Anderson v. Department of Correction at JBCC McAlester Oklahoma et al
Filing
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OPINION AND ORDER by District Judge James H. Payne : Granting 14 Motion to Dismiss and this action is, in all respects DISMISSED as frivolous. (case terminated) (acg, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
LEE ROY ANDERSON,
Plaintiff,
v.
OKLAHOMA DEPARTMENT
OF CORRECTIONS, et al.,
Defendants.
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No. CIV 15-176-JHP-SPS
OPINION AND ORDER
This action is before the court on the defendants’ motion to dismiss. The court has
before it for consideration Plaintiff’s complaint (Dkt. 1) and the defendants’ motion (Dkt.
14). Plaintiff has not filed a response to the motion.
Plaintiff, an inmate in the custody of the Oklahoma Department of Corrections who
is incarcerated at Joseph Harp Correctional Center in Lexington, Oklahoma, brings this
action under the authority of 42 U.S.C. § 1983, seeking relief for alleged constitutional
violations during his incarceration at Jackie Brannon Correctional Center (JBCC) in
McAlester, Oklahoma. The defendants are the Oklahoma Department of Corrections, JBCC
Deputy Warden Wortham, and JBCC Unit Manager J.W. Wilson.
Plaintiff alleges that for the last four years he has been subjected to overcrowding,
inadequate plumbing, black mold, constant roach infestation, low ceilings, low air quality,
deplorable living conditions, and “unkempt feces” with no “hazmat” service. He claims he
has spoken to Defendants Wortham and Wilson, but the only time DOC staff address
Plaintiff’s complaints is when an audit is forthcoming. (Dkt. 1 at 4). The defendants have
moved for dismissal pursuant to Fed. R. Civ. P. 12(b)(6).
Standard of Review for Fed. R. Civ. P. 12(b)(6)
A plaintiff must give a “short and plain statement of the claim showing that the
pleader is entitled to relief” under Fed. R. Civ. P. 8(a)(2). 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).
Although the court is required to exercise a liberal interpretation of Plaintiff’s
pleadings, Haines v. Kerner, 404 U.S. 519 (1972), the court need not assume the role of
advocate for Plaintiff, and he must present more than conclusory allegations to survive a
motion to dismiss for failure to state a claim, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). “[C]onclusory allegations without supporting factual averments are insufficient to
state a claim upon which relief can be based.” Id. (citing cases). “[A] pro se plaintiff
requires no special legal training to recount the facts surrounding his alleged injury, and he
must provide such facts if the court is to determine whether he makes out a claim on which
relief can be granted.” Id.
Eleventh Amendment Immunity
Plaintiff is suing the Oklahoma Department of Corrections (DOC), an agency of the
State of Oklahoma, and two DOC employees. The official capacity claims against the
defendants are actually claims against the State of Oklahoma. “[T]he Eleventh Amendment
bars federal court jurisdiction over a state agency for both money damages and injunctive
relief, or a state official acting in her official capacity in a suit for damages.” Ellis v. Univ.
of Kansas Med. Ctr., 163 F .3d 1186, 1196 (10th Cir.1998). Absent a waiver by the state,
or a valid congressional override, the amendment bars a damages action against a state in
federal court. Kentucky v. Graham, 473 U.S. 159, 169 (1985).
The court, therefore, grants Defendants’ motion to dismiss all claims against the
Department of Corrections and all official-capacity claims against the individual defendants.
Because the Eleventh Amendment involves sovereign immunity, the official-capacity claims
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are dismissed “without prejudice” rather than “with prejudice.” Rural Water Sewer & Solid
Waste Mgmt., Dist. No. 1, Logan Cnty., Okla. v. Guthrie, 654 F.3d 1058, 1069 n.9 (10th Cir.
2011).
Personal Participation
Defendants Wortham and Wilson claim Plaintiff also has failed to state a claim against
them in their individual capacities, because Plaintiff has failed to demonstrate the defendants
personally participated in any of the alleged constitutional violations. “Personal participation
is an essential allegation in a § 1983 claim.” Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th
Cir. 1976) (citations omitted). See also Mee v. Ortega, 967 F.2d 423, 430-31 (10th Cir.
1992). Plaintiff must show that a defendant personally participated in the alleged civil rights
violation. Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996). Supervisory status is
not sufficient to support liability under § 1983. Id. See also Polk County v. Dodson, 454
U.S. 312, 325 (1981).
Plaintiff’s complaint asserts several conclusory allegations that he has complained to
Defendants Wortham and Wilson about “the totality of conditions” of the facility, and he
admits the DOC staff addressed “some of the complaints.” (Dkt. 1 at 4). Plaintiff is
complaining about the defendants in their supervisory positions in the DOC, and there are
no explanations of how the defendants violated any specific constitutional rights. Therefore,
the court finds Plaintiff has failed to show the defendants personally participated in any
constitutional violations, and the defendants are dismissed for failure to state a claim upon
which relief may be granted.
Based on the foregoing reasons the court finds the allegations in Plaintiff’s 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 (10th Cir. 1989), cert. denied, 493 U.S. 1059 (1990); Lorraine
v. United States, 444 F.2d 1 (10th Cir. 1971). “Constitutional rights allegedly invaded,
warranting an award of damages, must be specifically identified. Conclusory allegations will
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not suffice.” Wise v. Bravo, 666 F.2d 1328, 1333 (10th Cir. 1981) (citing Brice v. Day, 604
F.2d 664 (10th Cir. 1979), cert. denied, 444 U.S. 1086 (1980)).
The court authorized commencement of this action in forma pauperis under the
authority of 28 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 (10th Cir. 1987).
ACCORDINGLY, the defendants’ motion to dismiss (Dkt. 14) is GRANTED, and
this action is, in all respects, DISMISSED as frivolous. The DOC and the official-capacity
claims against Defendants Wortham and Wilson are dismissed without prejudice, and the
remaining claims are dismissed with prejudice. This dismissal shall count as a STRIKE,
pursuant to 28 U.S.C. § 1915(g).
IT IS SO ORDERED this 31st day of March 2016.
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