United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
T. ERWIN UNITED STATES MAGISTRATE JUDGE.
Robert Gray, appearing pro se and in forma
pauperis, brings this action under 42 U.S.C. §
1983, alleging various violations. (ECF No. 1). United States
District Judge David Russell referred this matter to the
undersigned magistrate judge for initial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B)-(C). A review
of the complaint has been conducted pursuant to 28 U.S.C.
§ 1915A(a) and 28 U.S.C. § 1915(e)(2)(B). Based on
that review, it is recommended that the Court: dismiss, with
prejudice, the claims against the “Oklahoma County
Police Department or Precinct” and (2) dismiss, without
prejudice, the claims against Macy's Department Store and
the Penn Square Mall Police for failure to state a claim upon
which relief may be granted.
Court must review each complaint in which a prisoner seeks
redress against a governmental entity, officer, or employee.
28 U.S.C. § 1915A(a). The Court likewise must review
each case brought by a prisoner with respect to prison
conditions and each case in which a plaintiff proceeds in
forma pauperis. 42 U.S.C. § 1997e(c)(1); 28 U.S.C.
§ 1915(e)(2). The Court is required to dismiss the
complaint or any portion of the complaint that is frivolous
or malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief. See 28 U.S.C. §§
1915A(b), 1915(e)(2)(B); 42 U.S.C. § 1997e(c)(1).
STANDARD OF REVIEW
Court must accept a plaintiff's allegations as true and
construe them, and any reasonable inferences to be drawn from
them, in the light most favorable to the plaintiff. See
Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007).
Since Mr. Gray is proceeding pro se, his complaint
must be construed liberally. See id. at 1218. 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).
complaint fails to state such a claim when it lacks factual
allegations sufficient “to raise a right to relief
above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Bell Atlantic v. Twombly, 550 U.S.
544, 555 (2007) (footnote and citation omitted). Bare legal
conclusions in a complaint, however, are not assumed to be
true; legal conclusions “must be supported by factual
allegations” to state a claim upon which relief may be
granted. Ashcroft v. Iqbal, 556 U.S. 662, 679
pro se plaintiff requires no special legal training to
recount the facts surrounding his alleged injury, and he must
provide such facts if the court is to determine whether he
makes out a claim on which relief can be granted.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991); see also Whitney v. New Mexico, 113 F.3d
1170, 1173-74 (10th Cir. 1997) (noting that although courts
construe pro se pleadings liberally, courts
“will not supply additional factual allegations to
round out a plaintiff's complaint”). Whether a
complaint contains sufficient facts to avoid dismissal is
context-specific and is determined through a court's
application of “judicial experience and common
sense.” Iqbal, 556 U.S. at 679; see also
Gee v. Pacheco, 627 F.3d 1178, 1184-85 (10th Cir. 2010)
8, 2017, Plaintiff was involved in an incident at Macy's
Department Store in Penn Square Mall in Oklahoma City. (ECF
No. 1-1:1). The gist of Mr. Gray's Complaint is that he
was subjected to police brutality during an illegal arrest.
(ECF No. 1; 1-1). In particular he claims that he was beaten
and sprayed repeatedly in the face with pepper spray while
“Hog tied” in the back seat of the police
vehicle; and that the pepper spray caused his hemorrhoids to
become swollen and infected (ECF No. 1-1:1-3). Plaintiff also
states that he suffered from broken ribs, and a dislocated
finger and shoulder. (ECF No. 1-1:1).
Gray has sued Macy's Department Store, the
“Oklahoma County Police Department or Precinct”
and the Penn Square Mall Police. (ECF No. 1:1, 4, 6). Mr.
Gray alleges violations of “Freedom of Speech,
Descrimination [sic], Defamation of Character, Physical
contact by false probable cause and aboundment [sic] of
Probable Cause in-act[, ] [his] Right to Freedom, [his] Right
to Medical Attention[, ] [and] excessive force.” (ECF
No. 1:6, 7, 1-1:2).” (ECF No. 1:6). Mr. Gray seeks
monetary damages from Macy's Department store and the
“Oklahoma County Police Precinct.” (ECF No.
CLAIMS AGAINST THE “OKLAHOMA COUNTY POLICE
Gray has sued “The Oklahoma County Police Department or
Precinct.” (ECF No. 1:1, 4, 6). In actuality, he is
seeking relief against the Oklahoma County Sheriff's
Department, which is located at the address listed in the
Complaint for this Defendant. See ECF No. 1:4. The
Court should dismiss Plaintiff's claims against the
Oklahoma County Sheriff's Department, because this
Defendant is not a suable legal entity. Rule 17(b) of the
Federal Rules of Civil Procedure provides that a
non-corporate entity's capacity to be sued is determined
by the law of the state in which the district court is
located. In Oklahoma, each organized county can sue and be
sued. Okla. Stat. tit. 19, § 1. The authority of each
Oklahoma county is exercised by its board of county
commissioners, Okla. Stat. tit. 19, § 3, and a lawsuit
brought against a county must be filed against the board of
county commissioners of the relevant county. Okla. Stat. tit.
19, § 4. The Oklahoma County Sheriff's Department,
as a subdivision of the county in which it is located, has no
separate legal identity under Oklahoma law, and therefore
cannot be sued in this § 1983 action. See Lindsey v.
Thomson, 275 Fed.Appx. 744, 747 (10th Cir. 2007)
(affirming dismissal of § 1983 claims against police
departments and county sheriff's department, entities
with no apparent legal existence); Reid v. Hamby,
124 F.3d 217, 1997 WL 537909 at *6 (10th Cir. 1997) (holding
that “an Oklahoma ‘sheriff's department'
is not a proper entity for purposes of a § 1983
suit”). Accordingly, any claims against the Oklahoma
County “Police Department or
Precinct”-i.e.-Sheriff's Department should be
dismissed, with prejudice.
CLAIMS AGAINST MACY'S DEPARTMENT STORE AND THE ...