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Herd v. E. Hebert S/S

United States District Court, N.D. Oklahoma

October 4, 2019

BYRON CRAIG HERD, Plaintiff,
v.
E. HEBERT S/S; WARDEN BYRD; MR. BATTLES, Unit Manager; MS. ADAMS, Hearing Officer; and MS. FRANKLIN, Disciplinary Coordinator & Hearing Officer, Defendants.

          OPINION AND ORDER

          GREGORY K. FRIZZELL UNITED STATES DISTRICT JUDGE

         Plaintiff Byron Craig Herd, a state inmate appearing pro se and in forma pauperis, commenced this action on May 16, 2019, by filing a 42 U.S.C. § 1983 civil rights complaint (Dkt. 1). By order (Dkt. 3) filed June 5, 2019, the Court found the complaint deficient and provided Plaintiff leave to amend. Plaintiff filed an amended complaint (Dkt. 5) on July 1, 2019. By order (Dkt. 6) filed July 25, 2019, the Court found the amended complaint deficient and provided Plaintiff leave to file a second amended complaint. Plaintiff filed a second amended complaint (Dkt. 9) on August 12, 2019. For the reasons that follow, the Court dismisses the second amended complaint for failure to state a claim upon which relief may be granted.

         A. Screening and dismissal standards

         Plaintiff's second amended complaint is subject to screening under 28 U.S.C. §§ 1915(e)(2) and 1915A. In screening the complaint, 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. §§ 1915(e)(2)(B), 1915A(b). Dismissal is appropriate if the complaint does not contain “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In applying this plausibility standard, the Court must accept as true all well-pleaded factual allegations in the complaint and liberally construe the facts in Plaintiff's favor. Id. at 678-79; Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But the Court need not “accept as true a legal conclusion couched as factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). And, while Plaintiff need not include “detailed factual allegations” in the complaint, he is obliged to provide “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Id.

         B. Plaintiff's allegations

         Plaintiff is currently incarcerated at the Cimarron Correctional Facility (CCF) in Cushing, Oklahoma. Dkt. 9, at 1. He purports to sue five defendants: (1) E. Hebert S/S, (2) Warden Byrd, (3) Mr. Battles, a unit manager, (4) Ms. Adams, a hearing officer, and (5) Ms. Franklin, a disciplinary coordinator and hearing officer. Id. at 1, 5.[1]

         Plaintiff identifies Hebert as a citizen of Oklahoma who is employed as “S/S” and states that Hebert acted under color of state law regarding the “forgery of documents and paperwork.” Dkt. 9, at 1. He identifies Byrd as a citizen of Oklahoma who is employed as a warden and states that Byrd acted under color of state law regarding “all paperwork appeals under wrongfully conviction 1983 civil right.” Id. Plaintiff alleges that Adams and Franklin both work for CCF and that Battles “put [him] in SHU false statement.” Id. at 5.

         Plaintiff invokes jurisdiction under 42 U.S.C. § 1983 and describes the nature of his case as follows: “I was coming back from the gym and this S/S call me out my name race-pro-filing black ass nigga & false document.” Dkt. 9, at 2.

         In Count 1, Plaintiff cites a case from the United States Court of Appeals for the Ninth Circuit for the proposition that a “retaliation claim [is] stated where prison officials filed false disciplinary charge [and] placed inmate in administrative segregation.” Id. In the space designated for facts supporting his Count 1 claim, Plaintiff alleges:

When I got out of segregation Ms. Franklin coordinator told me to present my witnesses the other witnesses at the hearing Ms. Adams would not here [sic] my witness because one of my witness showed up to the hearing to let the hearing officer know Mr. Herd 146186 never menacing or bulling [sic] know [sic] one.”

Id.

         In Counts 2 and 3, [2] Plaintiff claims “Cushing prison trying to say I'm out of time on my appeal, under wrongfully conviction: by state and federal law the courts has [sic] right to here [sic] the elements under wrongfully conviction its not know [sic] properly right under wrongfully conviction.” Dkt. 9, at 2. Plaintiff alleges,

“Cimarron Correctional Facility delay due process” call witnesses on this issue: Court of Federal Law: Furr, Orton, john my witnesses: Williams 712933; Curtis. Lofton 631209 Joseph Bobo # 826653: my case on appeal false staff: false documents: false elements: false false conviction false and wrongfully each with the other violated due process of law this paperwork is still on appeal because this facility is trying to come up with something out of time. If you would have let my witnesses come to court this issue would be over with but by this faceility [sic] violation of people ...

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