Draper v. Whetsel

Filing 4

ORDER DISMISSING 1 Complaint filed by Bruce Wayne Draper bu granting Plaintiff until on or before 7/26/13 to file his amended complaint if he intends to pursue this lawsuit. Order more fully set out. Signed by Honorable Lee R. West on 7/9/13. (kw, )

IN THE UNITED STATES DISTRICT COURT FORF

JUL - 9 2013

THE WESTERN DISTRICT OF OKLAHOMA
BRUCE WAYNE DRAPER,
Plaintiff,
vs.
JOHN WHETSEL (SHERIFF: OKLA.
COUNTY),
Defendant.

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ILED

ROBERT D. DENNIS,CLERK
U.S. DIST. COURT, WESTERN DIST. OF OKLA.
BY ~
DEPUTY

No. CIV-13-681-W

ORDER
Plaintiff Bruce Wayne Draper, proceeding pro se, filed this action on July 2, 2013,
against defendant John Whetsel, Sheriff of Oklahoma County, Oklahoma. The body of his
complaint, which is entitled "Request for 'Restraining Order'; T.R.O.," reads:
I. David Pra[t]er1 and John Whetsel seeking repr[i]sal for CIV-10-335-W2
carried out "Armed-Stalker" programs, hanging out near my house with guns
in old police cars.
II. The D.A. makes the excuse: white-men must be seen in charge, why do
people of color need to see white-men in old cruisers.
III. These are the same persons (Sheriff's Dept.) declared a terrorist group
in CIV-03-617-HE.3

1 Prater (misidentified in the complaint as "David Prader") is named only in the body of the
complaint; he is not identified as a defendant in the caption or on the civil cover sheet. See Docs.
1, 1-1.

21n Draper v. Bauman, No. CIV-10-335-W, plaintiff Jamar J. Draper ("J Draper"), who was
confined in the Logan County Jail, brought suit under title 42, section 1983 of the United States
Code against Jim Bauman as Sheriff of Logan County. J Draper's claims related to both criminal
charges then pending against him in the District Court of Logan County, Oklahoma, including
burglary in the first degree, robbery with a firearm, rape in the first degree, forcible sodomy and
kidnapping, and a case filed under title 28, section 2254 of the United States Code in this judicial
district. See Draper v. Bauman, No. CIV-09-659-R (W.D. Okla.).
31n Draperv. Whetsel. No. CIV-03-617-HE, petitioner Bruce Wayne Draper. who was then
awaiting trial in the District Court for Oklahoma County. Oklahoma, on a charge of assault with a

IV. If the D.A. (David Pra[t]er) tried to deputize jailors; is it still night crawling,
if the jailors hurt (kidnap) someone?
Doc. 1. Draper did not include a prayer for money damages in his complaint or in the civil
cover sheet attached thereto. See Doc. 1-1.
Draper also filed an Application to Proceed in District Court Without Prepaying Fees
or Costs. See Doc. 2. On July 3, 2013, United States Magistrate Judge Suzanne Mitchell
granted the application, after finding that Draper was financially unable to prepay the fees
or costs associated with this proceeding. She ordered that Draper be permitted to proceed
in this matter without prepayment of any costs or fees. See Doc. 3.
The Court must review the complaint of any pro se litigant who has been granted
leave to proceed without prepayment of costs or fees, and in doing so, the Court is
obligated to determine whether the complaint is legally frivolous, fails to state a claim upon
which relief may be granted or asks for money damages from a defendant who by law is
immune and cannot be sued for money damages .

