United States District Court, E.D. Oklahoma
OPINION AND ORDER
A. WHITE UNITED STATES DISTRICT JUDGE
is a pro se state prisoner in the custody of the Oklahoma
Department of Corrections (DOC) who is incarcerated at Davis
Correctional Facility (DCF) in Holdenville, Oklahoma. He has
filed this civil rights complaint pursuant to 42 U.S.C.
§ 1983, seeking relief for alleged constitutional
violations at DCF and other facilities (Dkt. 1). The
defendants are the DOC; Core Civic Corrections; DCF; James
Yates, DCF Warden; Ken Harvenick, Mack Alford Correctional
Center (MACC Warden; Ray Larimer, DCF Health Care Director;
E. Benedict, MACC Unit Manager; Serena Brewer, DCF Nurse;
Fred Sanders, DCF Doctor; Terry Underwood, DCF Warden's
Secretary; FNU Berry, DCF Unit Manager; FNU Bacon, DCF Unit
Manager; FNU Brienfield, DCF Manager of Alpha South; Bryan P.
Stice, DCF Alpha North Case Manager; Kevin Brown, DCF Chief
of Security; FNU LNU, Doctor at Lexington A&R; Carolyn
LNU; Eyeglasses Lady at Lexington A&R; FNU LNU, DCF
Contract Monitor; FNU Johnson, DCF Officer on DCF Alpha
North; Diana Jones, DCF Finance Manager; FNU LNU, MACC Case
Manager; Charles Sanders, MACC Case Manager; FNU Martinez,
Mail Clerk; FNU Frederick, DCF Intake Property Officer; Jamie
Arcos, MACC Correctional Officer; FNU LNU, 2018 Head of
Maintenance; FNU Bolt, MACC Warden; FNU Ritzendollar, N.P.C
at William S. Key Correctional Center.
alleges he has not received the medical and dental care he
needs. He also complains of, among other things, a delay in
receiving his eyeglasses; billing problems; medical fraud;
being forced to sign a write-up; denial of his level; denial
of toiletry items, legal assistance, mail, adequate bedding,
and access to services; and false charges of destruction of
state property. He also rambles about terrorist attacks, the
military, his family being held hostage, a sleeper cell, this
country's borders, and other irrelevant issues. After
review of the complaint, the Court finds Plaintiff must file
an amended civil rights complaint on the Court's form, as
set forth below.
courts must engage in a preliminary screening of cases in
which prisoners seek 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
claims and dismiss any claims which are frivolous, malicious,
fail to state a claim upon which relief may be granted, or
seek monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915A(b); 28 U.S.C. §
pleading standard for all civil actions was articulated in
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
See Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). To
avoid dismissal for failure to state a claim under
Fed.R.Civ.P. 12(b)(6), a complaint must present factual
allegations, assumed to be true, that “raise a right to
relief above the speculative level.” Twombly,
550 U.S. at 555. The complaint must contain “enough
facts to state a claim to relief that is plausible on its
face.” Id. at 570. A court must accept all the
well-pleaded allegations of the complaint as true, even if
doubtful in fact, and must construe the allegations in the
light most favorable to the plaintiff. Id. at
555-56. “So, when the allegations in a complaint,
however true, could not raise a claim of entitlement to
relief, ” the cause of action should be dismissed.
Id. at 558. The Court applies the same standard of
review for dismissals under 28 U.S.C. §
1915(e)(2)(B)(ii) that is employed for Fed.R.Civ.P. 12(b)(6)
motions to dismiss for failure to state a claim. Kay v.
Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007).
se plaintiff's complaint must be broadly construed under
this standard. Erickson v. Pardus, 551 U.S. 89, 94
(2007); Haines v. Kerner, 404 U.S. 519, 520 (1972).
The generous construction to be given to the pro se
litigant's allegations, however, “does not relieve
the plaintiff of the burden of alleging sufficient facts on
which a recognized legal claim could be based.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). Notwithstanding a pro se plaintiff's various
mistakes or misunderstandings of legal doctrines or
procedural requirements, “if a court can reasonably
read the pleadings to state a valid claim on which the
plaintiff could prevail, it should do so . . . .”
