United States District Court, E.D. Oklahoma
ASA S. FOREMAN, a/k/a Asa S. Forman, Plaintiff,
TERESA DELORIS ELAM, et al., Defendants.
OPINION AND ORDER
A. White, United States District Judge.
action is before the Court on Defendants' motion to
dismiss. The Court has before it for consideration
Plaintiff's complaint (Dkt. 2), Defendants' motion
(Dkt. 15), and Plaintiff's response (Dkt. 18). Plaintiff,
who is represented by counsel, is a prisoner in the custody
of the Oklahoma Department of Corrections (DOC) who is
incarcerated at Lawton Correctional Facility in Lawton,
Oklahoma. He brings this action under the authority of 42
U.S.C. § 1983, seeking relief for alleged constitutional
violations during his incarceration at Jess Dunn Correctional
Center (JDCC), Joseph Harp Correctional Center (JHCC), and
Jackie Brannon Correctional Center (JBCC).
defendants are Teresa Deloris Elam, L.P.N, JDCC Nurse; Robert
Richard Edde, M.D., JDCC Physician; Michelle Lehnus, JDCC
Medical Services Administrator; Robert Cornel Balough, M.D.,
JHCC Physician; Joel Brent McCurdy, M.D., DOC Director of
Medical Services; Heather Hasenmeyer a/k/a Heather Hansmeyer,
P.A., JDCC Physician Assistant; J. Marlar, M.D., OSP
Physician; Jonna Perry, JBCC Case Manager; and David Summers,
alleges the defendants were deliberately indifferent to his
medical needs with regard to a chronic foot condition and
following a stroke, and he complains of prison overcrowding
and understaffing, all in violation of the Eighth Amendment.
Plaintiff further asserts the defendants retaliated and
discriminated against him in violation of the First and
Fourteenth Amendments because of his race and because he
filed numerous grievances. He is seeking money damages and
initial matter, the Court notes the complaint is disorganized
and repetitive. Petitioner is represented by counsel and,
therefore, is not entitled to the same liberal construction
of his pleadings as those of a pro se litigant. Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“A
pro se litigant's pleadings are to be construed liberally
and held to a less stringent standard than formal pleadings
drafted by lawyers”; Sullivan v. Rios, No.
CIV-15-67-M, 2015 WL 4926475, at *4 (W.D. Okla. June 12,
2015) (unpublished) (refusing to give liberal construction
“[b]ecause the petition is counsel's work-product,
[and] it must be read as written”).
pleading standard for all civil actions was articulated in
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
See Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). To
avoid dismissal for failure to state a claim under
Fed.R.Civ.P. 12(b)(6), a complaint must present factual
allegations, assumed to be true, that “raise a right to
relief above the speculative level.” Twombly,
550 U.S. at 555. The complaint must contain “enough
facts to state a claim to relief that is plausible on its
face.” Id. at 570. A court must accept all the
well-pleaded allegations of the complaint as true, even if
doubtful in fact, and must construe the allegations in the
light most favorable to the plaintiff. Id. at
555-56. “So, when the allegations in a complaint,
however true, could not raise a claim of entitlement to
relief, ” the cause of action should be dismissed.
Id. at 558.
for Release from Custody
claims his sentence violates the constitutional prohibition
against double jeopardy, and he asks for release from custody
to provide his own medical care (Dkt. 2 at 32). This form of
relief is not available in a civil rights action pursuant
to' 1983. Such claims for release must instead be
presented in a separate habeas corpus petition after
exhaustion of all state court remedies. See Coleman v.
Thompson, 501 U.S. 722, 731 (1991); 28 U.S.C. §
assert Plaintiff appears to assert a tort claim related to
medical treatment, although the allegations are unclear (Dkt.
2 at 16). Nonetheless, to the extent he is asserting tort
claims against individual defendants, Defendants maintain the
claims must fail as a matter of law.
response to the motion to dismiss, Plaintiff denies having
asserted a state-law tort claim in this action. (Dkt. 18 at
3-4). Therefore, the Court will not consider this alleged
has asserted claims against the defendants in their official
capacities. (Dkt. 18 at 13). An official-capacity claim
against an Oklahoma official is actually a claim against the
State of Oklahoma. See Kentucky v. Graham, 473 U.S.
159, 165 (1985); Will v. Michigan Dep't of State
Police, 491 U.S. 58, 71 (1988). Absent a waiver by the
state, or a valid congressional override, the Amendment bars
a damages action against a state in federal court.
Kentucky v. Graham, 473 U.S. 159, 169 (1985).
the defendants have not waived their Eleventh Amendment
immunity. Therefore, the defendants in their official
capacities are dismissed from this action. Because the
Eleventh Amendment involves sovereign immunity, the
official-capacity claims are dismissed “without
prejudice” rather than “with prejudice.”
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