United States District Court, N.D. Oklahoma
TONY L. STIERWALT, Plaintiff,
OSAGE COUNTY JAIL, TURN KEY MEDICAL SERVICES, ARCADIA MEDICAL SERVICES, and GIL E. DuPONT, Defendants.
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE
a 42 U.S.C. § 1983 civil rights action. Plaintiff Tony
Stierwalt commenced this action on August 24, 2017, by filing
a pro se complaint (Dkt. # 1) and a motion to
proceed in forma pauperis (Dkt. # 2). At that time,
the plaintiff was incarcerated in the Osage County Jail,
Pawhuska, Oklahoma. See Dkt. # 1. By Order filed
September 5, 2017 (Dkt. # 3), the Court denied the
plaintiff's motion to proceed in forma pauperis,
identified several deficiencies in the plaintiff's
complaint, advised the plaintiff that his complaint was
subject to being dismissed for failure to state a claim, and
afforded the plaintiff the opportunity to file (1) an amended
complaint and (2) an amended motion to proceed in forma
pauperis. On September 19, 2017, Plaintiff filed an
amended complaint (Dkt. # 5) and an amended motion to proceed
in forma pauperis (Dkt. # 6). The Court finds that
the amended motion to proceed in forma pauperis
shall be granted. However, the Court finds that the amended
complaint fails to state a claim upon which relief may be
granted, that permitting the plaintiff any further
opportunity to amend would be futile, and that the amended
complaint shall therefore be dismissed without prejudice.
Motion to proceed in forma pauperis
reviewing the plaintiff's amended motion to proceed
in forma pauperis, the Court finds that the
plaintiff is without sufficient funds to prepay the $350
filing fee required to commence this action. Accordingly, the
Court authorizes the plaintiff to proceed without prepayment
of the filing fee, and his motion to proceed in forma
pauperis shall be granted. See 28 U.S.C. §
1915(a). While the record reflects that the plaintiff is no
longer incarcerated, see Dkt. ## 7, 8, the plaintiff
nonetheless remains obligated to pay the $350 filing fee when
he is able. See Brown v. Eppler, 725 F.3d 1221, 1231
(10th Cir. 2013) (“[A]ll § 1915(a) does for any
litigant is excuse the pre-payment of fees.
Unsuccessful litigants are liable for fees and costs and must
pay when they are able.” (quoting Robbins v.
Switzer, 104 F.3d 895, 898 (7th Cir. 1997))).
Amended complaint shall be dismissed
the Prison Litigation Reform Act (PLRA), federal 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. See 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. See id. §§ 1915A(b),
1915(e)(2)(B). The court applies the same dismissal standard
under the PLRA as it uses in reviewing a Fed.R.Civ.P.
12(b)(6) motion to dismiss for failure to state a claim.
Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007).
Under this standard, a court must accept all the well-pleaded
allegations of the complaint as true, even if doubtful in
fact, and determine whether the complaint contains
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007). But “when
the allegations in a complaint, however true, could not raise
a [plausible] claim of entitlement to relief, ” the
complaint should be dismissed. Id. at 558.
when a plaintiff appears pro se, the court must
liberally construe the complaint. Kay, 500 F.3d at
1218. This means “that if a court can reasonably read
the pleadings to state a valid claim on which the plaintiff
could prevail, it should do so.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Nonetheless, a pro se plaintiff bears “the
burden of alleging sufficient facts on which a recognized
legal claim could be based.” Id. And 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).
Amended complaint fails to state a claim upon which relief
may be granted
plaintiff brings this action under § 1983. “The
two elements of a Section 1983 claim are (1) deprivation of a
federally protected right by (2) an actor acting under color
of state law.” Schaffer v. Salt Lake City
Corp., 814 F.3d 1151, 1155 (10th Cir. 2016). Even with
the benefit of liberal construction, the plaintiff's
amended complaint fails to state a plausible § 1983
prior Order directing the plaintiff to file an amended
complaint, this Court identified several deficiencies in the
plaintiff's original complaint and provided specific
guidance as to how the plaintiff could cure those
deficiencies. See Dkt. # 3. First, the Court advised
the plaintiff that he “must identify all the defendants
in the caption of the amended complaint” and that those
defendants “must be the same as those listed in the
body of the amended complaint.” Id. at 3.
Next, the Court advised the plaintiff that he “must
state specifically when and how each named defendant
allegedly violated his constitutional rights.”
Id. The Court expressly advised the plaintiff that
(1) the Osage County Jail is not a proper defendant, (2) he
failed to set forth sufficient facts supporting that
defendant Gil DuPont personally participated in any alleged
violations, and (3) he failed to set forth sufficient facts
supporting the existence of a custom or policy followed by
either Arcadia Medical Services or Turnkey Medical Services
that could be causally linked to his alleged injuries.
Id. at 4-5. Finally, the Court explained that the
plaintiff's “amended complaint must be complete in
itself, including exhibits, and may not reference or attempt
to incorporate material from the original complaint.”
Id. at 4.
the specificity of the Court's prior Order, the
plaintiff's amended complaint suffers from many of the
same deficiencies as the original complaint. For example, the
plaintiff names three defendants in the caption of his
amended complaint: Osage County Jail, Turnkey Medical
Services, and Arcadia Medical Services. Dkt. # 5 at 1. But,
in the body of his amended complaint the plaintiff identifies
three Osage County Jail employees: Sheriff Eddie Virden,
Captain Charlie Cartwright, and Lieutenant Gil DuPont.
Id.at 2. The amended complaint therefore not only
fails to comply with Fed.R.Civ.P. 10(a), which requires the
plaintiff to name all parties in the title of the complaint,
but also fails to comply with this Court's instructions
as to how to comply with that procedural rule. And, once
again, the plaintiff names the Osage County Jail as a
defendant despite the Court's advisement that the Jail is
not a suable entity.
amended complaint also fails to clearly identify the
plaintiff's alleged civil rights violations and is nearly
devoid of factual support for any violations. In describing
the nature of his case, the plaintiff alleges that he is an
insulin-dependent diabetic, that he has not been taken care
of, that he receives the same diet as everyone else, that he
does not receive adequate exercise or sunlight, and that
someone (presumably one or more of the defendants) is
“[c]onstantly running out of test strips, syringes,
lancets, etc.” Id. at 2. In the space provided
for identification of Count I, the plaintiff directs the
Court to see his “original paperwork” and
supporting facts and lists the above-named Osage County Jail
Employees without making any effort to explain when or how
any of the defendants personally participated in any alleged
civil rights violations. Id. Likewise, in Count II,
the plaintiff directs this court to his original complaint
and states that there is “[n]o change” in his
supporting facts. Id. at 2-3. Finally, in Count III,
the plaintiff alleges that defendant Arcadia Medical Services
ran out of syringes on September 12, 2017, and again refers
the Court to his “original paperwork.”
Id. at 3. Thus, the plaintiff not only failed to
correct the factual deficiencies that this Court identified
in its prior Order, but also attempted to correct those
deficiencies by impermissibly incorporating portions of his
deficient original complaint in violation of LCvR. 9.2(c).
these reasons, the Court finds that the amended complaint
fails to state a claim upon which relief may be granted and
that it would be futile to allow the plaintiff any further
opportunity to amend. As a ...