U,

28 U.S.C. § 1915(e)(2)(8). In

making its determination, the Court is guided by Rule 8, F.R.Civ.P., and Rule 12(b)(6),
F.R.Civ.P.
Rule 8(a)(2), supra, requires that a complaint contain "a short and plain statement
of the claim showing that the pleader is entitled to relief."4 Compliance with this rule is
necessary "'to give opposing parties fair notice of the basis of the claim against them so

deadly weapon, sought relief under title 28, section 2241 of the United States Code. The case was
dismissed without prejudice.
411[U]nder the Federal Rules of Civil Procedure, a complaint need not pin plaintiffs claim for
relief to a precise legal theory. Rule 8(a)(2)[, F.R.Civ.P.,] .. . generally requires only a plausible
'short and plain' statement of the plaintiffs claim, not an exposition of his legal argument." Skinner
v. Switzer, 131 S. Ct. 1289, 1296 (2011)(citation omitted).
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that they may respond to the complaint, and to apprise the [C]ourt of sufficient allegations

to allow it to conclude, if the allegations are true, that the claimant has a legal right to
relief.

III

Monument Builders of Greater Kansas City. Inc. v. American Cemetery Association

of Kansas, 891 F.2d 1473, 1480 (10th Cir. 1989)(quoting Perington Wholesale. Inc. v.
Burger King Corp., 631 F.2d 1369, 1371 (10 th Cir.1979)).
In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the United States Supreme
Court set forth the standards that govern Rule 12(b)(6), supra. The Supreme Court held
that to withstand dismissal, a complaint need not contain "heightened fact pleading of
specifics," 550 U.S. at 570, or "detailed factual allegations," id. at 555 (citations omitted),
but must contain "enough facts to state a claim to relief that is plausible on its face." Id.
at 570.
The United States Court of Appeals for the Tenth Circuit has stated that Twombly
imposes a "burden ... on the plaintiff to frame a 'complaint with enough factual matter
(taken as true) to suggest' that he ... is entitled to relief." Robbins v. Oklahoma, 519 F.3d
1242, 1247 (10th Cir. 2008)(quoting Twombly, 550 U.S. at 556). "The allegations [in the
coml?laint] must be enough that, if assumed to be true, ... [Draper] plausibly (not just
speculatively) has a claim for relief." lQ. (footnote omitted) .
The Court's task at this stage is to determine whether "there are well-pleaded factual
allegations," Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), in the plaintiffs pleading, and if
so, the "[C]ourt should assume their veracity and then determine whether they plausibly
give rise to an entitlement to relief." Id.
A claim has facial plausibility when the plaintiff pleads factual content
that allows the [C]ourt to draw the reasonable inference that the defendant
is liable for the misconduct alleged. The plausibility standard is not akin to

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a "probability requirement," but it asks for more than a sheer possibility that
a defendant has acted unlawfully. Where a complaint pleads facts that are
"merely consistent with" a defendant's liability, it "stops short of the line
between possibility and plausibility of 'entitlement to relief. '"

lQ. at 678 (citations omitted).
A complaint "'must contain either direct or inferential allegations respecting all the
material elements necessary to sustain a recovery under some viable legal theory.'"
Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008)(quotation and further citation
omitted). While "[t]he nature and specificity of the allegations required to state a plausible
claim will vary based on context," Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1215 (10th Cir. 2011)(citations omitted), neither "'naked assertion[s]' devoid of 'further
factual enhancement,'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557), nor
"[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
allegations, . . . suffice." lQ. (citation omitted). "[T]he Twomblyl/qbal standard recognizes
a plaintiff should have at least some relevant information to make the claims plausible on
their face," Khalik v. United Airlines, 671 F.3d 1188, 1193 (10th Cir. 2012), and "it demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556
U.S. at 678 (citations omitted).
In reviewing a complaint, the Court is mindful that "[a] pro se litigant's pleadings[,
such as the instant complaint,] are to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991 )(citations omitted). The Court, however, must not "assume the role of
advocate for the pro se litigant," id., and it cannot "relieve the plaintiff of the burden of
alleging sufficient facts on which a recognized legal claim could be based." Id. Even in

