Bell v. Oklahoma Department of Corrections et al

Filing 4

OPINION AND ORDER by District Judge James H. Payne : Denying 2 Motion for Leave to Proceed in Forma Pauperis, Filing Fee due by 4/5/2013 (acg, Deputy Clerk)

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

IL ED

MAR 1 5 2013
JOE THOMAS BELL,

Plaintiff,
v.

OKLAHOMA DEPARTMENT
OF CORRECTIONS, et al.,
Defendants,

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WlLLIAtvi l:l UU': J h:IE
Clerk, U.S. D1smcr Cuuri
By
-1'\:be~pu::t:"ty:-I"C<r.:"ler::rfi- -

No. CIV 13-063-JHP-SPS

OPINION AND ORDER
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS
Plaintiff Joe Thomas Bell, a prisoner appearing prose, has filed a motion for leave
to proceed in forma pauperis with supporting documentation in conformance with 28 U.S.C.

§ 1915(a). A review ofhis litigation history, however, indicates he has accumulated at least
three prior civil rights actions that count as "strikes," pursuant to 28 U.S.C. § 1915(g):
In no event shall a prisoner bring a civil action or appeal a judgment in a civil
action or proceeding under this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on the grounds that
it is frivolous, malicious, or fails to state a claim upon which relief may be
~r~nted, unless the prisoner is under imminent danger of serious physical
InJUry.
28 U.S.C. § 1915(g).

Bell v. Jones, No. CIV 09-502-RAW-SPS (E.D. Okla. Feb. 17, 2011), was dismissed
as frivolous, because plaintiff failed to show the defendant's personal participation, and the
relief sought was not cognizable under 42 U.S.C. § 1983. See Attachment 1 to this Opinion
and Order. In Bell v. Fields, No. CIV 92-691-FHS-JHP (E.D. Okla. Aug. 23, 1993), the
complaint was dismissed because the allegations were conclusory, "non-personal in nature,
and ... unsupported by sufficient facts." See Attachment 2. Finally, Bell v. Stevens, No.
CIV 92-572-FHS-JHP (E.D. Okla. Mar. 24, 1993), was dismissed pursuant to Fed. R. Civ.
P. 12(b)(6), because plaintiffs allegations regarding his prison job were "insubstantial and

frivolous." See Attachment 3. 1
Plaintiff alleges in his complaint that he contracted tuberculosis because of the
conditions of his confinement in a Department of Corrections facility in 2011 and 2012. He
claims his tuberculosis symptoms could return, so he is in imminent danger of serious
physical injury. The court, however, finds such speculative assertions do not qualify him for
the exception to the three-strike rule in 28 U.S.C. § 1915(g).

ACCORDINGLY, plaintiffs motion for leave to proceed in forma pauperis [Docket
No.2] is DENIED. Plaintiff is directed to forward the $350.00 filing fee to the Court Clerk
within twenty (20) days. Failure to submit the filing fee as directed, or to show cause for
failure to pay the fee, will result in dismissal of this action. The agency having custody of
plaintiff is ordered to release funds from his accounts, including his trust account, for
payment of the filing fee.

IT IS SO ORDERED this /51~-day ofMarch 2013.

ICTJUDGE

1

Prisoner suits dismissed prior to the 1996 enactment of the Prison Litigation Reform Act
count as strikes. Day v. Maynard, 200 F .3d 665, 667 (1Oth Cir. 1999) (citing Green v. Nottingham,
90 F.3d 415, 418-20 (lOth Cir. 1996)).
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ATTACHMENT 1
Bell v. Jones, No. CIV 09-502-RAW-SPS
(E.D. Okla. Feb. 17, 2011)

6:09-cv-00502-RAW-SPS Document 46 Filed in ED/OK on 02/17/11 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR 'WE
EASTERN DISTRICT OF OKLAHOMA
!f~JD)

FEB 1 7 2011
JOE THOMAS BELL,
Plaintiff,
v.

JUSTIN JONES,
Defendants.

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WILLIAM B. GU'l'HRl£
Clerk, U.S. Oistnc.1 Court

By-

Deputy Clerk

No. CIV 09-502-RA W-SPS

OPINION AND ORDER
This action is before the court on the defendant's motion to dismiss or for summary
judgment and the court's own motion to consider dismissal of the case as frivolous under 28
U.S.C. § 1915.

