United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
T. ERWIN UNITED STATES MAGISTRATE JUDGE.
Christopher Harms, appearing pro se and in forma
pauperis, brings this action under 42 U.S.C. §
1983, alleging a violation of the First Amendment and his
right to Due Process. (ECF No. 1). Chief U.S. District Judge
Joe Heaton has referred this matter to the undersigned
magistrate judge for initial proceedings consistent with 28
U.S.C. § 636(b)(1)(B)-(C). A review of the complaint has
been conducted pursuant to 28 U.S.C. § 1915A(a) and 28
U.S.C. § 1915(e)(2)(B). Based on that review, the
undersigned recommends that the Court
DISMISS the Complaint.
Court must review each complaint in which a prisoner seeks
redress against a governmental entity, officer, or employee
and each case in which a plaintiff proceeds in forma
pauperis. 28 U.S.C. § 1915A(a); 28 U.S.C. §
1915(e)(2). The Court is required to dismiss the complaint or
any portion of the complaint that is frivolous or malicious,
fails to state a claim on which relief may be granted, or
seeks monetary relief against a defendant who is immune from
such relief. See 28 U.S.C. §§ 1915A(b);
STANDARD OF REVIEW
Court must accept Mr. Harms' allegations as true and
construe them, and any reasonable inferences to be drawn from
them, in the light most favorable to Plaintiff. See Kay
v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Since
Mr. Harms is proceeding pro se, his complaint must
be construed liberally. See id. at 1218. The Court
“review[s] the complaint for plausibility; that is, to
determine whether the complaint includes enough facts to
state a claim to relief that is plausible on its face.”
Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009)
(quotations and citation omitted). “Plausible” in
this context does not mean “likely to be true, ”
but rather refers “to the scope of the allegations in a
complaint: if they are so general that they encompass a wide
swath of conduct, ” then the plaintiff has not
“nudged (his) claims across the line from conceivable
to plausible.” Bell Atlantic v. Twombly, 550
U.S. 544, 570 (2007). The plausibility requirement
“serves not only to weed out claims that do not (in the
absence of additional allegations) have a reasonable prospect
of success, but also to inform the defendants of the actual
grounds of the claim against them.” Robbins v.
Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008).
complaint fails to state such a claim when it lacks factual
allegations sufficient “to raise a right to relief
above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Twombly, 550 U.S. at 555 (footnote and
citation omitted). Bare legal conclusions in a complaint are
not assumed to be true; legal conclusions “must be
supported by factual allegations” to state a claim upon
which relief may be granted. Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009).
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.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). “[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.” Twombly, 550 U.S. at 555. As a
result, courts “look to the specific allegations in the
complaint to determine whether they plausibly support a legal
claim for relief.” Kay, 500 F.3d at 1218
(quotation marks and citations omitted).
a complaint contains sufficient facts to avoid dismissal is
context-specific and is determined through a court's
application of “judicial experience and common
sense.” Iqbal, 556 U.S. at 679; see also
Gee v. Pacheco, 627 F.3d 1178, 1184-85 (10th Cir. 2010)
PLAINTIFF'S ALLEGATIONS/NAMED DEFENDANTS
Harms alleges that while incarcerated in Cimarron
Correctional Facility (CCF) he was demoted from “level
four” to “level one” for a rule violation
he did not commit.Mr. Harms alleges that the reduction in
classification levels affected the rate at which he could
earn credits, which would ultimately shorten his sentence.
Accordingly, Mr. Harms states that he was entitled to certain
due process protections, which he was denied. (ECF No. 1:5,
OFFICIAL CAPACITY CLAIMS
Byrd and Hilligoss are both employees of CCF, a private
prison owned and operated by Corrections Corporation of
America (CCA). Although Mr. Harms raised claims against these
Defendants in their official capacities, such claims cannot
stand. As employees of a private prison, Defendants Byrd and
Hilligoss are not state officials, and official capacity
claims cannot be asserted against them. See Jones v.
Barry, 33 Fed.Appx. 967, 971, n.5 (10th Cir. 2002)
(“the CCA defendants are not state actors, and they do
not have an “official capacity.”); Alamiin v.
Patton, No. CIV-13-1001-F, 2016 WL 7217857, at *6 (W.D.
Okla. Dec. 13, 2016) (“As employees of a private
prison, they are not state officials, and official capacity
claims cannot be asserted against them.”). Thus, the
Court should dismiss the claims against Defendants Byrd and
Hilligoss with prejudice. See Miskam v. Sherrod, No.
CIV-14-0646-HE, 2015 WL 4717105, at *3 (W.D. Okla. Aug. 7,
2015) (dismissing official capacity claims against private
prison employees seeking monetary damages with prejudice).