United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY FRIZZELL UNITED STATES DISTRICT JUDGE
Tawon Payne, a federal prisoner currently incarcerated in
Fairton, New Jersey, commenced this action on July 29, 2019,
by filing a 42 U.S.C. § 1983 civil rights complaint
(Dkt. 1) and a motion to proceed in forma pauperis (Dkt. 2).
Payne, who appears pro se, claims the Tulsa Police
Department, Officer Sultzer and Rashonda Basham violated his
constitutional rights, under the Fourth, Fifth and Fourteenth
Amendments by detaining him, arresting him and seizing his
vehicle without reasonable suspicion or probable cause. Dkt.
1, at 2-3, 5-6. For the reasons that follow, the Court
grants Payne's motion to proceed in forma pauperis, finds
the complaint is subject to being dismissed for failure to
state a claim upon which relief may be granted, and grants
Payne leave to file an amended complaint.
Plaintiff is authorized to proceed in forma
on representations in Payne's motion to proceed in forma
pauperis (Dkt. 2), the Court finds that Payne is without
funds in his prison accounts sufficient to prepay the $350
filing fee required to commence this action. The Court
therefore grants his motion and authorizes Payne to proceed
without prepayment of the filing fee. 28 U.S.C. §
1915(a). However, pursuant to 28 U.S.C. § 1915(b),
Plaintiff shall be required to pay the full $350 filing fee
thirty (30) days from the entry of this order, Payne shall
pay an initial partial payment of $5.33
which represents 20 percent of the greater of the (1) average
monthly deposits, or (2) average monthly balance in his
prison account(s) for the six-month period preceding the
filing of the complaint. Dkt. 2, at 4; see 28 U.S.C.
§ 1915(b)(1). Payne is advised that unless, by the date
specified below, he has either (1) submitted the initial
partial payment or (2) shown cause in writing for his failure
to pay, the Court will dismiss this action without prejudice
to refiling and without further notice.
submitting the initial partial payment, Payne shall make
monthly payments of 20 percent of the preceding month's
income credited to his prison account(s) until he has paid
the total filing fee of $350. See
28 U.S.C. § 1915(b)(2). The Court will enter an order
directing the agency having custody of Payne to collect, when
th e balance o f Payne's p r i s o n account(s) exceeds
$10, and forward such monthly payments to the Clerk of the
Court until the filing fee is paid in full. See id.
is advised that, notwithstanding any filing fee, or any
portion thereof, that may have been paid, the Court shall
dismiss at any time all or any part of the civil rights
complaint which (1) is frivolous or malicious, (2) fails to
state a claim on which relief can be granted, or (3) seeks
monetary relief from a defendant who is immune from such
relief. Id. §§ 1915A(b), 1915(e)(2)(B).
Payne is further advised that monthly payments will be
collected from his prison account(s) until full payment of
the $350 filing fee has been received by the Court even after
disposition of the case and regardless of whether relief is
granted or denied.
Screening under 28 U.S.C. §§ 1915A(b) and
Prison Litigation Reform Act (PLRA), compels district courts
to 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). 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). For the same reasons, the Court must dismiss a
complaint filed by any plaintiff who has been permitted to
proceed in forma pauperis. Id. § 1915(e)(2)(B).
reviewing the complaint, the Court accepts all well-pleaded
facts as true and liberally construes them in Payne's
favor. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79
(2009); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991). To avoid dismissal, a civil plaintiff must
“alleg[e] sufficient facts on which a recognized legal
claim could be based.” Hall, 935 F.2d at 1110.
And, “in analyzing the sufficiency of the
plaintiff's complaint, the court need accept as true only
the plaintiff's well-pleaded factual contentions, not his
conclusory allegations.” Id. Ultimately, the
Court must 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, 570 (2007). “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.”
Iqbal, 556 U.S. at 678.
Plaintiff's claims and allegations
identifies three defendants in his complaint-The Tulsa Police
Department, TPD Officer S. Sultzer, and Rashonda Basham-and
asserts three claims. Dkt. 1, at 1-6.
Count I, Payne claims Officer Sultzer violated his rights
under the Fourth and Fourteenth Amendments because Sultzer
“detained [him] without reasonable suspicion using the
third-party information from a non-witness.”
Id. at 2. He specifically alleges that on August 18,
2017, Sultzer detained both Payne and Payne's girlfriend
as suspects in a bank robbery committed in Tulsa on August
17, 2017. Id. at 1-2, 6. Payne alleges Sultzer
lacked reasonable suspicion to detain him because no
eyewitnesses described the bank robber as a male.
Id. at 6. He further alleges Sultzer acted only on a
“hunch” based on information obtained from
Rashonda Basham, the mother of Payne's girlfriend.
Id. at 5-6. According to Payne, Basham told police
officers that the woman seen in video footage of the bank
robbery was her daughter and “told the police that
[Payne] put her daughter up to robbing the bank.”
Id. at 5-6.
Count II, Payne claims “Tulsa police officers”
violated his rights under the Fourth and Fourteenth
Amendments on August 18, 2017, by arresting him “for a
bank robbery without probable cause using the third-party
information from a non-witness.” Dkt. 1, at 2-3. Payne
alleges the officers lacked probable cause to arrest him
because (1) no eyewitnesses described the robber as a male
and (2) the officers ...