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Sherrod v. Allbaugh

United States District Court, W.D. Oklahoma

July 27, 2018

KENNETH WAYNE SHERROD, Plaintiff,
v.
JOE ALLBAUGH, et al., Defendants.

          REPORT AND RECOMMENDATION

          SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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 Complaint.

         I. SCREENING REQUIREMENT

         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); 1915(e)(2)(B).

         II. STANDARD OF REVIEW

         The 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).

         A 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).

         "[A] 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).

         Whether 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) (discussing Iqbal).

         III. PLAINTIFF'S COMPLAINT

         Mr. 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.

         In Claim One, Mr. Sherrod alleges a violation of the Eighth Amendment[1] 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. 1:3-4, 6).

         In 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).

         In 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 ...


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