United States District Court, E.D. Oklahoma
FORREST L. ZUDELL, Plaintiff,
ARCHIE VAN HORN, et al., Defendants.
OPINION AND ORDER
A. White United Stales District Judge Eastern District of
a pro se state prisoner who is incarcerated at Clara Waters
Community Corrections Center in Oklahoma City, Oklahoma,
filed this civil rights action pursuant to 42 U.S.C. §
1983. He is seeking relief for alleged constitutional
violations related to his arrest and criminal prosecution in
Pontotoc County, Oklahoma. The defendants are Archie Van
Horn, the victim of Plaintiff's crime; Jason Christopher,
Adam Banner, and Ryan Coventon, Plaintiff's defense
attorneys; Chris Crow (aka Cris Crow), Chickasaw Lighthorse
Police Officer; Matthew Welde (aka Matthew Weide), former
Pontotoc County Assistant District Attorney; and the
Chickasaw Lighthorse Police Department in Ada, Oklahoma.
Defendants Christopher, Crow, Chickasaw Lighthorse Police
Department, Welde, Banner, and Coventon have filed motions to
dismiss (Dkts. 28, 30, 31, 33, 56), and Plaintiff has filed
responses to the motions by Defendants Christopher, Banner,
and Coventon (Dkts. 36, 47).
prisoner files a civil rights complaint seeking relief from a
governmental entity or an officer of employee of a
[T]he court shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the
(1) is frivolous, malicious, or fails to state a claim upon
which relief may be granted; or
seeks monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915A (a)-(b). See
also 28 U.S.C. § 1915(e)(2)(B) (dismissal standards
for prisoners proceeding in forma pauperis).
pleading standard for all civil actions was articulated in
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
See Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). To
avoid dismissal for failure to state a claim under
Fed.R.Civ.P. 12(b)(6), a complaint must present factual
allegations, assumed to be true, that “raise a right to
relief above the speculative level.” Twombly,
550 U.S. at 555. The complaint must contain “enough
facts to state a claim to relief that is plausible on its
face.” Id. at 570. A court must accept all the
well-pleaded allegations of the complaint as true, even if
doubtful in fact, and must construe the allegations in the
light most favorable to the plaintiff. Id. at
555-56. “So, when the allegations in a complaint,
however true, could not raise a claim of entitlement to
relief, ” the cause of action should be dismissed.
Id. at 558. The Court applies the same standard of
review for dismissals under 28 U.S.C. §
1915(e)(2)(B)(ii) that is employed for Fed.R.Civ.P. 12(b)(6)
motions to dismiss for failure to state a claim. Kay v.
Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007).
se plaintiff's complaint must be broadly construed under
this standard. Erickson v. Pardus, 551 U.S. 89, 94
(2007); Haines v. Kerner, 404 U.S. 519, 520 (1972).
The generous construction to be given to the pro se
litigant's allegations, however, “does not relieve
the plaintiff of the burden of alleging sufficient facts on
which a recognized legal claim could be based.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). Notwithstanding a pro se plaintiff's various
mistakes or misunderstandings of legal doctrines or
procedural requirements, “if a court can reasonably
read the pleadings to state a valid claim on which the
plaintiff could prevail, it should do so . . . .”
Id. A reviewing court need not accept “mere
conclusions characterizing pleaded facts.” Bryson
v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990).
“While a complaint attacked by a Rule 12(b)(6) motion
to dismiss does not need detailed factual allegations, 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 will not do.” Twombly, 550
U.S. at 555 (quotations and citations omitted). 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).
Archie Van Horn
alleges that in October 2012, he was arrested in Ada,
Oklahoma, by Defendant Chris Crow of the Chickasaw Lighthorse
Police Department (“the Department”). Upon
learning of Plaintiff's arrest, Defendant Archie Van Horn
reported to the Department that on April 18, 2012, Van Horn
had entered into an agreement with Plaintiff to install a
storm shelter at Van Horn's house. Van Horn claimed he
paid Plaintiff $2, 000 in cash, approximately half of the
total cost of the shelter, but no work was done and Plaintiff
only gave excuses for his failure to perform the work.
maintains Van Horn actually entered into an agreement with
Plaintiff's employee, Robert Morgan, and Morgan received
the cash from Van Horn. Plaintiff further asserts Officer
Crow wrote a “bogus” police report based on Van
Horn's allegations, instead of investigating the case. As
a result of Van Horn's complaint, Plaintiff was arrested
for Obtaining Money or Merchandise under False Pretenses.
(Dkt. 1 at 5, 10, 12-13, 15).
1983 provides a federal civil remedy for the
‘deprivation of any rights, privileges, or immunities
secured by the Constitution' by any person acting under
color of state law.” McCarty v. Gilchrist, 646
F.3d 1281, 1285 (10th Cir. 2011) (quoting 42 U.S.C. §
1983). Defendant Van Horn, however, is a private individual,
and Plaintiff has not pleaded sufficient facts to allow the
Court to reasonably infer that Van Horn was acting under
color of state law during the incident at issue. See Pino
v. Higgs, 75 F.3d 1461, 1465 (10th Cir. 1996) (“In
order to hold a private individual liable under § 1983,
it must be shown that the private person was jointly engaged
with state officials in the challenged action, or has
obtained significant aid from state officials, or that the
private individual's conduct is in some other way
chargeable to the State.”) (internal quotation marks
and brackets omitted). The Court, therefore, finds Plaintiff
has failed to state a claim against Defendant Van Horn.
Jason Christopher, Adam ...