United States District Court, N.D. Oklahoma
OPINION AND ORDER
TERENCE KERN UNITED STATES DISTRICT JUDGE.
15, 2017, Plaintiff, a state inmate appearing pro se, filed a
42 U.S.C. § 1983 civil rights complaint (Dkt. # 1) and a
motion to proceed in forma pauperis (Dkt. # 2). The Court
granted Plaintiff's motion to proceed in forma pauperis
(Dkt. # 4), and Plaintiff paid an initial partial filing fee
on June 19, 2017 (Dkt. # 6). By Order filed September 20,
2017 (Dkt. # 8), the Court identified several deficiencies in
Plaintiff's complaint and directed Plaintiff to file an
amended complaint by October 20, 2017. Plaintiff timely filed
an amended complaint (Dkt. # 11). For the following reasons,
the Court finds that the 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 shall be dismissed
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).
generally alleges that “[o]n May 19, 2015 [his] rights
were violated by the individuals named as defendants”
and identifies two specific claims. Dkt. # 11 at 2. In Count
I of his amended complaint, Plaintiff alleges that while he
was incarcerated in the Tulsa County Jail, Sergeant Chris
Straight, Sergeant Jerry Barlow and Detention Officer Sean
Hirsch violated his Fourteenth Amendment due process rights
by falsely accusing him of theft, placing him in segregation
without notice and a disciplinary hearing, and harassing him
to confess to the alleged theft. Id. at 2, 7-9,
11-12; Dkt. # 12. Plaintiff further alleges that, as a result
of the defendants' false allegations against him, he was
branded a thief and was assaulted by two inmates after his
release from segregation. Id. at 8, 12. He alleges
that he suffered physical injuries from the assault and
depression from being falsely accused and placed in
segregation where he had limited privileges. Id. at
Count II of his amended complaint, Plaintiff alleges that
defendant Kathleen Wolfe committed slander when she falsely
accused him of being rude and of not needing a breathing
treatment for an asthma attack. Id. at 2-3, 5-6, 12.
He further alleges that Wolfe's failure to treat his
asthma attack forced him to use another inmate's inhaler
and caused him physical pain and a “worrisome
mind.” Id. at 6, 12.
seeks the following relief: “$1, 000, 000.00 from Sgt.
Chris Straight; $1, 000, 000.00 from Sgt. Jerry Barlow; $250,
000.00 from Kathleen Wolfe; $250, 000.00 from D/O [Hirsch];
$2, 000, 000.00 for compensatory damages.” Id.
Count I fails to state a claim upon which relief may be
Count I, Plaintiff claims that defendants Straight, Barlow
and Hirsch violated his Fourteenth Amendment due process
rights by falsely accusing him of theft, placing him in
segregation without any evidence and without written notice
or a disciplinary hearing, and harassing him to make a false
confession. Id. at 2, 7-9, 11-12.
construed, Plaintiff appears to allege a violation of his
right to procedural due process. Under the Fourteenth
Amendment, a state must provide procedural due process before
it deprives a citizen of property or liberty. Brown v.
Eppler, 725 F.3d 1221, 1225 (10th Cir. 2013). But
“[p]rocedural due process guarantees apply only to
those liberty and property interests encompassed by the
fourteenth amendment.” Id. (quoting
Jacobs, Visconsi & Jacobs, Co. v. City of
Lawrence, 927 F.2d 1111, 1115 (10th Cir. 1991)). Thus,
to state a plausible procedural due process claim, Plaintiff
must allege that he was deprived of a constitutionally
protected liberty interest without procedural due process.
liberal pleading requirements and his pro se status,
plaintiff's task is not an easy one. In the prison
context, “not every deprivation of liberty at the hands
of prison officials has constitutional dimension. This is so
because incarcerated persons retain only a ‘narrow
range of protected liberty interests.'” Rezaq
v. Nalley, 677 F.3d 1001, 1011 (10th Cir. 2012) (quoting
Abbott v. McCotter, 13 F.3d 1439, 1442 (10th Cir.
1994)). Here, Plaintiff seems to allege that he was deprived,
without due process, of his liberty interest in remaining in
general population rather than being placed in segregation.
See Dkt. # 11 at 7-9, 11-12. Significantly,
“the Supreme Court has recognized that ‘the
Constitution itself does not give rise to a liberty interest
in avoiding transfer to more adverse conditions of
confinement.'” Id. (quoting Wilkinson
v. Austin, 545 U.S. 209, 221 (2005)). Instead,
“[a] protected liberty interest only arises from a
transfer to harsher conditions of confinement when an inmate
faces an ‘“atypical and significant hardship . .
. in relation to the ordinary incidents of prison
life.”'” Id. (quoting
Wilkinson, 545 U.S. at 223). Determining whether a
particular hardship is atypical and significant is not an
exact science. But the Tenth Circuit has identified
“four potentially relevant, nondispositive
factors” to guide the analysis: ...