United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE.
before the Court are plaintiff's complaint (Dkt. # 1),
motion for leave to proceed in forma pauperis (Dkt.
# 2), and motion for leave to file electronically (Dkt. # 3).
Plaintiff Cynthia Ortiz, proceeding pro se, has
filed a 96 page complaint alleging claims of breach of
contract, intentional infliction of emotional distress,
tortious interference, invasion of privacy, slander and
defamation, conversion, negligence, and possibly a claim
under 42 U.S.C. § 1983 alleging a violation of her First
Amendment right of free speech. Dkt. # 1. Under 28 U.S.C.
§ 1915(a), a federal district may allow a person to
commence a civil action without prepayment of costs or fees
and, although the statute references “prisoners,
” the Tenth Circuit has determined that the
requirements of § 1915 apply to all persons seeking to
proceed in forma pauperis. Lister v. Dep't
of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005).
Section 1915(e)(2) requires the district court to dismiss a
case if at any time the court determines that “the
action . . . (i) is frivolous or malicious [or] (ii) fails to
state a claim on which relief may be granted . . . .”
Court will attempt to briefly summarize the allegations of
plaintiff's rambling 96 page complaint. Plaintiff alleges
that she formerly worked as a political consultant and she
served as the campaign manager for Jack Galloway in 2009.
Dkt. # 1, at 7. She was introduced to Galloway's friend,
Charles Perry, and Perry began to make unwanted romantic
advances to plaintiff. Id. at 8. She claims that
Perry began to stalk her and people came to believe that they
were having an affair, and plaintiff was concerned that this
would negatively affect her business. Id. at 10. In
2012, plaintiff abandoned her career as a political
consultant in attempt to avoid Perry's harassment, and
she obtained work selling medical supplies. Id. at
11. However, this did not stop the harassment and she moved
to Dallas, Texas. Id. She claims that she began
working in the adult entertainment business on the belief
that Perry would no longer want to associate with her to
avoid harming his own reputation. Id. at 12. Perry
continued to harass plaintiff and she moved to Oklahoma, and
she sought a protective order against Perry in Oklahoma state
court. Id. at 16. Plaintiff's request for a
protective order was denied, but she believed that Perry
would attempt to retaliate against her for seeking the
protective order. Id.
January 2016, plaintiff claims that she was approached at
work by Dave Roberson, who identified himself as a
“hitman” working on behalf of Perry. Id.
at 17. Roberson allegedly threatened to kill plaintiff and
plaintiff claims that Roberson was poisoning her drinks at
the night club where she worked. Id. at 18.
Plaintiff filed a police report with the Tulsa Police
Department concerning her allegations that she was being
poisoned. Id. at 19. She claims that Perry
encouraged Matthew Powell, the Lubbock County District
Attorney, to file criminal charges against her in retaliation
for filing a police report and she was arrested, and she
states that she was arrested to prevent the TPD from
obtaining evidence that would confirm that she was poisoned
by Perry or his associates. Id. at 20-23. Plaintiff
claims that Perry and Powell challenged her mental competency
to stand trial in an effort to prove that she suffered from a
mental illness, and Perry allegedly made statements to the
police and media suggesting that plaintiff's mental
illness was causing her to believe that she was being stalked
by Perry. Id. at 26-27. Plaintiff was released on
bond and she states that one of her bond conditions was that
she and Perry have no contact with one another, but she
claims that Perry has repeatedly threatened her since she was
released. Id. at 27-28. Plaintiff's conditions
of pretrial release also required her to visit Jeannie
Russell, Ed. D., twice per month for counseling, and
plaintiff states that Dr. Russell reported that plaintiff was
“intelligent, honest, and all her actions indicate she
had done everything in her power to get away from [Perry] . .
. .” Id. at 30. The criminal charges against
plaintiff were dismissed in June 2017. Id.
not the first lawsuit filed by plaintiff arising out of her
allegations that she has been harassed by Perry and Powell.
Plaintiff previously filed a case in the Northern District of
Oklahoma alleging claims against Perry, Powell, Roberson, and
Joshua Burson primarily related to her alleged wrongful
arrest. Cynthia Ortiz v. Charles Perry et al.,
17-CV-489-JHP-JFJ (N.D. Okla.). The complaint in case no.
17-CV-489 contains all of the allegations of the complaint in
this case. Plaintiff sought a preliminary injunction
preventing the defendants from contacting her, and she filed
numerous motions to compel discovery. Plaintiff's filings
were voluminous, repetitive, and often harassing in nature.
