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Sun v. Banner

United States District Court, W.D. Oklahoma

September 27, 2019

TONY SUN, Plaintiff,
v.
ADAM BANNER et al., Defendants.

          ORDER

          CHARLES B. GOODWIN, UNITED STATES DISTRICT JUDGE

         Plaintiff, appearing pro se and proceeding in forma pauperis, brings this action under 42 U.S.C. § 1983, alleging violations of the United States Constitution. See Am. Compl. (Doc. No. 12).[1] Upon review of Plaintiff’s Amended Complaint, the two pending Motions to Dismiss (Doc. Nos. 15, 18), and the Defendants’ joint motion requesting that their Motions to Dismiss be deemed confessed (Doc. No. 20), the Court dismisses this action.

         I. Plaintiff’s Factual Allegations

         Plaintiff’s Amended Complaint identifies four Defendants: private attorney Adam Banner, the law firm of Phillips Coventon Quillian & Banner (“PCQB”), an unnamed individual designated “Arresting County Sheriff Deputy” (“Arresting Officer”), and the Oklahoma County Sheriff’s Department. See Am. Compl. at 1, 5-6. Plaintiff states that he is suing Adam Banner in both his individual and official capacities and is suing PCQB, the Arresting Officer, and the Oklahoma County Sheriff’s Department in their official capacities. See Id . at 4-5. Liberally construed, Plaintiff alleges that on June 25, 2015, he was pulled over by police in Oklahoma City and arrested for transporting marijuana. See Id . at 2. Plaintiff contends that he had not committed a traffic violation but was stopped due to racial profiling. See Id . at 1-2, 5. Plaintiff additionally alleges that the Arresting Officer conducted an illegal search of the trunk of Plaintiff’s car. See Id . at 2. In addition to claims related to his arrest, Plaintiff raises claims of ineffective assistance of counsel against Defendant PCQB and Defendant Adam Banner, a partner at PCQB who represented Plaintiff in his ensuing state criminal matter. See Id . at 1, 3-5. Plaintiff seeks money damages and declaratory relief. Id. at 6-7.

         II. Motions to Dismiss and to Deem Confessed

         Two Motions to Dismiss are currently pending before the Court: the first filed jointly by Defendant Adam Banner and Defendant PCQB on February 12, 2019 (Doc. No. 15), and the second filed by Defendant Oklahoma County Sheriff’s Department on February 19, 2019 (Doc. No. 18). These Defendants seek dismissal of Plaintiff’s claims with prejudice.

         After Plaintiff failed to respond to their Motion within the time allowed, Defendant Banner and Defendant PCQB jointly requested that the Court deem their Motion to Dismiss confessed pursuant to Local Civil Rule 7.1(g). See Doc. No. 20. As of this date, Plaintiff has not responded to either Motion to Dismiss, Doc. Nos. 15, 18, or to the Joint Motion for Order Deeming Motion to Dismiss Confessed, Doc. No. 20. Nor has Plaintiff sought an extension of time in which to do so.

         This Court’s local rules permit the Court to exercise its discretion and deem the unopposed motions confessed. See LCvR 7.1(g). The Tenth Circuit has indicated, however, that before exercising such discretion, a district court should consider three factors: “(1) the degree of actual prejudice to the defendants; (2) the amount of interference with the judicial process; and (3) the culpability of the litigant, ” and should weigh these factors against “the judicial system’s strong predisposition to resolve cases on their merits.” Murray v. Archambo, 132 F.3d 609, 611 (10th Cir. 1998) (alterations and internal quotation marks omitted). Because in this action it is equally efficient to consider the merits of Defendants’ Motion, the Court declines to deem Defendant Banner and Defendant PCQB’s Motion confessed.

         III. Discussion

         A. Standard of Review

         While the Court construes a pro se litigant’s pleadings liberally, all parties must adhere to applicable procedural rules. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). Under such rules, the complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

         Defendants have moved to dismiss Plaintiff’s claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In analyzing a motion to dismiss under that Rule, the court “accept[s] as true all well-pleaded factual allegations in the complaint and view[s] them in the light most favorable to the plaintiff.” Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013). A complaint fails to state a claim on which relief may be granted when it lacks factual allegations sufficient “to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (footnote and citation omitted). Bare legal conclusions in a complaint are not entitled to the assumption of truth; “they must be supported by factual allegations” to state a claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

         “[A] pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted.” Hall v. Bellmon, 935 F.2d 1106, 1110 (1991); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). Whether a complaint contains sufficient facts to avoid dismissal is context-specific and is determined through a court’s application of “judicial experience and common sense.” Iqbal, 556 U.S. at 679. A court reviewing the sufficiency of a complaint “will not supply additional factual allegations to round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.” Whitney, 113 F.3d at 1175.

         B. Plaintiff’s Claims Against the Arresting Officer and the Oklahoma ...


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