have paper work that am attaching as Exhibit "D" on the

proper way to distribute Ho

e Treatment. But because of his lack

of knowledge about treating anssexual, and Transgenders Offenders,

he then lowed my dosage to th lowest dosage of Hormones, which at

(5 ) 


Case 5:13-cv-01191-D Document 1 Filed 11/07/13 Page 6 of 8

this point of my Transition, 2 g per day do nothing for me at all,

I need to be raiseed ~h to th proper dosage of 8mg per day to meet

the requirements of my TraBsi iom, and her Spironalatone is below the

normal lowest dosage, it shou have started at 100mg per day and then

every 30 day be raised by 50

100mg per day until you reach the max

dosage of 300mg per day, and

ones that I need the most

they are not even giving me w

200mg of Progesterone per day.

B) (1) Count II: My Petlrh Fo tection has been violated, by when I have all ready been Ca

Amendment Rights to equal Pro­ me housed in an all male Facility and has a "O"-size Breast,

(2 ) Supporting Facts: In to show that my sex had been April 15, 1986 I came to Male Facility. At which time Dr. Keenning at the Family p~ Hemen Hormone Therapy from 19 in Tulsa County, However Tuls medicationuntil I transferred which time (OOOC) stopped all 27 years they have started an Replacement Therapy about 5 0 hurts more than helps. Plus a me on Testosterone Hormones, "cank" (OOOC), Dr. "breast reduction" on the Plai to do so, because of liabilit

Birth Certificate was Amended from MALE to FEMALE. And on for Murder, amd I was placed in an all I was cut off of my Hormone Therapy.
Clinic in Tulsa had Pres~ribed at which time I was locked up County kept giving me my Hormoees L.A.R.K. on April 15, ~1986 at Hormone Treatments. Over the last stopped my medication for Hormone 6 Times~ over the last 27 years; of whicl one time, Dr. McCurdy attempted to put Estance. And while I was a get OU Medical Center to perform a however, OU Medical Center refused concerns.

D. PREVIOUS LAWSUITS AND MINISTRATIVE RELIEF

1) Have you begun other

State or Federal Court deal­

ing with the same facts invol

action, or otherwise relating

to the conditions 2) Have you previously s

or formal relief from the

appropriate administrative of icials regarding the acts complained of

in Part C? YES. If your naswe is "Yes", briefly describe how relief

was sought and the results. I your answer is "NO", briefly explain

why administrative relief was not sought.

(6 ) 


Case 5:13-cv-01191-D Document 1 Filed 11/07/13 Page 7 of 8

I talked to Dr. McCurdy out raising my hormones to a proper

doseage; but, he is not qualified

access my hormone treatment, and he

has denied my request. I then filed a grievance to Buddy Honaker) and Warden

Addison, which was denied. I Dr. Don Sutmiller, the Chief

pealed the denial of the grievance to
I
Officer of ODOC. on August 26, 2013.

I then filed a TRO and Preliminary njunction, which was returned to me,

stating that I needed to file a c laint first; but, according to the Law

Books that I possess, it stated

I Could file an Emergency TRO and

Preliminary Injunction while waitin for the Grievance Process to be com­

pleted.

E. REQUEST

RELIEF:

I believe that I am entitled to the following Relef from the Defen­

dants ln this Cause of action:

1) To be seen by a qualified transgender specialist, who can grant

me the proper treatment for my cond ction.

2) To have hormone therapy d seages raised to coincide with trans­

gender specialist recommendations.

3) To be allowed to purchase female undergarments, such as Bras and

Panties.

4) The "Real Life" experie , which entails living life as a woman

full time, which is one of the re rements before you are allowed to

receive sex reassignment surgery ( ); and, if women are allowed to have

it, then I should also be allowed

buy it through the canteen; or, ship

me to a female facility for my rea

experience.

5) Lacon Hair removal, or a ow me to purchase a "NO NO" machine,

which would be no different than

ing an electric razor or a beard trim­

mer.

6) Having a tracheal shave- e shaving of the adam's apple.

7)" Compensatory damages in e amount of $500,000 per defendant.

8) Punitive damages in the

unt of $500,DOO. per defendant.

9) ONE-ON ONE COUNSELING

my trans gender issues.

10) Vaginoplasty surgery,

creation of a vagina.

11) TRansfer to a female fac

Respectfully Submitted,

Case 5:13-cv-01191-D Document 1 Filed 11/07/13 Page 8 of 8

'1J¥krr--~j11i~i,ifu~ # Isz-/5X' JOSEPH HARP CORR. CENTER P.O. Box 548
Lexington, OK. 73051-0548 Plaintiff, Pro Se

F. VERIFICATION UNDER

STATE OF OKLAHOMA

)

) SS. COUNTY OF CLEVELAND )

TY OF PERJURY:

1 hereby certify, under the 28 U.S.C. §1746, that on this going document, Initial Pleading 0 to the best of my knowledge, abili

nalty of perjury as set for under y of November, 2013, that the fore­ Civil Rights Suit, is true an~ correct es, belief and understanding.

SWORN AND SUBSCRIBED TO in t e date previously stated in Cleveland County, Lexington, Oklahoma.

JifANNIE MARIE DiJLEY

-8­

 
 Case 5:13-cv-01191-D Document 12 Filed 03/28/14 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

JEANNE MARIE DRULEY,
Plaintiff, v.
JUSTIN JONES, et al.,
Defendants.

) ) ) ) Case No. CIV-13-1191-D ) ) ) )

REPORT AND RECOMMENDATION

Plaintiff, a state prisoner appearing pro se, brings this action pursuant to 42

U.S.C. § 1983, alleging various violations of her constitutional rights. United States

District Judge Timothy D. DeGiusti had referred the matter to the undersigned

Magistrate Judge for the preparation and submission of proposed findings and

recommendations as to dispositive matters referenced in 28 U.S.C. § 636(b)(1)(A) and

(B). Currently before the Court is Plaintiff's Motion for Temporary Restraining Order and

Preliminary Injunction. ECF No. 2. For the following reasons, it is recommended that the

motion be DENIED.

BACKGROUND

Plaintiff identifies herself as having Gender Identity Disorder (GID), and states that she is post-operative1 transexual/transgender. She claims that the Oklahoma

Department of Corrections’ (ODOC) medical staff lacks experience with the treatment of

1 Plaintiff states that she had a bi-lateral orchiectomy and bi-lateral mammoplasty in 1980 and 1984, respectively. Complaint, Ex. A, p. 1. Plaintiff was incarcerated with the Oklahoma Department of Corrections in 1986, after these surgical procedures. Complaint, 5.