The defendants filed motions to dismiss and motions to
transfer the case to the United States District Court for the
Northern District of Texas. The Honorable James H. Payne
transferred the case to the Northern District of Texas, and
plaintiff's appeal of the transfer order was later
dismissed by the Tenth Circuit Court of Appeals. The
defendants renewed their motions to dismiss following the
transfer, and Perry also filed a motion for sanctions
detailing plaintiff's harassment of him during the
litigation. The judge performed a screening under §
1915(e) and found that plaintiff's claims were
“frivolous, without merit, fanciful, conclusory and
speculative.” Cynthia Ortiz v. Charles Perry et
al., 18-CV-137-C, Dkt. # 180, at 2 (N.D. Tex. Dec. 7,
2018). Plaintiff's state law claims were dismissed
without prejudice to refiling, but her federal law claims
were dismissed with prejudice. Id.
already had another lawsuit pending when her case in the
Northern District of Texas was dismissed. On June 28, 2018,
plaintiff filed a 71 page petition in Tulsa County District
Court alleging claims against Perry, Powell, Burson,
Roberson, and BiCentennial, Inc. concerning Perry's
alleged stalking of her. She alleged claims of false arrest
or imprisonment, tortious interference, malicious
prosecution, assault and battery, intentional infliction of
emotional distress, negligence, and slander. Powell removed
the case to federal court on the basis of federal question
jurisdiction, and the case was assigned to the Honorable
Gregory K. Frizzell. Cynthia Ortiz v. Charles Perry et
al., 18-CV-532-GKF-JFJ (N.D. Okla.). The defendants
filed motions to dismiss, and plaintiff filed a motion to
remand the case to state court. Judge Frizzell determined
that the case was properly removed to federal court, but that
the dismissal with prejudice of plaintiff's federal law
claims in the Northern District of Texas precluded her from
relitigating those claims in a second lawsuit. Cynthia
Ortiz v. Charles Perry et al., 18-CV-532-GKF-JFJ, Dkt. #
52, at 15 (N.D. Okla. Feb. 1, 2019). Judge Frizzell dismissed
plaintiff's federal law claims and remanded the case to
state court. Id. at 17. The Court has reviewed the
publicly available docket sheet for plaintiff's state
court case, and the case remains pending and both plaintiff
and defendants have filed numerous motions.
reviewing a pro se plaintiff's complaint must
broadly construe the allegations of the complaint to
determine if the plaintiff can state a claim upon which
relief can be granted. Erickson v. Pardus, 551 U.S.
89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520
(1972). The generous construction to be given a pro
se litigant's allegations “does not relieve
the plaintiff of the burden of alleging sufficient facts on
which a recognized legal claim could be based.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). Notwithstanding a pro se plaintiff's
various mistakes or misunderstandings of legal doctrines or
procedural requirements, “if a court can reasonably
read the pleadings to state a valid claim on which the
plaintiff could prevail, it should do so . . . .”
Id. A reviewing court need not accept “mere
conclusions characterizing pleaded facts.” Bryson
v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990);
see also Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007) (“While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff's obligation to provide the
grounds of [her] entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”) (quotation
marks and citations omitted). The court “will not
supply additional factual allegations to round out a
plaintiff's complaint or construct a legal theory on a
plaintiff's behalf.” Whitney v. New
Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
Court has conducted a screening of plaintiff's complaint
and finds that in most aspects this case is simply an attempt
to relitigate claims that were dismissed in the Northern
District of Texas or that still remain pending in Tulsa
County District Court. The Court exercises its authority
under § 1915(e) to dismiss plaintiff's claims to the
extent that such claims are duplicative of claims that were
previously dismissed with prejudice or that are pending in
plaintiff's current state court lawsuit, because it
appears that this case was filed primarily to harass
defendants with additional or duplicative litigation. The
Court finds only one substantial difference between this case
and plaintiff's prior lawsuits arising out of the same
facts. Plaintiff alleges a claim of negligent infliction of
emotional distress against Jacquelyn Perry, Charles
Perry's wife, who has not been named as a defendant in
plaintiff's state court case and plaintiff has not
previously asserted claims against Jacquelyn Perry.
Plaintiff's claim of negligent infliction of emotional
distress against Jacquelyn Perry is based on plaintiff's
allegations that this defendant had a duty to be a
“better wife” and should have restrained her
husband from stalking plaintiff. Dkt. # 1, at 69-70. The
Oklahoma Supreme Court does not recognize negligent
infliction of emotional distress as an independent tort, but
a plaintiff may obtain emotional distress damages as part of
a standard negligence claim. Ridings v. Maze, 414
P.3d 835, 837 (Okla. 2018). A plaintiff must establish that
the defendant had a duty to protect plaintiff from injury,
that the defendant failed in that duty, and that plaintiff
suffered an injury from the defendant's failure.
Id. at 838. Plaintiff has cited no authority that a
wife has a duty to restrain her husband from harassing third
parties or that a wife can be held liable for her
husband's intentional misconduct to third parties.
Plaintiff's claim of negligent infliction of emotional
distress against Jacquelyn Perry has no basis under Oklahoma
law, and this claim should be dismissed for failure to state
a claim upon which relief can be granted. The Court finds
that plaintiff's claims are subject to dismissal under
§ 1915(e) as “frivolous or malicious” for
duplicative or previously dismissed claims and for failure to
state a claim as to plaintiff's claim of negligent
infliction of emotional distress against Jacquelyn Perry.
Following the Court's screening under § 1915(e), the
Court finds that there are no claims remaining for
adjudication and the case should be dismissed in its
IS THEREFORE ORDERED that plaintiffs complaint (Dkt.
# 1) is dismissed. A separate judgment of
dismissal is entered herewith.
IS FURTHER ORDERED that plaintiff s motion for leave
to proceed in forma pauperis (Dkt. # 2) and motion
for leave to file electronically (Dkt. # 3) are
 Plaintiff cites numerous exhibits in
her complaint, but no exhibits are actually attached to the
complaint. The Court's summary of the complaint relies
solely on her allegations without ...