United States District Court, W.D. Oklahoma
L. PALK, UNITED STATES DISTRICT JUDGE
the Court is the Report and Recommendation [Doc. No. 53] of
United States Magistrate Judge Shon T. Erwin. The Report and
Recommendation addresses the Motion to Dismiss of Defendant
Stephen Scott [Doc. No. 42]. Magistrate Judge Erwin has
recommended dismissal of Plaintiff's individual capacity
claim brought pursuant to 42 U.S.C. § 1983 based on
qualified immunity and dismissal of Plaintiff's state law
claim for intentional infliction of emotional distress for
failure to state a claim upon which relief may be granted.
Plaintiff objects to the dismissal of his § 1983 claim
but has not addressed the state law claim and, therefore, has
waived any objection to dismissal of the state law claim.
See Pl.'s Obj. [Doc. No. 57].
times relevant to the claims alleged, Plaintiff was a
pretrial detainee housed at the Oklahoma County Detention
Center (OCDC). On October 28, 2015 another inmate, Demetrius
Stamps, stabbed Plaintiff in the lower right back and in the
lower right leg. Plaintiff required medical treatment as a
Scott was an employee of the OCDC and present at the time of
the incident. Plaintiff's § 1983 claim against
Defendant Scott in his individual capacity alleges Defendant
Scott failed to protect him from being attacked and stabbed
by Mr. Stamps.
objection to the Report and Recommendation triggers de novo
review by this Court of the proposed findings or
recommendations to which an objection has been made. 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2).
Plaintiff's Pro Se Status
Court liberally construes the allegations of a pro se
litigant. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991). “[T] his rule means that if the court can
reasonably read the pleadings to state a valid claim on which
the plaintiff could prevail, it should do so despite the
plaintiff's failure to cite proper legal authority, his
confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading
requirements.” Id. But “this rule of
liberal construction stops . . . at the point at which [the
court] begin[s] to serve as his advocate.” United
States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
Failure to State a Claim Upon Which Relief Can be
pleading must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Dismissal of the
complaint is proper if the plaintiff fails to plead
allegations sufficient “to state a claim to relief that
is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Fed.R.Civ.P.
reviewing the sufficiency of the allegations, the Court
“accept[s] as true all well-pleaded factual allegations
in the complaint and view[s] them in the light most favorable
to the plaintiff.” SEC v. Shields, 744 F.3d
633, 640 (10th Cir. 2014) (quotations and citation omitted).
A plaintiff must set forth specific factual allegations to
support each claim, i.e., “mere labels and conclusions
and a formulaic recitation of the elements of a cause of
action will not suffice.” Safe Streets All. v.
Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017)
(quotations and citation omitted). A claim has facial
plausibility when the plaintiff had “pled factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (quotations and citations
immunity is immunity from suit, rather than a mere defense to
liability. Estate of Reat v. Rodriguez, 824 F.3d
960, 964 (10th Cir. 2016) (citing Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985)). “The doctrine
of qualified immunity protects government officials from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(quotation marks omitted). To resolve a claim of qualified
immunity, the Court must consider two elements: (1) whether
the plaintiff has alleged a constitutional violation, and (2)
whether the violated right was “clearly
established” at the time of the violation. Id.
at 230-31. “The judges of the district courts . .
.[may] exercise their sound discretion in deciding which of
the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the
particular case at hand.” Id. at 236.