The court has before it for consideration plaintiffs complaint, the

defendant's motion, plaintiffs response, and a special report prepared at the direction of the
court, in accordance with Martinez v. Aaron, 570 F.2d 317 (lOth Cir. 1978). Plaintiff, an
inmate in the custody of the Oklahoma Department of Corrections (DOC), brings this action
under the authority of 42 U.S.C. § 1983, seeking injunctive relief for alleged constitutional
violations during his incarceration. The defendant is DOC Director Justin Jones.'
Plaintiff alleges that all male DOC prisoners are in imminent danger of bodily injury.
He claims the defendant has placed all medium and maximum security prisons on permanent

1

To the extent the defendant is sued in his official capacity as a DOC official, plaintiff's
claims are barred by the Eleventh Amendment. It is well settled that a damages suit against a state
official in his official capacity is merely another way of pleading an action against the State. See
Kentuckyv. Graham, 473 U.S.159, 165 (1985). See also Willv. MichiganDept. ofStatePolice,491
U.S. 58, 71 (1988) (state officials sued in their official capacities are not "persons" for purposes of
a § 1983 suit, because the suit is against the official's office and not against the official).

6:09-cv-00502-RAW-SPS Document 46 Filed in ED/OK on 02/17/11 Page 2 of 4

lockdown, because of the possibility of outbreaks of violence between the races. Plaintiff
also asserts the Oklahoma facilities are overcrowded, and convicted inmates are being housed
in county jails, because there is no space available at Lexington Assessment and Reception
Center. The inmates in county jails allegedly are denied access to law libraries and other
privileges granted to DOC inmates. He seeks the following relief:
The petitioner seek [sic] a (3) three judge panel to issue an order to Director
Justin Jones to no longer hold Oklahoma prisoners under the current
overcrowed [sic] conditions, but begin upon order, real ease [sic] make an [sic]
female prisoners who has [sic] served 10 years or 20% ofthier [sic] longest
sentence, with the exceptions who don't qualify, sex offenders and anyone
convicted of a crime involving a child, and release shall be by a mandatory
temporary injunction, an [sic] the release shall continue until (9000) inmates
are released.
(Docket #1 at 4) (emphasis in original).
Defendant Justin Jones has filed a motion to dismiss or for summary judgment,
alleging among other things that plaintiffhas failed to show Jones' personal participation in
the alleged constitutional violations. "Personal participation is an essential allegation in a§
1983 claim." Bennett v. Passaic, 545 F.2d 1260, 1262-63 (lOth Cir. 1976) (citations
omitted). See also Mee v. Ortega, 967 F.2d 423,430 (lOth Cir. 1992). Further, "[s]ection
1983 will not support a claim based on a respondeat superior theory of liability." Polk

County v. Dodson, 454 U.S. 312, 325 (1981). Plaintiff is complaining of overcrowded
conditions in Oklahoma prisons, but he admits in his complaint that Defendant Jones "is only
required to house the convicted felon an[d] not relieve prison overcrowding" [Docket # 1 at
4]. The court, therefore, finds plaintiff has not shown that Defendant Jones personally
participated in the unconstitutional conditions alleged in the complaint.
Defendant Jones further alleges plaintiffs claims should be dismissed, because the
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6:09-cv-00502-RAW-SPS Document 46 Filed in ED/OK on 02/17/11 Page 3 of 4

relief sought is not cognizable under 42 U .S.C. § 1983. Plaintiff is seeking relief in the form
of the release of certain inmates who have served a certain portion of their sentences.
"[H]abeas corpus is the exclusive remedy for a state prisoner who challenges the fact or
duration of his confinement and seeks immediate or speedier release, even though such a
claim may come within the literal terms of§ 1983." Heck v. Humphrey, 512 U.S. 4 77, 481
(1994) (citing Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973)). See also Boutwell v.