Case 5:13-cv-01191-D Document 12 Filed 03/28/14 Page 2 of 6
her disorder, and in particular has failed to provide the proper level of hormone treatment. Brief in Support of Motion for Temporary Restraining Order and Preliminary Injunction, 2-3 (Brief in Support). She claims that this will cause her harm because “she will start to lose the progress she has gained from her former maximum doses of her hormones.” Id. at 5. She also complains that she has been denied a bra at her current facility, Joseph Harp Correctional Center, but was allowed one at the Oklahoma State Reformatory (OSR). Brief in Support, 4. She claims that the lack of a bra causes her grief because of the comments of the other offenders. Brief in Support, 5. Finally, she complains about being housed in the “A.C.” building—she doesn’t otherwise describe her housing situation, only that she has difficulty breathing there. Brief in Support, 2.
Plaintiff claims she was on hormone treatment at OSR from 1987 to 1988, but that it was then discontinued until either 2011 or 2012. She claims that although her hormone treatment has been re-started, it does not conform to the protocol she believes appropriate for the treatment for GID. Complaint, 5.
DISCUSSION Great care must be used in the granting of interlocutory injunctive relief because of the extraordinary nature of that remedy. Commercial Security Bank v. Walker Bank & Trust Co., 456 F.2d 1352, 1356 (10th Cir. 1972). As a result, it may only be granted without notice to the adverse parties when the procedural safeguards of Fed. R. Civ. P. 65(b) are “scrupulously honored.” 11A C. Wright, A. Miller, & M. Kane, Federal Practice & Procedure 2d § 2952; see also Commercial Security Bank, 456 F.2d at 1356 (“We can
2

Case 5:13-cv-01191-D Document 12 Filed 03/28/14 Page 3 of 6
only reiterate that Rule 65 must be strictly complied with.”) Those safeguards require the movant to show that “immediate and irreparable injury, loss, or damage will result ... before the adverse party ... can be heard in opposition,” and certify “in writing any efforts made to give notice [to the adverse party] and the reasons why it should not be required.” Fed. R. Civ. P. 65(b). In the declaration supporting her motion, Plaintiff does not address her efforts to notify the Defendants of the application or provide any reasons for her inability to provide such notice. As a result, it is recommended that the motion for a temporary restraining order be denied. Commercial Security Bank, 456 F.2d at 1356 (reversing the district court's issuance of a temporary restraining order in part because the court had failed to comply with Fed. R. Civ. P. 65(b)).
To obtain a preliminary injunction, a party must establish: (1) “a substantial likelihood of success on the merits;” (2) “irreparable harm to the movant if the injunction is denied;” (3) “the threatened injury outweighs the harm that the preliminary injunction may cause the opposing party;” and (4) “the injunction, if issued, will not adversely affect the public interest.” General Motors Corp. v. Urban Gorilla, LLC, 500 F.3d 1222, 1226 (10th Cir. 2007).
Upon review of the motion, the undersigned finds that Plaintiff has not shown a substantial likelihood of success on the merits. She complains about a lack of adequate hormonal treatment, but concedes that she received no such treatment from 1988 to 2011 or 2012. She now alleges that she is receiving some hormonal medication, but alleges that it is not enough to maintain “the progress she has gained from her former
3

Case 5:13-cv-01191-D Document 12 Filed 03/28/14 Page 4 of 6
maximum doses of hormones.” Brief in Support, 5. The Tenth Circuit has noted the
following with regard to allegations regarding inadequate treatment for GID:
It is apparent from the record that there were a variety of options available for the treatment of plaintiff's psychological and physical medical conditions. It was never established, however, that failing to treat plaintiff with estrogen would constitute deliberate indifference to a serious medical need. While the medical community may disagree among themselves as to the best form of treatment for plaintiff's condition, the Department of Corrections made an informed judgment as to the appropriate form of treatment and did not deliberately ignore plaintiff's medical needs. The medical decision not to give plaintiff estrogen until further study does not represent cruel and unusual punishment. This case, like Estelle, does not present a situation where there was a total failure to give medical attention. At most, plaintiff might have made a case for negligence or medical malpractice, but he could not have established a constitutional violation. Supre v. Ricketts, 792 F.2d 958, 963 (10th Cir. 1986) (citing Estelle v. Gamble, 429 U.S.
97, 105–06 (1976) and Daniels v. Galbreath, 668 F.2d 477, 482 (10th Cir. 1982). In
addition, the undersigned notes that Plaintiff’s allegations also raise some question as to
the timeliness of her claims. Finally, her claims about the health consequences of her
housing situation are so vague that it cannot be said that there is a substantial
likelihood that she would prevail.
As far as irreparable harm, Plaintiff’s allegations that she was completely without
any hormone treatment for many years, and that without hormone treatment she will
“lose the progress” of her former treatment for GID are insufficient to establish this
factor. Likewise, these same allegations do not support a finding that the threatened
4

Case 5:13-cv-01191-D Document 12 Filed 03/28/14 Page 5 of 6
injury outweighs the harm that the preliminary injunction may cause the opposing party.
Finally, the undersigned finds that Plaintiff has failed to show that the injunction she seeks is not adverse to the public interest. The Supreme Court has clearly cautioned against judicial interference with the daily administration of prisons. Turner v. Safley, 482 U.S. 78, 84–85 (1987). In Turner, the Court stated:
Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. 482 U.S. at 84–85. The desired injunction would obviously interfere with prison administrative and/or medical decisions. Under these circumstances, the public interest weighs against the issuance of a preliminary injunction.
RECOMMENDATION In light of the foregoing, it is recommended that Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction, ECF No. 2, be DENIED. Plaintiff is hereby advised of her right to file an objection to this Report and Recommendation with the Clerk of this Court by April 14, 2014, 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 her right to appellate review of
5

Case 5:13-cv-01191-D Document 12 Filed 03/28/14 Page 6 of 6 both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
STATUS OF THE REFERRAL This Report and Recommendation DOES NOT dispose of all issues referred to the undersigned Magistrate Judge in the captioned matter.
ENTERED on March 28, 2014.
6

 
 Case 5:13-cv-01191-D Document 53 Filed 01/21/15 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

JEANNE MARIE DRULEY,

)

)

Plaintiff,

)

)

v.

)

)

JUSTIN JONES, In his Individual and

)

Official Capacities; DON SUTTMILLER, )

In his Individual and Official Capacities; )

MICHAEL ADDISON, In his Individual and )

Official Capacities; BUDDY HONAKER, )

In his Individual and Official Capacities; )

JAMES KEITHLEY, In his Individual and )

Official Capacities; and JOEL B.

)

MCCURDY, In his Individual and Official )

Capacities,

)

)

)

Defendants.

