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McGirt v. Pulley

United States District Court, W.D. Oklahoma

March 5, 2019

DAMIEN McGIRT, Plaintiff,
v.
TERRY PULLEY, et al., Defendants.

          REPORT AND RECOMMENDATION

          SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Damien McGirt, a pre-trial detainee appearing pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983, alleging a violation of the First Amendment. (ECF No. 1). United States District Judge Stephen P. Friot has 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: (1) dismiss, with prejudice, the claims against the Jackson County Law Enforcement Center; (2) dismiss, without prejudice, the official-capacity claims against Defendants Bridges and Pulley; (3) dismiss, without prejudice, the individual-capacity claim against Defendant Bridges for violation of the First Amendment; and (4) conclude that Plaintiff has stated an individual-capacity claim against Defendant Pulley, for violation of the First Amendment.

         I. SCREENING REQUIREMENT

         The Court must review each complaint in which a prisoner seeks redress against a governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). The Court likewise must review each case brought by a prisoner with respect to prison conditions and each case in which a plaintiff proceeds in forma pauperis. 42 U.S.C. § 1997e(c)(1); 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); 42 U.S.C. § 1997e(c)(1).

         II. STANDARD OF 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 Plaintiff. See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Since Plaintiff 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).

         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).” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (footnote and citation omitted). Bare legal conclusions in a complaint, however, 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); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (noting that although courts construe pro se pleadings liberally, courts “will not supply additional factual allegations to round out a plaintiff's complaint”). 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 CLAIMS AND NAMED DEFENDANTS

         Mr. McGirt alleges that officials at the Jackson County Law Enforcement Center (JCLEC) violated his First Amendment right to Freedom of Religion by denying him “a religious non pork tray” in violation of his Islamic beliefs. (ECF No. 1:6-8).[1] Plaintiff names three Defendants responsible for the alleged violation: (1) the JCLEC, (2) JCLEC kitchen staff member Terry Pulley, and (3) JCLEC Jail Administrator Ulysses Bridges, III. (ECF No. 1:1, 4, 6, 7). Mr. McGirt sues Defendants Bridges and Pulley in their official and individual capacities. (ECF No. 1:4).

         IV. CLAIM AGAINST THE JCLEC

         Section 1983 creates a private right of action for redressing the violation of federal law by those acting under color of state law. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 82 (1984). It “provides that ‘every person' who acts under color of state law to deprive another of constitutional rights ‘shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.'” Lawrence v. Reed, 406 F.3d 1224, 1229 (10th Cir. 2005) (quoting 42 U.S.C. § 1983) (alterations omitted).

         Whether an entity is a “person” subject to suit under § 1983 is a matter of statutory interpretation. See Lippoldt v. Cole, 468 F.3d 1204, 1212 (10th Cir. 2006). Plaintiff has sued the JCLEC. (ECF No. 1:1, 6, 7). However, the Tenth Circuit Court of Appeals has stated that a county detention facility “is not a person or legally created entity capable of being sued.” Aston v. Cunningham, 2000 WL 796086 at *4 n. 3 (10th Cir. 2000); see also Ketchum v. Albuquerque Police Dep't, 1992 WL 51481, at *2 (10th Cir. 1992) (holding that a municipal police department is not a suable entity because it lacks a legal identity apart from the municipality); see also Lindsey v. Thomson, 275 Fed.Appx. 744, 747 (10th Cir. 2007) (unpublished op.) (affirming dismissal of § 1983 claims against police departments and county sheriff's department, entities with no apparent legal existence).

         Accordingly, the Court should dismiss Plaintiff's § 1983 action against Defendant JCLEC for failure to state a claim upon which relief may be granted. The dismissal should be with prejudice ...


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