Schell v. Pontotoc County Board of County Commissioners, et al

Filing 77

OPINION AND ORDER by Judge Frank H. Seay : After throughly reviewing and liberally construing plaintiff's pro se amended complaint, the Court finds for the reason stated herein that this case should be dismissed against all named defendants with prejudice, pursuant to 28 U.S.C. 1915(e)(2)(B). (case terminated) (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
DERECK RYAN SCHELL,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
PONTOTOC COUNTY BOARD OF
COUNTY COMMISSIONERS, et.
al.,
Defendants.

Case No. CIV-14-12-FHS-SPS

OPINION AND ORDER
This matter comes before the Court on Motions to Dismiss
filed by Pontotoc County Board of County Commissioners (Dkt. #
33); James Tillison (Dkt. # 45); Gary Starns, Randy Floyd and
Justin Roberts (Dkt. # 47); Steven Kessinger (Dkt. # 49); City
of Ada (Dkt. # 58) and Brian Engel (Dkt. 59).

For the reasons

stated herein, this Court finds the Amended Complaint should be
dismissed, pursuant to 28 U.S.C. § 1915(e)(2)(B).
Allegations
The

Amended

Complaint

arises

out

of

Plaintiff’s

arrest

following law enforcement officer’s entry into his residence and
the subsequent conviction and imprisonment resulting from his
nolo contendre plea to the crime of Pointing a Firearm at a
Person, in violation of 21 O.S. § 1289.16.

Plaintiff originally

filed his Complaint on January 15, 2014.1
prior

to

any

responsive

pleading

by

On March 31, 2014,

any

named

defendant,

Plaintiff filed a ninety-eight (98) page Amended Complaint (Dkt.
# 29) along with a fifty-three (53) page “Brief in Support 42
U.S.C. § 1983”.2
19,

2009

January

and

Plaintiff alleges he was arrested on December
in

2010

17,

held

the

on

City

municipal

of

Ada

municipal

charges

of

Paraphernalia and Possession of Marijuana.
amended

complaint,

Plaintiff

was

jail

until

Possession

of

According the the

ultimately

charged

with

the

state crime of Pointing a Firearm at a Person in Pontotoc County
District Court, Case No. CF-09-5963 and he entered a plea of nolo
contendre to the state criminal charge and was convicted and
sentenced on April 26, 2010.
complaint

alleging

misconduct,
Tillison,

and

the

Plaintiff brings this civil rights

mallicious

double

assistant

jeopardy.
district

prosecution,
Plaintiff’s
attorney

who

prosecutorial
alleges

James

prosecuted

the

state charges against him and Steven Kessigner, the state court
1

The caption on the original Complaint (Dkt. # 1) read “Derek Ryan Schell, Plaintiff v. Pontotoc County Board of
County Comm’rs Et., al., (sic) Defendant(s).” The body of this Complaint, however, named only five defendants, i.e.
Steven Kessinger, James Tillison, Larry Balcerack, the City of Ada and Brian Engel.
2

The caption on the Amended Complaint read the same as the original caption. The body of the Amended
Complaint named three additional individuals as defendants, Gary Starnes, Randy Floyd and Justin Roberts.
Despite not actually naming the Board of County Commissioners in the body of his Amended Complaint, plaintiff
had summons issued to all of the named defendants as well as to the Pontotoc County Board of County
Commissioners. Therefore, liberally construing Plaintiff’s Amended Complaint, pursuant to Haines v. Kerner, 404
U.S. 519, 520 21 (1972), this Court will address the Amended Complaint as it relates to every defendant named
anywhere in the Amended Complaint.
3

Plaintiff’s Amended Complaint cites from portions of his state court transcripts and to the original record of these
proceedings but none of those state court records were provided to this Court.

2

judge

who

presided

at

his

proceedings,

were

policymaker(s) for the County of Pontotoc.
prosecutorial

misconduct

by

the

the

final

Plaintiff asserts

prosecutor

for

not

fully

advising the court of the entire plea agreement and malicious
prosecution

based

on

what

plaintiff

terms

“double

jeopardy”

because plaintiff was found guilty in a separate municipal court
trial

of

Possession

Marijuana.

of

Paraphernalia

and

Possession

of

Plaintiff further alleges he was defrauded by his

court appointed attorney of record Larry Balcerack.

