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Gray v. Macy's Department Store

United States District Court, W.D. Oklahoma

January 12, 2018

ROBERT GRAY, Plaintiff,
v.
MACY'S DEPARTMENT STORE, et al., Defendants.

          REPORT AND RECOMMENDATION

          SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.

         I. SCREENING REQUIREMENT

         The 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).

         II. STANDARD OF REVIEW

         The 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).

         A 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 (2009).

         “[A] 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) (discussing Iqbal).

         III. PLAINTIFF'S CLAIMS

         On July 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).

         Mr. 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. 1:7-8).

         IV. CLAIMS AGAINST THE “OKLAHOMA COUNTY POLICE PRECINCT”

         Mr. 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.

         V. CLAIMS AGAINST MACY'S DEPARTMENT STORE AND THE ...


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