Roberts v. Fallin et al

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATION 13 of Magistrate Judge Gary Purcell...the court agrees with Judge Purcell's analysis and adopts the report...plaintiff's claims are dismissed...see order for specifics. Signed by Honorable Joe Heaton on 10/17/2017. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
HURMAN LEE ROBERTS, JR.,
Plaintiff,
vs.
MARY FALLIN, et al.,
Defendants.

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NO. CIV-17-0760-HE

ORDER
Plaintiff Hurman Lee Roberts, Jr., a state prisoner appearing pro se, filed this § 1983
action against Oklahoma Governor Mary Fallin and Joe Allbaugh, the Director of the
Oklahoma Department of Corrections. Consistent with 28 U.S.C. §636(b)(1)(B), the
matter was referred to Magistrate Judge Gary M. Purcell for initial proceedings. The
magistrate judge conducted an initial review of the complaint under 28 U.S.C. §1915A(b).
He has filed a Report and Recommendation (the “Report”) recommending that the
complaint be dismissed upon filing, with the dismissal to be with prejudice as to any
claims asserted against the defendants in their official capacities and without prejudice as
to any claims asserted against them in their individual capacities. Plaintiff has filed both
an objection and an amended objection to the Report.
The Report concluded that plaintiff’s claims against the defendants in their official
capacities are barred by the Eleventh Amendment.1 It noted that the defendants, when
sued in their official capacities, are considered to be “arms of the State” and that the State

1

Plaintiff only seeks monetary relief and a “Federal criminal investigation into the
corruption of Oklahoma Department of Corrections.” Doc. #1, p. 3.

has not waived its immunity. While noting that plaintiff appears to assert only official
capacity claims, it went on to analyze whether claims were stated against the defendants
in their individual capacities. It concluded individual capacity claims were not stated, as
defendants are not automatically liable under § 1983 for the conduct of others and plaintiff
did not allege that they personally “took any deliberate or intentional actions designed to
violate Plaintiff’s constitutional rights.” Doc. #13, p. 5.
Finally, the magistrate judge concluded dismissal of plaintiff’s claims is warranted
because the complaint’s allegations are too vague and conclusory, even when liberally
construed, to satisfy the pleading requirements of Fed.R.Civ.P. 8.
In his objection, plaintiff addressed the sovereign immunity issue by arguing that
the “11th Amendment is discriminatory of the 14th Amendment” and that the State
waived its Eleventh Amendment immunity because “defendants violated Oklahoma
criminal statutes while acting under the color of state law.” Doc. #14, p. 6. Neither
argument is supported by any authority nor are they otherwise persuasive. No plausible
basis is suggested for avoiding the impact of Eleventh Amendment immunity on the
official capacity claims.
Plaintiff did not respond to the Report’s conclusion that, if plaintiff is attempting to
sue the defendants as individuals, the complaint fails to allege their personal involvement
in any constitutional violation. See Gallagher v.Shelton, 587 F.3d 1063, 1069 (10th Cir.
2009) (“Individual liability under § 1983 must be based on personal involvement in the
alleged constitutional violation. Supervisory status alone does not create § 1983
liability.”) (internal quotations and citation omitted). As a result, no individual capacity
2

claim is stated. Further, no claim of any sort is stated with sufficient factual detail to be
plausible. Plaintiff attempts to respond to that concern by referencing his complaint in
another lawsuit “for further statement and evidence.” Doc. #1, p. 3, ¶ (3)(g). But that is
not a permissible means of stating a claim. Plaintiff cannot incorporate pleadings from
another lawsuit to satisfy the requirements of Rule 8, but must include all allegations
pertaining to his claims in the complaint he filed in this action.
In his supplemental objection, plaintiff also includes additional claims which are not
alleged in his complaint. A plaintiff cannot amend a complaint in an objection.
Having conducted a de novo review, the court agrees with Magistrate Judge
Purcell’s analysis and adopts the Report. Plaintiff’s claims are dismissed. His official
capacity claims, which appear to be all that he actually asserts,2 are dismissed with
prejudice. However, to the extent he asserts individual capacity claims against the
defendants, those claims are dismissed without prejudice.

As no viable claim for relief

is stated, his request for appointed counsel is denied.
IT IS SO ORDERED.
Dated this 17th day of October, 2017.

2

Plaintiff alleges in the complaint and reiterates in his amendment to his objection that he
is suing defendants in their official capacities. See Doc. #1, pp. 1, 2; Doc. #15, p. 3.

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