Keating, 399 F.3d 1203, 1209 (lOth Cir. 2005).
Based on the foregoing reasons the court finds the allegations in plaintiffs complaint
are vague and conclusory, and the allegations do not rise to the level of a constitutional
violation. The Tenth Circuit Court of Appeals consistently has held that bald conclusions,
unsupported by allegations of fact, are legally insufficient, and pleadings containing only
such conclusory language may be summarily dismissed or stricken without a hearing. Dunn

v. White, 880 F.2d 1188, 1197 (lOth Cir. 1989), cert. denied, 493 U.S. 1059 (1990);Lorraine
v. United States, 444 F.2d 1 (lOth Cir. 1971). "Constitutional rights allegedly invaded,
warranting an award of damages, must be specifically identified. Conclusory allegations will
not suffice." Wise v. Bravo, 666 F.2d 1328, 1333 (lOth Cir. 1981) (citing Brice v. Day, 604
F.2d 664 (lOth Cir. 1979), cert. denied, 444 U.S. 1086 (1980)).
The court authorized commencement of this action in forma pauperis under the
authority of28 U.S.C. § 1915. Subsection (e) of that statute permits the dismissal of a case
when the court is satisfied that the complaint is without merit in that it lacks an arguable basis
either in law or fact. Nietzke v. Williams, 490 U.S. 319 (1989); Yellen v. Cooper, 828 F.2d
1471, 1475 (lOth Cir. 1987).

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6:09-cv-00502-RAW-SPS Document 46 Filed in ED/OK on 02/17/11 Page 4 of 4

ACCORDINGLY, this action is, in all respects, DISMISSED as frivolous. All other
pending motions are DENIED AS MOOT.
IT IS SO ORDERED this I 1~ day ofFebruary 2011.

RONALD A. WHITE
UNITED STATES DISTRICT JUDGE

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6:09-cv-00502-RAW-SPS Document 47 Filed in ED/OK on 02/17/11 Page 1 of 1
'!!&A0450 fRey 5185) Judgement in a Civil Case
UNITED STATES DISTRICT COURT

EASTERN

DISTRICT OF

OKLAHOMA

JUDGMENT IN A CIVIL CASE
Joe Thomas Bell

v.
Justin Jones

Case Number:

CIV-09-502-RA W-SPS

D Jury Verdict. This action came before the Court for a trial by jury. The issued have been tried and the jury
rendered its verdict.

X Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard
a decision has been rendered.
IT IS ORDERED AND ADJUDGED

This action is, in all respects, DISMISSED as frivolous.

2117/11

WILLIAM B. GUTHRIE

Date

Clerk

sf A Green
(By) Deputy Clerk

ATTACHMENT 2
Bell v. Fields, No. CIV-92-691-FHS-JHP
(E.D. Okla. Aug. 23, 1993)

6:92-cv-00691-FHS-· Document 23 Filed in ED/OK .8/23/93 Page 1 ojl\l. () ~

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JOE THOMAS BELL,

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Plaintiff,

vs.
LARRY

FIELDS, et al.,
Defendants.

No. CIV 92-691-S

FILED

AUa 2 31993
ORDER
Plaintiff

is

an

inmate

Department of Corrections.
pursuant to 42

u.s.c.

§

WILUAM •· GUTHRI&

0 ..,.. u.a. o~nrlot eo.rt

incarcerated witl'd••·,.hczaotl\illoma

He filed this civil rights action

1983. Now pending before the court is

Defendants' motion to dismiss, which the court converted in part to
a motion for summary judgment.
lAQTS

Plaintiff's complaint contains four counts. In Count I, he
alleges overcrowded conditions at the Jackie Brannon Correctional
Center (JBCC). Count II again alleges overcrowding problems, and
further alleges problems with mice, roaches, and asbestos.
In Count III, Plaintiff alleges racial discrimination and
retaliation for exercising his first amendment rights. He· alleges
that on occasions when he has been late to dinner and the entrance
door is locked he has seen white inmates allowed to enter through
the exit door, but he was turned away by Supervisor E.D. Grammeman.
Plaintiff alleges Grammeman did this because Plaintiff has filed
requests to staff regarding Grammeman.
Count IV also alleges racial discrimination and retaliation

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6:92-cv-00691-FHS-J. Document 23 Filed in ED/OK

o~S/23/93

Page 2 of 3

for exercising first amendment rights. Plaintiff alleges that on
September 9, 1992, he was in line .for-sick call.---He alleges. he---- - ----- observed one or two white inmates receive appointments for that
day. Plaintiff was then told by Nurse DeJacimo that he could not
see the doctor that day, but could make an appointment. Plaintiff
alleges he submitted a "Request to Staff" concerning the matter,
and received a misconduct report for doing so.
DISCUSSION
Many of Plaintiff's allegations are non-personal in nature,
and

are

unsupported

by

sufficient

facts.