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those situations that involve pro se pleadings, "conclusory allegations without supporting
factual averments are insufficient to state a claim," id. (citations omitted), under Rule
12(b)(6).
Upon review, the Court finds that Draper has failed to state a facially plausible claim
warranting the extraordinary relief he has requested. s A party seeking a temporary
restraining order must show that there is a substantial likelihood he will eventually prevail
on the merits of his claim, that he will suffer irreparable injury unless the restraining order
issues, that the threatened injury to him outweighs whatever damage the proposed
restraining order may cause the defendant and that the temporary restraining order, if
issued, would not be adverse to the public interest. In so doing, Draper must demonstrate,
with specific factual allegations, that immediate and irreparable injury will result absent a
temporary restraining order. Draper must also show in his complaint "enough facts to state
a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570.
The Tenth Circuit has stated that under Twombly and Iqbal, courts "are especially
critical of complaints that do not articulate specific times, places, or persons involved in the
alleged misconduct because such complaints give 'defendant[s] seeking to respond to
plaintiffs' conclusory allegations . . . little idea where to begin.'" Bridges v. Lane, 351 Fed.
Appx. 284, 286 (10th Cir. 2009)(quoting Robbins, 519 F.3d at 1248)(cited pursuantto Tenth
Cir. R. 32.1). Although Draper indicated "other civil rights" on the civil cover sheet as the

SA temporary restraining order is an extraordinary and drastic remedy . and the right to relief
must be clear and unequivocal.
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nature of his lawsuit, see Doc. 1-1,6 he has failed to identify Whetsel's alleged misconduct
other than to complain that Whetsel (together with Prater) has implemented an "Armed
Stalker" program and has been "hanging out near ... [Draper's] house with guns in old
police cars," Doc. 1, in retaliation for a lawsuit filed by Jamar J. Draper. See Doc. 1 ("David
Pra[t]er and John Whetsel seeking repr[i]sal for CIV-1 0-335-W carried out 'Armed-Stalker'
programs, hanging out near my house with guns in old police cars.") .7
In applying Rule 8 and Rule 12(b)(6), the Court finds that Draper, despite his
obligation to do so under Twombly and Iqbal, not only has failed to set forth any factual
basis for his request for a temporary restraining order, but also has failed to set forth
sufficient allegations that, if assumed to be true, he "plausibly (not just speculatively) has
a claim for relief." Robbins, 519 F.3d at 1247 (footnote

ornitted);~,

Twombly, 550 U.S.

at 555 (plaintiff is obligated to provide ""grounds' of his 'entitle[ment] to relief").
While the Court must liberally construe pro se pleadings, it cannot rewrite an
otherwise deficient pleading. Accordingly, the Court
(1) FINDS that Draper's complaint should be and is hereby DISMISSED without
prejudice; but
(2) further FINDS, because amendment may cure the deficiencies found by the
Court, that Draper should be and is hereby GRANTED the opportunity to amend his
complaint in accordance with Twombly and Iqbal "to frame a 'complaint with enough factual

Snlf the [plaintiffs] statement [in his complaint] is sufficient to give the [defendant fair] notice
[of the plaintiffs claim and the grounds upon which it rests] ... , Rule 8(a)(2) is satisfied and '[i]t
is not necessary to plead under what particular law the recovery is sought.'" Turck v. Baker
Petrolite Corp., 10 Fed. Appx. 756, 762 (10th Cir. 2001)(quotation and further citations omitted).
7See n.2 supra.

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matter (taken as true) to suggest' that he ... is entitled to relief," Robbins, 519 F.3d at
1247 (quoting Twombly, 550 U.S. at 556), against Whetsel;
(3) DIRECTS Draper, if he intends to pursue this lawsuit, to briefly state in his
amended complaint each claim that he intends to pursue, what the defendant did and how
that defendant's conduct has injured or harmed him;
(4) further DIRECTS Draper to file his amended complaint on or before July 26,
2013;
(5) ADVISES Draper that his failure to amend his complaint in accordance with this
Order may result in dismissal of this matter with prejudice and prevent him from continuing
to litigate the instant lawsuit; and
(6) DIRECTS the Clerk of the Court to mail a copy of this Order to Draper at the
address listed on his complaint.
ENTERED this

q<;t

day of July, 2013.

. WEST
ED STATES DISTRICT JUDGE

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