Plaintiff

previously challenged this state court conviction by filing a
petition for federal habeas corpus relief pursuant to 28 U.S.C.
§ 2254 in this Court, Case No. CIV-12-203-JHP-KEW.

On July 27,

2012, the petition was dismissed with prejudice because it was
barred by the one-year statute of limitations.

See, Dkt. # 23

in Eastern District of Oklahoma Case No. CIV-12-203-JHP-KEW.
motion for reconsideration was denied on June 18, 2012.
Dkt. # 27.
pursuant

to

A

Id., at

Thereafter, Plaintiff sought habeas corpus relief,
28

U.S.C.

§

2241,

from

the

same

state

court

conviction in the Western District of Oklahoma, Case No. CIV-12860-C.

The court found the action was a second or successive §

2254 petition and dismissed said petition.

Schell v. Vaughn,

2013 WL 5362208 (W.D. Okla. 2012), aff’d Schell v. Vaughn, 549
Fed.Appx. 788 (10th Cir. 2013) and Schell v. Vaughn, 2012 WL
5362210 (W.D. Okla. 2012).
3

Plaintiff’s

amended

complaint

seeks

Twenty

Five

Million

Dollare fom the Defendants Pontotoc County Board of Comm’rs and
the City of Ada “for the wrongful sentence(s) emotional distress
caused by the pain and suffering” plus $1,500 a daay for each
day

of

illegal

incarceration.

Additionally,

plaintiff

seeks

unspecified compensation for emotional distress and unspecified
punitive damages as well as attorney fees.

Finally, Plaintiff

requests the Court to fashion an equitable remedy to prevent
further Fourth Amendment violations from occurring against any
other citizens.
Legal Analysis

A.

Standard for Dismissal
Title 42 U.S.C. § 1983 provides a federal remedy against

any

person

who,

acting

under

color

another of his federal rights.

of

state

law,

Conn v. Gabbert, 526 U.S. 286,

290, 119 S.Ct. 1292, 1295, 143 L.Ed.2d 399 (1999).
facie

elements

defendant

must

deprived

‘Constitution

and

be
the

laws’

alleged
plaintiff
of

deprives

the

in

a

of

1983
a

defendant acted ‘under color of law.’

complaint:

right

United

Two prima

secured

States

and

1)

the

by

the

2)

the

Adickes v. S.H. Kress &

Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142
(1970).

4

Pursuant

to

the

Prison

Litigation

Reform

Act

of

1996

(“PLRA”), a district court may dismiss an action filed in forma
pauperis “at any time” if the court determines that the action
is frivolous, malicious, or fails to state a claim on which
relief

may

defendant

be

who

granted,
is

§1915(e)(2)(B).

or

immune

seeks

from

monetary

such

relief

relief.

See,

against
28

a

U.S.C.

The Court applies the same standard of review

for a dismissal under § 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).

A civil rights claim should be dismissed only where it appears
that the plaintiff could prove no set of facts entitling him to
relief.

Meade v. Grubbs, 841 F.2d 1512, 1516 (10th Cir. 1988)

(citing Owens v. Rush, 654 F.2d 1370, 1378-79 (10th Cir. 1981)).
A

motion

to

dismiss

for

failure

to

state

a

claim

for

relief, pursuant to Rule 12(b)(6), tests the “legal sufficiency”
of the claims asserted in the complaint.

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.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955,
1965,

167

L.Ed.2d

929

(2007).

The

complaint

must

contain

“enough facts to state a claim to relief that is plausible on
its face.”

Id.

“A claim has facial plausibility when the
5

pleaded factual content allows the court to draw the reasonable
inference

that

the

defendant

is

liable

for

the

misconduct

alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173

L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct.
1955).
the

A court must accept all the well-pleaded allegations of

complaint

as

true,

even

if

doubtful

in

fact,

and

must

construe the allegations in the light most favorable to the
plaintiff.

