Carver v. Driscoll

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

RODNEY L. CARVER,

Plaintiff,

v. No. 22-CV-103-JFH-JAR

DEPARTMENT OF

CORRECTIONS, et al.,

Defendants.

OPINION AND ORDER

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

(“DOC”) who is incarcerated at John Lilley Correctional Center (“JLCC”) in Boley, Oklahoma.

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

constitutional violations at JLCC. Dkt. No. 1. The defendants are the DOC and four JLCC

officials: Warden Terry Tuggle (“Tuggle”), Chief of Security Mr. Britt (“Britt”), Lt. Hammon

(“Hammon), and Sgt. Driscoll (“Driscoll”).

Plaintiff alleges he was subjected to cruel and unusual punishment and excessive force

when Driscoll harassed him and later handcuffed him and pulled on his headset. Plaintiff also

alleges that Driscoll called him “a bitch & punk” in front of other officers and tried to break his

left wrist. Hammon allegedly saw Plaintiff’s injury. Dkt. No. 1 at 5. In the process of taking

Plaintiff to the “cool-off cage,” Driscoll allegedly shoved Plaintiff into the gate pole at the entrance

to the cage and then tried to break Plaintiff’s hand when he took off the handcuff. According to

Plaintiff, Sgt. Bentley (“Bentley”) saw Driscoll’s actions and told him that he was using excessive

force and that that an incident report would need to be completed on Driscoll. Plaintiff alleges that

he told Hammon he felt threatened by Driscoll and did not want to remain on Unit 2-H with

Driscoll. Plaintiff alleges Hammon moved him to Unit No. 4 that night. Id. at 6.

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).

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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

No later than May 31, 2022, 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. 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 provide correct names and proper addresses for service of process).

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).

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Plaintiff 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, regardless of the relief sought. 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). Therefore, the Oklahoma Department of

Corrections is DISMISSED from this action and may not be named as a defendant in the amended

complaint.

Plaintiff has set forth allegations concerning Defendants Driscoll and Hammon, but he has

not explained the involvement of the remaining defendants. The amended complaint must include

a short and plain statement of when (with full date) and how each named defendant violated

Plaintiff’s constitutional rights, and show that 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. Plaintiff 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

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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).

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 may not include

defendants or claims that are dismissed by this 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.

IT IS THEREFORE ORDERED that:

1. Plaintiff is directed to file an amended complaint on the Court’s form, no later than

May 31, 2022.

2. The Oklahoma Department of Corrections is DISMISSED from this action and may

not be named as a defendant in the amended complaint.

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

amended civil rights complaint in this Court.

4. Failure to comply with this Order will result in dismissal of this action without

further notice.

Dated this 10th day of May 2022.

____________________________________

JOHN F. HEIL, III

UNITED STATES DISTRICT JUDGE

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