Hill v. Brown

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

RICK HILL, )

)

Plaintiff, )

)

v. )

)

STATE OF OKLAHOMA, Dept. of Human ) Case No. 20-CV-25-TCK-JFJ

Services and CSE Agency; JUSTIN BROWN, )

Director of Dept. of Human Services; )

STEVEN BUCK, Secretary of Records for )

Dept. of Human Services; and MIKE )

HUNTER, State of Oklahoma Attorney General, )

)

Defendants. )

)

OPINION AND ORDER

Before the Court is the Motion to Dismiss filed by defendants Oklahoma Attorney General

Mike Hunter and Secretary of Human Services and Childhood Initiatives Steven Buck, in their

official and individual capacities. Doc. 7. Defendants seek dismissal of pro se plaintiff Rick Hill’s

Complaint pursuant to Fed R. Civ. P. 12(b)(1) and 12(b)(6). Id. Plaintiff opposes the motion. Doc.

11.

I. Applicable Law

Fed. R.Civ. P.12(b)(1) permits the Court to dismiss a complaint for “lack of subject- matter

jurisdiction.” “Since federal courts are courts of limited jurisdiction, we presume no jurisdiction

exists absent an adequate showing by the party invoking federal jurisdiction.” Siloam Springs

Hotel, L.L.C. v. Century Surety Co., 906 F.3d 926, 931 (10th Cir. 2018). “Rule 12(b)(1) motions

generally take one of two forms: (1) a facial attack on the sufficiency of the complaint’s allegations

as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter

jurisdiction is based.” (citation omitted). Here, defendants have facially attacked the sufficiency

of the Complaint’s allegations as to the existence of subject matter jurisdiction. In addressing a

facial attack under Rule 12(b)(1), the court must “presume all of the allegations contained in the

amended complaint to be true.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002).

Dismissal is proper where “the complaint fails to allege any basis for subject matter jurisdiction

over the claims raised therein.” Harrison v. United States, 329 Fed. Appx. 179, 181 (10th Cir.

2009) (unpublished).

Fed. R. Civ. P. 12(b)(6) allows the Court to dismiss a complaint for “failure to state a claim

upon which relief can be granted.” To survive a Rule 12(b)(6) motion to dismiss, “a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). “[T]he Rule 8 pleading standard does not require detailed factual

allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed me

accusation.” Id.

“T]he tenet that a court must accept as true all of the allegations contained in a complaint

is inapplicable to legal conclusions,” and “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id. The plaintiff bears the burden to

frame “a complaint with enough factual matter (taken as true) to suggest” that he or she is entitled

to relief. Id. at 556. Allegations in a complaint must be sufficient to show that a plaintiff plausibly,

(not just speculatively) has a claim for relief. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th

Cir. 2008)).

II. Allegations of the Complaint

In his Complaint, Plaintiff alleges Defendants have committed “RACKETEERING

FRAUD and EMBEZZLEMENT” against him over 100 times and violated Oklahoma and Federal

laws. Doc. 1 at 12-13. He seeks:

• “2 trillion dollars in financial compensation;”

• “to have my name and other personal information removed from their system and

permanent ban from future action;”

• “removal of all negative credit reports;” and

• “cease and desist all Tax and Wage garnishments.

Id. at 2-3. Attached to the Complaint is a “BRIEF for CIVIL ACTION” in which Plaintiff alleges

that because he is a Native American, Oklahoma has no jurisdiction over him; and that ODHS

fraudulently billed him for medical fees, charged excessive interest and penalties, failed to credit

his account for money it received, and refused to recognize his rights under the Native American

Rights Act, the Reserved Rights Doct[rine]. Id. at 4-15.

III. Analysis

A. Rule 12(b)(1) Motion

In their Motions to Dismiss, Defendants assert that the Court lacks jurisdiction to entertain

Plaintiff’s claims because Plaintiff failed to comply with Oklahoma Governmental Tort Claims

Act (“OGTCA”), 51 O.S. §151, et seq. The OGTCA is the exclusive remedy by which an injured

plaintiff may recover against a government entity for the alleged torts or constitutional violations

of its agents and employees. Fuller v. Odom, 741 P.2d 446, 451 (Okla. 1987). The OGTCA

further provides that “[t]he State, its political subdivision, and all of their employees acting within

the scope of their employment, whether performing governmental or proprietary functions, shall

be immune for liability for torts.” 51 O.S. §152(A). The OGTCA defines the term “tort” as:

[A] legal wrong, independent of contract, involving violation of a duty imposed by

general law, statute, the Constitution of the State of Oklahoma, or otherwise,

resulting in a loss to any person . . . as the proximate result of an act or omission of

a political subdivision or the state or an employee acting within the scope of

employment.