Twombly, 550 U.S. at 545, 127 S.Ct. at 1960 and Hall

v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). A pro se
litigant’s pleadings are held to less stringent standards than
those

drafted

liberally.

by

lawyers

and

the

court

must

construe

them

Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct.

594, 596, 30 L.Ed.2d 652 (1972).

On the other hand, “when the

allegations in a complaint, however true, could not raise a
[plausible] claim of entitlement to relief,” the cause of action
should be dismissed. Id., 550 U.S. at 558, 127 S.Ct. at 1966.
The court can not assume the role of advocate for a pro se
litigant

and

should,

therefore,

vague or conclusory allegations.

dismiss

claims

supported

by

Hall, 935 F.2d, at 1110. 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,

1173-1174 (10th Cir. 1997).
proper

where

there

is

A dismissal under Rule 12(b)(6) is

either

a
6

“lack

of

a

cognizable

legal

theory” or “the absence of sufficient facts alleged under a
cognizable

legal

theory.”

Ballilstreri

v.

Pacifica

Police

Dept., 901 F.2d 696, 699 (9th Cir. 1990).
B.

Plaintiff’s Claims

1. Claims against Pontotoc County Board of County Commissioners
In
against

order
the

for

plaintiff

Board,

he

to

must

prevail

satisfy

on
the

his

1983

claims

requirements

for

municipal liability, as set forth in Monell v. Department of
Social

Services

of

L.Ed.2d 611 (1978).

N.Y.C.,

436

U.S.

658,

98

S.Ct.

2018,

56

Generally, local governments may not be

sued under §1983 for injuries inflicted solely by its employees
or agents on a respondeat superior theory of liability.

Parris

v. Ball, 594 F.3d 993, 997 (8th Cir. 2010)(citing Monell, supra,
436 U.S. at 694).

A local government may, however, be subject

to §1983 liability for “inadequate training of its employees.”
City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S.Ct. 1197,
103 L.Ed.2d 412 (1989).

However, the Supreme court has made it

clear that more is required than just inadequate training.
Only where a municipality’s failure to train its
employees
in
a
relevant
respect
evidences
a
“deliberate indifference” to the rights of its
inhabitants can such a shortcoming be properly thought
of as a city “policy or custom” that is actionable
under § 1983. As Justice BRENNAN’s opinion in Pembaur
v. Cincinnati, 475 U.S. 469, 483-484, 106 S.Ct. 1292,
1300-1301, 89 L.Ed.2d 452 (1986) (plurality) put it:
‘[M]unicipal liability under § 1983 attaches where –
and only where – a deliberate choice to follow a
course
of
action
is
made
from
among
various
7

alternatives’ by city policymakers. See also Oklahoma
City v. Tuttle, 471 U.S., at 823, 105 S.Ct., at 2436
(opinion of REHNQUIST, J.).
Only where a failure to
train reflects a “deliberate” or “conscious” choice by
a municipality – a “policy” as defined by our prior
cases – can a city be liable for such a failure under
§ 1983.
City of Canton, 488 U.S. at 389, 109 S.Ct. at 1205.
Plaintiff’s allegations regarding municipal liability are
completely

devoid

of

facts

which

would

establish

any

policy

and/or custom actually caused Plaintiff’s alleged injuries.
amended

complaint

does

not

allege

any

specific

actions by the Board or County Commissioners.

conduct

The
or

The only time the

plaintiff mentions the Board is when he alleges that “James
Tillison and Steven Kessinger were the final policymaker(s) for
the County of Pontotoc. . . .”
does

not

Moreover,

identify
under

what

Oklahoma

Dkt. 29, at p. 4.

“municipal
law,

neither

policy”
the

is

assistant

Plaintiff
involved.
district

attorney nor the judge were acting on behalf of the Board in
prosecuting state criminal charges such that their actions would
be deemed to create municipal policy.
Additionally, in Oklahoma, the statute of limitations for a
civil rights cause of action is two years.
F.2d 1512, 1522 (10th Cir. 1988).
§95(A)(3).