)

Case No. CIV-13-1191-D

REPORT AND RECOMMENDATION

Plaintiff, a state prisoner appearing pro se, brings this action pursuant to 42

U.S.C. § 1983, alleging violations of her constitutional rights. United States District

Judge Timothy D. DeGiusti has referred the matter to the undersigned magistrate judge

for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). The following

motions are pending before the Court. All defendants have filed an alternative Motion to

Dismiss or Motion for Summary Judgment, (ECF No. 30), as well as a court-ordered

Special Report. (ECF No. 29) (SR). Plaintiff has responded to defendants’ motion. (ECF

No. 43). Plaintiff has filed three motions for entry of default judgment against

Defendant Keithley, (ECF No. 45); Defendant Addison, (ECF No. 47); and Defendant

Case 5:13-cv-01191-D Document 53 Filed 01/21/15 Page 2 of 17
Patton, (ECF No. 49). Finally, Attorney Wilson D. McGarry has moved to withdraw as co-counsel for defendants. (ECF No. 52).
It is recommended that Defendants’ Motion to Dismiss/Motion for Summary Judgment, (ECF No. 30), be GRANTED, as set forth more particularly below. It is further recommended that Plaintiff’s Motions for Entry of Default Judgment, (ECF Nos. 45, 47, and 49), be DENIED. Finally, it is recommended that Wilson D. McGarry’s Motion to Withdraw as Counsel, (ECF No. 52), be GRANTED.
I. BACKGROUND Plaintiff identifies herself as having Gender Identity Disorder (GID), and states
she has undergone two of three surgeries necessary to complete her transformation from male to female.1 She claims in general that the medical staff of ODOC lacks experience with the treatment of her disorder and in particular has failed to provide her the proper level of hormone treatment or the final surgery she desires. (ECF No. 1, at 4) (Complaint). Plaintiff claims she was on hormone treatment while incarcerated at Oklahoma State Reformatory from 1987 to 1988, but thereafter the treatment was discontinued until either 2011 or 2012. (Complaint, at 5). She claims that although she is now being prescribed female hormones, her medical regime does not conform to the protocol she believes appropriate for the treatment of GID. (Complaint, at 5).
1 Plaintiff states she had a bi-lateral orchiectomy and bi-lateral mammoplasty in 1980 and 1984, respectively. Plaintiff was incarcerated in 1986, after these surgical procedures had been performed. Plaintiff has not had the final surgical procedures to complete her transformation—surgery to remove her penis and to complete vaginoplasty.
2

Case 5:13-cv-01191-D Document 53 Filed 01/21/15 Page 3 of 17
II. DEFENDANTS’ RECITATION OF UNDISPUTED MATERIAL FACTS Plaintiff was taken into custody by ODOC on April 15, 1986, and she is currently
housed in Joseph Harp Correctional Facility (JHCC), an all-male facility. (SR 29-1). On January 7, 2011, Plaintiff filed a Request to Staff (RTS) to Defendant McCurdy, the physician at JHCC. (SR 29-3, at 2, 4). Plaintiff requested a prescription for a stronger estrogen supplement than she had been prescribed. She also requested a prescription for progesterone. Dr. McCurdy answered the RTS on January 11, 2011, informing Plaintiff that increasing the dosage of her hormone medication would also increase her risk of stroke and heart attack. (Id.).
But Dr. McCurdy did prescribe 2mg of Estradiol, the generic name for the brand name female hormone, Estrace, to be taken twice per day. When Plaintiff requested a refill, however, Dr. McCurdy lowered the dosage of Estradiol to 2mg per day. On September 23, 2011, Plaintiff filed another RTS asking why Dr. McCurdy had lowered her dosage of Estradiol from 4mg per day to 2mg per day. (SR 29-3, at 6). Dr. McCurdy answered the RTS on September 26, 2011, stating, “Will not exceed max dose (my error before).” (Id.).
Plaintiff filed a third RTS to Dr. McCurdy on June 27, 2013, requesting an increase in dosage of both Estradiol, and Spironolactone. She also requested vaginoplasty surgery. (SR 29-3, at 7). Dr. McCurdy replied, again stating that 2mg is the
3

Case 5:13-cv-01191-D Document 53 Filed 01/21/15 Page 4 of 17
maximum daily dosage of Estradiol. He also informed Plaintiff her kidneys could not withstand additional hormones, and her lungs would prevent any elective surgery. (Id.).
Plaintiff filed a grievance with Defendant Mike Addison, the Warden of JHCC, on July 16, 2013, appealing Dr. McCurdy’s refusal to prescribe Plaintiff’s desired medications and denying her request for elective surgery. (SR 29-3 at 8). As the reviewing authority at JHCC, Warden Addison denied Plaintiff’s grievance on July 18, 2013, stating he had reviewed Plaintiff’s medical records and grounds for relief and had denied Plaintiff’s grievance based on Dr. McCurdy’s explanation of treatment decisions. (SR 29-3 at 9). Plaintiff appealed the denial of her grievance to the Administrative Review Authority, in this case, Genese McCoy, the Medical Services Administrator of the ODOC. She denied Plaintiff’s grievance appeal on August 23, 2013 (SR 29-3 at 15).
Plaintiff’s Response is couched in terms of disputed material facts. She does not, however, dispute any facts set forth by defendants and supported by their Special Report. Rather, she insists Dr. McCurdy’s failure to refer her to a specialist constitutes deliberate indifference to her serious medical needs. (Response at 2). Plaintiff further contends that, had she been allowed to pursue discovery, she would have been able to generate genuine issues of material fact. (Id.). Plaintiff has failed to allege what those facts might be.
4

Case 5:13-cv-01191-D Document 53 Filed 01/21/15 Page 5 of 17
III. ISSUES AND REQUESTED RELIEF In Count I, Plaintiff contends her Eighth Amendment right to be free of cruel and unusual punishment has been violated because she has been provided “inadequate medical care.” (Complaint, at 5). In support of her claims, Plaintiff states Dr. McCurdy first ordered 2mg of the hormone Estrace (Estradiol) to be administered to Plaintiff twice per day. (Id. at 5-6). According to Plaintiff, her dosage should have been increased every thirty days until she reached the maximum dosage of 8mg per day. (Id.). Plaintiff received 4mg of Estrace, for sixty days. After the first sixty days, Defendant McCurdy lowered the dosage to 2mg per day. Plaintiff contends that in addition to the 4mg of Estrace per day, she should also receive at least 50mg of Spironolactone, the dosage being raised gradually increased to the maximum dose of 100mg. She also states that she needs 200mg of Progesterone per day. She attributes Defendant McCurdy’s “inadequate medical care” to his “lack of knowledge about treating transsexual and transgender offenders.” (Id. at 5).
In Count II, Plaintiff alleges her Fourteenth Amendment rights have been violated by unidentified defendants “keeping [her] housed in an all-male facility when [she] has already been [castrated] and has a ‘D’- size breast.” (Id. at 6). Plaintiff contends her placement in an all-male facility prevents her from having the “real life” experience of living as a woman. (Id. at 7).
Plaintiff requests the following relief: 1. To be seen by a qualified transgender specialist, who can properly treat her
condition; 5

