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Folsom v. Grice

United States District Court, W.D. Oklahoma

November 14, 2017

CHANDA GRICE, Defendant.



         Plaintiff, a state prisoner appearing pro se and in forma pauperis, has filed this civil rights action pursuant to 42 U.S.C. § 1983. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B).

         An initial review of the sufficiency of the cause of action under 28 U.S.C. §1915(e)(2)(B) has been conducted, and based upon this review and the findings set forth herein the undersigned recommends that the cause of action be dismissed upon filing.

         I. Statutory Screening of Prisoner Complaints

         With any federal litigant, such as Plaintiff, who is proceeding in forma pauperis, the court has a duty to screen the prisoner's complaint to determine its sufficiency. See 28 U.S.C. § 1915(e)(2). In this initial review, the court must dismiss any claim that is found to be frivolous or malicious, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

         To survive this review, the plaintiff must plead “enough facts to state a claim that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The court “review[s] the complaint for plausibility; that is, to determine whether the complaint includes enough facts to state a claim to relief that is plausible on its face.” Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009)(quotations and citation omitted).

         In applying this standard the court must assume the truth of all well-pleaded factual allegations in the complaint and construe them in the light most favorable to the plaintiff. See Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011). On the other hand, “bare assertions” consisting of “nothing more than a ‘formulaic recitation of the elements' of a constitutional . . . claim are conclusory and not entitled to be assumed true.” Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009) (citing Twombly, 550 U.S. at 554-55).

         Although a pro se litigant's pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520 (1972), 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, 1173-1174 (10th Cir. 1997). See Yang v. Archuleta, 525 F.3d 925, 927 n. 1 (10th Cir. 2008)(court reviewing pro se complaint does not “assume the role of advocate”)(quotations and citation omitted). Also subject to dismissal under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) are frivolous claims that “lack[ ] an arguable basis either in law or in fact” or are “based on an indisputably meritless legal theory.” Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989).

         II. Statute of Limitations Bars Plaintiff's Cause of Action

         Plaintiff is currently confined at the Cimarron Correctional Facility in Cushing, Oklahoma. In his Complaint, Plaintiff names one Defendant, Ms. Grice. Plaintiff's allegations in the Complaint are vague and cryptic. For starters, Plaintiff's Complaint does not identify the capacity in which Ms. Grice is sued. Nor has Plaintiff alleged whether Ms. Grice is a correctional official. Assuming that Plaintiff is alleging that Ms. Grice was acting in her capacity as a state correctional official at the time of the alleged actions forming the basis for this civil suit, Plaintiff has not alleged any actions by Ms. Grice occurring within the applicable two year statute of limitations.

         In his first claim, which purportedly asserts an Eighth Amendment claim of cruel and unusual punishment, Plaintiff alleges only that Ms.”Grice wrote misconducts that where [sic] lies, that costed [sic] me to be put in segregation and over retaliatory over [sic] her friend being fired over [sic] sexualy [sic] harassing Mr. Folsom, that was cruel and unusual punishment.” Complaint, at 5. As supporting facts relevant to this claim, Plaintiff refers to an incident that occurred in December 2012 involving himself and “Nurse C. Grice.” Complaint, at 6.

         Plaintiff's second claim for relief is also vague. Plaintiff alleges only: “14 Amendment Right under Life and equal protection from cruel harassment and retaliation, she humiliated Mr. Folsom . . . that became mental anguish . . . .” Id. As relief, Plaintiff requests five million dollars in damages and to have “all misconduct [sic] to be removed.” Id.

         This is not the first time Plaintiff has alleged that Ms. Grice committed retaliatory acts after he alleged another prison official had sexually harassed him. In his previous 42 U.S.C. § 1983 action filed in this Court on June 18, 2013, Plaintiff sued Ms. Grice and other Defendants, all of whom were identified as Oklahoma prison officials or former Oklahoma prison officials. Folsom v. Knutson, et al., Case No. CIV-13-632-D. In that action, Plaintiff alleged that Ms. Grice retaliated against him by filing misconduct charges soon after he reported in November 2012 that he had been sexually harassed by another prison official.

         Eventually, United States District Judge DeGiusti dismissed all of Plaintiff's claims against the prison officials, except for his claims against Ms. Grice, for failure to state a plausible claim for relief. Folsom v. Knutson, 2016 WL 123432 W.D. Okla. Jan. 11, 2016)(Order, DeGiusti, D.J.). Judge DeGiusti dismissed Plaintiff's claims against Ms. ...

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