United States District Court, N.D. Oklahoma
ANTHONY P. ORNDER, Plaintiff,
THOMAS R. HOLLAND, DANIEL ELKINS, ETHAN LONG, and CORY BOYD, Defendants.
OPINION AND ORDER
GREGORY K. FRIZZELL UNITED STATES DISTRICT JUDGE.
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.
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.
Plaintiff's allegations and claims
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.
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.
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,
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.
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.
Screening and dismissal standards
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.”
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.
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).
Defendant Holland shall be dismissed ...