Case 5:13-cv-01191-D Document 53 Filed 01/21/15 Page 6 of 17
2. To have hormone therapy dosages raised to coincide with transgender specialist recommendations;
3. To be allowed to purchase female undergarments, such as bras and panties; 4. To have the “real life” experience, which entails living life as a woman full
time, and is required before sex reassignment surgery. She adds that because women can possess bras and panties, she should be allowed to possess these items also; 5. To have “Lacon Hair removal” or be allowed to buy a “NO NO” machine similar to an electric razor; 6. To be provided with tracheal shave surgery; 7. To be awarded compensatory damages in the amount of $500,000 from each defendant; 8. To be awarded $500,000 in punitive damages; 9. To be afforded one-on-one counseling for her transgender issues; 10. To be provided vaginoplasty surgery; and 11. To be transferred to a female facility. IV. CLAIMS SUBJECT TO DISMISSAL A. Official Capacity Claims Plaintiff has sued all defendants in both their individual and official capacities.2 To the extent Plaintiff seeks monetary damages from defendants in their official capacities, her claims must be dismissed in that they are barred by Eleventh Amendment immunity. “To state a claim under [42 U.S.C.] § 1983 a plaintiff must
2 Robert Patton, the current director of the Oklahoma Department of Corrections, (ODOC) is hereby substituted as Defendant for purposes of adjudicating Plaintiff’s official capacity claims against Justin Jones, the former Director of the ODOC.
6

Case 5:13-cv-01191-D Document 53 Filed 01/21/15 Page 7 of 17
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). Neither a state, a state agency, nor an official of the State acting in his or her official capacity, is a “person” for purposes of § 1983. See Will v. Michigan Dep’t. of State Police, 491 U.S. 58, 64, 71 (1989). See also Branson School District RE-82 v. Romer, 161 F.3d 619, 631 (10th Cir. 1998) (when suit is brought against a state official in his official capacity, the real party in interest is the state). Thus, Eleventh Amendment sovereign immunity precludes suits against states, state agencies and state officials sued in their official capacities.
Unlike other jurisdictional issues, a State may waive the defense of sovereign immunity. The State of Oklahoma has not, however, waived its sovereign immunity defense against § 1983 claims brought in federal district court cases. See Ramirez v. Oklahoma Dep’t of Mental Health, 41 F.3d 584, 589 (10th Cir. 1994). It is therefore recommended that all official capacity claims against all defendants be dismissed.
B. Other Claims Subject to Dismissal 1. Standard of Review
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 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
7

Case 5:13-cv-01191-D Document 53 Filed 01/21/15 Page 8 of 17
liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556); see also Gee v. Pacheco, 627 F.3d 1178, 1184 (10th Cir. 2010). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “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.” Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).
Additionally, to state a claim in a case brought pursuant to 42 U.S.C. § 1983, a plaintiff must plead sufficient facts to demonstrate “each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. 662 at 677. Well-established Tenth Circuit law comports with the holding in Iqbal. “Individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation.” Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997); see also Jenkins v. Wood, 81 F.3d 988, 994-995 (10th Cir. 1996) (“[P]laintiff must show the defendant personally participated in the alleged violation, and conclusory allegations are not sufficient to state a constitutional violation.”) (internal citation omitted); Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013)(§ 1983 liability must be predicated on an official’s personal involvement in the constitutional violation). As for supervisory liability, “[g]overnment officials may not be
8

Case 5:13-cv-01191-D Document 53 Filed 01/21/15 Page 9 of 17
held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Iqbal, 556 U.S. at 676; accord Pahls, 718 F.3d at 1225.
2. Individual Capacity Claims Subject to Dismissal In this case, Plaintiff has named six defendants in their individual capacities, but with regard to four of these defendants, she has neglected to allege sufficient facts to demonstrate their personal participation in any constitutional violation. Defendant Justin Jones was formerly the Director of the ODOC. Plaintiff has alleged, “Justin Jones is legally responsible [under Oklahoma law] for the operations of each institution of the ODOC.” Defendant Don Suttmiller is identified as the Chief Medical Officer of ODOC. Plaintiff states Defendant Suttmiller is “legally responsible for the overall supervision and of operations of Medical Department [of] each institution.” (Complaint at 1). Defendant Buddy (William) Honaker is identified as the Correctional Health Service Administrator at JHCC. Plaintiff states Defendant Honaker is responsible for supervision of all employees in the medical and mental health services at JHCC. (Complaint at 2). These three defendants are not mentioned again in Plaintiff’s Complaint, and the allegations against them are based solely on their supervisory positions. Plaintiff has not demonstrated personal participation on the part of Defendant Jones, Defendant Suttmiller or Defendant Honaker, and her claims against them in their individual capacities should be dismissed. Defendant Mike Addison is identified as the Warden of JHCC. Plaintiff states generally that Defendant Addison is responsible for the supervision of all employees.
9

Case 5:13-cv-01191-D Document 53 Filed 01/21/15 Page 10 of 17
Additionally, Plaintiff notes Defendant Addison is responsible for administrative grievance reviews. (Complaint, at 2). As with Defendants Jones, Suttmiller, and Honaker, Defendant Addison’s supervisory duties do not amount to personal participation. Moreover, the handling or denial of a grievance does not affirmatively link a defendant with the matter being grieved. Blaurock v. Kansas Dep't of Corr., 526 F. App'x 809, 814 (10th Cir. 2013) (citing Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (holding that “a denial of a grievance, by itself without any connection to the violation of constitutional rights alleged by plaintiff, does not establish personal participation under § 1983”).
Plaintiff alleges that Defendant Keithley was deliberately indifferent to his mental health needs in that Defendant Keithley “is responsible for [ascertaining] that [sufficient] staff is hired to provide the mental health needs for all 1450 offenders here at JHCC, and that his failure to do so constitutes ‘[deliberate] indifference’ to the mental health needs of the Plaintiff.” (Complaint at 3). Defendant Keithley is not mentioned again in the Complaint. The law regarding Eighth Amendment claims based on deliberate indifference to serious medical needs is discussed in further detail below. To state a claim of deliberate indifference to a prisoner’s serious medical needs, a plaintiff must allege sufficient facts to demonstrate a plausible conclusion that his or her medical needs were objectively serious and that the defendant possessed the requisite subjective state of mine in denying treatment. Plaintiff’s conclusory allegation against Defendant Keithley is insufficient to state a claim of deliberate indifference to her
10

Case 5:13-cv-01191-D Document 53 Filed 01/21/15 Page 11 of 17
serious medical needs. The individual capacity claims against Defendant Keithley should also be dismissed.
3. Plaintiff’s Fourteenth Amendment Equal Protection Claim In Count II of her Complaint, Plaintiff alleges, “My Fourteenth Amendment Rights to equal protection has been violated, by keeping me housed in an all-male facility when I have [already] been [castrated] and [have] a “D” size breast.” (Complaint, at 6). In § 1983 actions involving multiple defendants, “[i]t is particularly important that plaintiff[ ] make clear exactly who is alleged to have done what to whom, ... as distinguished from collective allegations.” Pahls, 718 F.3d at 1225-1226 (quotation and citation omitted). Plaintiff does not identify any of the named defendants, or anyone else, as being responsible for this alleged equal rights violation. Where, as here, there are multiple defendants, “the plaintiff's facile, passive-voice showing that his rights ‘were violated’ will not suffice.” Id. Moreover, the records included in the Special Report demonstrate Plaintiff has not properly exhausted her administrative remedies on this claim. Such exhaustion is required by the Prison Litigation Reform Act (PLRA) 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under § 1983 or any other Federal law, by a prisoner confined in jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”). To properly exhaust an issue,
11

