Brena v. M. Johnson

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF OKLAHOMA

EDWARD BRENA, )

)

Plaintiff, )

)

v. ) No. CIV 20-008-JHP-SPS

)

CARTER COUNTY )

SHERIFF’S DEPARTMENT, et al., )

)

Defendants. )

OPINION AND ORDER

Plaintiff is a pro se pretrial detainee who currently is housed at the Elkhart County

Corrections Complex in Elkhart, Indiana. He filed this civil rights complaint pursuant to

42 U.S.C. § 1983, seeking relief for alleged constitutional violations occurring while he

was incarcerated at the Carter County Jail in Ardmore, Oklahoma (Dkt. 1). The

defendants are the Carter County Sheriff’s Department; Officer M. Johnson; Sgt. Coffee;

John Doe #1, unidentified extradition officer; and John Doe #2, unidentified extradition

officer.

Plaintiff alleges he was confined in a cell covered in black mold with raw sewage

on the floor, and for six days he was forced to sleep on a mat that was saturated with fetid

water. These conditions of his confinement allegedly resulted in his having a respiratory

infection that currently is being treated with antibiotics. 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.

Screening/Dismissal Standards

Federal 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. § 1915(e)(2)(B).

The 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).

A pro 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).

Amended Complaint

Within 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

3

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). Plaintiff is responsible for providing sufficient information for service of

process.

Plaintiff has named the Carter County Sheriff’s Department as a defendant.

However, “[c]ourts routinely dismiss § 1983 claims that name and seek to impose liability

directly upon municipal and county police departments because police departments are

not separate suable entities.” Harper v. City of Cortez, No. 14-2984-KLM, 2015 WL

4720311, at *5 (D. Colo. Aug. 10, 2015) (citing cases) (unpublished). Therefore,

Defendant Carter County Sheriff’s Office is DISMISSED from this action pursuant to 28

U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be granted.

The amended complaint must include a short and plain statement of when and how

each named defendant violated Plaintiff’s constitutional rights and showing he 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,

4

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. 1990).

The 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.

ACCORDINGLY, Defendant Carter County Sheriff’s Office is DISMISSED

from this action pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon

which relief may be granted. Plaintiff is directed to file within twenty-one (21) days an

amended complaint on the Court’s form as directed in this Order. The Court Clerk is

directed to send Plaintiff a copy of the form for filing an amended civil rights complaint

in this Court. Failure to comply with this Order will result in dismissal of this action

without further notice.

IT IS SO ORDERED this 21st day of January 2020.

5