Knox v. Sharp

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF OKLAHOMA

ANTONE LAMANDINGO KNOX, )

)

Plaintiff, )

)

v. ) No. CIV 20-139-RAW-SPS

)

TOMMY SHARP, et al., )

)

Defendants. )

OPINION AND ORDER

Plaintiff is a pro se state prisoner in the custody of the Oklahoma Department of

Corrections (DOC) who is incarcerated at Oklahoma State Penitentiary (OSP) in McAlester,

Oklahoma. He filed this civil rights complaint pursuant to 42 U.S.C. § 1983, seeking relief

for alleged constitutional violations at his facility. (Dkt. 1). The defendants are OSP Warden

Tommy Sharp, DOC Director Scott Crow, Oklahoma Governor Kevin Stitt, President Donald

Trump, and Unknown OSP Officials. On May 12, 2020, the case was transferred to this

district because “the Eastern District is both a proper venue and a considerably more

convenient one for most of the participants in the case.” (Dkt. 10 at 2).

Plaintiff alleges that OSP staff and other prisoners are exposing him to COVID-19.

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

that 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 also 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 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

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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).

Defendants Governor Kevin Stitt and President Donald J. Trump

Plaintiff alleges Defendants Warden Sharp and DOC Director Crow are legally

responsible for the operation of DOC prisons and staff and for “the welfare etc. of all

prisoners/slaves & staff’s at O.S.P. & ODOC.” (Dkt. 1 at 13). Plaintiff, however, has failed

to present facts alleging Governor Stitt or President Trump have personally participated in

a constitutional violation against him. “Personal participation is an essential allegation in a

§ 1983 claim.” Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976) (citations

omitted). See also Mee v. Ortega, 967 F.2d 423, 430-31 (10th Cir. 1992). Because the Court

finds it would be futile to allow Plaintiff to amend his complaint with respect to Defendants

Stitt and Trump, these two defendants are DISMISSED from this action and may not be

included in Plaintiff’s amended complaint.

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, with each defendant listed in both the caption and

the body of the document, pursuant to Fed. R. Civ. P. 10(a). Plaintiff is responsible for

providing sufficient information for service of process. See Lee v. Armontrout, 991 F.2d 487,

489 (8th Cir. 1993) (plaintiff proceeding in forma pauperis and pro se had responsibility to

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provide correct names and proper addresses for service of process).

The amended complaint must include 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. 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. As stated above, the amended complaint

may not include defendants that have been dismissed by this Opinion and Order. The Court

Clerk is directed to send Plaintiff a form for filing an amended complaint. Plaintiff is granted

twenty-one (21) days to file his amended complaint.

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ACCORDINGLY, Plaintiff is directed to file within twenty-one (21) days an

amended complaint on the Court’s form as directed in this Opinion and 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 1st day of July 2020.

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