United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE
28, 2017, Plaintiff, a pro se prisoner presently in custody
at William S. Key Correctional Center in Fort Supply,
Oklahoma, filed a civil rights complaint pursuant to 42
U.S.C. § 1983 (Dkt. 1). His amended motion to proceed
in forma pauperis (Dkt. 7) was granted on September
11, 2017, and the initial partial filing fee was paid on
October 5, 2017 (Dkt. 12).
brings this action under the authority of 42 U.S.C. §
1983, seeking monetary and injunctive relief for alleged
constitutional violations during his incarceration at
Northeast Oklahoma Correctional Center (NEOCC), a Department
of Corrections (“DOC”) facility located in
Vinita, Oklahoma. The three defendants are Casey Hamilton,
NEOCC Warden; Joe Allbaugh, DOC Director; and Joycerie
Azarian, NEOCC Law Library Supervisor.
courts must engage in a preliminary screening of cases in
which prisoners seek redress from a governmental entity or
officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The court must identify any cognizable claim
and dismiss any claim which is frivolous, malicious, fails to
state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915A(b); 28 U.S.C. §
1915(e)(2)(B). To avoid dismissal for failure to state a
claim under Fed.R.Civ.P. 12(b)(6), a complaint must present
factual allegations, assumed to be true, that “raise a
right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The
complaint must contain “enough facts to state a claim
to relief that is plausible on its face.” Id.
at 570. A court must accept all the well-pleaded allegations
of the complaint as true, even if doubtful in fact, and must
construe the allegations in the light most favorable to the
plaintiff. Id. at 555. Nonetheless, “when the
allegations in a complaint, however true, could not raise a
[plausible] claim of entitlement to relief, ” the cause
of action should be dismissed. Id. at 558.
Twombly articulated the pleading standard for all
civil actions. See Ashcroft v. Iqbal, 556 U.S. 662,
684 (2009). The court applies the same standard of review for
dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii) that is
employed for Fed.R.Civ.P. 12(b)(6) motions to dismiss for
failure to state a claim. Kay v. Bemis, 500 F.3d
1214, 1217-18 (10th Cir. 2007).
se plaintiff's complaint must be broadly construed under
this standard. Erickson v. Pardus, 551 U.S. 89, 94
(2007); Haines v. Kerner, 404 U.S. 519, 520 (1972).
The generous construction to be given to the pro se
litigant's allegations “does not relieve the
plaintiff of the burden of alleging sufficient facts on which
a recognized legal claim could be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Notwithstanding a pro se plaintiff's various mistakes or
misunderstandings of legal doctrines or procedural
requirements, “if a court can reasonably read the
pleadings to state a valid claim on which the plaintiff could
prevail, it should do so . . . .” Id. A
reviewing court need not accept “mere conclusions
characterizing pleaded facts.” Bryson v. City of
Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990); see
also Twombly, 550 U.S. at 555 (“While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff's obligation to
provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.”
(quotations and citations omitted)). 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, 1173-74 (10th Cir. 1997).
for Appointment of Counsel
September 14, 2017, Plaintiff filed a motion for appointment
of counsel (Dkt. 11). The Court has discretion to appoint an
attorney to represent an indigent plaintiff where, under the
totality of the circumstances, the denial of counsel would
result in a fundamentally unfair proceeding. McCarthy v.
Weinberg, 753 F.2d 836, 839-40 (10th Cir. 1985). The
Tenth Circuit Court of Appeals has stated that “if the
plaintiff has a colorable claim then the district court
should consider the nature of the factual issues raised in
the claim and the ability of the plaintiff to investigate the
crucial facts.” Rucks v. Boergermann, 57 F.3d
978, 979 (10th Cir. 1995) (citation and internal quotation
marks omitted). After reviewing the merits of Plaintiff's
case, the nature of the factual issues involved,
Plaintiff's ability to investigate the crucial facts, the
probable type of evidence, Plaintiff's capability to
present his case, and the complexity of the legal issues,
see Rucks, 57 F.3d at 979; McCarthy, 753
F.2d at 838-40; Maclin v. Freake, 650 F.2d 885,
887-89 (7th Cir. 1981), Plaintiff's request for
appointment of counsel is denied.
Motion for Extension of Time to Pay Initial Partial
Filing Fee On October 6, 2017, Plaintiff submitted a
letter requesting an extension of time to pay the initial
partial filing fee for this action, which the Court construed
as a motion for extension of time for this purpose (Dkt. 13).
The record shows that the initial partial filing fee was paid
on October 5, 2017 (Dkt. 12). Therefore, Plaintiff's
motion for extension of time to pay the initial partial
filing fee is deemed moot.
states the nature of his case as follows:
On July 20, 2017, by virtue of authority vested by Defendant
Allbaugh, suspended Plaintiff's law library privileges
for (30) days. Which encompasses a properly notified and
verifiable court deadline, which pertains to the Okla. Dept.
of Corrections, and is due to expire August 12, 2017, within
the (30) days. It is Plaintiff's dire beliefs that this
is done because of the lawsuit and total disregard to
Plaintiff's constitutional rights of access to the
courts, and not because of a violation of OP-030117, I.A.4 as
(Dkt. 1 at 3).
alleges in Count I of his complaint that he was denied access
to the courts pursuant to a letter he received from Defendant
Warden Casey Hamilton, dated July 20, 2017 (Dkt. 1 at 3, 6).
The letter was a formal notification of a 30-day law library
restriction because of Plaintiff's violation of inmate
correspondence guidelines (Dkt. 1 at 6). The letter also
advised that if Plaintiff required ...