Case 5:13-cv-01191-D Document 53 Filed 01/21/15 Page 12 of 17
the prisoner must comply “with an agency’s deadlines and other critical procedural rules[.]” Woodford v. Ngo, 548 U.S. 81, 90 (2006).
In this case, Plaintiff properly exhausted her administrative claims with respect to the issues set forth in Count I, demonstrating that Plaintiff was well aware of the exhaustion procedures set forth in OP-090124, the ODOC’s “Offender Grievance Process.” (SR 29-9). But Plaintiff did not comply with the time limitations in the grievance process. Plaintiff filed an RTS on May 15, 2003, seeking to have her gender amended to female on all prison records. (SR 29-8 at 12). The request was denied on May 15, 2013. (Id.). But Plaintiff did not file her grievance until June 5, 2013, outside the 15-day time period during which a prisoner must file a grievance, if one is to be filed. (SR 29-8 at 24). Having failed to timely exhaust her administrative remedies, her grievance was ultimately returned to her unanswered at the direction of the Administrative Review Authority for the ODOC. (SR 29-8 at 24). Plaintiff’s claim in Count II should be dismissed as failure to state a claim upon which relief may be granted.
V. Defendant McCurdy’s Motion for Summary Judgment A. Standard of Review
Summary judgment shall be granted where the movant “shows that 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). In considering a motion for summary judgment, the court views the evidence and the inferences drawn from the record in the light most
12

Case 5:13-cv-01191-D Document 53 Filed 01/21/15 Page 13 of 17
favorable to the nonmoving party. Calhoun v. Gaines, 982 F.2d 1470, 1472 (10th Cir. 1992); Manders v. Oklahoma, 875 F.2d 263, 264 (10th Cir. 1989). A dispute is “genuine,” when viewed in this light, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). “Material facts” are “facts that might affect the outcome of the suit under the governing law.” Id. After the movant has fulfilled his initial burden of showing an absence of a genuine issue of material fact and entitlement to judgment as a matter of law, the burden shifts to the nonmoving party to demonstrate that there is a genuine issue of material fact. Whitesel v. Sengenberger, 222 F.3d 861, 867 (10th Cir. 2000). The nonmoving party “may not rest upon mere allegations” in his pleading to satisfy this requirement. Anderson, 477 U.S. at 256. Rather, Federal Rule of Civil Procedure 56 “requires the nonmoving party to go beyond the pleadings and by … affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate “‘specific facts showing that there is a genuine issue for trial.’” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56).
B. Deliberate Indifference to Serious Medical Needs It has long been settled that prison officials’ deliberate indifference to a serious medical need of an inmate violates the Eight Amendment. “A prison official's ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” See Farmer v. Brennan, 511 U.S. 825, 828 (1994). “The analysis [of an
13

Case 5:13-cv-01191-D Document 53 Filed 01/21/15 Page 14 of 17
Eighth Amendment claim] should not be based on ‘a court's idea of how best to operate a detention facility,’” but should reflect “the evolving standards of decency that mark the progress of a maturing society,” which the Tenth Circuit has characterized as a “lofty standard.” DeSpain v. Uphoff, 264 F.3d 965, 973-74 (10th Cir. 2001) (citing Rhodes v. Chapman, 452 U.S. 337, 351, (1981)).
To prevail on her claim that Dr. McCurdy violated her Eighth Amendment, rights by being deliberately indifferent to her serious medical needs, Plaintiff must demonstrate: (1) objectively, the harm she complains of is sufficiently “serious” to merit constitutional protection and (2) Defendant McCurdy was subjectively aware of a substantial risk to plaintiff’s health or safety and acted in purposeful disregard of that risk. See Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). For purposes of this analysis, the Court will assume Plaintiff’s medical needs meet the first prong of the test.
Plaintiff’s claim that Dr. McCurdy was deliberately indifferent to her serious medical needs is based solely on her disagreement with his treatment of her gender identity disorder. A prisoner who merely disagrees with a diagnosis or a prescribed course of treatment does not state a constitutional violation. Perkins v. Kansas Dep't of Corr., 165 F.3d 803, 811 (10th Cir. 1999).
Moreover, Dr. McCurdy’s denial of Plaintiff’s requests for more or different medication, was based on Plaintiff’s risk of stroke. Plaintiff attached a “Summary of Pertinent Medical Information” to her Complaint (ECF No. 1-1). In this document,
14

Case 5:13-cv-01191-D Document 53 Filed 01/21/15 Page 15 of 17
Plaintiff states she suffered a stroke on September 22, 1990. (Complaint, Ex. 1, at 2). The medical records from JHCC document Plaintiff’s visit to the medical unit on July 18, 2013, complaining of slurred speech and memory loss, both of which Plaintiff stated she had experienced before her 1990 stroke. (SR 29-3 at 30). Dr. McCurdy’s denial of Plaintiff’s request for more or different hormone treatment is the antithesis of deliberate indifference.
Dr. McCurdy denied Plaintiff’s request for elective vaginoplasty because he believed Plaintiff’s lungs would not be able to withstand the stress of the surgery. Dr. McCurdy’s assessment is substantiated by a medical record generated by Dan Fox, P.A., dated February 4, 2013, which notes that Plaintiff has a history of end-stage Chronic Obstructive Pulmonary Disease (COPD). (SR 29-3, at 25). Given these facts, Plaintiff cannot demonstrate that Dr. McCurdy possessed the requisite state of mind to have been deliberately indifferent to her serious medical needs. Accordingly, it is recommended that summary judgment be granted to Defendant McCurdy.
VI. Plaintiff’s Motions for Default Judgment Plaintiff has requested entry of default judgment against Defendants Keithley
[ECF No. 45], Addison [ECF No. 47], and Patton [ECF No. 49]. Plaintiff’s basis for her motions is that these defendants failed “to plead or otherwise defend.” Plaintiff is mistaken. The Motion to Dismiss/Motion for Summary Judgment [ECF No. 30] was filed on behalf of all six named defendants, including Defendant Patton who was substituted
15

Case 5:13-cv-01191-D Document 53 Filed 01/21/15 Page 16 of 17
as a defendant for his predecessor, Justin Jones, for official capacity claims against Jones. It is therefore recommended that Plaintiff’s motions for default be denied.
VII. Motion to Withdraw as Counsel Wilson D. McGarry, one of the two attorneys representing the defendants, has
filed an uncontested motion to withdraw as attorney for the defendants. (ECF No. 52) For good cause shown, it is recommended that Mr. McGarry’s motion be granted.
RECOMMENDATION After careful consideration of the issues in this action, it is recommended that Defendant’s Motion to Dismiss/Motion for Summary Judgment, (ECF No. 30) be GRANTED. It is further recommended that Plaintiff’s Motions for Entry of Default Judgment, (ECF Nos. 45, 47, and 49), be DENIED. Finally, it is recommended that Wilson D. McGarry’s unopposed Motion to Withdraw as Counsel (ECF No. 52) be GRANTED.
NOTICE OF RIGHT TO OBJECT Plaintiff is hereby advised of her right to file an objection to this Report and Recommendation with the Clerk of this Court by February 9, 2015 in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. Plaintiff is further advised that failure to make a timely objection to this Report and Recommendation waives her right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
16

Case 5:13-cv-01191-D Document 53 Filed 01/21/15 Page 17 of 17 STATUS OF THE REFERRAL
This Report and Recommendation disposes of all issues referred to the undersigned magistrate judge in the captioned matter.
ENTERED on January 21, 2015.
17

 
 Case 5:13-cv-01191-D Document 58 Filed 03/18/15 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

JEANNE MARIE DRULEY, Plaintiff,
v. JUSTIN JONES, et al.,
Defendants.

