United States District Court, W.D. Oklahoma
STEPHEN P. FRIOT, UNITED STATES DISTRICT JUDGE
October 11, 2019, plaintiff, Bilal Konte, filed an original
complaint against defendants, Oklahoma County, Oklahoma, and
David Prater, in his official capacity as District Attorney
of Oklahoma County, Oklahoma, seeking monetary relief
pursuant to 42 U.S.C. § 1983 for alleged violations of
his constitutional rights. Specifically, plaintiff alleges
that he was maliciously prosecuted in violation of his Fourth
and Fourteenth Amendment rights. Plaintiff filed an amended
complaint on October 15, 2019, with minor changes from the
with the filing of his action, plaintiff sought leave to
proceed in this court without prepaying fees or costs. Under
28 U.S.C. § 1915(a), a district court “may
authorize the commencement . . . of any suit [or] action . .
. without prepayment of fees or security therefor, by a
person who submits an affidavit that includes a statement of
all assets such prisoner possesses, that the person is unable
to pay such fees or give security therefor.” Section
1915(a) applies to all persons applying for in forma pauperis
status, and not just to prisoners. See, Lister
v. Department of Treasury, 408 F.3d 1309, 1313
(10th Cir. 2005). On October 15, 2019, United
States Magistrate Judge Bernard M. Jones, upon review of
plaintiff's in forma pauperis application, authorized
plaintiff to proceed without prepayment of fees or giving
security for such payment.
any filing fee,' the court ‘must dismiss the case
at any time if the court determines that . . . the allegation
of poverty is untrue' or that ‘the action is
frivolous or malicious [or] fails to state a claim on which
relief may be granted' or makes a claim for monetary
relief from an immune party.” Lister, 408 F.3d
review of the amended complaint, which supersedes the
original complaint, the court concludes that plaintiffs'
amended complaint and action against defendants is subject to
dismissal for the following reasons.
Oklahoma, each organized county is empowered to sue and be
sued. 19 O.S. 2011 § 1. These powers are to be exercised
by the county's board of county commissioners. 19 O.S.
2011 § 3. A suit brought against a county's board of
county commissioners is the manner in which Oklahoma law
contemplates suing the county. 19 O.S. 2011 § 4. In the
context of a § 1983 action, a suit against the board of
county commissioners or some county official in his official
capacity is a suit against the county. Porro v.
Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010);
Lopez v. LeMaster, 172 F.3d 756, 762
(10th Cir. 1999). Plaintiff has not named the
Board of County Commissioners of Oklahoma County as a
defendant in the amended complaint. Although plaintiff has
named David Prater, in his official capacity as district
attorney, a district attorney, under Oklahoma law, is a state
official rather than a county official. Arnold v.
McClain, 926 F.2d 963, 965-966 (10th Cir.
the Board of County Commissioners of Oklahoma County were
named as a defendant, the court finds that the defendant
would be subject to dismissal for failure of plaintiff's
amended complaint to state a claim against it.Plaintiff
complains of the prosecution of criminal charges against him.
Oklahoma County is not liable for the acts of the district
attorney or the assistant district attorneys.
Arnold, 926 F.2d at 965-966. Moreover, a
municipality or county cannot be held liable under §
1983 solely because an employee inflicted injury upon a
plaintiff. In other words, municipality or county cannot be
held liable based upon a respondeat superior theory.
Monell v. Department of Social Services of City of New
York, 436 U.S. 658, 691 (1978). Local governments are
responsible under § 1983 only for “their
own illegal acts.” Connick v.
Thompson, 563 U.S. 51, 60 (2011) (emphasis in original,
quotation and citation omitted). To establish municipality or
county liability under § 1983, a plaintiff must show (1)
the existence of a municipal policy or custom and (2) a
direct causal link between the policy or custom and the
injury alleged. Graves v. Thomas, 450 F.3d 1215,
1218 (10th Cir. 2006). Plaintiff has not alleged
in the amended complaint any facts demonstrating that
Oklahoma County had a policy or custom that directly caused
the constitutional violations alleged by plaintiff. Thus, the
court concludes that plaintiff's amended complaint and
action against defendant, Oklahoma County, Oklahoma, must be
dismissed without prejudice for failure to state a claim
pursuant 28 U.S.C. § 1915(e)(2)(ii).
stated, David Prater is being sued in his official capacity
as District Attorney for the Oklahoma County, Oklahoma. Under
Oklahoma law, a district attorney is an arm of the state.
Arnold, 926 F.2d 965-966. The Eleventh Amendment to
the United States Constitution bars actions in federal court
against states and state officers sued in their official
capacities for money damages. Edelman v. Jordan, 415
U.S. 651, 663 (1974). Section 1983 does not abrogate this
immunity. Will v. Michigan Department of State
Police, 491 U.S. 58, 66-67 (1989). And Oklahoma has not
waived its Eleventh Amendment immunity. 51 O.S. 2011 §
152.1(B). Moreover, neither states nor state officials sued
in their official capacities are “persons” within
the meaning of 42 U.S.C. § 1983. Will, 491 U.S.
at 71. Because defendant, David Prater, sued in his official
capacity as District Attorney of Oklahoma County, Oklahoma,
is immune from plaintiffs' § 1983 claims for
monetary relief, the court finds that plaintiff's amended
complaint and action should be dismissed without prejudice
pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii).
amended complaint, plaintiff complains of actions of
“prosecutors within the Oklahoma County District
Attorney's Office” who “were given the
responsibility to oversee Plaintiff's criminal charges
and prosecution.” Doc. no. 4, ¶ 4. None of these
prosecutors are individually named in the caption of the
amended complaint or in the body of the pleading. Rule 10(a)
of the Federal Rules of Civil Procedure requires the title of
the complaint to name all parties. The court therefore does
not consider the unnamed prosecutors as defendants which
respect to plaintiff's amended complaint and action.
the prosecutors were named and were sued in their individual
capacities, the court notes that plaintiff's amended
complaint and action would be subject to dismissal against
the prosecutors because they are immune from suit under the
doctrine of absolute prosecutorial immunity. In Imbler v.
Pachtman, 424 U.S. 409 (1976), the Supreme Court
determined that prosecutors are absolutely immune from
liability in § 1983 suits brought against acts that are
“intimately associated with the judicial phase of the
criminal process.” Id. at 430. Consequently,
“[a]cts under taken by a prosecutor in preparing for
the initiation of judicial proceedings for trial, and which
occur in the course of his role as an advocate for the State,
are entitled to the protections of absolute immunity.”
Hunt v. Bennett, 17 F.3d 1263, 1267 (10th
Cir. 1994) (quoting Buckley v. Fitzsimmons, 509 U.S
259, 273 (1993)). Plaintiff complains of the prosecutors
instituting and continuing prosecution of criminal
proceedings for sexual assault and abuse charges without
probable cause. He also complains of the prosecutors'
actions in dismissing and refiling the criminal charges.
These acts are protected by the doctrine of absolute
prosecutorial immunity. Nielander v. Board of County
Commissioners of County of ...