Lewis v. Oklahoma Department of Mental Health et al
Filing
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OPINION AND ORDER by Judge James H Payne, setting/resetting deadline(s)/hearing(s): amended complaint and ( Filing Fee due by 12/18/2012) (Re: 1 Complaint ) (pll, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
MARION LEWIS,
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Plaintiff,
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vs.
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OKLAHOMA DEP’T OF MENTAL HEALTH; )
OKLAHOMA FORENSIC CENTER;
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LORI JORDAN, Director;
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TERRI WHITE, Commissioner,
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Defendants.
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Case No. 12-CV-635-JHP-PJC
OPINION AND ORDER
On November 9, 2012, Plaintiff Marion Lewis filed a pro se 42 U.S.C. § 1983 civil rights
complaint (Dkt. # 1). Plaintiff also submitted two (2) USM-285 Marshal service forms for
Defendants Jordan and White. In addition, Plaintiff returned a blank motion to proceed in forma
pauperis and blank summonses. Before this action may proceed, Plaintiff shall be required to cure
the filing fee deficiency. In addition, the complaint is subject to dismissal based on Eleventh
Amendment immunity and for failure to state a claim upon which relief may be granted. However,
Plaintiff shall be afforded an opportunity to file an amended complaint to cure the deficiencies
identified herein.
A. Preliminary consideration
In his complaint, Plaintiff states that he currently resides at the Oklahoma Forensic Center
(OFC), 24800 South 4420 Road, Vinita, Oklahoma. That facility serves as Oklahoma’s inpatient
forensic facility and houses persons who have either been found incompetent for adjudication or
adjudicated as Not guilty by Reason of Insanity (NGI). Plaintiff fails to state specifically whether
he is housed at OFC because he has been found incompetent for adjudication or found to be NGI.
The distinction is significant. If Plaintiff has been committed to OFC after having been found NGI,
then he may not be a “prisoner” as defined by the Prisoner Litigation Reform Act (“PLRA”). See,
e.g., Kolocotronis v. Morgan, 247 F.3d 726, 728 (8th Cir. 2001) (holding that an NGI individual is
a “mental patient, not a convict” and concluding that it is outside the definition of a “prisoner” under
the PLRA); Page v. Torrey, 201 F.3d 1136, 1139 (9th Cir. 2000) (holding that “only individuals
who, at the time they seek to file their civil actions, are detained as a result of being accused of,
convicted of, or sentenced for criminal offenses are ‘prisoners’”). If, on the other hand, Plaintiff has
been found incompetent to stand trial and is being treated at OFC with the goal of being returned
to competence in order to stand trial, then he qualifies as a “prisoner” for purposes of the PLRA. If
Plaintiff is a “prisoner,” then the exhaustion and filing fee requirements of the PLRA apply to him.1
B. Filing fee deficiency
In order to commence a civil action in this Court, Plaintiff is required to submit a $350 filing
fee. 28 U.S.C. § 1914. Plaintiff failed to pay the filing fee when he filed his complaint. Therefore,
within thirty (30) days of the entry of this Order, Plaintiff must either pay in full the $350 filing fee
or, should he lack sufficient funds to prepay the filing fee, file a motion to proceed in forma
pauperis.
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The PLRA amended 42 U.S.C. § 1997e to provide that “[n]o action shall be brought with
respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). Further, the PLRA requires indigent prisoners to pay
the full filing fee, in monthly installments, and defines “prisoner” as, “any person incarcerated or
detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for,
violations of criminal law . . . .” 28 U.S.C. § 1915(h); see also 42 U.S.C. § 1997e(h) (identical
language).
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If Plaintiff qualifies as a “prisoner” and is subject to the provisions of the PLRA, then he
shall provide the accounting information required by statute. Pursuant to 28 U.S.C. § 1915(a)(2),
a “prisoner seeking to bring a civil action . . . without prepayment of fees . . . in addition to filing
the affidavit filed under paragraph (1), shall submit a certified copy of the trust fund account
statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding
the filing of the complaint . . . obtained from the appropriate official of each prison at which the
prisoner is or was confined.” This information must be provided so that the Court can assess not
only Plaintiff’s ability to pay the filing fee but also his ability to pay an initial partial filing fee to
be applied towards the filing fee should Plaintiff be allowed to proceed without prepayment of the
full fee. See 28 U.S.C. § 1915(b). If Plaintiff is a “prisoner,” then he is advised that even if he has
insufficient funds to prepay the full $350 filing fee required to commence this action, he will
nonetheless be responsible for full payment of the filing fee in monthly installments as
mandated by 28 U.S.C. § 1915(b). Plaintiff is further advised that he is obligated to pay the full
$350 filing fee even if this action is dismissed prior to service.
If Plaintiff is not a “prisoner” and he lacks sufficient funds to prepay the full filing fee, then
he shall be allowed to proceed in forma pauperis and he will not be responsible for payment of the
filing fee in monthly installments.
C. 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
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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.
D. Complaint is subject to dismissal
In his complaint (Dkt. # 1), Plaintiff states that he has “a bad liver that needs to be
transplanted and the Defendant[s] let it go so I’m dieing [sic]. They have not even sent me to a
specialist.” Id. Based on that statement, Plaintiff identifies one ground for relief, as follows:
Count I:
Eighth Amendment of the U.S. Constitution.
This hospital forensic center treat [sic] those that are not guilty by reason of
insanity and not court related holds. I’m unlawfully detained under Jackson
v. Indiana, 406 U.S. 715 (1972) Jackson, at 406 U.S. 716.
