United States District Court, E.D. Oklahoma
A. Kimball Judge
REPORT & RECOMMENDATION GRANTING MOTION TO
DISMISS AND REQUIRING SECOND AMENDED COMPLAINT
B. PEAD UNITED STATES MAGISTRATE JUDGE
inmate, Plaintiff Adrian Cross, filed this pro se
civil rights suit, see 42 U.S.C.S. § 1983
(2019), proceeding in forma pauperis, see
28 id. § 1915. His Amended Complaint, (Doc. No.
25), is now before the Court on Defendant Cooper's Motion
to Dismiss, (Doc. No. 29), and for screening, see 28
U.S.C.S. § 1915(e) (2019).
MOTION TO DISMISS
Standard of Review
Court shall dismiss any claims in a complaint filed in
forma pauperis if they are frivolous, malicious, fail to
state a claim upon which relief may be granted, or seek
monetary relief against an immune defendant. See Id.
§ 1915(e)(2)(B). "Dismissal of a pro se complaint
for failure to state a claim is proper only where it is
obvious that the plaintiff cannot prevail on the facts he has
alleged and it would be futile to give him an opportunity to
amend." Perkins v. Kan. Dep't of Corrs.,
165 F.3d 803, 806 (10th Cir. 1999). When reviewing the
sufficiency of a complaint the Court "presumes all of
plaintiff's factual allegations are true and construes
them in the light most favorable to the plaintiff."
Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.
Plaintiff is proceeding pro se the Court must
construe his pleadings "liberally" and hold them
"to a less stringent standard than formal pleadings
drafted by lawyers." Id. at 1110. However,
"[t]he broad reading of the plaintiff's complaint
does not relieve [him] of the burden of alleging sufficient
facts on which a recognized legal claim could be based."
Id. While Plaintiff need not describe every fact in
specific detail, "conclusory allegations without
supporting factual averments are insufficient to state a
claim on which relief can be based." Id.
Amended Complaint alleges that Defendant Cooper was the
doctor at Muskogee County Jail (MCJ), where Plaintiff was
held for a period. Plaintiff alleges claims of inadequate
medical treatment while he was held at MCJ.
complaint must clearly state what each individual defendant
did to violate Plaintiff's civil rights. See Bennett
v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976)
(stating personal participation of each named defendant is
essential allegation in civil rights action). "To state
a claim, a complaint must 'make clear exactly
who is alleged to have done what to
whom.'" Stone v. Albert, No.
08-2222, slip op. at 4 (10th Cir. July 20, 2009)
(unpublished) (emphasis in original) (quoting Robbins v.
Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008)).
Plaintiff may not name an individual as a defendant based
solely on supervisory status. See Mitchell v.
Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (stating
supervisory status alone is insufficient to support liability
under § 1983). Nor does "denial of a grievance, by
itself without any connection to the violation of
constitutional rights alleged by plaintiff . . . establish
personal participation under § 1983." Gallagher
v. Shelton, No. 09-3113, 2009 U.S. App. LEXIS 25787, at
*11 (10th Cir. Nov. 24, 2009).
does not identify behavior by Defendant Cooper that links him
with any particularity to violation of Plaintiff's
federal constitutional rights. Indeed, Plaintiff acknowledges
that “he did not once see or speak to the medical
provider Dr. William Cooper during his entire time at
[MCJ].” (Doc. No. 25, at 2.) Accordingly, Defendant
Cooper's Motion to Dismiss should be granted. (Doc. No.
Court now screens the remaining elements of the Amended
Complaint, (Doc. No. 25), and orders Plaintiff to file a
second amended complaint to cure deficiencies before further
Amended Complaint's Deficiencies
does not affirmatively link Defendants to ...