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.

Cross v. Frazier

United States District Court, E.D. Oklahoma

April 9, 2019

ADRIAN CROSS, Plaintiff,
v.
ROB FRAZIER et al., Defendants.

          Dale A. Kimball Judge

          REPORT & RECOMMENDATION GRANTING MOTION TO DISMISS AND REQUIRING SECOND AMENDED COMPLAINT

          DUSTIN B. PEAD UNITED STATES MAGISTRATE JUDGE

         Former 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).[1]

         I. MOTION TO DISMISS

         A. Standard of Review

         This 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. 1991).

         Because 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.

         B. Plaintiff's Allegations

         Plaintiff's 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.

         C. Affirmative Link

         The 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).

         Plaintiff 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.

         II. SCREENING ORDER

         The 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 pursuing claims.[2]

         A. Amended Complaint's Deficiencies

         Amended Complaint:

         (a) does not affirmatively link Defendants to ...


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.