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Smith v. Reed

United States District Court, N.D. Oklahoma

September 19, 2017

RICHARD A. SMITH, Plaintiff,
v.
MIKE REED; MITCH GOODMAN; OKLAHOMA STATE POLICE; MAYES COUNTY SHERIFF'S DEP'T, Defendants.

          OPINION AND ORDER

          JOHN E. DOWDELL, UNITED STATES DISTRICT JUDGE.

         On April 11, 2017, Plaintiff, a prisoner in custody at the Mayes County Jail (MCJ), filed a pro se 42 U.S.C. § 1983 civil rights complaint (Doc. 1). Plaintiff has been granted leave to proceed in forma pauperis, see Doc. 3, and has paid the initial partial filing fee as directed by the Court, see Doc. 6. By Order filed May 25, 2017 (Doc. 7), the Court directed Plaintiff to file an amended complaint to cure deficiencies. On June 14, 2017, Plaintiff filed an amended complaint (Doc. 9). For the reasons discussed below, the amended complaint fails to state a claim upon which relief may be granted and is dismissed without prejudice.

         A. Screening/Dismissal standards

         As Plaintiff was previously advised, see Doc. 7, federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must identify any cognizable claim and dismiss any claim which is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2)(B). To avoid dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6), a complaint must present factual allegations, assumed to be true, that "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570. A court must accept all the well-pleaded allegations of the complaint as true, even if doubtful in fact, and must construe the allegations in the light most favorable to the plaintiff. Id. at 555. However, "when the allegations in a complaint, however true, could not raise a [plausible] claim of entitlement to relief, " the cause of action should be dismissed. Id. at 558. Twombly articulated the pleading standard for all civil actions. See Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). The Court applies the same standard of review for dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii) that is employed for Fed.R.Civ.P. 12(b)(6) motions to dismiss for failure to state a claim. Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007).

         A pro se plaintiffs complaint must be broadly construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972). The generous construction to be given the pro se litigant's allegations "does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Notwithstanding a pro se plaintiff s various mistakes or misunderstandings of legal doctrines or procedural requirements, "if a court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so...." Id. A reviewing court need not accept "mere conclusions characterizing pleaded facts." Bryson v. City o/Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990); see also Twombly, 550 U.S. at 555 ("While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." (quotations and citations omitted)). The court "will not supply additional factual allegations to round out a plaintiff s complaint or construct a legal theory on a plaintiff s behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).

         B. Request for appointment of counsel is denied

         As part of his request for relief, Plaintiff asks that he be "given an attorney." The Court has discretion to appoint an attorney to represent an indigent plaintiff where, under the totality of the circumstances, the denial of counsel would result in a fundamentally unfair proceeding. McCarthy v. Weinberg, 753 F.2d 836, 839-40 (10th Cir. 1985). The Tenth Circuit Court of Appeals has stated that "if the plaintiff has a colorable claim then the district court should consider the nature of the factual issues raised in the claim and the ability of the plaintiff to investigate the crucial facts." Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (citation and internal quotation marks omitted). After reviewing the merits of Plaintiff s case, the nature of the factual issues involved, Plaintiff s ability to investigate the crucial facts, the probable type of evidence, Plaintiff s capability to present his case, and the complexity of the legal issues, see Rucks, 57 F.3d at 979; McCarthy, 753 F.2d at 838-40; Maclin v. Freake, 650 F.2d 885, 887-89 (7th Cir. 1981), the Court denies Plaintiffs request for appointment of counsel.

         C. Amended complaint fails to state a claim upon which relief may be granted

         The Court finds that the amended complaint fails to state a claim upon which relief may be granted. Plaintiff describes the nature of the case as follows: "[o]n being aressted [sic] on Dec. 22nd, 2016, 1 was grossly mistreated, beaten, stomped, to the point of being hospitalized, stitches in my face, several teeth knocked out, both shoulder[s] ripped out of sockett [sic]!" See Doc. 9 at 2. Plaintiff identifies three grounds for relief, quoted in their entirety, as follows:

Count I: Excessive force on 12-22-16 by the Mayes County Sheriffs Office & Oklahoma Highway Patrol.
On being arrested on Dec. 22nd, 2016, 1 was severally [sic] beaten, & put in the hospital. Dash cameras & body cameras on said night should show and prove everything.
Count II: Denied access to the law library depriving of my legal right to be able to work my own case and to work my law suites [sic].
I have filed [sic] out many request forms to the Jail Administrator and Asst. Admin, to go to the law library. Back in 1999/2000 their [sic] was an [sic] court ordered action, stating jail personnel has to give us law library time.
Count III: Failure to provide copy of new access to court policy! Explaining my new rights as a Mayes County inmate and ...

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