Rankin v. Steidley et al

Filing 9

OPINION AND ORDER by Judge Gregory K Frizzell, terminating party Mark Isaac, Janice Steidley, Donald Becker and Gene Haynes, administratively closing the case (terminates case) (hbo, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
LANCE W. RANKIN,

)
)
Plaintiff,
)
)
vs.
)
)
JANICE STEIDLEY; MARK ISAAC;
)
GENE HAYNES;
)
AMANDA FORK, Claremore Police Dep’t; )
DONALD BECKER, Walmart Security,
)
)
Defendants.
)

Case No. 11-CV-204-GKF-PJC

OPINION AND ORDER
On April 6, 2011, Plaintiff filed a civil rights complaint pursuant to 42 U.S.C. § 1983 (Dkt.
# 1), and a motion to proceed in forma pauperis (Dkt. # 2). Plaintiff is in custody at the Rogers
County Jail and appears pro se. By Order filed April 15, 2011 (Dkt. # 4), the Court granted
Plaintiff’s motion to proceed in forma pauperis, determined that the complaint was subject to
dismissal as to certain defendants, and directed Plaintiff to file an amended complaint to cure
deficiencies. On April 28, 2011, Plaintiff filed an amended complaint (Dkt. # 6).
As a preliminary matter, the Court notes that in his original complaint (Dkt. # 1), Plaintiff
named Janice Steidley, Mark Isaac, and Gene Haynes as defendants. Those defendants are not
named in the caption of the amended complaint. Because the amended complaint replaces and
supersedes the original complaint, the Court finds Plaintiff has abandoned his claims against
Defendants Steidley, Isaac, and Haynes, and those defendants shall be dismissed from this action.
A. Dismissal standard
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 (2007). The complaint must contain
“enough facts to state a claim to relief that is plausible on its face.” Id. at 570. A court must accept
all the well-pleaded allegations of the complaint as true, even if doubtful in fact, and must construe
the allegations in the light most favorable to the plaintiff. Id. at 555. However, “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. at 558. Furthermore, under 28 U.S.C. § 1915A, the Court is
required to screen a complaint filed by a prisoner seeking redress from a governmental entity or
officer or employee of a governmental entity, and to dismiss the complaint, or any portion of the
complaint, if it fails to state a claim upon which relief may be granted or seeks monetary relief from
a defendant who is immune from such relief. See 28 U.S.C. § 1915A(a), (b).
A pro se plaintiff’s complaint must be broadly construed under this standard. Erickson v.
Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972). The
generous construction to be given the pro se litigant’s allegations “does not relieve the plaintiff of
the burden of alleging sufficient facts on which a recognized legal claim could be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A reviewing court need not accept “mere
conclusions characterizing pleaded facts.” Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th
Cir. 1990); see also Twombly, 550 U.S. at 555 (“While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the
grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” (quotations and citations omitted)). The
court “will not supply additional factual allegations to round out a plaintiff’s complaint or construct

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a legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.
1997).

B. Plaintiff’s claims
In this case, Plaintiff’s claims relate to a criminal charge presently pending in Rogers County
District Court, Case No. CF-2010-611.1 In his amended complaint (Dkt. # 6), Plaintiff names two
(2) defendants, Amanda Fork, a police officer for the City of Claremore; and Donald Becker,
identified as a security officer for Walmart. Plaintiff alleges that on November 12, 2010, Defendant
Becker made a “false call” to the police. Thereafter, Officer Mark Isaac effected a traffic stop of the
vehicle Plaintiff was driving and proceeded to conduct an unconstitutional search of the vehicle.
Defendant Fork served as backup officer and “went along with what Isaac’s [sic] was doing.” See
id. Based on those allegations, Plaintiff raises the following grounds for relief:
Count 1:

On Nov. 12, 2010, Security at Wal-Mart, Donald Becker, made an error by
calling the police. There is no law against having cold pills, and no law
against having batteries. This call results me [sic] to be stopped by the
police.

Count 2:

On Nov. 12, 2010, Claremore Police Officer Mark Isaac pulled me over
claiming my brake light was out. I could clearly see the reflection of my
brake light in his windshield.

Count 3:

On Nov. 12, 2010, Claremore Police Officer Amanda Fork, along with
Officer Isaac, detained Tammy Ennis and myself. Officer Fork removed
Miss Ennis, cuffed her, searched her and placed Miss Ennis in her patrol car.
I was cuffed, searched, in the pouring rain, then detained in Officer Isaac’s