51 O.S. §152(14). The OGTCA imposes the following procedural prerequisites for pursuit of tort

claims for monetary damages against the State or its political subdivisions:

First, the claimant must file a written claim with the Office of Risk Management and the

state agency involved within one year of the date of the loss. 51 O.S. §156. A claimant’s failure

to timely file a written claim results in a permanent bar against filing the claim. 51 O.S. §156(B).

Second, the claim must have been denied in whole or in part by the State. 51 O.S. §157.

Third, if the State denies the claim, the claimant must file suit within 180 days. 51 O.S.

§157.

Finally, a petition must allege sufficient facts to determine whether or not actual or

substantial requirements of the notice of the OGTCA have been met by the plaintiff. See Childers

v. Bd. of Commissioners of Oklahoma City, 2019 WL 4060877, *3 (W.D. Okla. Aug. 28, 2019).

Plaintiff’s Complaint fails to plead compliance with the requirements of the OGTCA.

Accordingly, it is subject to dismissal.

B. Rule 12(b)(6) Motion

Defendants also move for dismissal pursuant to Rule 12(b)(6), arguing that: (1) the

Complaint states no facts specifically identifying what Attorney General Hunter or Secretary Buck

did to wrong Plaintiff; (2) it alleges no personal participation by either of them in the alleged

constitutional violations against him; (3) defendants are entitled to qualified immunity from

Plaintiff’s claims; and (4) defendants are entitled to Eleventh Amendment immunity.

1. Failure to Allege Facts Identifying Wrongful Acts by Defendants

Defendants argue that, to the extent Plaintiff’s Complaint asserts claims against them in

their individual capacities, those claims must be dismissed because the Complaint fails to allege

either defendant’s personal participation in the alleged constitutional violations. As previously

noted, to survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 556 U.S.

at 678 (2009).

The only allegation regarding Secretary Buck is that he “is responsible for making sure that

DHS is functioning in accordance with the laws and ensuring that the individual rights are not

violated,” and that he “failed to ensure his responsibilities to the duties hereto.” Id. at 13-14.

Likewise, the Complaint alleges Attorney General Hunter is “responsible for ensuring that all

information, records and legal matters are correct and accurate,” and that he “has failed in his

responsibilities.” Id. at 14. These generalized allegations do not provide Defendants Buck and

Hunter adequate notice of exactly what Plaintiff alleges they have done wrong.

2. Failure to Allege Personal Involvement

To the extent Plaintiff seeks to assert claims against Hunter and Buck in their individual

capacities, it is well settled that “[i]ndividual liability under §1983 must be based on personal

involvement in the alleged constitutional violation.” Foote v. Spiegel, 118 F.3d 1416, 1423 (10th

Cir. 1997Accordingly, a plaintiff must plead that each government-official defendant, through the

official’s own individual actions, has violated the plaintiff’s constitutional rights. Ashcroft, 556

U.S. at 676. The plaintiff must demonstrate an affirmative link between the alleged constitutional

violation and the defendant’s own participation or failure to supervise. Serna v. Colorado Dept.

of Corrections, 455 F.3d 1146, 1151-52 (10th Cir. 2006). And because “[t]here is no concept of

strict supervisor liability under section 1983,” government officials cannot be held vicariously

liable in a §1983 suit for the misconduct of their subordinates. Jenkins v Wood, 81F.3d 988, 994

(10th Cir. 1996). Additionally, the Tenth Circuit has held that the mere affirmance or denial of a

grievance is insufficient to establish personal participation. Stewart v. Beach, 701 F.3d 1322, 1328

(10th Cir. 2012).

The Complaint is devoid of allegations establishing Buck or Hunter personally participated

in the alleged violation of Plaintiff’s rights. Therefore, it is subject to dismissal.

3. Qualified Immunity

Defendants Hunter and Buck also argue that they are entitled to qualified immunity.

Qualified immunity protects government officials from individual liability in a §1983 action unless

the official’s conduct violates clearly established constitutional rights. See Perez v. Unified Gov’t

of Wyandotte County, 432 F.3d 1163, 1165 (10th Cir. 2005); Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982). It is “an immunity from suit rather than a mere defense to liability, and like an absolute

immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth,

472 U.S. 511, 526 (1985). As a result, the Supreme Court has stressed that it is critical to resolve

immunity questions at the earliest possible stage in the litigation. See Saucier v. Katz, 533 U.S.

