United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
PURCELL UNITED STATES MAGISTRATE JUDGE
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).
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
Statutory Screening of Prisoner Complaints
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. §
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
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
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).
Statute of Limitations Bars Plaintiff's Cause of
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.
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.
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.
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
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.