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Reese v. Denton

United States District Court, W.D. Oklahoma

March 13, 2019

RICKY REESE, Plaintiff,
v.
ERIKA DENTON, et al., Defendants.

          REPORT AND RECOMMENDATION

          SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE

         Plaintiff Mr. Ricky Reese, an Oklahoma prisoner appearing pro se and in forma pauperis, brings this civil rights action pursuant to 42 U.S.C. §§ 1983, 1985 alleging violations of his constitutional rights. United States District Judge Timothy DeGiusti referred this matter for preliminary proceedings pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). The Court has reviewed the Amended Complaint (ECF No. 18) as required by 28 U.S.C. §§ 1915, 1915A, and based on that review, the undersigned recommends this case be DISMISSED on initial review. The dismissal should count as a “prior occasion” or strike pursuant to 28 U.S.C. § 1915(g).

         I. SCREENING REQUIREMENT

         Title 28 of the United States Code, § 1915A, imposes a mandatory obligation on district courts to screen “before docketing, if feasible, or in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915(A)(a). The Court must also review each case brought by a prisoner with respect to prison conditions and each case in which a prisoner proceeds in forma pauperis. 42 U.S.C. § 1997e(c)(1); § 1915(e)(2)(B) (pertaining to complaints filed by prisoners proceeding in forma pauperis). On review, the court must dismiss the action if the complaint is frivolous, malicious, or fails to state a claim upon which relief may be granted, ” or if it “seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b); § 1915(e)(2)(B)(i-iii).

         II. PLAINTIFF'S ALLEGATIONS

         After his original Complaint (ECF No. 1) was dismissed on filing for failure to state a claim upon which relief may be granted, Mr. Reese filed an Amended Complaint (ECF No. 18) naming two of the three original defendants. Mr. Reese identifies Defendant Erika Denton as “Parole Investigator.” According to Mr. Reese, Defendant Denton “investigates inmate records for the Pardon and Parole Board, ” and “[h]er investigative report forms the basis for Pardon and Parole Board consideration.” (ECF No. 18:1-2). Mr. Reese identifies Defendant Johnnie O'Neal as “supervisor in the Tulsa County Public Defender office” and alleges Mr. O'Neal's removal of Richard O'Carroll, Mr. Reese's first court appointed attorney, “caused critical motions to be denied and pressured Petitioner to enter a guilty plea.” (ECF No. 18:2).

         In Count I, Mr. Reese contends Defendant O'Neal replaced attorney Richard O'Carroll with an attorney who provided ineffective assistance of counsel, resulting in Mr. Reese entering a guilty plea that was involuntary. (ECF No. 18:3).

         In Count II, Mr. Reese contends the State of Oklahoma has parole consideration procedures that violate the Due Process Clause. Specifically, Mr. Reese complains that a different parole investigator recommended him for parole in 2015, but that Defendant Denton recommended denying Mr. Reese parole in 2018, even though nothing in his institutional record had changed. (ECF No. 18:3).

         In Count III, Mr. Reese states the State of Oklahoma has no parole consideration guidelines, resulting in “arbitrariness and failure to apply constitutional standards and precedents.” (ECF No. 18:4).

         III. STANDARD OR REVIEW

         The standards used for rule 12(b)(6) of the Federal Rules of Civil Procedure guide review under § 1915A. See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). To resist dismissal of a complaint for failure to state a claim upon which relief may be granted, the plaintiff must frame a complaint that contains sufficient facts to “‘state a claim for relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678.

         The Court must accept Mr. Reese's allegations as true and construe them, and any reasonable inferences to be drawn from them, in the light most favorable to him. See Kay, 500 F.3d at 1217. Since Mr. Reese is proceeding pro se, his complaint must be construed liberally. See Id. at 1218.

         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).

         Additionally, vicarious liability is inapplicable to § 1983 suits, and a plaintiff must plead that each Government-official defendant, through the official's own individual actions, ...


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