Cone, Jr. v. Pearson et al

Filing 31

OPINION AND ORDER by District Judge James H. Payne : Granting 24 defendant's Motion to Dismiss pursuant to Fed. R. Civ. P.12(b)(6). (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JOHN ELDRIDGE CONE, JR.,
Plaintiff,
v.
CHARLES PEARSON, et al.,
Defendants.

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No. CIV 14-410-JHP-SPS

OPINION AND ORDER
This action is before the court on Defendant DOC Population’s motion to dismiss
(Dkt. 24). Plaintiff, an inmate in the custody of the Oklahoma Department of Corrections
(DOC) who is incarcerated at Cimarron Correctional Facility in Cushing, Oklahoma, brings
this action under the authority of 42 U.S.C. § 1983, seeking monetary damages for alleged
constitutional violations during his incarceration as a pretrial detainee in the Muskogee
County Jail. The defendants are Charles Pearson, Muskogee County Sheriff; James
Broadrick, Sheriff’s Tower Officer; and DOC Population.
Plaintiff alleges he was being held in protective custody in the Muskogee County Jail,
when he wrote a letter requesting to be transferred to another county because of his pending
murder charges and because of the person he had killed. Although plaintiff felt threatened
by staff and other inmates, he was told he could not be moved to another facility. He then
submitted a request to be placed in the general population, because he believed he could
handle himself, but the request was denied for plaintiff’s own safety. Plaintiff wrote again
to give the names of individuals with whom he could not have contact. This request also was
denied, because the facility could not monitor who came in and out of the jail. Shortly
afterward, one of the people he had named was assigned to a cell above him.
On November 17, 2012, plaintiff’s cellmate went to take his medication. Plaintiff was
asleep on his bunk, when he was awakened by the sounds of another cell being opened and

of fast movement. By the time he could get up, plaintiff was pulled off his bunk and
assaulted by a federal inmate and a county inmate. They shut the cell door and continued to
assault him. The tower operator said he had opened the other inmates’ cell door, because he
thought plaintiff’s cellmate had been locked down.
Defendant DOC Population has filed a motion to dismiss, alleging plaintiff has failed
to state a claim against that entity. In assessing a motion to dismiss, the court must accept
the factual allegations as true and consider them in the light most favorable to the plaintiff.
Tomlinson v. El Paso Corp., 653 F.3d 1281, 1285–86 (10th Cir. 2011) (citing Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009)), cert. denied, 132 S.Ct. 1574 (2012). A request
for dismissal pursuant to Fed. R. Civ. P. 12(b)(6) requires the court to determine whether the
complaint contains “enough facts to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Defendant DOC Population alleges that on September 11, 2012, plaintiff was charged
with First Degree Murder in Muskogee County District Court Case No. CF-2012-749, and
he was sentenced to life in prison on May 21, 2014. He, therefore, was not in DOC custody
when the incidents alleged in the complaint occurred. Nonetheless, he is claiming that the
DOC Population Office refused to transfer him to another housing unit or jail while his
criminal charges were pending.
Defendant DOC Population further alleges it is not a proper party to this action.
Plaintiff served the summons and his complaint on Lesia Miser, Administrator of the DOC’s
Classification and Population Division. Therefore, the defendant asserts it is likely that
plaintiff intended to name that division as a party. The Classification and Population
Division, however, is “not a separate suable entity” under the allegations before the court.
See Martinez v. Winner, 771 F.2d 424, 444 (10th Cir. 1985). Therefore, Defendant DOC
Population must be dismissed.
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The court finds that even if plaintiff’s claims are construed as being against the
Oklahoma Department of Corrections, the claims against that entity still must be dismissed,
because states and their agencies are not “persons” under 42 U.S.C. § 1983, and they are not
subject to suit under the statute. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71
(1988) (holding that “[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”). Absent consent from the State, Oklahoma or one of
its agencies is prohibited by the Eleventh Amendment from being named as a defendant. See
Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Oklahoma has not
consented to suit against itself, its officials, or its agencies. See Ramirez v. Oklahoma Dep’t
of Mental Health, 41 F.3d 584, 589 (10th Cir. 1994), overruled on other grounds by Ellis v.
Univ. of Kansas Med. Ctr., 163 F.3d 1186, 1194-97 (10th Cir. 1998). Furthermore, plaintiff
cannot recover money damages from Oklahoma or one of its state agencies under § 1983.
See Reames v. Oklahoma ex rel. OK Health Care Auth., 411 F.3d 1164, 1167 (10th Cir.
2005). Plaintiff requests no other form of relief.
ACCORDINGLY, Defendant DOC Population’s motion to dismiss (Dkt. 24) is
GRANTED, and Defendant DOC Population is dismissed from this action, pursuant to Fed.
R. Civ. P. 12(b)(6).
IT IS SO ORDERED this 24th day of September 2015.

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