Dr. Coonfield, Dr. Tandem, Cheif [sic] of Medical, said I was to [sic] far
gone for treatment about five months ago, affirming a transplant is the only
course of action.
(Dkt. # 1). In his request for relief, Plaintiff asks for “a liver transplant and if the Department of
Mental Health has delayed to [sic] long five million dollars in punitive damages.” Id.
1. Eleventh Amendment immunity
Plaintiff has sued the Oklahoma Department of Mental Health and the Oklahoma Forensic
Center. In addition, he has sued Lori Jordan, Director of the Oklahoma Forensic Center, and Terri
White, Commissioner of the Department of Mental Health. Plaintiff is advised that the Eleventh
Amendment precludes an individual from suing a state in federal court, and the bar exists whether
the relief sought is legal or equitable. Papasan v. Allain, 478 U.S. 265, 276 (1986). The State of
Oklahoma has not waived its Eleventh Amendment immunity. See id.; Nichols v. Dep’t of Corrs.,
631 P.2d 746, 750-51 (Okla.1981). Thus, Plaintiff’s claims against agencies of the State of
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Oklahoma, and against agency employees sued in their official capacity, are barred by the Eleventh
Amendment. See Callahan v. Poppell, 471 F.3d 1155, 1158-59 (10th Cir. 2006) (noting that because
“Oklahoma has not waived sovereign immunity against § 1983 claims in federal district court,” any
claims for money damages against prison staff acting in their official capacities are barred by the
Eleventh Amendment).
2. Personal participation
Plaintiff names as defendants Lori Jordan, Director of the Oklahoma Forensic Center, and
Terri White, Commissioner of the Oklahoma Department of Mental Health. To the extent he has
sued those defendants in their individual capacity, Plaintiff fails to allege that either of those
defendants personally participated in, had knowledge of, or acquiesced in any of the alleged
wrongdoings. Plaintiff may seek to hold Defendants Jordan and White liable based solely on their
roles as supervisors. If that is the case, his complaint fails to state a claim upon which relief may be
granted and is subject to being dismissed.
Plaintiff is advised that personal participation is an essential element of a § 1983 claim.
Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976); see also Garrett v. Stratman, 254 F.3d
946, 950 n.4 (10th Cir. 2001) (noting that medical official must have “played a role in the challenged
conduct” to be liable for an Eighth Amendment violation). As a result, government officials have
no vicarious liability in a section § 1983 suit for the misconduct of their subordinates because “there
is no concept of strict supervisor liability under section 1983.” Jenkins v. Wood, 81 F.3d 988, 994
(10th Cir. 1996) (quotation omitted). Instead, a supervisor is liable only if he is “personally involved
in the constitutional violation and a sufficient causal connection . . . exist[s] between the supervisor
and the constitutional violation.” Serna v. Colo. Dep’t of Corr., 455 F.3d 1146, 1151 (10th Cir.
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2006) (quotation omitted); see also Meade, 841 F.2d at 1527 (stating that to establish a § 1983 claim
against a supervisor, the plaintiff must show that an “affirmative link exists between the
constitutional deprivation and either the supervisor’s personal participation, his exercise of control
or direction, or his failure to supervise” (quotations and alterations omitted)).
To the extent Plaintiff has sued Defendants Jordan and White in their individual capacity,
based solely on their roles as supervisors, his complaint fails to state a claim upon which relief may
be granted. For that reason, the complaint is subject to dismissal.
E. Opportunity to file an amended complaint
Plaintiff will be afforded the opportunity to file an amended complaint to cure the
deficiencies identified herein. If Plaintiff files an amended complaint, he must state specifically how
and when each named defendant violated his constitutional rights. Plaintiff is admonished that
simply alleging that a defendant is an employee or supervisor of a state agency is inadequate to state
a claim. Plaintiff must go further and state how the named defendant’s personal participation
violated his constitutional rights. As part of his amended complaint, Plaintiff shall state
specifically whether he is housed at OFC after being found incompetent to stand trial or after
being found NGI. If Plaintiff fails to file an amended complaint by the deadline established below,
this action shall be dismissed for failure to state a claim upon which relief may be granted.
ACCORDINGLY, IT IS HEREBY ORDERED that:
1.
Within thirty (30) days of the entry of this Order, or by December 18th, 2012, Plaintiff shall
either pay in full the $350.00 filing fee or file a motion to proceed in forma pauperis.
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2.
If Plaintiff is housed at OFC after being found incompetent to stand trial, then his motion to
proceed in forma pauperis shall be supported by the required certified copy of his trust fund
account statement (or institutional equivalent) for the 6-month period immediately preceding
the filing of the complaint obtained from the appropriate official at OFC, or show cause in
writing for his failure to do so.
3.
If Plaintiff is housed at OFC after being found Not Guilty by Reason of Insanity, then his
motion to proceed in forma pauperis shall include a statement showing the current balance
in his account(s).
4.
By the above-referenced deadline, Plaintiff shall file an amended complaint curing the
deficiencies identified herein.
5.
The Clerk of Court is directed to send Plaintiff a blank motion to proceed in forma pauperis
(form AO-240), and a blank civil rights complaint (form PR-01), both identified as Case No.
12-CV-635-JHP-PJC.
6.
Should Plaintiff fail to file an amended complaint by the above-referenced deadline, this
action will be dismissed without prejudice for failure to state a claim upon which relief may
be granted.
Failure to comply with this Order will result in the dismissal of this action without prejudice
and without further notice.
DATED THIS 15th day of November, 2012.
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