Id. A reviewing court need not accept “mere
conclusions characterizing pleaded facts.” Bryson
v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990).
“While a complaint attacked by a Rule 12(b)(6) motion
to dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550
U.S. at 555 (quotations and citations omitted). The court
“will not supply additional factual allegations to
round out a plaintiff's complaint or construct a legal
theory on a plaintiff's behalf.” Whitney v. New
Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
twenty-one (21) days of the entry of this Order, Plaintiff
must file an amended complaint on this Court's form.
The amended complaint must set forth the full name of
each person he is suing under 42 U.S.C. § 1983.
See Sutton v. Utah State Sch. for the Deaf &
Blind, 173 F.3d 1226, 1237 (10th Cir. 1999) (holding
that “a cause of action under § 1983 requires a
deprivation of a civil right by a ‘person' acting
under color of state law”). Further, the names
in the caption of the amended complaint must be identical to
those contained in the body of the amended complaint,
pursuant to Fed.R.Civ.P. 10(a).
has named the Oklahoma Department of Corrections as a
defendant. This agency, however, is entitled to dismissal
under the Eleventh Amendment. The Eleventh Amendment bars
suits in federal court against a state. When a state agency
is named as a defendant, the Eleventh Amendment continues to
bar the action “if the state is the real, substantial
party in interest.” Oklahoma has not consented to be
sued in federal court, see Okla. Stat. tit. 51,
§ 152.1, and § 1983 does not abrogate states'
sovereign immunity, see Will v. Mich. Dep't of State
Police, 491 U.S. 58, 66 (1989). Because the Eleventh
Amendment involves sovereign immunity, the official-capacity
claims are dismissed “without prejudice” rather
than “with prejudice.” Rural Water Sewer
& Solid Waste Mgmt., Dist. No. 1, Logan County, Okla. v.
Guthrie, 654 F.3d 1058, 1069 n.9 (10th Cir. 2011).
Further, the DOC may not be named as a defendant in the
Defendant Davis Correctional Facility, it is merely the name
of a detention facility which lacks the capacity to be sued.
See Aston v. Cunningham, No. 99-4156, 2000 WL 796086
at *4 n. 3 (10th Cir. Jun. 21, 2000) (“a detention
facility is not a person or legally created entity capable of
being sued”). Because DCF is a detention facility, and
is not a “person” with a separate identity,
dismissal of DCF is warranted, and DCF may not be named as a
defendant in the amended complaint.
amended complaint must provide a short and plain statement of
when and how each named defendant violated Plaintiff's
constitutional rights and showing Plaintiff is entitled to
relief from each named defendant. See Fed. R. Civ.
P. 8(a). Plaintiff also shall identify a specific
constitutional basis for each claim. See id. He is
admonished that simply alleging that a defendant is an
employee or supervisor of a state agency is inadequate to
state a claim. Plaintiff must go further and state how the
named defendant's personal participation violated his
constitutional rights. The “denial of a grievance, by
itself without any connection to the violation of
constitutional rights alleged by the plaintiff, does not
establish personal participation under § 1983.”
Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.
2009) (citations omitted). The Court only will consider
claims “based upon the violation of a plaintiff's
personal rights, and not the rights of someone else.”
Archuleta v. McShan, 897 F.2d 495, 497 (10th Cir.
amended complaint must include all claims and supporting
material to be considered by the Court. See Local
Civil Rule 9.2(c). It must be complete in itself, including
exhibits, and may not reference or attempt to incorporate
material from the original complaint or exhibits.
Id. An amended complaint supersedes the original
complaint and renders the original complaint of no legal
effect. See Miller v. Glanz, 948 F.2d 1562, 1565
(10th Cir. 1991); Gilles v. United States, 906 F.2d
1386, 1389 (10th Cir. 1990). See also Local Civil
Rule 9.2(c). Pursuant to Local Civil Rule 5.2(a), the amended
complaint must be clearly legible, and only one side of the
paper may be used.
amended complaint may present only civil rights claims
related to Plaintiff's confinement which arose pursuant
to 42 U.S.C. § 1983. He may not include his irrelevant
allegations concerning terrorism, the military, his family,
sleeper cells, borders, or the other ...