The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
BILAL KONTE, )
)
Plaintiff, )
)
-vs- ) Case No. CIV-19-942-F
)
OKLAHOMA COUNTY, )
OKLAHOMA, and DAVID PRATER, )
)
)
Defendants. )
ORDER
On October 11, 2019, plaintiff, Bilal Konte, filed an original complaint
against defendants, Oklahoma County, Oklahoma, and David Prater, in his official
capacity as District Attorney of Oklahoma County, Oklahoma, seeking monetary
relief pursuant to 42 U.S.C. § 1983 for alleged violations of his constitutional
rights. Specifically, plaintiff alleges that he was maliciously prosecuted in
violation of his Fourth and Fourteenth Amendment rights. Plaintiff filed an
amended complaint on October 15, 2019, with minor changes from the original
complaint.
Contemporaneous with the filing of his action, plaintiff sought leave to
proceed in this court without prepaying fees or costs. Under 28 U.S.C. § 1915(a),
a district court “may authorize the commencement . . . of any suit [or] action . . .
without prepayment of fees or security therefor, by a person who submits an
affidavit that includes a statement of all assets such prisoner possesses, that the
person is unable to pay such fees or give security therefor.” Section 1915(a) applies
to all persons applying for in forma pauperis status, and not just to prisoners. See,
Lister v. Department of Treasury, 408 F.3d 1309, 1313 (10th Cir. 2005). On
October 15, 2019, United States Magistrate Judge Bernard M. Jones, upon review
of plaintiff’s in forma pauperis application, authorized plaintiff to proceed without
prepayment of fees or giving security for such payment.
“‘Notwithstanding any filing fee,’ the court ‘must dismiss the case at any
time if the court determines that . . . the allegation of poverty is untrue’ or that ‘the
action is frivolous or malicious [or] fails to state a claim on which relief may be
granted’ or makes a claim for monetary relief from an immune party.” Lister, 408
F.3d at 1312.
Upon review of the amended complaint, which supersedes the original
complaint, the court concludes that plaintiffs’ amended complaint and action
against defendants is subject to dismissal for the following reasons.
Oklahoma County
In Oklahoma, each organized county is empowered to sue and be sued. 19
O.S. 2011 § 1. These powers are to be exercised by the county’s board of county
commissioners. 19 O.S. 2011 § 3. A suit brought against a county’s board of
county commissioners is the manner in which Oklahoma law contemplates suing
the county. 19 O.S. 2011 § 4. In the context of a § 1983 action, a suit against the
board of county commissioners or some county official in his official capacity is a
suit against the county. Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010);
Lopez v. LeMaster, 172 F.3d 756, 762 (10th Cir. 1999). Plaintiff has not named the
Board of County Commissioners of Oklahoma County as a defendant in the
amended complaint. Although plaintiff has named David Prater, in his official
capacity as district attorney, a district attorney, under Oklahoma law, is a state
official rather than a county official. Arnold v. McClain, 926 F.2d 963, 965-966
(10th Cir. 1991).
Even if the Board of County Commissioners of Oklahoma County were
named as a defendant, the court finds that the defendant would be subject to
dismissal for failure of plaintiff’s amended complaint to state a claim against it.1
Plaintiff complains of the prosecution of criminal charges against him. Oklahoma
County is not liable for the acts of the district attorney or the assistant district
attorneys. Arnold, 926 F.2d at 965-966. Moreover, a municipality or county
cannot be held liable under § 1983 solely because an employee inflicted injury upon
a plaintiff. In other words, municipality or county cannot be held liable based upon
a respondeat superior theory. Monell v. Department of Social Services of City of
New York, 436 U.S. 658, 691 (1978). Local governments are responsible under
§ 1983 only for “their own illegal acts.” Connick v. Thompson, 563 U.S. 51, 60
(2011) (emphasis in original, quotation and citation omitted). To establish
municipality or county liability under § 1983, a plaintiff must show (1) the
existence of a municipal policy or custom and (2) a direct causal link between the
policy or custom and the injury alleged. Graves v. Thomas, 450 F.3d 1215, 1218
(10th Cir. 2006). Plaintiff has not alleged in the amended complaint any facts
1 The same standard of review applies for dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii) that the
court employs for dismissal motions under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Thus, the court looks to “the specific
allegations in the complaint to determine whether they plausibly support a legal claim for relief,”
and “factual allegations in a complaint must be enough to raise a right to relief above the
speculative level.” Id. at 1218 (quotations and brackets omitted). In determining whether
dismissal is proper, the court “must accept the allegations of the complaint as true and construe
those allegations, and any reasonable inferences that might be drawn from them, in the light most
favorable to the plaintiff.” Id. at 1217 (quotation omitted). Additionally, the court must
“construe a pro se [plaintiff’s] complaint liberally.” Id. at 1218 (quotation omitted). However,
the court will not assume the role of the pro se plaintiff’s advocate. United States v. Pinson, 584
F.3d 972, 975 (10th Cir. 2009).