They

are

far

too

conclusory to state a claim upon which relief can be granted. While
a court views a complaint in the light most favorable to the
plaintiff

in

considering a dismissal

under

Fed.

R.

Civ.

P.

12{b) (6), the court distinguishes -between well-pleaded facts and
conclusory allegations. Conclusory allegations without supporting
factual averments are insufficient. Dunn y. White, 880 F.2d 1188,
1197 (lOth cir. 1988), cert. denied 493

u.s. 1059 (1990). such

allegations may be disregarded by the court. Mitchell v. King, 537
F.2d 385, 386 (lOth Cir. 1976).
Defendants are also entitled to summary judgment regarding
Plaintiff's claims. Rule 56 provides that summary judgment "shall
be rendered forthwith if the pleadings, depositions, answers to
interrogatories,

and

admissions

on

file,

together

with

the

affidavits, if any, show that there is no genuine issue of material
fact and that the moving party is entitled to judgment as a matter
of law." Fed. R. Civ. P 56(c). In Anderson v. Liberty Lobby. Inc.,
2

6:92-cv-00691-FHS-J. Document 23 Filed in ED/OK o~B/23/93 Page 3 of 3

477

u.s.

242, 249 (1986), the United States Supreme Court held that

"there is no issue for trial unless there is sufficient evidence
favoring the non-moving party for a jury to return a verdict for
that party. " 1.9..
Plaintiff has not presented sufficient evidence to support his
allegations. on the other hand, Defendants have presented ample
evidence to refute Plaintiff's allegations. Thus, there is no
genuine issue of material fact, and Defendants are entitled to
summary judgment as a matter of law.
CONCLUSION
For

all

the

above

reasons,

Defendants'

motion

to

dismiss/motion for summary judgment is hereby granted. Plaintiff's
complaint is accordingly dismissed.
IT IS SO ORDERED this

~day o--~~~~-----'
!'rank H. Seay
states District

3

e

1993.

ATTACHMENT 3
Bell v. Stevens, No. CIV 92-572-FHS-JHP
(E.D. Okla. Mar. 24, 1993)

_6:92-cv-00572-FHS-· Document 17 Filed in ED/OK .3/24/93 Page 1 of 2

~~

FILE 0

trr!R 2 f 1~93
WIU.IArJJ C. CUTHRit:

Clerk, &;£, ::.l~;~rlc:t c"urt

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

JOE THOMAS BELL I

Plaintiff,

v.
ROBERT STEVENS,

Defendant.

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No. CIV-92-572-S

ORDER

Plaintiff

is

an

inmate

incarcerated within the Oklahoma

Department of Corrections. He instituted this action pursuant to 42

u.s.c.

§

1983. Now before the court are Defendants• motion to

dismiss, Plaintiff's response, and a special report made pursuant
to Martinez v. Aaron, 570 F.2d 317 (lOth Cir. 1978).
Defendant is the supervisor at the Jackie Brannon Correctional
Center meat plant. Plaintiff once worked at the meat plant, but
then he changed jobs. When Plaintiff requested to go back to work
at the meat plant, his requests were denied. Plaintiff alleges that
Defendant denied his requests to return to the meat plant because
of Plaintiff's earlier job change.
The court finds Plaintiff • s allegations insubstantial and
frivolous.

Plaintiff has no right to a job at the meat plant.

Plaintiff simply does not state a constitutional claim upon which
relief can be granted with his allegations.

... 6:92-cv-00572-FHS-· Document 17 Filed in ED/OK .3/24/93 Page 2 of 2

ACCORDINGLY,

u.s.c

§

Defendants'

motion to dismiss pursuant to 2 8

1915(d) and Fed. R. Civ. P. 12(b) (6)

is hereby qranted.

Plaintiff's action is dismissed without prejudice.
IT IS SO ORDERED

J

1993.

Frank B. seay
states District

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