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Barnett v. Allbaugh

United States District Court, E.D. Oklahoma

March 29, 2018

CALVIN E. BARNETT, Plaintiff,
v.
JOE M. ALLBAUGH, et al., Defendants.

          OPINION AND ORDER

          Ronald A. White United States District Judge.

         This action is before the Court on Defendants Joe M. Allbaugh, Terry Royal, and Jessica Smith's motion to dismiss Plaintiff's civil rights complaint (Dkt. 5). Plaintiff, a pro se prisoner in the custody of the Oklahoma Department of Corrections (“DOC”) is incarcerated at Oklahoma State Penitentiary (“OSP”) in McAlester, Oklahoma. He brings this action under the authority of 42 U.S.C. § 1983, seeking relief for alleged constitutional violations during his incarceration at OSP. The defendants are Joe M. Allbaugh, DOC Director; Terry Royal, OSP Warden; Jessica Smith, OSP Law Library Supervisor; and Robert Raymer, McAlester Postmaster.[1]

         This action was filed in the District Court of Pittsburg County where Plaintiff alleged Defendant Smith interfered with his constitutional right of access to the courts. Despite a lack of service, on June 20, 2017, the state district court ordered Defendants to answer Plaintiff's petition by July 7, 2017. The action was removed to federal court on the deadline date. Plaintiff alleges his following constitutional rights, privileges, or immunities have been violated:

Plaintiff has been Denied; Threaten; Deprived; Under the Color of Law; of the Statue; Ordinance; Regulation; and Custom of the Bill of Rights; of his Life; Liberty; as the “First;” “Fifth;” “Eighth;” and the “Fourteenth Amendment Rights;” of the United States Constitution; By the Defendants.

(Dkt. 2-2 at 2) (errors in original). He sets forth the following facts to support the above allegations:

Defendants are Not in Title to Qualified Immunity; Qualified Immunity Cannot be based on a Public Officials Subjective Good faith. Rather Qualified Immunity Turn's On the Objectie Reasonablenes of an Official's Conduct ...

Id. (errors in original).

         Defendants have moved for dismissal under Fed.R.Civ.P. 12(b)(6). In assessing a motion to dismiss, the Court must accept the factual allegations as true and consider them in the light most favorable to Plaintiff. Tomlinson v. El Paso Corp., 653 F.3d 1281, 1285-86 (10th Cir. 2011) (citing Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)), cert. denied, 565 U.S. 1201 (2012). A request for dismissal pursuant to Rule 12(b)(6) requires the Court to 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, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Although the Court is required to exercise a liberal interpretation of Plaintiff's pleadings, Haines v. Kerner, 404 U.S. 519 (1972), it need not assume the role of advocate for Plaintiff, and he must present more than conclusory allegations to survive a motion to dismiss for failure to state a claim, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). “[C]onclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Id. (citing cases). “[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.” Id. With these standards in mind, the Court turns to the merits of Defendants' motion.

         Plaintiff alleges in his complaint that Defendant Jessica Smith delayed his “legal copies to the courts.” (Dkt. 2-2 at 3). As far as the other DOC defendants, Plaintiff claims Director Allbaugh “took over as the New Director of D.O.C. so therefore, he is responsible for any Good; or Bad that take place in the Prisons of Oklahoma State Penitentiary.” Id. at 1. Plaintiff alleges Warden Royal “took over as the New Warden of D.O.C. so therefore he is responsible for the Care; Health; and Safety; of all Offenders, and Plaintiff, at the Oklahoma State Penitentiary.” Id. at 2.

Plaintiff presents the following allegations against Postmaster Robert Raymer:
The Defendants Robert Raymer, had No Means of Protecting Plaintiff's State and Federal Created Rights.” The Defendant Knew of the Unsound Practice that was Unconstitutional; and failed too Protect Plaintiff's Basic Fundamental Requirement of Due Process. Defendant was Negligent; and Bias on Part of Delaying Plaintiff Property from reaching it's Destination. Plaintiff has been Deprived of Rights; Privileges; and Immunities secured to him by the United States Constitution; within the State of Oklahoma; which amounted to Arbitrary intrusion by the Said defendant Conduct, and breach of Liberty; Life; and Property; Without Due Process of Law.

Id. at 3 (errors in original).

         It is undisputed that access to the courts and the means to effectuate such access are fundamental constitutional rights. Bounds v. Smith, 430 U.S. 817, 828 (1977). The Constitution, however, requires only that reasonable access to the courts be permitted. Johnson v. Avery, 393 U.S. 483, 490 (1969); Ford v. Schmidt, 577 F.2d 408, 410 (7th Cir. 1978), cert. denied, 439 U.S. 870 (1978). To have standing to raise a claim of denial of access to the courts, a prisoner must demonstrate actual injury. Lewis v. Casey, 518 U.S. 343, 350-51 (1996). “[H]e ...


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