United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE
a state inmate appearing pro se and proceeding in forma
pauperis, filed an action under 42 U.S.C. § 1983. United
States District Judge Timothy D. DeGiusti has referred the
matter for proposed findings and recommendations consistent
with 28 U.S.C. § 636(b)(1)(B) and (C). For the reasons
set forth below, it is recommended that the Court dismiss the
Amended Complaint on screening. Doc. No. 15.
filed his original complaint (entitled “42 U.S.C. 1983
Constitutional and Civil Rights Violation!”) in this
matter on January 2, 2019. Doc. No. 1. This complaint listed
“State of Oklahoma ex rel. Laura Austin Thomas District
Attorney” as the lone defendant in the caption. See
Id. On January 4, 2019, the Court ordered Plaintiff to
cure deficiencies, noting Plaintiff failed to submit the
complaint on the Court's approved form and had not paid
the filing fee or submitted an application to proceed in
forma pauperis. Doc. No. 4. Plaintiff filed his first amended
complaint on the Court's approved form. Doc. No. 5. This
complaint listed the State of Oklahoma, Laura Austin Thomas,
and Billy W. Cluck as defendants. See id.
March 11, 2019, Plaintiff filed a second amended complaint on
a prepared form, this time listing Laura Austin Thomas,
William LeRoy Cluck, Karren Dixon, Charles Rivas, Judge Hert,
and Judge Phillip C. Corley as defendants. Doc. No. 10.
Because Plaintiff had previously filed an amended complaint
and had not sought permission from the Court to file a second
amended complaint, the Court entered an order striking the
second amended complaint and invited Plaintiff to file a
motion for leave to file a second amended complaint. Doc. No.
12. On March 15, 2019, Plaintiff filed a letter which the
Court construed as a motion for leave to amend the complaint,
and the Court granted Plaintiff leave to file an amended
complaint. Doc. Nos. 13, 14.
March 27, 2019, Plaintiff filed a handwritten amended
complaint (entitled “42 U.S.C. 1983 Constitutional and
Civil Right Violation!”) listing only “State of
Oklahoma ex rel. Laura Austin Thomas District Attorney”
as the lone defendant in the caption and not naming any other
defendants in the body. Doc. No. 15. Plaintiff attached the
Court's March 15, 2019 order as an exhibit, making clear
he intended to file the document as an amended complaint.
Doc. No. 15-1.
Court addresses only the defendants, claims, and asserted
facts contained in the most-recent amended complaint. See
Mink v. Suthers, 482 F.3d 1244, 1254 (10th Cir. 2007)
(internal quotation omitted) (“[A]n amended complaint
supercedes an original complaint and renders the original
complaint without legal effect.”).
Plaintiff is proceeding in forma pauperis, the Court has a
duty to screen the Complaint and dismiss any portion that is
frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief against a
defendant immune from such relief. See 28 U.S.C.
a Fed.R.Civ.P. 12(b)(6) review, the Court must accept
Plaintiff's allegations as true and construe them, and
any reasonable inferences to be drawn from them, in the light
most favorable to him. See Mink v. Knox, 613 F.3d
995, 1000 (10th Cir. 2010). A complaint must contain
sufficient factual matter, accepted as true, to “state
a claim to 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.” Id. (citing
Twombly, 550 U.S. at 556); see also Gee v.
Pacheco, 627 F.3d 1178, 1184 (10th Cir. 2010).
“[T]he tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to
legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S. at 678. And,
“[a] pro se litigant's pleadings are to be
construed liberally and held to a less stringent standard
than formal pleadings drafted by lawyers.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The court
may not, however, serve as Plaintiff's advocate, creating
arguments on his behalf. See Yang v. Archuleta, 525
F.3d 925, 927 n.1 (10th Cir. 2008).
Complaint states that “the defendants acting under
color, knowingly willfully, unlawfully violated said
Plaintiff's 4th, 5th,
6th, 7th, 8th,
9th, and 10th! rights under the
Constitution of the United Sates an civil rights and Oklahoma
civil rights the plaintiff rights.” Doc. No. 15, at 1.
Plaintiff also notes that an “illegal arrest” and
“seizure of Plaintiff's money” is a violation
of the Fourth Amendment. Id. Plaintiff also
references two cases in Payne County District Court, but does
not provide any factual detail to explain their relevance.
Id. at 2.
allegations in the Complaint fall far short of what is
necessary to state a claim. “[T]o state a claim in
federal court, a complaint must explain what each defendant
did to [the plaintiff]; when the defendant did it; how the
defendant's action harmed [the plaintiff]; and, what
specific legal right the plaintiff believes the defendant
violated.” Nasious v. Two Unknown B.I.C.E.
Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). Plaintiff
generally states the defendant violated his rights pursuant
to seven different constitutional amendments and expounds on
his alleged violation of the Fourth Amendment by reciting its
protections. The Complaint does not, however, specifically
address what the defendant did to violate his rights, when
she did it, or how it affected Plaintiff. Although Plaintiff
asserts there was an “illegal arrest” and
“seizure of plaintiff's money, ” this is the
type of “mere conclusory statement” which does
not suffice to state a claim. See Iqbal, 556 U.S. at
678. Additionally, Plaintiff fails to allege facts sufficient
to demonstrate the defendant's personal participation in
the alleged violation of his constitutional rights. See,
e.g., Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir.
2011) (“[Section] 1983 imposes liability for a
defendant's own actions-personal participation in the
specific constitutional violation complained of is
essential.”). Thus, Plaintiff has failed to state a
claim upon which relief may be granted.