Martin vs. Creek County Jail, et al.

Filing 11

OPINION AND ORDER by Chief Judge Claire V Eagan that the civil rights complaint (Dkt. # 1), as amended (Dkt. # 6), is dismissed based on Plaintiff's failure to state a claim upon which relief may be granted. The Clerk is directed t o flag this dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B) as Plaintiff"s third "prior occasion" for purposes of 28 U.S.C. § 1915(g). Plaintiff remains obligated to pay the full $350 filing fee in monthly installments. (Re: 6 Amended Complaint, 1 Complaint ) (RGG, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
BENNY F. MARTIN, II,
Plaintiff,
v.
CREEK COUNTY JAIL;
KELLY BIRCH, Captain;
DETENTION OFFICER SMITH;
Defendants.

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Case No. 10-CV-0699-CVE-PJC

OPINION AND ORDER
On November 1, 2010, Plaintiff, a state prisoner appearing pro se, submitted for filing a 42
U.S.C. § 1983 civil rights complaint (Dkt. # 1) and a motion to proceed in forma pauperis (Dkt. #
2). By Opinion and Order filed November 12, 2010 (Dkt. # 3), the Court granted Plaintiff’s motion
to proceed in forma pauperis and advised Plaintiff that he remained obligated to pay the $350 filing
fee in monthly installments. The Court also advised Plaintiff that his complaint was subject to
dismissal for failure to state a claim upon which relief may be granted. Id. However, the Court
provided Plaintiff with an opportunity to file an amended complaint to cure the identified
deficiencies. Id.
On December 3, 2010, Plaintiff filed an amended complaint (Dkt. # 6). Upon careful review
of the amended complaint, the Court finds nothing asserted therein changes the prior determination
that Plaintiff has failed to state a claim upon which relief may be granted. Plaintiff provides even
fewer facts in his amended complaint then he did in his original complaint. The focus of the
amended complaint remains Plaintiff’s claim that he was “sexually assaulted by a guard that [sic]
is suppose [sic] to protect all inmates and their rights.” See Dkt. # 6. In his original complaint,

Plaintiff alleged that on October 3, 2010, the detention officer on duty, Defendant Smith, “made an
unexceptable [sic] act of sexual harassment towards myself.” See Dkt. # 1. Plaintiff claimed that
while he was asleep, Defendant Smith used “the antenna from his C.B. radio and ran it down the
crack of my buttocks,” in violation of the “14, 4, 8, 6, 5 Amendent [sic].” See id. Nothing provided
by Plaintiff in the amended complaint alters the Court’s prior determination that Plaintiff’s
allegations concerning the single incident, even if accepted as true, simply do not rise to the level
of a constitutional violation. See Dkt. # 3. For that reason, this claim fails to state a claim upon
which relief may be granted. See id.
Plaintiff also complains that “Capt. Birch coerced me into signing the (R.T.S.) thus taking
away my due process of law.” See Dkt. # 6. In the prior Opinion and Order (Dkt. # 3), the Court
discussed Plaintiff’s allegations as a claim of retaliation and determined that because Plaintiff had
not alleged that he was actually placed in segregation or lost privileges as a result of the alleged
retaliation, there was no arguable basis for the claim. Frazier v. Dubois, 922 F.2d 560, 562 n.1 (10th
Cir. 1990) (“Mere allegations of constitutional retaliation will not suffice; plaintiffs must rather
allege specific facts showing retaliation because of the exercise of the prisoner’s constitutional
rights.”). In his amended complaint, Plaintiff continues to complain that he has not been provided
copies of his Requests to Staff (RTS) and that Defendant Birch has made threats concerning his
property, including his “legal work” for N.D. Okla. Case No. 10-CV-617-GKF-FHM, another civil
rights action commenced by Plaintiff. As explained previously, see Dkt. # 3, if Defendants were to
claim that Plaintiff failed to exhaust administrative remedies, the Court would examine Plaintiff’s
allegations that his RTS had been mishandled, making administrative remedies unavailable.
However, Plaintiff’s allegations concerning the handling of his RTS simply do not give rise to a

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separate constitutional violation. The Court has further reviewed the docket sheet for N.D. Okla.
Case No. 10-CV-617-GKF-FHM, and finds that Plaintiff met the filing deadlines in that case.
Nothing contained in the amended complaint alters the Court’s prior determination, see Dkt. # 3, that
Plaintiff’s claim of retaliation by Defendant Birch fails to state a claim upon which relief may be
granted.
In addition, the Court previously determined that the relief sought in the original complaint
was inappropriate because Plaintiff may not request habeas corpus relief in a civil rights action, he
lacks standing to bring criminal charges against Defendants, and the claims asserted in the original
complaint do not rise to the level of constitutional violations and, as a result, there would be no basis
for an award of punitive damages. See Dkt. # 3. In the amended complaint, Plaintiff has not
identified any relief he seeks. For that reason, the amended complaint fails to state a claim upon
which relief may be granted.
Plaintiff was incarcerated when he commenced this action and he has been granted leave to
proceed in forma pauperis. In addition, his amended complaint fails to state a claim upon which
relief may be granted. The dismissal of the amended complaint is pursuant to 28 U.S.C. §
1915(e)(2)(B) and counts as Plaintiff’s third1 “prior occasion” under 28 U.S.C. § 1915(g) (providing
that “[i]n 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

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Two prior civil rights actions filed by Plaintiff, N.D. Okla. Case Nos. 09-CV-670-GKFTLW and 10-CV-617-GKF-FHM, were dismissed for failure to state a claim upon which relief may
be granted and counted as Plaintiff’s first and second “prior occasions” under 28 U.S.C. § 1915(g).
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dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief
may be granted, unless the prisoner is under imminent danger of serious physical injury”).
To summarize, Plaintiff’s claims do not rise to the level of constitutional violations and his
amended complaint does not cure the previously identified deficiencies. Therefore, Plaintiff’s
amended complaint shall be dismissed for failure to state a claim upon which relief may be granted.
Plaintiff remains obligated to pay the full $350 filing fee in monthly installments.

ACCORDINGLY, IT IS HEREBY ORDERED that:
1.

The civil rights complaint (Dkt. # 1), as amended (Dkt. # 6), is dismissed based on
Plaintiff’s failure to state a claim upon which relief may be granted.

2.

The Clerk is directed to flag this dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B) as
Plaintiff’s third “prior occasion” for purposes of 28 U.S.C. § 1915(g).

3.

Plaintiff remains obligated to pay the full $350 filing fee in monthly installments.

DATED this 22nd day April, 2011.

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