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O'Rourke v. Tulsa County

United States District Court, N.D. Oklahoma

June 6, 2019

BRYAN CHRISTOPHER O'ROURKE, on behalf of B.G.O., a minor child, and B.E.O., a minor child, Plaintiff,



         Plaintiff Bryan Christopher O'Rourke, an inmate at the David L. Moss Criminal Justice Center in Tulsa, Oklahoma, commenced this action on February 8, 2019, by filing a 42 U.S.C. § 1983 civil rights complaint (Dkt. 1) and a motion to proceed in forma pauperis (Dkt. 2). By Order filed April 3, 2019 (Dkt. 4), the Court granted Plaintiff's motion to proceed in forma pauperis and directed Plaintiff to submit an initial partial payment. Plaintiff paid the initial partial payment on April 11, 2019. Dkt. 6. For the reasons that follow, the Court finds the complaint is subject to being dismissed under the screening provisions of 28 U.S.C. §§ 1915(e)(2) and 1915A. Within thirty (30) days from the entry of this Order, Plaintiff may file an amended complaint to cure the deficiencies identified in this Order.

         A. Screening/Dismissal standards

         Federal courts must screen civil complaints filed by prisoners seeking redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In screening the complaint, the court must identify any cognizable claim and dismiss any claim which is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. Id. § 1915A(b). Similarly, when a court permits a plaintiff to proceed in forma pauperis in a civil action, “[n]otwithstanding any filing fee, or any portion thereof that may have been paid, the court shall dismiss the case at any time if the court determines . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” Id. § 1915(e)(2).

         The dismissal standard requires the court to accept all well-pleaded factual allegations of the complaint as true and determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). Under this standard, a complaint should be dismissed when the facts alleged therein “however true, could not raise a [plausible] claim of entitlement to relief.” Id. at 558; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (noting Fed.R.Civ.P. 8 “does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation” (quoting Twombly, 550 U.S. at 555)).

         Additionally, a court must liberally construe a complaint filed by a pro se plaintiff. Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). The rule of liberal construction requires a court to overlook basic drafting errors in determining whether the complaint states “a valid claim on which the plaintiff could prevail.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Nonetheless, even a pro se plaintiff must “alleg[e] sufficient facts on which a recognized legal claim could be based.” Id.

         B. Plaintiff's allegations

         Plaintiff brings this action under § 1983. To state a plausible § 1983 claim, a plaintiff must allege a person “acting under color of state law” deprived the plaintiff “of a federally protected right.” Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1155 (10th Cir. 2016). Further, the plaintiff “must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. When a plaintiff sues multiple defendants, the plaintiff must “identify specific actions taken by particular defendants, ” so each defendant has fair notice of the claims on which he or she must defend. Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 532 (10th Cir. 1998); see also Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (noting plaintiff's burden “to provide fair notice of the grounds for the claims made against each of the defendants, ” and explaining burden is not satisfied if plaintiff makes “no distinction as to what acts are attributable to whom”).

         Plaintiff identifies seven defendants in his complaint: (1) Tulsa County, (2) Tulsa County Assistant District Attorney Andrea Brown, (3) Tulsa County District Attorney Steve Kunzweiler, (4) Tulsa County Sheriff Vic Regalado, (5) Tulsa County District Judge Kelly Greenough, (6) Tulsa County District Judge William Musseman, and (7) the Tulsa County Board of County Commissioners. Dkt. 1, at 1-2, 5.

         Plaintiff identifies the nature of his case as follows: “Prosecutorial misconduct, deliberate indifference, judicial hostility, and customs, policies, and practices by Tulsa County, its officers, employees, and contractors have and continue to violate Plaintiff's civil rights.” Id. at 2.[1] He identifies eight specific claims:

Count I: Illegal search and seizure Judge Kelly Greenough ordered Plaintiff to submit to an unlawful urinalysis on 2-12-18 even though drug testing was not a condition of his bond. There is no state or federal statute allowing a “blanket” condition to test when testing is not a condition of release.
Count II: Right to counsel Defendant Greenough also revoked Plaintiff's bond because he appeared without counsel. He was then detained without bond for twenty-five (25) days without appointed counsel and unable to challenge his unlawful detention even though Greenough knew he could not afford counsel until 3-2-18.
Count III: Due process Plaintiff's 3-25-18 adversary hearing was wholly insufficient and did not follow the rigorous procedural guidelines required to prevent the pre-trial punishment of the presumptively innocent pre-trial plaintiff.
Count IV: Excessive bail and punitive conditions Defendant Greenough more than quadrupled Plaintiff's bail from $200, 000 to $900, 000 without due process and without a legitimate governmental interest.
Count V: Impermissible pretrial punishment By denying one of Plaintiff s multiple bail reduction motions with a note stating, “Not enough time, ” Defendant Greenough expressed her intent to punish Further, the objective evidence in this case proves defendant Greenough's decision to more than quadruple Plaintiffs bail was not rationally related to a legitimate governmental objective and is excessive in relation to its purpose-to reasonably assure Plaintiffs presence at trial.
Count VI: Double Jeopardy As Defendant Greenough's order of release more than quadrupled Plaintiffs bail, [that order] acts as a de facto order of detention without due process and determination of fact, and is punitive in nature while the punishment of presumptively innocent pretrial detainees is not allowed, the state criminal proceedings against Plaintiff are subject to double jeopardy.
Count VII: Okl. St. §§ 14-113 and 746 are facially unconstitutional Well established federal law and Supreme Court precedent dictate the requirement of adequate medical care for prisoners. This is especially true of presumptively innocent pretrial detainees. These statutes are preempted by federal law and do not survive scrutiny under the Supremacy Clause.
Count VIII: Access to courts By custom, policy, and practice Tulsa County does not provide adequate access to the courts, including divorce, emergency protective orders, and tort ...

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