United States District Court, W.D. Oklahoma
NICOIS M. SMITH, Plaintiff,
STATE OF OKLAHOMA, Defendants.
REPORT AND RECOMMENDATION
T. ERWIN, UNITED STATES MAGISTRATE JUDGE
Nicois M. Smith has filed a pleading tilted “Writ of
Habeous [sic] Corpus, ” which the Court has construed
as a Complaint filed under 42 U.S.C § 1983. (ECF No. 1);
see infra. 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(b)(1)(B)-(C). A review of the complaint has
been conducted pursuant to 28 U.S.C. § 1915A(a).
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 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), 42 U.S.C. § 1997e(c)(1).
DISMISSAL OF THE COMPLAINT
pleading, Mr. Smith states that “cruel and unusual
punishment” is occurring at the Oklahoma County
Detention Center where is he currently incarcerated. (ECF No.
1). According to Mr. Smith, Oklahoma County Detention Center
officers: (1) are “passing out sedation meds and
anistetics [sic] and or tranqulizers” to assault
Plaintiff and (2) have failed to investigate various assaults
which have occurred at the facility. (ECF No. 1). Although
Mr. Smith titles his pleading “Writ of Habeas Corpus,
” his allegations concern the conditions of his
confinement. Thus, the Court has construed the pleading as
one brought under 42 U.S.C. § 1983. See
Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir.
2012); (“'It is well-settled law that prisoners who
wish to challenge only the conditions of their confinement
... must do so through civil rights lawsuits ... not through
federal habeas proceedings.'”) (omissions in
original) (quoting Standifer v. Ledezma, 653 F.3d
1276, 1280 (10th Cir. 2011)).
sole Defendant, Mr. Smith names the State of Oklahoma.
See ECF No. 1:1. But the State of Oklahoma is not a
proper defendant in a § 1983 claim. “The ultimate
guarantee of the Eleventh Amendment is that nonconsenting
States may not be sued by private individuals in federal
court.” Bd. of Trustees of Univ. of Ala. v.
Garrett, 531 U.S. 356, 363 (2001) (citing Kimel v.
Fla. Bd. of Regents, 528 U.S. 62, 73 (2000)). An
exception exists when the State waives its Eleventh Amendment
immunity, see Alden v. Maine, 527 U.S. 706, 755
(1999), or if Congress abrogates it. See Garrett,
531 U.S. at 363. Neither exception applies here. The State of
Oklahoma has not waived its Eleventh Amendment immunity.
See Okla. Stat. tit. 51, § 152.1(B)
(“[I]t is not the intent of the state to waive any
rights under the Eleventh Amendment to the United States
Constitution.”). And, Congress did not abrogate the
States' Eleventh Amendment immunity through the enactment
of 42 U.S.C. § 1983. See Quern v. Jordan, 440
U.S. 332, 345 (1979). Thus, because the State of Oklahoma
should be dismissed and it is the only defendant in this
action, the Court should dismiss the Complaint in its
addition to the Complaint, Plaintiff has filed three other
motions: (1) “Motion to Compel Amongst the Ranks of
Oklahoma County Detention Center;” (2) “Motion
for Order to Gather Evidence;” and a “Motion of
Discovery.” (ECF Nos. 2, 3 & 6). With the
recommendation to dismiss the Complaint, the undersigned
would also recommend dismissal of these pleadings as moot.
RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Court should dismiss the Complaint in its entirety. Plaintiff
is hereby advised of his right to object to this Report and
Recommendation. See 28 U.S.C. § 636. Any
objection must be filed with the Clerk of the District Court
by March 25, 2019. See 28 U.S.C.
§ 636(b)(1); and Fed.R.Civ.P. 72(b)(2). Failure to make
timely objection to this Report and Recommendation waives the
right to appellate review of both factual and legal questions
contained herein. Casanova v. Ulibarri, 595 F.3d
1120, 1123 (10th Cir. 2010).