Stierwalt v. Osage County Jail et al
Filing
9
OPINION AND ORDER by Judge Claire V Eagan - Plaintiff's amended motion to proceed in forma pauperis (Dkt. # 6) is granted. The amended complaint (Dkt. # 5) is dismissed without prejudice for failure to state a claim upon which r elief may be granted. See 28 U.S.C. § 1915A(b)(1). Plaintiff remains obligated to pay the full $350 filing fee when he is able to do so. The Clerk is directed to flag this dismissal as the plaintiff's first "prior occasion" for purposes of 28 U.S.C. § 1915(g). ; granting 6 Motion for Leave to Proceed in Forma Pauperis (Re: 1 Complaint ) (RGG, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
TONY L. STIERWALT,
Plaintiff,
v.
OSAGE COUNTY JAIL,
TURN KEY MEDICAL SERVICES,
ARCADIA MEDICAL SERVICES,
and GIL E. DuPONT,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 17-CV-0479-CVE-JFJ
OPINION AND ORDER
This is a 42 U.S.C. § 1983 civil rights action. Plaintiff Tony Stierwalt commenced this
action on August 24, 2017, by filing a pro se complaint (Dkt. # 1) and a motion to proceed in forma
pauperis (Dkt. # 2). At that time, the plaintiff was incarcerated in the Osage County Jail, Pawhuska,
Oklahoma. See Dkt. # 1. By Order filed September 5, 2017 (Dkt. # 3), the Court denied the
plaintiff’s motion to proceed in forma pauperis, identified several deficiencies in the plaintiff’s
complaint, advised the plaintiff that his complaint was subject to being dismissed for failure to state
a claim, and afforded the plaintiff the opportunity to file (1) an amended complaint and (2) an
amended motion to proceed in forma pauperis. On September 19, 2017, Plaintiff filed an amended
complaint (Dkt. # 5) and an amended motion to proceed in forma pauperis (Dkt. # 6). The Court
finds that the amended motion to proceed in forma pauperis shall be granted. However, the Court
finds that the amended complaint fails to state a claim upon which relief may be granted, that
permitting the plaintiff any further opportunity to amend would be futile, and that the amended
complaint shall therefore be dismissed without prejudice.
A.
Motion to proceed in forma pauperis
After reviewing the plaintiff’s amended motion to proceed in forma pauperis, the Court finds
that the plaintiff is without sufficient funds to prepay the $350 filing fee required to commence this
action. Accordingly, the Court authorizes the plaintiff to proceed without prepayment of the filing
fee, and his motion to proceed in forma pauperis shall be granted. See 28 U.S.C. § 1915(a). While
the record reflects that the plaintiff is no longer incarcerated, see Dkt. ## 7, 8, the plaintiff
nonetheless remains obligated to pay the $350 filing fee when he is able. See Brown v. Eppler, 725
F.3d 1221, 1231 (10th Cir. 2013) (“[A]ll § 1915(a) does for any litigant is excuse the pre-payment
of fees. Unsuccessful litigants are liable for fees and costs and must pay when they are able.”
(quoting Robbins v. Switzer, 104 F.3d 895, 898 (7th Cir. 1997))).
B.
Amended complaint shall be dismissed
1.
Screening/Dismissal standards
Under the Prison Litigation Reform Act (PLRA), federal courts must engage in a preliminary
screening of cases in which prisoners seek redress from a governmental entity or officer or employee
of a governmental entity. See 28 U.S.C. § 1915A(a). The court must identify any cognizable claim
and dismiss any claim which is frivolous, malicious, 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 id. §§
1915A(b), 1915(e)(2)(B). The court applies the same dismissal standard under the PLRA as it uses
in reviewing a FED. R. CIV. P. 12(b)(6) motion to dismiss for failure to state a claim. Kay v. Bemis,
500 F.3d 1214, 1217 (10th Cir. 2007). Under this standard, a court must accept all the well-pleaded
allegations of the complaint as true, even if doubtful in fact, and determine whether the complaint
contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
2
Twombly, 550 U.S. 544, 555, 570 (2007). But “when the allegations in a complaint, however true,
could not raise a [plausible] claim of entitlement to relief,” the complaint should be dismissed. Id.
at 558.
Additionally, when a plaintiff appears pro se, the court must liberally construe the complaint.
Kay, 500 F.3d at 1218. This means “that if a court can reasonably read the pleadings to state a valid
claim on which the plaintiff could prevail, it should do so.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). Nonetheless, a pro se plaintiff bears “the burden of alleging sufficient facts on
which a recognized legal claim could be based.” Id. And the court “will not supply additional
factual allegations to round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s
behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
2.
Amended complaint fails to state a claim upon which relief may be granted
The plaintiff brings this action under § 1983. “The two elements of a Section 1983 claim
are (1) deprivation of a federally protected right by (2) an actor acting under color of state law.”
Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1155 (10th Cir. 2016). Even with the benefit of
liberal construction, the plaintiff’s amended complaint fails to state a plausible § 1983 claim.
In its prior Order directing the plaintiff to file an amended complaint, this Court identified
several deficiencies in the plaintiff’s original complaint and provided specific guidance as to how
the plaintiff could cure those deficiencies. See Dkt. # 3. First, the Court advised the plaintiff that
he “must identify all the defendants in the caption of the amended complaint” and that those
defendants “must be the same as those listed in the body of the amended complaint.” Id. at 3. Next,
the Court advised the plaintiff that he “must state specifically when and how each named defendant
allegedly violated his constitutional rights.” Id. The Court expressly advised the plaintiff that (1)
3
the Osage County Jail is not a proper defendant, (2) he failed to set forth sufficient facts supporting
that defendant Gil DuPont personally participated in any alleged violations, and (3) he failed to set
forth sufficient facts supporting the existence of a custom or policy followed by either Arcadia
Medical Services or Turnkey Medical Services that could be causally linked to his alleged injuries.
Id. at 4-5. Finally, the Court explained that the plaintiff’s “amended complaint must be complete
in itself, including exhibits, and may not reference or attempt to incorporate material from the
original complaint.” Id. at 4.
Despite the specificity of the Court’s prior Order, the plaintiff’s amended complaint suffers
from many of the same deficiencies as the original complaint. For example, the plaintiff names three
defendants in the caption of his amended complaint: Osage County Jail, Turnkey Medical Services,
and Arcadia Medical Services. Dkt. # 5 at 1. But, in the body of his amended complaint the
plaintiff identifies three Osage County Jail employees: Sheriff Eddie Virden, Captain Charlie
Cartwright, and Lieutenant Gil DuPont. Id.at 2. The amended complaint therefore not only fails
to comply with FED. R. CIV. P. 10(a), which requires the plaintiff to name all parties in the title of
the complaint, but also fails to comply with this Court’s instructions as to how to comply with that
procedural rule. And, once again, the plaintiff names the Osage County Jail as a defendant despite
the Court’s advisement that the Jail is not a suable entity.
The amended complaint also fails to clearly identify the plaintiff’s alleged civil rights
violations and is nearly devoid of factual support for any violations. In describing the nature of his
case, the plaintiff alleges that he is an insulin-dependent diabetic, that he has not been taken care of,
that he receives the same diet as everyone else, that he does not receive adequate exercise or
sunlight, and that someone (presumably one or more of the defendants) is “[c]onstantly running out
4
of test strips, syringes, lancets, etc.” Id. at 2. In the space provided for identification of Count I, the
plaintiff directs the Court to see his “original paperwork” and supporting facts and lists the abovenamed Osage County Jail Employees without making any effort to explain when or how any of the
defendants personally participated in any alleged civil rights violations. Id. Likewise, in Count II,
the plaintiff directs this court to his original complaint and states that there is “[n]o change” in his
supporting facts. Id. at 2-3. Finally, in Count III, the plaintiff alleges that defendant Arcadia
Medical Services ran out of syringes on September 12, 2017, and again refers the Court to his
“original paperwork.” Id. at 3. Thus, the plaintiff not only failed to correct the factual deficiencies
that this Court identified in its prior Order, but also attempted to correct those deficiencies by
impermissibly incorporating portions of his deficient original complaint in violation of LCvR. 9.2(c).
For these reasons, the Court finds that the amended complaint fails to state a claim upon
which relief may be granted and that it would be futile to allow the plaintiff any further opportunity
to amend. As a result, the amended complaint shall be dismissed without prejudice.
C.
First “prior occasion” under 28 U.S.C. § 1915(g)
The Court granted the plaintiff leave to proceed in forma pauperis. In addition, the Court
has concluded that the plaintiff’s amended complaint fails to state a claim upon which relief may
be granted and should therefore be dismissed without prejudice under 28 U.S.C. § 1915A(b)(1).
This dismissal shall count as the plaintiff’s first “prior occasion” under § 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
5
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”).
ACCORDINGLY, IT IS HEREBY ORDERED that:
1.
The plaintiff’s amended motion to proceed in forma pauperis (Dkt. # 6) is granted.
2.
The amended complaint (Dkt. # 5) is dismissed without prejudice for failure to state a
claim upon which relief may be granted. See 28 U.S.C. § 1915A(b)(1).
3.
Plaintiff remains obligated to pay the full $350 filing fee when he is able to do so.
4.
The Clerk is directed to flag this dismissal as the plaintiff’s first “prior occasion” for
purposes of 28 U.S.C. § 1915(g).
5.
A separate Judgment shall be entered in this matter.
DATED this 15th day of February, 2018.
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?