) ) ) ) ) Case No. CIV-13-1191-D ) ) ) )

O R D E R This matter comes before the Court for review of the Report and Recommendation issued by United States Magistrate Judge Shon T. Erwin on January 21, 2015, pursuant to 28 U.S.C. § 636(b)(1)(B)-(C). Judge Erwin recommends dismissal of Plaintiff’s officialcapacity claims against the director and employees of the Oklahoma Department of Corrections, dismissal of Plaintiff’s claims against certain individuals for failure to state a claim upon which relief can be granted, dismissal of the equal protection claim asserted as Count II of the Complaint for failure to exhaust administrative remedies, and summary judgment in favor of the medical doctor who treated Plaintiff on her claim for deliberate indifference to serious medical needs. Judge Erwin further recommends denial of Plaintiff’s motions for an entry of default against certain individual defendants because Defendants’ dispositive motion was timely filed on their behalf, and granting Defendants’ motion to permit one of their attorneys to withdraw from the case. Despite receiving an additional 30 days to object to the Report and Recommendation, Plaintiff has failed to file a written objection within the required time period. Therefore, the

Case 5:13-cv-01191-D Document 58 Filed 03/18/15 Page 2 of 3
Court finds that Plaintiff has waived further review of all factual and legal issues addressed in Judge Erwin’s Report. Further, upon the Court’s review of Judge Erwin’s analysis of the issues, the Court fully agrees with his findings and conclusions. Plaintiff’s official-capacity claims are the same as claims against a state agency, which is not a “person” subject to suit under 42 U.S.C. § 1983. The Complaint fails to allege sufficient facts to state a claim against Defendants Justin Jones, Don Suttmiller, Michael Addison, Buddy Honaker, or James Keithley. The record is clear that Plaintiff failed to exhaust her available administrative remedies for the equal protection claim asserted in Count II of the Complaint, which must be dismissed without prejudice pursuant to 42 U.S.C. § 1997e(a). Finally, the undisputed facts shown by the evidence of record establish that Defendant Joel B. McCurdy did not act with deliberate indifference to Plaintiff’s serious medical needs; Plaintiff merely disagrees with Dr. McCurdy’s medical judgment. Therefore, Dr. McCurdy is entitled to summary judgment.
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No. 53] is ADOPTED in its entirety. Defendants’ Motion to Dismiss or, in the Alternative, Motion for Summary Judgment [Doc. No. 30] is GRANTED, as set forth herein. Judgment shall be entered accordingly.
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Case 5:13-cv-01191-D Document 58 Filed 03/18/15 Page 3 of 3 IT IS FURTHER ORDERED that Plaintiff’s Motions for Entry of Default [Doc. Nos. 45, 47 & 49] are DENIED and Defendants’ Motion to Allow Withdrawal [Doc. No. 52] is GRANTED. Attorney Wilson D. McGarry is withdrawn as counsel for Defendants. IT IS SO ORDERED this 17th day of March, 2015.
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 Case 5:13-cv-01191-D Document 59 Filed 03/18/15 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

JEANNE MARIE DRULEY, Plaintiff,
v. JUSTIN JONES, et al.,
Defendants.

) ) ) ) ) Case No. CIV-13-1191-D ) ) ) )

J U D G M E N T Pursuant to the Order of this date adopting the magistrate judge’s Report and Recommendation, the Court enters summary judgment in favor of Defendant Joel B. McCurdy on Plaintiff’s claim under 42 U.S.C. § 1983 in Count I of the Complaint, and dismisses without prejudice all other claims against all other Defendants, except that Plaintiff’s claims against Defendants in their official capacities are dismissed with prejudice. Entered this 17th day of March, 2015.

 
 General Docket Tenth Circuit Court of Appeals

Court of Appeals Docket #: 14-6114 Nature of Suit: 3550 Prisoner - Civil Rights Druley v. Patton, et al Appeal From: United States District Court for the Western District of Oklahoma - Oklahoma City Fee Status: 1915 part.fee assess

Case Type Information: 1) prisoner appeal 2) state 3) civil rights

Originating Court Information: District: 1087-5 : 5:13-CV-01191-D Court Reporter: Christina Clark, Trial Judge: Timothy D. DeGiusti, -, U.S. District Judge Date Filed: 11/07/2013 Date NOA Filed: 05/30/2014

Date Rec'd COA: 05/30/2014

Prior Cases: 94-5012 Date Filed: 01/13/1994 Date Disposed: 02/24/1994 Disposition: 95-5125 Date Filed: 06/13/1995 Date Disposed: 11/28/1995 Disposition: -

Current Cases: None
Panel Assignment:

Not available

Docketed: 05/30/2014 Termed: 02/03/2015

JEANNE MARIE DRULEY Plaintiff - Appellant
v. ROBERT PATTON, in his individual and official capacity
Defendant - Appellee
DON SUTMILLER, in his individual and official capacity Defendant - Appellee
MICHAEL ADDISON, in his individual and official capacity Defendant - Appellee
BUDDY HONAKER, in his individual and official capacity Defendant - Appellee
JAMES KEITHLEY, in his individual and official capacity Defendant - Appellee
JOEL B. MCCURDY, in his individual and official capacity https://ecf.ca10.uscourts.gov/n/beam/servlet/TransportRoom

Jeanne Marie Druley [NTC Pro Se] Joseph Harp Correctional Center P.O. Box 548 Lexington, OK 73051-0548
Kari Hawkins Direct: 405-522-2976 Email: kari.hawkins@oag.ok.gov [NTC Retained] Office of the Attorney General for the State of Oklahoma Litigation Department Firm: 405/521-3921 313 NE 21st Street Oklahoma City, OK 73105
Kari Hawkins Direct: 405-522-2976 [NTC Retained] (see above)
Kari Hawkins Direct: 405-522-2976 [NTC Retained] (see above)
Kari Hawkins Direct: 405-522-2976 [NTC Retained] (see above)
Kari Hawkins Direct: 405-522-2976 [NTC Retained] (see above)
Kari Hawkins 1/4

Defendant - Appellee JEANNE MARIE DRULEY,

Direct: 405-522-2976 [NTC Retained]
(s

Plaintiff - Appellant,

v.

