Payne v. Tulsa Police Department

          OPINION AND ORDER

          GREGORY FRIZZELL UNITED STATES DISTRICT JUDGE

         Edd 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.^[1] 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.

         A. Plaintiff is authorized to proceed in forma pauperis.

         Based 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 as follows.

         Within 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.

         After 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.

         Payne 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.

         B. Screening under 28 U.S.C. §§ 1915A(b) and 1915(e)(2)(B).

         The 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).

         In 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.

         1. Plaintiff's claims and allegations

         Payne 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.

         In 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.

         In 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 ...