Meade v. Grubbs, 841

See also, OKLA. STAT. tit. 12,

Section 1983 claims accrue, for the purpose of the

statute of limitations, “‘when the plaintiff knows or has reason
to

know

of

the

injury

which

is
8

the

basis

of

his

action.’”

Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980),
cert.

denied,

450

U.S.

920

(1981)

(quoting

Bireline

v.

Seagondollar, 567 F.2d 260, 263 (4th Cir. 1977), cert. denied,
444

U.S.

842

(1979)).

The

constitutional

violations

which

Plaintiff complains of occurred between his arrest on December
19, 2009 and his sentencing on April 26, 2010.

This lawsuit was

not filed until January 14, 2014, more than four (4) years after
the alleged misconduct and more than three and one-half years
(3½) after his conviction and sentence and more than a year and
a half (1½) after the two year statute of limitations expired.
Accordingly, this Court finds the action against the Pontotoc
County

Board

of

County

Commissioners

should

be

dismissed,

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).
2.

Claims against Larry Balcerack
Plaintiff

asserts

in

his

amended

complaint

that

Larry

Balcerack was his court-appointed attorney in the state criminal
(Pontotoc County Case No. CF-09-596).
not

“act

under

color

of

state

law”

A public defender does
when

exercising

his

independent professional judgment on behalf of his client in a
criminal proceeding.

Polk County v. Dodson, 454 U.S. 312, 325,

102 S.Ct. 445, 70 L.Ed.2d 509 (1981) and Harris v. Champion, 51
F.3d 901, 909 (10th Cir. 1995).

Defendant Balcerack, therefore,

is not liable for an alleged § 1983 civil rights violation.
While public defenders are not immune from liability with regard
9

to alleged conspiratorial action with state officials to deprive
a criminal defendant of his federal constitutional rights, see
Tower v. Glover, 467 U.S. 914, 920-921 (1984), the court finds
plaintiff’s amended complaint is devoid of any facts which would
establish

a

conspiracy

to

violate

his

civil

rights.

The

plaintiff voluntarily entered a plea of nolo contendre to the
state criminal charges, his conviction has never been set aside,
and he can not now try to establish ineffective assistance of
counsel

to

recover

violations.

under

§

1983

for

alleged

civil

rights

See, Heck v. Humphrey, 512 U.S. 477, 114 S.Ct.

2364, 129 L.Ed.2d 383 (1984)(“[T]o recover damages for allegedly
unconstitutional conviction or imprisonment, or for other harm
caused by actions whose unlawfulness would render a conviction
or sentence invalid, a § 1983 plaintiff must prove that the
conviction
expunged

or
by

sentence
executive

has

been

order,

reversed

declared

on

direct

invalid

by

appeal,
a

state

tribunal authorized to make such determination, or called into
question

by

a

federal

court’s

issuance

of

a

writ

of

habeas

corpus, 28 U.S.C. § 2254.”).

Accordingly, Plaintiff’s amended

complaint

Balcerack

against

Defendant

shall

be

dismissed

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).
3. Claims against James Tillison
Plaintiff’s Amended Complaint alleges James Tillison was
the

assistant

district

attorney
10

who

prosecuted

his

state

criminal case (Pontotoc County Case No. CF-09-596).

A state

prosecutor is entitled to absolute immunity from suits for civil
damages

when

performance

such

of

suits

functions

are

based

on

“intimately

the

prosecutor’s

associated

judicial phase of the criminal process.”

with

the

Imbler v. Pachtman,

424 U.S. 409, 430-31 91976); Gagan v. Norton, 35 F.3d 1473, 1475
(10th Cir. 1994); Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d
1484,

(10th

1489

Cir.

1991).

A

prosecutor’s

decisions

made

during the course of a prosecution relate to the judicial phase
of the criminal process.

Imbler, 424 U.S. at 430.

Applying these principles to the instant case, the Court
finds all of the actions of Defendant Tillison were taken in
prosecuting

criminal

therefore,

Defendant

prosecutorial

charges

against

Tillison

immunity

from

the

is

entitled

civil

plaintiff
to

damages.

and,

absolute

Accordingly,

Plaintiff’s amended complaint seeking damages against Defendant
Tillison

shall

be

dismissed

pursuant

to

28

U.S.C.

