Logsdon v. Crawford

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

DONALD RAY LOGSDON, JR.,

Plaintiff,

v. Case No. 21-CV-252-JFH-SPS

DORIS CRAWFORD, et al.,

Defendants.

OPINION AND ORDER

Plaintiff is a pro se federal prisoner who is incarcerated at the Federal Correctional

Institution in El Reno, Oklahoma. He filed this civil rights complaint pursuant to 42 U.S.C.

§ 1983, seeking relief for alleged constitutional violations occurring at the Pittsburg County

Jail in McAlester, Oklahoma [Doc. No. 1]. The defendants are Doris Crawford, Pittsburg

County Jail Nurse; the United States Marshals Service (“USMS”); the Pittsburg County

Jail; and Loyd London, Pittsburg County Jail Chief of Security.

Plaintiff alleges that while incarcerated in the Pittsburg County Jail, Defendant

Crawford gave him the wrong medication for eight days in a row and denied him medical

attention for his pain. Plaintiff further alleges that: Defendant Crawford later apologized

to Plaintiff; and Defendant London gave Plaintiff a meal from McDonald’s to compensate

for Crawford’s errors.

Motions for Guardian Ad Litem and for Appointment of Counsel

Plaintiff has filed a motion for appointment of “ad litem” [Doc. No. 5]. Rule 17(c)

of the Federal Rules of Civil Procedure provides that “[t]he court must appoint a guardian

ad litem--or issue another appropriate order--to protect . . . [an] incompetent person who is

unrepresented in an action.”

Rule 17 provides that an individual’s capacity to sue or be sued is determined

“by the law of the individual’s domicile.” Fed. R. Civ. P. 17(b)(1).

Accordingly, courts “interpret the term ‘incompetent person’ in Rule 17(c)

to refer to a person without the capacity to litigate under the law of his state

of domicile and, hence, under Rule 17(b).” Thomas v. Humfield, 916 F.2d

1032, 1035 (5th Cir. 1990).

Graham v. Teller County, Colo., 632 F. App’x 461, 465 (10th Cir. 2015).

Under Oklahoma law, “[a] guardian ad litem is a person appointed by the court to

assist the subject of a proceeding in making decisions or to make decisions when the subject

of a proceeding is incapable of making decisions even with assistance.” Gomes v. Hameed,

184 P.3d 479, 486-87 (Okla. 2008) (citing Okla. Stat. tit. 30, § 1-111). Here, Plaintiff

alleges he is “INCOMPETENT and NON COMPOS MENTIS” [Doc. 5 at 1]. However,

he has provided no support for this claim, other than his bare statements and definitions of

incapacity. Because the Court finds that Plaintiff has not demonstrated he is incapable of

making decisions, his motion for appointment of a guardian ad litem [Doc. No. 5] is

DENIED.

Plaintiff has also filed a motion requesting the Court to appoint counsel [Doc. No.

10]. He cites 25 U.S.C. § 175, which states, “In all States and Territories where there are

reservations or allotted Indians the United States attorney shall represent them in all suits

at law and equity.” This statute, however, “is not mandatory and . . . its purpose is no more

than to insure Indians adequate representation in suits to which they might be parties.”

Siniscal v. United States, 208 F.2d 406, 410 (9th Cir. 1953), cert. denied, 348 U.S. 818

(1954). See also Pyramid Lake Paiute Tribe of Indians v. Morton, 499 F.2d 1095, 1097

(D.C. Cir. 1974) (finding that this provision “impose[s] only a discretionary duty of

representation”).

The Court, however, still may consider Plaintiff’s motion for appointment of

counsel. He bears the burden of convincing the Court that his claim has sufficient merit to

warrant such appointment. McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985)

(citing United States v. Masters, 484 F.2d 1251, 1253 (10th Cir. 1973)). The Court has

carefully reviewed the merits of Plaintiff’s claims, the nature of factual issues raised in his

allegations, and his ability to investigate crucial facts. McCarthy, 753 F.2d at 838 (citing

Maclin v. Freake, 650 F.2d 885, 887-88 (7th Cir. 1981)). After considering Plaintiff’s

ability to present his claims and the complexity of the legal issues raised by the claims, the

Court finds that appointment of counsel is not warranted. See Williams v. Meese, 926 F.2d

994, 996 (10th Cir. 1991); see also Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir.

