United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE
now a state inmate, appearing pro se and in forma pauperis,
filed a Complaint under 42 U.S.C. § 1983 against the
Oklahoma County Sheriff's Office and Officer Schaffer
alleging excessive force and sexual assault while Plaintiff
was a pre-trial detainee at the Oklahoma County Detention
Center. [Doc. No. 1]. United States District Judge David L.
Russell has referred the matter for initial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B) and (C). For
the reasons set forth below, it is recommended that, on
screening, the Court dismiss the claims against the Oklahoma
County Sheriff's Office with prejudice and the claims
against Officer Schaffer without prejudice.
to Plaintiff, he asked for a wheelchair transport to the
medical unit on April 25, 2017, but Officer Schaffer informed
fellow officers that Plaintiff refused to “comply with
being removed from [his] cell.” Compl. at 6. Plaintiff
alleges that at least five officers entered his cell, tackled
him to the floor, stripped him naked, restrained him, and
then carried him down the hall “by each
appendage.” Id. at 6-7. Plaintiff claims his
genitals were exposed and were injured during transport and
that officers “broke [his] right wrist.”
Id. at 7.
sues the Oklahoma County Sheriff's Office and Officer
Schaffer, in their official capacities only, for monetary
damages. Id. at 4, 7.
Plaintiff is proceeding in forma pauperis and has sued
government officials, the Court has a duty to screen the
Complaint and dismiss any portion that is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant immune
from such relief. See 28 U.S.C. §§
1915A(a), (b), 1915(e)(2)(B).
a Fed.R.Civ.P. 12(b)(6) review, the Court must accept
Plaintiff's allegations as true and construe them, and
any reasonable inferences to be drawn from them, in the light
most favorable to him. See Mink v. Knox, 613 F.3d
995, 1000 (10th Cir. 2010). “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); see
also Gee v. Pacheco, 627 F.3d 1178, 1184 (10th Cir.
Court should dismiss Plaintiff's claims against the
Oklahoma County Sheriff's Office with prejudice, and
should dismiss his claims against Officer Schaffer without
Defendant Oklahoma County Sheriff's Office
Court should first dismiss Plaintiff's claims against the
Oklahoma County Sheriff's Office, because this Defendant
is not a suable entity under § 1983. See, e.g.,
Moore v. Diggins, 633 Fed.Appx. 672, 677 (10th Cir.
2015) (holding the Denver Sheriff's Department “is
not a suable entity under § 1983” and citing
Martinez v. Winner, 771 F.2d 424, 444 (10th Cir.
1985) as “dismissing § 1983 claims against the
City of Denver Police Department because it was not a
separate suable entity”); Lindsey v. Thomson,
275 Fed.Appx. 744, 747 (10th Cir. 2007) (affirming dismissal
of § 1983 claims against police departments and county
sheriff's department, noting defendants were “not
legally suable entities”). As such, Plaintiff's
claims against the Oklahoma County Sheriff's Office
should be dismissed with prejudice on screening. See
Kauble v. Bd. of Cnty. Comm'rs of Cnty of Oklahoma ex rel
Oklahoma Cnty Sheriff's Office, No. CIV-17-729-D,
2018 WL 912285, at *3 (W.D. Okla. Feb. 15, 2018) (unpublished
district court order) (dismissing the Oklahoma County
Sheriff's Office “[b]ecause the Oklahoma County
Sheriff's Office does not have a legal identity separate
from that of Oklahoma County, it is not a suable entity and
not a proper defendant in a civil rights action”).