United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
T. ERWIN UNITED STATES MAGISTRATE JUDGE.
Kenneth Sherrod, appearing pro se and in forma
pauperis, brings this action under 42 U.S.C. §
1983, alleging various violations. (ECF No. 1). United States
District Judge Scott L. Palk 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 Court should DISMISS the
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. Sherrod's 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. Sherrod 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)
Sherrod is a convicted state prisoner who is currently
incarcerated at Joseph Harp Correctional Center
("JHCC"). (ECF No. 1:11). As Defendants, Plaintiff
names six Department of Corrections (DOC) employees at two
DOC facilities-JHCC and North Fork Correctional Center
(NFCC)-along with the DOC Director, Joe Allbaugh. (ECF No.
3-4). The Complaint asserts three claims.
Claim One, Mr. Sherrod alleges a violation of the Eighth
Amendment because prison officials failed to protect
him from being beaten and severely injured by "UAB"
gang members on October 17, 2017, while he was incarcerated
at NFCC. (ECF No. 1:5, 10). For this claim, Mr. Sherrod seeks
liability against Defendants Allbaugh, NFCC warden, Tracy
McCollum, and NFCC case manager, Kay Kirby. (ECF No. 1:4-5).
Mr. Sherrod sues the Defendants in their official and
individual capacities and seeks monetary relief and
"safe prisons[, ] more prison officers, [and] more
prisons so gang members can be locked down." (ECF No.
Claim Two, Mr. Sherrod alleges a violation of Due Process
following a "level demotion" in the absence of any
disciplinary proceedings or finding of guilt related thereto.
(ECF No. 1:6, 11). For this claim, Plaintiff names Defendants
Allbaugh, JHCC warden Bear, and JHCC case managers Emily Shaw
and C. Caskey. (ECF No. 1:5). Mr. Sherrod sues each Defendant
in their official and individual capacities and seeks
restoration of his "levels" and credits which he
believes were wrongfully taken as a result of the demotion.
(ECF No. 1:3-4, 6).
Claim Three, Mr. Sherrod alleges a second violation of the
Eighth Amendment based on a "failure to protect."
(ECF No. 1:8, 11). For this claim, Plaintiff alleges that
prison officials at JHCC failed to protect him from another
inmate whom Plaintiff believes was responsible for the attack
on him at NFCC and who had also been transferred to JHCC.
(ECF No. 1:8). Despite precautions being taken, the two
inmates had contact, which resulted in Plaintiff being found
guilty of a disciplinary conviction with sanctions imposed
against him. (ECF No. 1:8). For this claim, Plaintiff names
Defendants Allbaugh, Bear, Shaw, Caskey, and JHCC unit
manager, V. Shields. (ECF No. 1:8). Mr. Sherrod sues the
Defendants in their ...