United States District Court, N.D. Oklahoma
BRYAN CHRISTOPHER O'ROURKE, on behalf of B.G.O., a minor child, and B.E.O., a minor child, Plaintiff,
TULSA COUNTY, STEVE KUNZWEILER, VIC REGALADO, ANDREA BROWN, KELLY GREENOUGH, WILLIAM MUSSEMAN, and TULSA COUNTY BOARD OF COUNTY COMMISSIONERS, Defendants.
OPINION AND ORDER
H. PAYNE UNITED STATES DISTRICT JUDGE.
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.
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).
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)).
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.
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”).
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.
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. 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
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
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