# Whitten v. McCurtain County Jail Trust

> District Court, E.D. Oklahoma · January 5, 2023

URL: https://www.frixlaw.com/law-library/cases/10385611

## Case

- **Court:** District Court, E.D. Oklahoma
- **Decided:** January 5, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10385611

## How later opinions describe it (automated extraction)

- holding that ' 1915A dismissals are reviewed under the Fed. R. Civ. P. 12(b)(6) standard for stating a claim for relief

## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA

MARION ALLEN WHITTEN, JR.,

Plaintiff,

v. No. 23-CV-005-JFH-GLJ

McCURTAIN COUNTY JAIL TRUST,
et al.,

Defendants.

OPINION AND ORDER

Plaintiff is a pro se pretrial detainee who is incarcerated at the Choctaw County Jail in
Hugo, Oklahoma. He filed this civil rights complaint pursuant to 42 U.S.C. ' 1983, seeking relief
for alleged constitutional violations that occurred at the McCurtain County Jail in Idabel,
Oklahoma (Dkt. 1). The defendants are the McCurtain County Jail Trust and the following
McCurtain County Jail officials: Larry Hendrix, Jail Administrator; Joe LNU, Supervisor; and
J.C. LNU, Administrative Assistant. Id. at 3-4.
Plaintiff alleges the following incident occurred at the McCurtain County Jail on or about
January 4, 2022:
Joe was night supervisor. He placed me in a restraint chair, then slapped or hit me
on the side of my head, ears. Larry Hendric and J.C. were Jail administators at
time of incident. I put in 2 grievances that were not answered, never turned in to
proper personel. Another incident, in which i was J.P.X. pepper balled for hitting
camera is how i informed proper personel of incident which happened earlier in
year of 2022. The F.B.I. from O.K.C. has video footage.

Id. at 1.
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 Araise a right to relief above the speculative level.@ Twombly, 550 U.S. at
555. The complaint also must contain Aenough 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. ASo, 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). See also Turley v. Rednour, 729 F.3d 645, 649 (7th
Cir. 2013) (holding that ' 1915A dismissals are reviewed under the Fed. R. Civ. P. 12(b)(6)
standard for stating a claim for relief).
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, Adoes 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, Aif 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 Amere conclusions characterizing pleaded
facts.@ Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990). AWhile 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 Awill 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
defendant he is suing under 42 U.S.C. ' 1983. Plaintiff also 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).
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 Adenial 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 Abased 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 Tenth Circuit has explained that when a ' 1983 plaintiff includes a Agovernment
agency and a number of government actors sued in their individual capacities,@ then Ait is
particularly important . . . that the complaint 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, as distinguished from collective allegations against the state.@ Robbins v. Oklahoma, 519
F.3d 1242, 1249-50 (10th Cir. 2008) (emphasis in original). When a plaintiff instead uses Aeither
the collective term >Defendants= or a list of defendants named individually but with no distinction
as to what acts are attributable to whom, it is impossible for any of these individuals to ascertain
what particular unconstitutional acts they are alleged to have committed.@ Id. at 1250 (citation
omitted).
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.
ACCORDINGLY, 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 5th day of January 2023.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10385611. Public record. Not legal advice.