ROBERT PATTON; DON SUTTMILLER; MICHAEL ADDISON; BUDDY HONAKER; JAMES KEITHLEY; JOEL B. MCCURDY, in their individual and official capacities,

Defendants - Appellees.

ee above)

https://ecf.ca10.uscourts.gov/n/beam/servlet/TransportRoom

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05/30/2014
80 pg, 2.57 MB
06/03/2014

[10180031] Prisoner case docketed. DATE RECEIVED: 05/30/2014. Notice of appearance due on 06/13/2014 for Michael Addison, Buddy Honaker, Robert Patton, James Keithley, Joel B. McCurdy and Don Suttmiller, and Notice of appearance due on 06/30/2014 for Jeanne Marie Druley. Motion for IFP pending in district court for Jeanne Marie Druley. [14-6114] [Entered: 05/30/2014 03:46 PM]
[10180895] District court order denying 1915(b) motion. [14-6114] [Entered: 06/04/2014 06:50 AM]

06/04/2014 06/06/2014

[10180896] Jurisdictional review complete. Record on appeal due 07/14/2014. Notice of appearance, Appellant's brief and Fee or 1915 forms due 07/14/2014 for Jeanne Marie Druley [14-6114] [Entered: 06/04/2014 06:51 AM]
[10181809] Notice of appearance submitted by Kari Hawkins Wilson D. McGarry for Appellees Michael Addison, Buddy Honaker, Mr. James Keithley, Mr. Joel B. McCurdy, Robert Patton and Don Suttmiller for court review. Certificate of Interested Parties: No. Served on 06/06/2014. Manner of Service: US mail. [146114] [Edited to remove PDF as pleading has been filed as of 6/6/14-- Edited 06/06/2014 by NA] WDM [Entered: 06/06/2014 12:22 PM]

06/06/2014

2 pg, 155.58 KB

[10181836] Notice of appearance filed by Ms. Kari Yvonne Hawkins and Mr. Wilson D McGarry for Michael
Addison, Buddy Honaker, Robert Patton, Don Suttmiller, Mr. James Keithley and Mr. Joel B. McCurdy. CERT. OF INTERESTED PARTIES: n. Served on 06/06/2014. Manner of Service: US mail [14-6114] [Entered: 06/06/2014 01:37 PM]

06/20/2014

[10185389] Notice of appearance filed by Jeanne Marie Druley. CERT. OF INTERESTED PARTIES: n. Served on 06/17/2014. Manner of Service: US mail [14-6114] [Entered: 06/20/2014 12:32 PM]

06/20/2014

[10185395] Appellant's motion filed by Jeanne Marie Druley for leave to proceed without prepayment of costs and fees. Served on 06/17/2014. Manner of Service: US mail. [14-6114] [Entered: 06/20/2014 12:35 PM]

06/20/2014

[10185425] Order filed by Clerk of the Court assessing costs and fees in the amount of $505.. Served on 06/20/2014. [14-6114] [Entered: 06/20/2014 01:07 PM]

07/01/2014

[10187939] Record on appeal filed. No. of Volumes: 1, Comments: Vol 1 - pleadings. [14-6114] [Entered: 07/01/2014 03:21 PM]

07/18/2014

[10192203] Appellant's motion filed by Jeanne Marie Druley to extend time to file appellant's brief. Served on 07/14/2014. Manner of Service: US mail. [14-6114] [Entered: 07/18/2014 01:07 PM]

07/18/2014

[10192244] Order filed by Clerk of the Court granting Appellant's motion for extension of time. Appellant's brief is now due on or before 08/13/2014 for Jeanne Marie Druley. No further extensions will be granted on the Clerk's authority. Served on 07/18/2014. [14-6114] [Entered: 07/18/2014 02:06 PM]

08/14/2014
7 pg, 425.25 KB

[10198628] Appellant brief filed by Jeanne Marie Druley. Original and 3 copies. Served on 08/11/2014 by
US mail. Oral argument requested? n. Appellee's brief due 09/15/2014 for Robert Patton, Don Suttmiller, Michael Addison, Buddy Honaker, James Keithley and Joel B. McCurdy. [14-6114] [Entered: 08/14/2014 11:35 AM]

09/15/2014

[10206244] Appellee/Respondent's brief filed by Michael Addison, Buddy Honaker, Mr. James Keithley, Mr.

49 pg, 696.84 KB

Joel B. McCurdy, Robert Patton and Don Suttmiller. 7 paper copies to be provided to the court. Served on: 09/15/2014. Manner of service: US mail. Oral argument requested? No. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [14-6114] WDM [Entered: 09/15/2014 12:28 PM]

09/18/2014

[10207386] Minute order filed - Appellant's optional reply brief now due 10/02/2014 for Jeanne Marie Druley. (Text Only - No Attachment) [14-6114] [Entered: 09/18/2014 12:43 PM]

10/02/2014

[10211976] Appellant's motion filed by Jeanne Marie Druley for 30-day extension of time to file a reply brief. Served on 09/29/2014. Manner of Service: US mail. [14-6114] [Entered: 10/02/2014 12:38 PM]

10/02/2014

[10212066] Order filed by Clerk of the Court granting, in part, appellant's motion to extend time to file reply brief. Appellant's optional reply brief now due 10/16/2014 for Jeanne Marie Druley. No further extensions on the clerk's authority. Served on 10/02/2014. [14-6114] [Entered: 10/02/2014 02:14 PM]

10/22/2014

[10217359] Appellant's reply brief filed by Jeanne Marie Druley. Original and 4 copies. Served on 10/16/2014. Manner of Service: US mail. [14-6114] [Entered: 10/22/2014 01:09 PM]

12/12/2014

[10232170] Motion filed by Appellees Michael Addison, Buddy Honaker, Mr. James Keithley, Mr. Joel B.

3 pg, 47.83 KB McCurdy, Robert Patton and Don Suttmiller for attorney Wilson D. McGarry to withdraw as counsel..

https://ecf.ca10.uscourts.gov/n/beam/servlet/TransportRoom

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12/12/2014
1 pg, 78.24 KB
02/03/2015 02/03/2015
9 pg, 39.91 KB
proceed on 1915. Text only entry - no
02/25/2015
1 pg, 14.84 KB

Served on: 12/12/2014. Manner of service: email, U.S. mail. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [14-6114] WDM [Entered: 12/12/2014 02:27 PM]
[10232231] Order filed by Clerk of the Court granting Wilson D. McGarry's motion to withdraw as attorney. Served on 12/12/2014. [14-6114] [Entered: 12/12/2014 03:57 PM] [10245099] Order filed by Judges Gorsuch, O'Brien, and Holmes granting Appellant's motion for leave to attachment. See the court's 2/3/2015 case termination entry for the order issued. [14-6114] [Entered: 02/03/2015 02:30 PM] [10245102] Affirmed in Part and Dismissed in Part. Terminated on the merits after submissions without oral hearing. Written, signed, and unpublished. Judges Gorsuch, O'Brien, and Holmes(authoring judge).
Mandate to issue. [14-6114]--[Edited 02/09/2015 by AT - reflect the appeal was dismissed in part and affirmed in part.] [Entered: 02/03/2015 02:36 PM]

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 Case 5:13-cv-01191-D Document 62 Filed 04/13/15 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

JEANNE MARIE DRULEY, Plaintiff,
v. JUSTIN JONES, et al.,
Defendants.

