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Foreman v. Elam

United States District Court, E.D. Oklahoma

March 28, 2019

ASA S. FOREMAN, a/k/a Asa S. Forman, Plaintiff,
v.
TERESA DELORIS ELAM, et al., Defendants.

          OPINION AND ORDER

          Ronald A. White, United States District Judge.

         This 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).

         The 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, JBCC Sergeant.

         Plaintiff 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 equitable relief.

         As an 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 June 12, 2015) (unpublished) (refusing to give liberal construction “[b]ecause the petition is counsel's work-product, [and] it must be read as written”).

         Standard of Review

         The 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.

         Request for Release from Custody

         Plaintiff 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. § 2254(b).

         Tort Claim

         Defendants 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.

         In his 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 claim.

         Eleventh Amendment Immunity

         Plaintiff 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).

         Here, 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.” Rural Water Sewer & Solid ...


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