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The docket sheet for Rogers County District Court, Case No. CF-2010-611, viewed at
www.oscn.net, reflects that Plaintiff is charged with Possession of Material With Intent to
Manufacture, After Prior Convictions. The case is presently set for district court arraignment on
June 27, 2011.
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locked patrol car. Officer Isaac never said I was under arrest and he never
read me my rights.
A warrantless search was then conducted of my automobile, which according
to Arizona vs. Gant (certiorari to the Supreme Court of Arizona [sic], No. 07542) is an illegal search. Officer Isaac’s search of my vehicle was with a
dismantling vigor and the only thing I was guilty of is driving without a
license and having a warrant in Mayes County. While helping out a friend by
taking her to Wal-Mart for sinus pills, my Fourth Amendment rights were
violated. I believe the City of Claremore Police Department is willingly
ignoring this warrantless search law, and needs to be held accountable.
(Dkt. # 6). As relief, Plaintiff seeks “$75,000 seventy five thousand dollars, an apology letter, and
a stop to warrantless searches.” See id.
C. Claim against Defendant Becker shall be dismissed
Plaintiff identifies Defendant Donald Becker as “Walmart security.” See Dkt. # 6. He
alleges that his troubles began when Defendant Becker made a “false call” to police. Plaintiff admits
that at the time his claim arose, Defendant Becker was not acting under the color of state law. See
id. at 1. Section 1983 provides as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any citizen
of the United States or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress . . . .
42 U.S.C. § 1983 (emphasis added). The emphasized language establishes that to be liable under
§ 1983, the defendant must have acted under color of state law (i.e., he must have been a state actor).
See, e.g., Jett v. Dallas Independent School District, 491 U.S. 701, 724-25 (1989); Harris v.
Champion, 51 F.3d 901, 909 (10th Cir. 1995).
Based on Plaintiff’s admission that Defendant Becker was not acting under color of state law
at the time he placed the allegedly “false call” to police, Plaintiff’s claim fails. Defendant Becker
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shall be dismissed from this action based on Plaintiff’s failure to state a claim upon which relief may
be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).
D. Any remaining claim shall be stayed pending resolution of criminal charge
Plaintiff’s amended complaint reflects that his claims arise from an allegedly unconstitutional
arrest and detention that occurred on November 12, 2010. The United States Supreme Court has held
that to recover damages for an 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 or sentence has been reversed on direct appeal, expunged
by executive order, declared invalid by a state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a writ of habeas corpus. Heck v. Humphrey, 512
U.S. 477 (1994). The Tenth Circuit has extended Heck beyond the context of convictions to include
claims challenging the validity of an arrest or prosecution on pending charges, such as the claims
presented by Plaintiff in this case. See Beck v. City of Muskogee Police Dep’t, 195 F.3d 553, 557
(10th Cir. 1999) (stating that “Heck precludes § 1983 claims relating to pending charges when a
judgment in favor of the plaintiff would necessarily imply the invalidity of any conviction or
sentence that might result from prosecution of the pending charges. Such claims arise at the time the
charges are dismissed”). However, in Wallace v. Kato, 549 U.S. 384 (2007), the United States
Supreme Court held that the “Heck rule for deferred accrual is called into play only when there
exists ‘a conviction or sentence that has not been ... invalidated,’ that is to say, an ‘outstanding
criminal judgment.’” Id. at 393 (quoting Heck, 512 U.S. at 486-87). The Court stated that the
contention that “an action which would impugn an anticipated future conviction cannot be brought
until that conviction occurs and is set aside” goes “well beyond Heck” and rejected it. Id. (italics in

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original). Although the Supreme Court was considering when the statute of limitations begins to
run on a false arrest/false imprisonment claim, the discussion quoted above means that the holding
of Heck does not apply if a plaintiff has been arrested or charged, but not convicted.2
In Wallace, the Supreme Court also said that if a plaintiff files a § 1983 action challenging
the validity of his arrest before he is convicted, or files any other claim related to rulings that likely
will be made in a pending or anticipated criminal trial, it is within the federal district court’s power,
and accords with common practice, to stay the federal civil action until the criminal case or the
likelihood of a criminal case is ended. Id. at 393-94. If the plaintiff is then convicted, and if the
stayed civil suit would impugn that conviction, Heck requires dismissal; otherwise, the case may
proceed. Id. at 394.
In this case, Plaintiff is awaiting arraignment. He has not been convicted. Therefore, the
Court finds it is appropriate to follow the Supreme Court’s suggestion and stay this case pending
resolution of the criminal charge filed in Rogers County District Court. The Clerk of Court shall
be directed to administratively close this matter. The Court retains complete jurisdiction, however,
to reopen this case upon the application of Plaintiff should further litigation be necessary.
E. Filing fee
Despite the stay of this matter, Plaintiff remains obligated to continue making monthly
payments, when sufficient funds are available, until the $350 filing fee is paid in full.

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The Court notes that the Tenth Circuit has continued to apply Heck to § 1983 cases based
on pending criminal charges by relying upon Beck despite the existence of Wallace. See, e.g.,
Williams v. Weber Morgan Strike Force, 2009 WL 500666 (10th Cir. March 2, 2009); Carson v.
Tulsa Police Dept., 266 Fed.Appx. 763, 766 (10th Cir. Feb. 21, 2008). Other circuits, however, have
found that Wallace has unequivocally determined that Heck does not apply in a pre-conviction
context. See Fox v. DeSoto, 489 F.3d 227, 234 (6th Cir. 2007); McClish v. Nugent, 483 F.3d 1231,
1251 (11th Cir. 2007); Zarro v. Spitzer, 274 Fed.Appx. 31, 35 (2d Cir. Apr. 18, 2008).
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ACCORDINGLY, IT IS HEREBY ORDERED that:
1.

Defendants Steidley, Isaac, and Haynes are not named as defendants in the amended
complaint and are dismissed without prejudice from this action.

2.

Defendant Becker is dismissed without prejudice from this action as a result of Plaintiff’s
failure to state a claim upon which relief may be granted.

3.

This case is stayed pending resolution of the criminal charge against Plaintiff.

4.

The Clerk shall administratively close the case.

5.

If Plaintiff desires to continue with this case after disposition of the criminal charge against
him, he must request that the stay be lifted within thirty days of disposition of the criminal
charge, unless an appeal is filed. If he appeals, any request to lift the stay must be filed
within thirty days of completion of the appellate process.

6.

Plaintiff remains obligated to continue making monthly payments, when sufficient funds are
available, until the $350 filing fee is paid in full.

DATED THIS 3rd day of June, 2011.

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