194, 199-201 (2001); Hunter v. Bryant, 502 U.S. 224, 227 (1991). Whether qualified immunity

exists is a question of law to be decided by the trial court. England v. Hendricks, 880 F.2d 281,

283 (10th Cir. 2003).

When a defendant raises a qualified immunity defense, the plaintiff bears the burden of

establishing that the defendant’s action violated a right protected by the United States Constitution

or federal statutory right, and that the constitutional or statutory right was clearly established at the

time of the events in question, such that “every reasonable official would have understood that

what he [was] doing” violated the law. Fisher v. City of Las Cruces, 584 F.3d 888, 893 (10th Cir.

2009), citing Pearson v. Callahan, 555 U.S. 223, 232 (2009). “The law is clearly established when

a Supreme Court or Tenth Circuit precedent is on point or the alleged right is clearly established

from case law in other circuits.” Lowe v. Raemisch, 864 F.3d 1205, 1208 (10th Cir. 2017) (citing

Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1248 (10th Cir. 2003)).

“[T]he touchstone of [this] inquiry is whether the officers [were] on notice [that] their

conduct [was] unlawful.” Roska, 328 at 1248 (citations and internal quotation marks omitted).

Accordingly, the plaintiff must allege a constitutional violation and meet his burden to establish

that the law on the subject is clearly established and that a reasonable official would have known

that his actions would violate clearly established law. Id. at 1251. The Tenth Circuit has cautioned

that “[i]n considering the ‘reasonable state actor,’ we must keep in mind that qualified immunity

precludes the imposition of liability for ‘all but the plainly incompetent or those who knowingly

violate the law.’” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986) (emphasis in original)).

Plaintiff’s Complaint fails to allege that Defendants violated any clearly established

constitutional right. Accordingly, Defendants’ Motion to Dismiss must be granted.

4. Eleventh Amendment Immunity

The Eleventh Amendment provides that “[t]he judicial power of the United States shall not

be construed to extend to any suit in law or equity, commenced or prosecuted by or against the

United States by citizens of another state . . .” U.S. CONST. AMEND. XI. Accordingly, “[n]either

the State, nor a governmental entity that is the arm of the State for Eleventh Amendment purposes,

nor a State official who acts in his official capacity is a person within the meaning of §1983.” Will

v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989) (internal quotation marks omitted).

Because “a suit against a state official in his or her official capacity is not a suit against the official

but rather is a suit against the official’s office . . . it is no different from a suit against the State

itself.” Id. (citations omitted). Both the Office of the Attorney General and the Department of

Human Services are arms of the state for Eleventh Amendment purposes, as are Attorney General

Hunter and Secretary Buck, named in their official capacity. Furthermore, Plaintiff cannot recover

money damages against these individuals in their official capacities, as the Eleventh Amendment

protects them against such suits. Kentucky v. Graham, 472 U.S. 159, 169 (1985).

Additionally, even if a state or state agency could be proper defendants in a §1983 action,

individual defendants cannot be held liable under the statute merely because they hold a

supervisory position. Grimsley v.MacKay, 93 F.3d 676, 679 (10th Cir. 1996). Liability can be

imposed on a supervisor under §1983 only where there is an “affirmative link” between the alleged

constitutional deprivation and the supervisor’s personal participation or failure to supervise. Butler

v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993) (citation omitted). Plaintiff’s Complaint

fails to articulate how (if at all) Attorney General Hunter or Secretary Buck personally participated

in any violation of Plaintiff’s constitutional rights.

States may waive their Eleventh Amendment immunity, or Congress may abrogate that

immunity in certain instances. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd.,

527 U.S. 666, 670 (1999). However, the State of Oklahoma has not waived immunity. See 51

O.S. §152.1(B) (2012). Nor has Congress, through the enactment of 42 U.S.C. §1983, abrogated

Eleventh Amendment immunity. Quern v. Jordan, 440 U.S. 332, 345 (1979) (overruled on other

grounds by Hafter v. Melo, 502 U.S. 21, 217 (1991)).

Accordingly, Plaintiff’s claims against defendants Hunter and Buck are barred by the

Eleventh Amendment.

IV. Conclusion

For the foregoing reasons, the Motion to Dismiss filed by defendants Hunter and Buck

(Doc. 7) is hereby granted.

ENTERED this 12th day of August, 2020.