United States District Court, E.D. Oklahoma
OPINION AND ORDER
H. PAYNE, UNITED STATES DISTRICT JUDGE
is a pro se state prisoner incarcerated at Oklahoma State
Penitentiary (OSP) in McAlester, Oklahoma, seeking relief
under 42 U.S.C. § 1983 for alleged constitutional
violations at his facility. The defendants are Joe Allbaugh,
Oklahoma Department of Corrections Director; Mike Carpenter,
OSP Interim Warden; FNU Cooper, OSP Deputy Warden; Genieveve
Bartuski, OSP Psychologist; Tommy Williams, OSP Lieutenant;
FNU Day, OSP Law Library Supervisor; FNU Polk, OSP Law
Library Supervisor; Margaret Green, OSP Unit Manager; Susan
Channon, OSP Case Manager.
has filed a motion to file an amended civil rights complaint
(Dkt. 12), along with a proposed amended complaint (Dkt.
12-1). After review of the proposed amended complaint, the
Court finds Plaintiff must file a proper amended civil rights
complaint on the Court's form, as set forth below.
Federal courts must engage in a preliminary screening of
cases in which prisoners seek redress from a governmental
entity or officer or employee of a governmental entity. 28
U.S.C. § 1915A(a). The Court must identify any
cognizable claims and dismiss any claims which are frivolous,
malicious, fail to state a claim upon which relief may be
granted, or seek monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915A(b); 28 U.S.C.
pleading standard for all civil actions was articulated in
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
See Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). To
avoid dismissal for failure to state a claim under
Fed.R.Civ.P. 12(b)(6), a complaint must present factual
allegations, assumed to be true, that “raise a right to
relief above the speculative level.” Twombly,
550 U.S. at 555. The complaint must contain “enough
facts to state a claim to relief that is plausible on its
face.” Id. at 570. A court must accept all the
well-pleaded allegations of the complaint as true, even if
doubtful in fact, and must construe the allegations in the
light most favorable to the plaintiff. Id. at
555-56. “So, when the allegations in a complaint,
however true, could not raise a claim of entitlement to
relief, ” the cause of action should be dismissed.
Id. at 558. The Court applies the same standard of
review for dismissals under 28 U.S.C. §
1915(e)(2)(B)(ii) that is employed for Fed.R.Civ.P. 12(b)(6)
motions to dismiss for failure to state a claim. Kay v.
Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007).
se plaintiff's complaint must be broadly construed under
this standard. Erickson v. Pardus, 551 U.S. 89, 94
(2007); Haines v. Kerner, 404 U.S. 519, 520 (1972).
The generous construction to be given to the pro se
litigant's allegations, however, “does not relieve
the plaintiff of the burden of alleging sufficient facts on
which a recognized legal claim could be based.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). Notwithstanding a pro se plaintiff's various
mistakes or misunderstandings of legal doctrines or
procedural requirements, “if a court can reasonably
read the pleadings to state a valid claim on which the
plaintiff could prevail, it should do so . . . .”
Id. A reviewing court need not accept “mere
conclusions characterizing pleaded facts.” Bryson
v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990).
“While a complaint attacked by a Rule 12(b)(6) motion
to dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the grounds of his
entitlement to relief requires 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 (quotations and citations omitted). The court
“will not 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).
twenty-one (21) days of the entry of this Order, Plaintiff
must file an amended complaint on the Court's form.
The amended complaint must set forth the full name of
each person he is suing under 42 U.S.C. § 1983.
See Sutton v. Utah State Sch. for the Deaf &
Blind, 173 F.3d 1226, 1237 (10th Cir. 1999) (holding
that “a cause of action under § 1983 requires a
deprivation of a civil right by a ‘person' acting
under color of state law”). Further, the names
in the caption of the amended complaint must be identical to
those contained in the body of the amended complaint,
pursuant to Fed.R.Civ.P. 10(a). Plaintiff is
responsible for providing sufficient information for service
of process. See Lee v. Armontrout, 991 F.2d 487, 489
(8th Cir. 1993) (plaintiff proceeding in forma
pauperis and pro se had responsibility to provide
correct names and proper addresses for service of process).
original and proposed amended complaints include numerous
references to his separate “declarations”
documents (Dkt. 7, 12-2). This is not a proper format for a
prisoner's civil rights complaint in this Court.
Instead, Plaintiff must provide on the amended
complaint form a short and plain statement of when and how
each named defendant violated his constitutional rights and
showing Plaintiff is entitled to relief from each named
defendant. See Fed. R. Civ. P. 8(a). He
also shall identify a specific constitutional basis for each
claim. See id. He is admonished that simply alleging
that a defendant is an employee or supervisor of a state
agency is inadequate to state a claim. Plaintiff must go
further and state how the named defendant's personal
participation violated his constitutional rights.
Furthermore, the Court will only consider claims “based
upon the violation of a plaintiff's personal rights, and
not the rights of someone else.” Archuleta v.
McShan, 897 F.2d 495, 497 (10th Cir. 1990).
amended complaint must include all claims and supporting
material to be considered by the Court. It must be
complete in itself, including exhibits, and may not reference
or attempt to incorporate material from the original
complaint or exhibits. See Local Civil Rule
9.2(c). An amended complaint supersedes the original
complaint and renders the original complaint of no legal
effect. See Miller v. Glanz, 948 F.2d 1562, 1565
(10th Cir. 1991); Gilles v. United States, 906 F.2d
1386, 1389 (10th Cir. 1990). See also Local Civil
Rule 9.2(c). Pursuant to Local Civil Rule 5.2(a), the amended
complaint must be clearly legible, and only one side of the
paper may be used.
Court Clerk is directed to send Plaintiff the proper form for
filing an amended complaint. If Plaintiff fails to file an
amended complaint in accordance with this Order, this action
shall be dismissed for failure to state a claim upon which
relief may be granted.
Plaintiffs motion to file his proposed amended complaint
(Dkt. 12) is DENIED. Plaintiff is directed to file within
twenty-one (21) days an amended complaint on the Court's
form as directed in this Order. The Court Clerk is directed
to send Plaintiff a copy of the form for filing an amended
civil rights complaint in this Court. Failure to comply with
this Order will result in dismissal of this action without