demonstrating that Oklahoma County had a policy or custom that directly caused
the constitutional violations alleged by plaintiff. Thus, the court concludes that
plaintiff’s amended complaint and action against defendant, Oklahoma County,
Oklahoma, must be dismissed without prejudice for failure to state a claim pursuant
28 U.S.C. § 1915(e)(2)(ii).
David Prater
As stated, David Prater is being sued in his official capacity as District
Attorney for the Oklahoma County, Oklahoma. Under Oklahoma law, a district
attorney is an arm of the state. Arnold, 926 F.2d 965-966. The Eleventh
Amendment to the United States Constitution bars actions in federal court against
states and state officers sued in their official capacities for money damages.
Edelman v. Jordan, 415 U.S. 651, 663 (1974). Section 1983 does not abrogate this
immunity. Will v. Michigan Department of State Police, 491 U.S. 58, 66-67
(1989). And Oklahoma has not waived its Eleventh Amendment immunity. 51
O.S. 2011 § 152.1(B). Moreover, neither states nor state officials sued in their
official capacities are “persons” within the meaning of 42 U.S.C. § 1983. Will, 491
U.S. at 71. Because defendant, David Prater, sued in his official capacity as District
Attorney of Oklahoma County, Oklahoma, is immune from plaintiffs’
§ 1983 claims for monetary relief, the court finds that plaintiff’s amended
complaint and action should be dismissed without prejudice pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(iii).
Unnamed Prosecutors
In his amended complaint, plaintiff complains of actions of “prosecutors
within the Oklahoma County District Attorney’s Office” who “were given the
responsibility to oversee Plaintiff’s criminal charges and prosecution.” Doc. no. 4,
¶ 4. None of these prosecutors are individually named in the caption of the
amended complaint or in the body of the pleading. Rule 10(a) of the Federal Rules
of Civil Procedure requires the title of the complaint to name all parties. The court
therefore does not consider the unnamed prosecutors as defendants which respect
to plaintiff’s amended complaint and action.
Even if the prosecutors were named and were sued in their individual
capacities, the court notes that plaintiff’s amended complaint and action would be
subject to dismissal against the prosecutors because they are immune from suit
under the doctrine of absolute prosecutorial immunity. In Imbler v. Pachtman, 424
U.S. 409 (1976), the Supreme Court determined that prosecutors are absolutely
immune from liability in § 1983 suits brought against acts that are “intimately
associated with the judicial phase of the criminal process.” Id. at 430.
Consequently, “[a]cts under taken by a prosecutor in preparing for the initiation of
judicial proceedings for trial, and which occur in the course of his role as an
advocate for the State, are entitled to the protections of absolute immunity.” Hunt
v. Bennett, 17 F.3d 1263, 1267 (10th Cir. 1994) (quoting Buckley v. Fitzsimmons,
509 U.S 259, 273 (1993)). Plaintiff complains of the prosecutors instituting and
continuing prosecution of criminal proceedings for sexual assault and abuse
charges without probable cause. He also complains of the prosecutors’ actions in
dismissing and refiling the criminal charges. These acts are protected by the
doctrine of absolute prosecutorial immunity. Nielander v. Board of County
Commissioners of County of Republic, Kan., 582 F.3d 1155, 1164 (10th Cir. 2009)
(“Prosecutors are entitled to absolute immunity for their decisions to prosecute,
their investigatory or evidence-gathering actions, their evaluation of evidence, their
determination of whether probable cause exists, and their determination of what
information to show the court.”).
Ruling
Based upon the foregoing, plaintiffs’ amended complaint and action against
defendant, Oklahoma County, Oklahoma, is DISMISSED WITHOUT
PREJUDICE for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) □□□□
and plaintiff’s amended complaint and action against David Prater, in his official
capacity as District Attorney for Oklahoma County, Oklahoma, is DISMISSED
WITHOUT PREJUDICE for seeking monetary relief against a defendant who is
immune from such relief pursuant to 28 U.S.C. § 1915(e)(2)(B)au1). Judgment
shall issue forthwith.
IT IS SO ORDERED this 25" day of October, 2019.
STEPHEN P. oo
UNITED STATES DISTRICT JUDGE
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