) ) ) ) ) Case No. CIV-13-1191-D ) ) ) )

O R D E R

Before the Court is Plaintiff’s pro se filing entitled, “Motion for Independent Action

for Relief from Judgment and/or Rehearing of the Court’s Order” [Doc. No. 60]. Although

the Motion cites both Fed. R. Civ. P. 59(e) and 60(b)(6), the Court liberally construes the

Motion as one seeking relief under Rule 59(e) because it is timely filed and seeks amendment

of the Order of March 17, 2015, dismissing or granting summary judgment on all claims

asserted in the Complaint. Plaintiff seeks to file an untimely objection to the magistrate

judge’s Report and Recommendation and to obtain de novo review of the issues pursuant to

28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(3). Contemporaneously with the Motion,

Plaintiff has filed her proposed Objection [Doc. No. 61].

Upon consideration of the Motion and the proposed Objection, the Court finds

insufficient reason to disturb the March 17 Order. Although Plaintiff allegedly was

prevented from filing a timely objection by circumstances beyond her control, the Court finds

that a de novo determination of the portions of the Report to which she proposes to object

would not affect the outcome of the case.

Case 5:13-cv-01191-D Document 62 Filed 04/13/15 Page 2 of 5
First, Plaintiff concedes that her official-capacity claims against the director and employees of the Oklahoma Department of Corrections (“DOC”) for money damages were properly dismissed. But she asserts that claims for injunctive relief should not be dismissed. Although a claim for prospective injunctive relief may sometimes proceed under the Ex parte Young doctrine,1 any such claim would fail in this case for other reasons.
Second, Plaintiff challenges the dismissal of her claims against some defendants for failure to state a claim upon which relief can be granted. She contends the Complaint adequately alleges a basis for supervisory liability under Iqbal v. Ashcroft, 556 U.S. 662 (2009). There are “three elements required to establish a successful § 1983 claim against a defendant based on his or her supervisory responsibilities: (1) personal involvement; (2) causation, and (3) state of mind.” Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 767 (10th Cir. 2013). The Complaint states insufficient facts to establish any of these elements for her claim in Count I of denial of medical care by Defendants Justin Jones, former director of the Department of Corrections (DOC); Don Sutmiller, DOC’s chief medical officer; Michael Addison, warden of Joseph Harp Correctional Center (JHCC); Buddy Honaker, JHCC’s health service administrator; or James Keithley, JHCC’s psychologist. Plaintiff also asserts she has sufficiently alleged that Dr. Keithley was deliberately indifferent to the mental health needs of a person with gender identity disorder (GID). However, the Complaint contains no factual allegations that might establish either, objectively, a serious need of Plaintiff for mental health treatment or, subjectively, deliberate
1 See Ex parte Young, 209 U.S. 123 (1908).
2

Case 5:13-cv-01191-D Document 62 Filed 04/13/15 Page 3 of 5
indifference of Dr. Keithley to that need. See Blackmon v. Sutton, 734 F.3d 1237, 1244-45 (10th Cir. 2013) (applying standard of Estelle v. Gamble, 429 U.S. 97 (1976), to denial of mental health care).
Third, Plaintiff contends that dismissal of the equal protection claim asserted in Count II of the Complaint was improper because her failure to exhaust administrative remedies regarding this claim was due to her indigency and inability to pay postage. This argument is inconsistent with Plaintiff’s institutional account record, which shows ample funds on hand during the grievance process. See Offender Statement Report [Doc. No. 4-1]. Plaintiff prepaid the full $400 filing fee in this case, and her motion for leave to proceed in forma pauperis was denied as moot. Further, the record shows that Plaintiff utilized the grievance process, but she did not follow the proper procedures with respect to her request to change DOC records to reflect female gender.
Finally, Plaintiff asserts that summary judgment was improperly granted in favor of Defendant Joel McCurdy, her treating physician, on her Eighth Amendment claim for deliberate indifference to serious medical needs. Plaintiff raises both procedural and meritsbased issues. Plaintiff alleges that Dr. McCurdy failed to submit an affidavit in support of his motion and that the magistrate judge failed to properly convert Defendants’ motion for dismissal under Rule 12(b)(6) to a motion for summary judgment. Plaintiff is incorrect on both points. Defendants expressly relied in their motion on Rule 56 and a court-ordered special report filed pursuant to Martinez v. Aaron, 570 F.3d 317 (10th Cir. 1978). Dr. McCurdy’s affidavit was submitted as part of the Special Report as attachment 3 [Doc.
3

Case 5:13-cv-01191-D Document 62 Filed 04/13/15 Page 4 of 5
No. 29-3]. Further, “[a] Martinez report is treated like an affidavit . . . . The plaintiff’s complaint may also be treated as an affidavit if it alleges facts based on the plaintiff’s personal knowledge and has been sworn under penalty of perjury.” Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991). Here, the magistrate judge properly relied on facts shown by the Special Report and the Complaint, which was verified pursuant to 28 U.S.C. § 1746, in his findings and recommendation for summary judgment. See Report & Recom. [Doc No. 53], pp.3-4, 14-15
Regarding the merits of Plaintiff’s claim that Dr. McCurdy refused to treat her GID or refer her to a specialist in such treatment, the undisputed facts show that no Eighth Amendment violation occurred. Dr. McCurdy treated Plaintiff’s GID with prescriptions for hormonal medications; he simply did not utilize the dosage level or a particular medication Plaintiff requested. Dr. McCurdy did not authorize Plaintiff to receive vaginoplasty, but he based this decision on his medical judgment regarding the risk of elective surgery in light of Plaintiff’s other health conditions. The law is clear that “[d]isagreement with a doctor’s particular method of treatment, without more, does not rise to the level of an Eighth Amendment violation.” See Gee v. Pacheco, 627 F.3d 1178, 1192 (10th Cir. 2010). For the first time in her proposed Objection, Plaintiff cites the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12135, and the Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. §§ 10801-10851, and claims Dr. McCurdy also violated these statutes. Plaintiff’s Complaint fails to plead facts that would establish the applicability or a violation of either law. Further, the latter act provides funding for state protection and advocacy
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Case 5:13-cv-01191-D Document 62 Filed 04/13/15 Page 5 of 5 systems and gives a state’s designated system the authority to investigate incidents of alleged abuse of individuals with mental illness and to pursue remedies on their behalf; it does not create a private right of action by the individuals themselves. See Indiana Prot. & Advocacy Servs. v. Indiana Family & Soc. Servs. Admin., 603 F.3d 365, 375 & n.9 (7th Cir. 2010).
For these reasons, the Court finds that the rulings in the March 17 Order were correct, even if Plaintiff’s untimely Objection were to be considered. Therefore, Plaintiff has failed to provide a sufficient basis for relief from the judgment.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Independent Action for Relief from Judgment and/or Rehearing of the Court’s Order [Doc. No. 60] is DENIED.
IT IS SO ORDERED this 13th day of April, 2015.
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