United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN, UNITED STATES DISTRICT JUDGE
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). 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.
Plaintiff’s Factual Allegations
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.
Motions to Dismiss and to Deem Confessed
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
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.
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
Standard of Review
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.
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).
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
Plaintiff’s Claims Against the Arresting Officer and
the Oklahoma ...