Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gray v. State ex rel. Thomas

United States District Court, W.D. Oklahoma

April 8, 2019

DERRECK RYAN GRAY, Plaintiff,
v.
STATE OF OKLAHOMA, Ex rel. LAURA AUSTIN THOMAS, DISTRICT ATTORNEY, Defendant.

          REPORT AND RECOMMENDATION

          BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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.

         I. Procedural History

         Plaintiff 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.

         On 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.

         On 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.[1] 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.

         The 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.”).

         II. Screening

         Because 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. § 1915(e)(2)(B).

         Mirroring 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).

         III. Analysis

         The 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.

         The 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.[2]

         RECO ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.