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Ornder v. Holland

United States District Court, N.D. Oklahoma

June 13, 2019

ANTHONY P. ORNDER, Plaintiff,
v.
THOMAS R. HOLLAND, DANIEL ELKINS, ETHAN LONG, and CORY BOYD, Defendants.

          OPINION AND ORDER

          GREGORY K. FRIZZELL UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Plaintiff's amended complaint, filed pursuant to 42 U.S.C. § 1983, under the screening provisions of 28 U.S.C. § 1915(e)(2)(B). Plaintiff Anthony Ornder, a state inmate appearing pro se and in forma pauperis, filed an amended complaint (Dkt. 44) on May 31, 2019. He alleges Defendants Daniel Elkins, Ethan Long and Cory Boyd, all of whom are police officers for the City of Bartlesville, used excessive force against him during an arrest on August 23, 2016, in violation of the Eighth and Fourteenth Amendments (Count I), denied or delayed his access to medical care for injuries he received from the alleged use of excessive force, in violation of the Eighth and Fourteenth Amendments (Count II), and stole from him $4, 850 in cash and two casino vouchers, in violation of state law (Count III). Elkins, Long and Boyd filed answers (Dkts. 45, 46, 47) to the amended complaint on June 7, 2019.

         Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and for the reasons that follow, the Court (1) dismisses Defendant Thomas Holland from this action, (2) dismisses the complaint, in part, as to Count II, and (3) finds that Plaintiff should be allowed to proceed with the excessive-force claim and state-law claim alleged, respectively, in Counts I and III.

         I. Plaintiff's allegations and claims

         Plaintiff brings this action under § 1983, for alleged constitutional violations, and invokes pendent jurisdiction for his state-law tort claim. Dkt. 44, at 1-4. In his amended complaint, Plaintiff identifies four defendants: (1) former Bartlesville Police Chief Thomas R. Holland, (2) Bartlesville Police Officer Daniel Elkins, (3) Bartlesville Police Officer Ethan Long, and (4) Bartlesville Police Officer Cory Boyd. Id. at 1-2. He sues each officer in his individual, or personal, capacity. Id. at 2.

         In Count I, Plaintiff alleges that, on August 23, 2016, he was the passenger in a vehicle pulled over by Officer Elkins. Dkt. 44, at 3. According to Plaintiff, Officers Elkins, Long and Boyd used excessive force against him, in violation of his constitutional rights, when they “beat, hit, stomped and kicked” him “violently” and “inflict[ed] serious injury” that required medical treatment. Id.

         In Count II, Plaintiff alleges all three officers “delayed or denied medical treatment with deliberate indifference to a serious medical need, ” in violation of the Eighth Amendment, for injuries resulting from the alleged use of excessive force. Dkt. 44, at 3. In support of this claim, Plaintiff attaches exhibits to his amended complaint reflecting (1) that he sustained injuries to his face and (2) that he received a bill from Bartlesville Ambulance for services provided on August 23, 2016. Id. at 7, 9-11.

         In Count III, Plaintiff alleges that all three officers, in conjunction with the alleged use of excessive force, committed “theft” when they took from him $4, 850 in cash and two casino vouchers that he had on his person on the date of his arrest. Dkt. 44, at 4.

         Plaintiff seeks $1 million in compensatory damages, $1 million in nominal damages, and $1 million in punitive damages, plus the costs of this action, from Defendants Elkins, Long and Boyd. Id. at 4.

         II. Screening and dismissal standards

         When a district court permits a plaintiff to proceed in forma pauperis in a civil action, the court has a continuing obligation to dismiss the complaint, “at any time if the court determines that . . . the action . . . (1) 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.”

         In determining whether dismissal is appropriate, a court must accept as true all the well-pleaded factual allegations of the complaint and determine whether those allegations are sufficient to state a facially plausible claim for relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007); see also Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007) (noting that courts apply same standard whether assessing sufficiency of the complaint under Fed.R.Civ.P. 12(b)(6) or 28 U.S.C. § 1915(e)(2)(B)(ii)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint need not contain “detailed factual allegations” but it must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). Moreover, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. And, “when the allegations in a complaint, however true, could not raise a [plausible] claim of entitlement to relief, ” the complaint should be dismissed. Twombly, 550 U.S. at 558.

         When a plaintiff appears pro se, the court must liberally construe the complaint. Kay, 500 F.3d at 1218; Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Nonetheless, a pro se plaintiff bears “the burden of alleging sufficient facts on which a recognized legal claim could be based.” Hall, 935 F.2d at 1110. And the rule of liberal construction neither requires nor permits a court to “supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).

         III. Defendant Holland shall be dismissed ...


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