1995). Therefore, Plaintiff’s motion for appointment of counsel [Doc. No. 10] is DENIED.

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 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 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).

Because the Pittsburg County Jail is a building, not a “person,” it 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. See Hinton v. Dennis, 362 F. App’x 904, 907 (10th Cir. Jan. 25,

2010) (holding that “the Creek County Criminal Justice Center is not a suable entity under

§ 1983.”).

Plaintiff asserts he was in the custody of the USMS while incarcerated at the

Pittsburg County Jail [Doc. No. 1 at 5], however, the USMS is a federal, not state, law

enforcement agency. Wilson v. United States Marshals Service, No. 17-3224-SAC, 2018

WL 4681638, slip op. at *3 (D. Kan. Sept. 28, 2018). Even if Plaintiff’s claim against the

USMS is construed as a claim under Bivens v. Six Unknown Agents of the Federal Bureau

of Narcotics, 403 U.S. 388 (1999), which set forth a remedy for constitutional violations

committed by federal officials, it must fail. “[A] Bivens claim can be brought only against

federal officials in their individual capacities” and cannot be asserted directly against the

United States, federal agencies, or federal officials acting in their official capacities. Smith

v. United States, 561 F.3d 1090, 1099 (10th Cir. 2009) (citing Farmer v. Merrill, 275 F.3d

958, 963 (10th Cir. 2001) and FDIC v. Meyer, 510 U.S. 471, 485–86 (1994)). Plaintiff

makes no allegations concerning individual federal defendants to provide the necessary

direct, personal participation required to establish Bivens liability. Therefore, the United

States Marshals Service also is DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1) for

failure to state a claim upon which relief may be granted. Further, because the USMS is

dismissed by this Opinion and Order, Plaintiff’s motion for the Court to grant a fair hearing,

which concerns the USMS as a defendant [Doc. No. 8], is DENIED AS MOOT.

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 must

provide the correct and names and addresses for service of process. See Lee v. Armontrout,

991 F.2d 487, 489 (8th Cir. 1993). Plaintiff 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 amended complaint must “make clear exactly who is alleged to have done what

to whom, to provide each individual with fair notice as to the basis of the claims against

him or her . . . .” Robbins v. Oklahoma, 519 F.3d 1242, 1249-50 (10th Cir. 2008) (emphasis

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

process. An amended complaint completely replaces 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). 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. It also may not include defendants or claims that are

dismissed by this Opinion and Order. Pursuant to Local Civil Rule 5.2(a), the amended

complaint must be clearly legible, only one side of the paper may be used, and additional

sheets of paper shall have margins of no less than one (1) inch on the top, bottom, and

sides. The Court Clerk is directed to send Plaintiff a form for filing an amended complaint.

THEREFORE,

1. Plaintiff’s motion for appointment of guardian ad litem [Doc. No. 5] is

DENIED.

2. Plaintiff’s motion for appointment of counsel [Doc. No. 10] is DENIED.

3. Defendants Pittsburg County Jail and the United States Marshals Service are

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.

4. Plaintiff’s motion for the Court to grant a fair hearing [Doc. No. 8] is

DENIED AS MOOT.

5. Plaintiff is directed to file within twenty-one (21) days an amended complaint

on the Court’s form, as directed in this Order.

6. The Court Clerk is directed to send Plaintiff a copy of the form for filing an

amended civil rights complaint in this Court.

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

without further notice.

IT IS SO ORDERED this 5th day of November 2021.

_______________________________

JOHN F. HEIL, III

UNITED STATES DISTRICT JUDGE