United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI, CHIEF UNITED STATES DISTRICT JUDGE.
the Court is Respondent's Motion to Dismiss [Doc. No. 6],
filed pursuant to Fed.R.Civ.P. 12(b)(6) following removal of
the case to federal court. Respondent is the Department of
Human Services of the State of Oklahoma
(“OKDHS”). Petitioner has not filed a response
nor requested additional time in which to do so. Thus, the
matter is fully briefed and at issue.
asserts a claim under 42 U.S.C. § 1983 for alleged
conspiratorial violations of her civil rights. More
specifically, Petitioner alleges that OKDHS acted
unconstitutionally, cruelly, and maliciously in excluding her
“from participating in all section Federal health care
programs, pursuant to 42 U.S.C. § 1320A-7 and sections
of the Social Security Act ….” [Doc. No. 1-4].
Petitioner alleges that she attempted to apply for a child
care license in 2014, but her actions were ignored.
Id. She also alleges that in September 2017 she
“sought employment and was presented with a Federal
Mandated Exclusion dating back to June 18, 1998.”
Id. Finally, Petitioner asserts that she was not the
person who should have been excluded, but rather another
Linda Faye Wilson from Crossett, Arkansas, is the excluded
Petitioner's action was originally filed in state court,
upon removal, Rule 12(b)(6) of the Federal Rules of Civil
Procedure and the pleading standards announced in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and
Ashcroft v. Iqbal, 556 U.S. 662 (2009) govern the
sufficiency of her allegations. See Smith v. Bayer
Corp., 564 U.S. 299, 304 n. 2 (2011) (“[F]ederal
procedural rules govern a case that has been removed to
federal court.”) (citation omitted); Wallace v.
Microsoft Corp., 596 F.3d 703, 706 (10th Cir.
2010) (“After the removal of an action from state court
… it has been settled by numerous cases that the
removed case will be governed by the Federal Rules of Civil
Procedure and all other provisions of federal law relating to
procedural matters.”) (citation omitted).
Petitioner appears pro se, the Court is required to
construe her filings liberally. Calhoun v. Attorney Gen.
of Colo., 745 F.3d 1070, 1073 (10th Cir.
2014). However, it must not assume the role of advocate,
United States v. Pinson, 584 F.3d 972, 975
(10th Cir. 2009), and is under no obligation to
construct legal arguments on Petitioner's behalf.
Garrett v. Selby Connor Maddux & Janer, 425 F.3d
836, 840 (10th Cir. 2005).
a liberal construction, the Court finds Petitioner's
conspiracy claim is insufficient to state a claim upon which
relief can be granted. Although “[a]llegations of
conspiracy may, indeed, form the basis of a § 1983
claim, ” Petitioner “must allege specific facts
showing an agreement and concerted action amongst the
[Respondents].” Tonkovich v. Kansas Bd. of
Regents, 159 F.3d 504, 533 (10th Cir. 1998)
(quoting Hunt v. Bennett, 17 F.3d 1263, 1266
(10th Cir. 1994)). “Conclusory allegations
of conspiracy are insufficient to state a valid § 1983
Oklahoma law a “civil conspiracy consists of a
combination of two or more persons to do an unlawful act, or
to do a lawful act by unlawful means.” Gaylord
Entm't Co. v. Thompson, 958 P.2d 128, 148 (Okla.
1998). “There can be no civil conspiracy where the
act complained of and the means employed are
lawful.” Id. (emphasis in original).
Petitioner names only one Respondent - OKDHS. However, a
governmental entity “cannot conspire with
itself.” Brasier v. City of Tulsa, 268 F.2d
558, 559 (10th Cir. 1959); see also Tanique,
Inc. v. State ex rel. Okla. Bureau of Narcotics and Dangerous
Drugs, 99 P.3d 1209, 1218 (Okla.Civ.App. 2004). Further,
Petitioner does not allege any unlawful activity on behalf of
OKDHS. Assuming, arguendo, for the sake of argument
that OKDHS placed Petitioner on the federally mandated
exclusion list, at most, Petitioner alleges a case of
mistaken identity by OKDHS regarding another person who
shares Petitioner's name. There are no allegations that
OKDHS conspired with others to pursue an unlawful purpose or
to employ unlawful means.
the Eleventh Amendment bars Petitioner from seeking money
damages against OKDHS, an arm of the State. See McKinney
v. State of Okla., Dep't of Human Services, Shawnee,
Okla., 925 F.2d 363, 365 (10th Cir. 1991)
(OKDHS is entitled to Eleventh Amendment immunity); Will
v. Mich. Dep't of State Police, 491 U.S. 58, 71
(1989); Howlett v. Rose, 496 U.S. 356, 365 (1990)
(“Will establishes that the State and arms of
the State, which have traditionally enjoyed Eleventh
Amendment immunity, are not subject to suit under § 1983
in either federal court or state court.”).
foregoing reasons, Respondent's Motion to Dismiss [Doc.
No. 6] is GRANTED. The Petition is dismissed without
prejudice. The Court also finds that Petitioner need not be
granted leave to further amend her pleading. A judgment shall
be issued forthwith.
IS SO ORDERED.
 Since Petitioner failed to respond
within the time limits prescribed by LCvR 7.1(g), the matters
set forth in the motion ...