United States District Court, N.D. Oklahoma
RICHARD A. SMITH, Plaintiff,
MIKE REED; MITCH GOODMAN; OKLAHOMA STATE POLICE; MAYES COUNTY SHERIFF'S DEP'T, Defendants.
OPINION AND ORDER
E. DOWDELL, UNITED STATES DISTRICT JUDGE.
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
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).
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).
Request for appointment of counsel is denied
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.
Amended complaint fails to state a claim upon which relief
may be granted
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
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