§

1915(e)(2)(B)(iii).
4.

Claims against Gary Starns, Randy Floyd and Justin Roberts
Plaintiff’s amended complaint asserts each of these

defendants

are

employed

as

Pontotoc

County

Commissioners.

Although Plaintiff served each of these individual commissioners
with a summons, the amended complaint does not identify any
specific

act

attributable

to

any
11

of

the

individual

named

commissioners
participation

or
is

by
an

the

Board

essential

as

an

element

entity.

for

Personal

liability

under

§

1983.

Bennett v. Passic, 545 F.2d 1260, 1262-1263 (10th Cir.

1976).

Furthermore,

for

the

reasons

discussed

above

when

considering the claims against the Board, this Court finds the
action

against

Gary

Starns,

Randy

Floyd

and

Justin

Roberts

should be dismissed, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)
and (ii).
5.

Claims against Steven Kessinger
Plaintiff’s

sentenced

by

amended

Special

Case No. CF-09-596).

complaint

Judge

Steven

asserts

Kessinger

plaintiff
(Pontotoc

was

County

Plaintiff appears to be alleging that his

conviction and sentence were the result of illegal activity by
and between the special district judge, the assistant district
attorney and his court-appointed attorney.

However, no facts

support this conclusory allegation.
A state court judge has absolute immmunity for his or her
actions, unless they were nonjudicial or taken in the complete
absence of all jurisdiction.

Mireles v. Waco, 502 U.S. 9, 112

S.Ct. 286, 116 L.Ed.2d 9 (1991).

In this case, the Court finds

the

Kessinger

actions

within
District

his

taken

Defendant

jurisdiction

Court

previously

by

of

as

Pontotoc

indicated,

the

a

Special

County,

conviction
12

Court

State
has

were

of
never

judicial

Judge

for

Oklahoma.
been

and
the
As

vacated.

Therefore, the Court concludes Defendant Kessinger is absolutely
immune

from

Accordingly,

monetary
the

damages

action

in

against

this

civil

Steven

rights

Kessinger

action.

should

be

dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), (ii) and
(iii).
6.

Claims against City of Ada
According to plaintiff’s amended complaint, on December 19,

2009, plaintiff’s residence was searched, evidence was seized
and he was arrested by City of Ada police officer Brian Engel.
Plaintiff claims the search of his home and seizure of evidence
therein was illegal and resulted in an illegal and improper
conviction and sentence.

Plaintiff seeks to impose liability

upon the city based upon the principles enunciated in Monell,
supra.

Oklahoma’s statute of limitations, however, bars any

action against the City of Ada.

Meade v. Grubbs, supra and OKLA.

STAT. tit. 12, § 95(A)(3).
To

the

extent

plaintiff

is

seeking

recovery

under

the

Oklahoma Governmental Tort Claims Act, OKLA. STAT. tit. 51, § 151
et.

seq.,

this

sufficient

facts

Court
to

finds

plaintiff

establish

has

compliance

failed

to

allege

with

that

act.

Moreover, as previously indicated, habeas corpus was plaintiff’s
exclusive

remedy

confinement.

to

challenge

the

fact

Heck v. Humphrey, supra.

or

duration

of

his

Having failed to have

his conviction overturned, plaintiff fails to state a claim for
13

relief against the City of Ada.

Accordingly, this Court finds,

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii), this action
should be dismissed against the City of Ada.
7.

Claims against Brian Engel
For the reasons discussed in the section regarding the City

of

Ada’s

claims,

1915(e)(2)(B)(i)

this
and

Court

(ii),

finds,

this

pursuant

action

should

to
be

28

U.S.C.§

dismissed

against Brian Engel.
Conclusion
After

thoroughly

reviewing

and

liberally

construing

plaintiff’s pro se amended complaint, the Court finds for the
reasons stated herein that this case should be dismissed against
all named defendants with prejudice, pursuant to 28 U.S.C. §
1915(e)(2)(B).
It is so ordered on this 27th day of February, 2015.

14