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Harper v. Tirello

United States District Court, N.D. Oklahoma

December 18, 2017

DUANE HARPER, Plaintiff,
NICHOLAS TIRELLO, Officer, in his individual capacity; JAMES C. PIRTLE, Sgt., in his individual capacity; DAVID J. OAKES, D.O., in his individual capacity; OTALVARO, D.O., in his individual capacity, Defendants.



         Plaintiff Duane Harper commenced this 42 U.S.C. § 1983 civil rights action on February 29, 2016, by filing a pro se complaint (Dkt. # 1) and a motion to proceed in forma pauperis (Dkt. # 2). In his complaint, Harper alleged that several detention officers or sheriff's deputies violated his constitutional rights by using excessive force against him while he was detained at the David L. Moss Criminal Justice Center, the facility that serves as the Tulsa County Jail. See Dkt. # 1 at 2-6. The Court granted Harper's motion to proceed in forma pauperis (Dkt. # 4). By Order filed May 10, 2016 (Dkt. #9), the Court directed service on the defendants and directed the agency responsible for the alleged civil rights violations to prepare a Special Report, see Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978). The Tulsa County Sheriff's Office (TCSO) filed a Special Report on August 8, 2016 (Dkt. ## 18, 19).

         By Order dated January 9, 2017 (Dkt. # 32), the Court granted Harper leave to file an amended complaint. The Court subsequently granted Harper's request for an extension of time to file his amended complaint based on his averment that he had recently retained counsel. See Dkt. # 36. Harper, through counsel, filed an amended complaint on March 20, 2017 (Dkt. # 39) suing four defendants in their individual capacities: Officer Nicholas Tirello, Sergeant James Pirtle, Detention Officer David Oakes, and Detention Officer Sebastian Otalvaro.

         Before the Court are the following motions: Tirello and Oakes' motion to dismiss for failure to state a claim (Dkt. # 52); Harper's motion to strike (Dkt. # 53); Otalvaro's motion to dismiss for failure to state a claim (Dkt. # 65); and Otalvaro's motion for confession of judgment (Dkt. # 69).[1]For the reasons discussed below, the Court shall (1) deny in part and grant in part Harper's motion to strike, (2) deny Otalvaro's motion for confession of judgment, and (3) deny Tirello and Oakes' and Otalvaro's motions to dismiss.

         I. Background[2]

         Harper, an African-American male, was booked into the Tulsa County Jail on a probation violation on January 7, 2015. Dkt. # 39 at 1. Harper has “notable disabilities” and the TCSO placed him in “a handicapped cell in pod J-14.” Id. On February 9, 2015, Harper became upset when Detention Officer Megan Palmer unwrapped his food tray after he saw her “working and handling things that were unsanitary.” Dkt. # 39 at 2; Dkt. # 19-3 at 11. Harper threatened to, and ultimately did, throw his food tray on the ground. Dkt. # 39 at 2. Palmer called for assistance as Harper walked back to his cell. Id.; Dkt. # 19-3 at 11.

         Tirello, Oakes, Otalvaro and Pirtle “gathered in the pod outside [Harper's] cell.” Id. at 2. Harper was “sitting on his bunk, ” and was “not being combative.” Id. The defendants told Harper “to get on the ground, ” but Harper did not comply. Id. Instead, he shook his head and told the officers he could not get on the ground. Id. Harper alleges that he did not comply with the defendants' orders because he has “disabilities [that] create a substantial loss of movement and ability to function and meet the ordinary demands of life such as stooping, bending, etc.” Id. at 2. Specifically, Harper states that he has “a metal rod and screws in his left femur, ” and needs both a knee and shoulder replacement. Id. Harper alleges that the TCSO recognized his disabilities as evidenced by the TCSO's decision to place him in a “handicapped cell.” Id.

