United States District Court, E.D. Oklahoma
CALVIN E. BARNETT, Plaintiff,
JOE M. ALLBAUGH, et al., Defendants.
OPINION AND ORDER
A. White United States District Judge.
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,
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
“Eighth;” and the “Fourteenth Amendment
Rights;” of the United States Constitution; By the
(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).
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).
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'
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).
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).