United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
CHARLES B. GOODWIN, UNITED STATES MAGISTRATE JUDGE.
Keith L'Shawn Smith, appearing pro se and proceeding
in forma pauperis, brings this action pursuant to 42
U.S.C. § 1983, alleging excessive force in connection
with an encounter with two Oklahoma City Police Department
("OCPD") officers. See Compl. (Doc. No.
1). United States District Judge David L. Russell has
referred this matter to the undersigned Magistrate Judge for
initial proceedings consistent with 28 U.S.C. § 636.
Upon review of Plaintiff's Complaint, the undersigned
recommends that its claims be dismissed without prejudice to
Standard of Review and the Court's Screening
Court is obligated to conduct an initial review of Plaintiffs
Complaint to identify its cognizable claims and to dismiss
the pleading, or any portion thereof, that is frivolous,
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is
immune from such relief. See 28 U.S.C. §§
1915(e)(2)(B), 1915A(b)(1); Doc. No. 16. A pro se
litigant's complaint must be liberally construed.
Estelle v. Gamble, 429 U.S. 97, 106 (1976). The
broad construction accorded to the pro se litigant's
allegations does not, however, "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).
complaint fails to state a claim upon which relief may be
granted 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)." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (footnote and citation
omitted). In evaluating whether a plaintiff has stated a
valid claim, the Court "accept[s] as true all
well-pleaded factual allegations in the complaint and view[s]
them in the light most favorable to the plaintiff."
Burnett v. Mortg. Elec. Registration Sys., Inc., 706
F.3d 1231, 1235 (10th Cir. 2013). Bare legal conclusions in a
complaint are not entitled to the assumption of truth;
"they must be supported by factual allegations" to
state a claim for relief. Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009).
asserts that on August 12th,  he was arrested by two OCPD
officers at a mall in Oklahoma City for trespassing.
See Compl. at 6. According to Plaintiff, the
officers failed to allow him to "peaceably comply"
with their demands before pepper-spraying him and applying
pressure to his head. Id. Plaintiff alleges that the
officers "heaved" him headfirst into their patrol
vehicle and "smashed" his teeth into the door jam,
breaking two teeth in the process. Id. at 7.
Plaintiff asserts that he "sustained severe physical
damage, primarily dental damage, and emotional damage"
and that he "was not charged with any crime as a result
of this matter." Id.
Plaintiff's allegations would likely be sufficient to
state a claim against the two officers who were involved in
the incident, Plaintiff sues only OCPD in this lawsuit.
See Compl. at 1, 6. Police departments, however,
"are not legally suable entities" on § 1983
claims. Lindsey v. Thomson, 275 Fed.Appx. 744, 747
(10th Cir. 2007); accord Ketchum v. Albuquerque Police
Dep't, No. 91-2200, 1992 WL 51481, at *2(10thCir.
Mar. 12, 1992) ("Police departments ... are not suable
entities under § 1983, because they lack legal
identities apart from the municipality."). Accordingly,
Plaintiffs claims against Defendant OCPD should be dismissed
for failure to state a claim upon which relief may be
granted. See, e.g., Wright v. Okla. Cty. Sheriffs
Office, No. CIV-18-165-R, R. & R. of Apr. 24, 2018,
adopted, Order of June 8, 2018; Martinez v.
Okla. City Police Dep't, No. CIV-16-1351-M, 2017 WL
1283695, at *2 (W.D. Okla. Jan. 6, 2017) (R. & R.),
adopted, 2017 WL 1283908 (W.D. Okla. Apr. 5, 2017).
the undersigned recommends that Plaintiff's Complaint
(Doc. No. 1) be dismissed without prejudice for failure to
state a claim upon which relief may be granted. See
15 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).
OF RIGHT TO OBJECT
is advised of his right to file an objection to this Report
and Recommendation with the Clerk of this Court by July 19,
2018, in accordance with 28 U.S.C. § 636 and Federal
Rule of Civil Procedure 72. Plaintiff is further advised that
failure to timely object to this Report and Recommendation
waives the right to appellate review of both factual and
legal issues contained herein. See Moore v United
States, 950 F.2d 656, 659 (10th Cir. 1991).
Report and Recommendation disposes of all issues referred to
the undersigned ...