         The defendants “did not want to listen to what [Harper] had to say” regarding his failure to comply with their orders. Id. Instead, Oakes opened Harper's cell door and Pirtle deployed his Taser, shooting Harper with “high-voltage.” Id. Oakes, Otalvaro and Tirello then “threw [Harper] to the ground placing him in restraints.” Id. The “[d]efendants [then] removed [Harper] from the cell and once the defendants were out of video surveillance area they began to inflict more pain and injury to [his] shoulder.” Id. at 2-3. Harper alleges that he did not receive any medical treatment after the Taser was used on him. Id.

         Based on these factual allegations, Harper claims that the defendants violated the TCSO's Taser-use policy because he “was sitting on his bed, there was no aggressive situation in order to cause an officer to feel the need to use the TASER and Pirtle only chose to use the weapon to inflict pain upon [Harper].” Id. at 3; see also id. at 3-4 (citing Dkt. # 21-2 for specific provisions of TCSO's Taser-use policy). Harper further claims that[3] “when Pirtle deployed his TASER he violated the Fourth Amendment of the United States Constitution and thus applicable to the States under the Fourteenth Amendment. Thus, resulting in a deliberate indifference to [his] medical needs.” Id. at 4. Harper alleges that Oakes, Otalvaro and Tirello “allowed Pirtle the opportunity to deploy his TASER, as they each knew that when Oakes opened the door [Pirtle] was going to use the TASER.” Id. Harper further alleges that “[w]hen Defendant Oakes used his key to open the door to the handicapped cell, he display[ed] the mental element to the constitutional violation along with the Defendants Tirello and Otalvaro.” Id. Harper also claims that Pirtle's “use of the TASER was racially motivated.” Id. at 5 (emphasis in original). Finally, Harper asserts that his amended complaint “state[s] a viable claim for excessive use of force, inter alia, ” and that this Court “has supplemental jurisdiction over the state law claims” in his amended complaint. Id. at 6, 8.

         II. Discussion

         A. The amended complaint fails to comply with notice-pleading requirements

         Preliminarily, the Court notes that the operative complaint in this civil rights action is the amended complaint filed by Harper's counsel. See Mink v. Suthers, 482 F.3d 1244, 1254 (10th Cir. 2007) (“[A]n amended complaint ‘supercedes an original complaint and renders the original complaint without legal effect.'” (quoting In re Atlas Van Lines, Inc., 209 F.3d 1064, 1067 (8th Cir. 2000)); see also LCvR 9.2(c) (noting that in civil rights actions commenced by prisoners, an amended pleading “must be retyped or handwritten and filed so that it will be complete in itself . . . without reference to the superseded pleading”). The amended complaint however, is not a model of clarity. Thus, before addressing the parties' motions, the Court will briefly address Harper's failure to comply with basic notice-pleading requirements.

         The Federal Rules of Civil Procedure require, inter alia, that the plaintiff's complaint concisely and plainly state the grounds for the court's jurisdiction, the grounds on which the plaintiff rests his claim for relief, and a demand for the relief sought. See Fed.R.Civ.P. 8(a); Fed.R.Civ.P. 8(d)(1). Additionally, the plaintiff “must state [his] claims . . . in numbered paragraphs.” Fed.R.Civ.P. 10(b). The purpose of these basic requirements is to compel the plaintiff to provide his opponents “with fair notice of what the claim is and the grounds upon which it rests.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 319 (2007).

         Harper's amended complaint fails to concisely and plainly state his claims for relief. Rather, the amended complaint consists of a series of numbered paragraphs that commingle factual allegations with legal arguments in a largely incoherent fashion. For example, in his amended complaint, Harper twice refers to “state law claims” and asks this Court to exercise supplemental jurisdiction over those claims. See Dkt. # 6, 8. But he never identifies any particular state-law claim or identifies which factual allegations, if any, would support a state-law claim. The Court finds that Harper's vague references to “state law claims” are insufficient to provide the defendants with fair notice of any state-law claims or the grounds upon which any such claims rest. Thus, the Court shall dismiss without prejudice Harper's purported state-law claims for failure to state a claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). However, as further discussed below in resolving the defendants' Rule 12(b)(6) motions, the Court finds that Harper's amended complaint is sufficient, albeit barely, to state at least one plausible § 1983 claim.

         B. Harper's ...

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