Jefferson v. Leverett et al

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATION 9 of Magistrate Judge Bernard M. Jones...plaintiff's claim is dismissed without prejudice; the court concludes, given the nature of plaintiff's complaint and amended complaint, a strike is warranted; plaintiff's application for leave to proceed in forma pauperis 2 is denied as moot. Signed by Honorable Joe Heaton on 9/29/2017. (cla)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JOSEPH JEFFERSON,
Plaintiff,
vs.
BRAD LEVERETT, et al.,
Defendants.

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NO. CIV-17-564-HE

ORDER
Plaintiff Joseph Jefferson filed a pro se complaint asserting no claims. After being
ordered to cure this deficiency, Plaintiff filed an amended complaint asserting a single 42
U.S.C. § 1983 claim against defendants for “slandering and defamation of character.” The
matter was referred to U.S. Magistrate Judge Bernard M. Jones for initial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B) and (C). Judge Jones has recommended that the
Amended Complaint [Doc. #8] be dismissed without prejudice pursuant to 28 U.S.C. §
1915A(b)(1) for failure to state a claim upon which relief may be granted and that the
dismissal court as a “prior occasion” or “strike” pursuant to 28 U.S.C. § 1915(g). Plaintiff
has objected to the report and recommendation, therefore the court reviews the complaint
de novo.
Plaintiff seeks his immediate release from confinement and to “countersue for
slandering and defamation of character.” Amended Complaint, p. 6. The report and
recommendation correctly recognizes that a claim for release from confinement is not a
proper § 1983 claim. Rhodes v. Hannigan, 12 F.3d 989, 991 (10th Cir. 1993) (“A petition

for habeas corpus attacks the fact or duration of a prisoner's confinement and seeks the
remedy of immediate release or a shortened period of confinement. In contrast, a civil
rights action for damages pursuant to 42 U.S.C. § 1983 attacks the conditions of the
prisoner's confinement and requests monetary compensation for such conditions.”
(citations omitted)).
The report and recommendation also recognizes that Plaintiff has failed to identify
any specific wrongful conduct attributable to any named defendant. Plaintiff’s Objection
[Doc. #10] attempts to address this by attaching a copy of an Affidavit for Arrest Warrant
by Blaine Phillips, one of the named defendants in this action, filed in Jackson County state
court. The affidavit itself is protected by Oklahoma’s litigation privilege “which accords
attorneys, parties, jurors and witnesses immunity for comments or writings made during
the course of or preliminary to judicial or quasi-judicial proceedings.” Samson Inv. Co. v.
Chevaillier, 988 P.2d 327, 329 (Okla. 1999). But the attachment does have a few summary
notations on it, presumably done by Plaintiff. The court finds that Plaintiff has still failed
to allege facts sufficient to demonstrate any particular defendant’s personal participation
in any alleged violation of his constitutional rights. The court also notes that “[d]amage to
one’s reputation alone [] is not enough to implicate due process protections.” Jensen v.
Redevelopment Agency of Sandy City, 998 F.2d 1550, 1558 (10th Cir. 1993) (citing Paul
v. Davis, 424 U.S. 693, 701 (1976).
Accordingly, after de novo review, the Report and Recommendation [Doc. #9] is
ADOPTED and plaintiff’s claim is dismissed without PREJUDICE. Further, the court
concludes, given the nature of Plaintiff’s Complaint and Amended Complaint, a strike is
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warranted. See 28 U.S.C. § 1915(g); Colman v. Tollefson, --- U.S. ----, 135 S. Ct. 1759,
1763 (2015) (“A prior dismissal on a statutorily enumerated ground counts as a strike even
if the dismissal is subject to an appeal.”). Finally, Plaintiff’s Application for Leave to
Proceed in Forma Pauperis [Doc. #2] is DENIED as moot.
IT IS SO ORDERED.
Dated this 29th day of September, 2017.

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