Cathey v. Everett

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

BILL CATHEY,

Plaintiff,

v. Case No. 23-CV-207-JFH-GLJ

LEISHA VON EVERETT, et al.,

Defendants.

OPINION AND ORDER

Plaintiff Bill Cathey (“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 OSP. Dkt. No. 1. The defendants are Leisha Von

Everett, OSP Dentist; Kim Hall, OSP Correctional Health Services Administrator; Bruce Sharp,

OSP Dentist; and Cherri Adkinson, DOC Director’s Designee. Id. at 1-2.

Plaintiff alleges Defendants have been deliberately indifferent to his serious medical and

dental problems. After review of the complaint, the Court finds that Plaintiff must file an amended

civil rights complaint on the Court’s form, as set forth below.

I. 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). 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, “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).

II. Amended Complaint

The statute of limitations for a civil rights cause of action in Oklahoma is two years. Meade

v. Grubbs, 841 F.2d 1512, 1522 (10th Cir. 1988). Plaintiff’s original complaint, however, presents

incidents going back to 2015. See Dkt. No. 1 at 6. Because Plaintiff’s complaint was filed on June

26, 2023, he must file an amended complaint that is limited to incidents occurring during the period

two years prior to the filing date.

Further, Plaintiff’s prolix original complaint is 27 pages long. The amended complaint

must include a short and plain statement of when and how each named defendant violated

Plaintiff’s constitutional rights and that Plaintiff is entitled to relief from each named defendant.

See Fed. R. Civ. P. 8(a). Plaintiff should limit explanations and background information that do

not directly concern his present claims. He also shall identify a specific constitutional basis for

each claim. 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).

Plaintiff’s amended complaint must be filed on this Court’s form no later than November

27, 2023. The amended complaint must set forth the full name of each person he is suing under

42 U.S.C. § 1983. 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 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).

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. 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 no later than November 27, 2023, Plaintiff must file

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 Opinion and Order will result in dismissal of this action without

further notice.

Dated this 2nd day of November 2023.

et £ LEW

JOHN F. HEIL, III

UNITED STATES DISTRICT JUDGE