Opinion
Case No. CIV-18-1032-HE
03-14-2019
RUDY PHIL JAQUEZ, Plaintiff, v. P.D. TAYLOR, et al., Defendants.
REPORT AND RECOMMENDATION
Rudy Phil Jaquez (Plaintiff), a state prisoner appearing pro se, brings this action under 42 U.S.C. § 1983 claiming violations of his constitutional rights. Doc. 1. Plaintiff has sued Sheriff P.D. Taylor and David Prater, the District Attorney for Oklahoma County, each in their individual capacities. Id. at 4. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Docs. 3, 21. Having reviewed the sufficiency of Plaintiff's claims, the undersigned recommends Plaintiff's complaint be dismissed for failure to state a claim.
Citations to a court document are to its electronic case filing designation and pagination. Except for changes in capitalization, quotations are verbatim unless indicated.
I. Screening requirement.
Federal law requires the court to screen complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In addition, because Plaintiff is proceeding in forma pauperis, the court has an ongoing duty to consider the sufficiency of his claims. See id. § 1915(e)(2); Docs. 21, 22. The court must dismiss any frivolous or malicious claim, any claim asking for monetary relief from a defendant who is immune from such relief, or any claim on which the court cannot grant relief. See id. §§ 1915A(b), 1915(e)(2)(B).
A complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556); see also Gee v. Pacheco, 627 F.3d 1178, 1184 (10th Cir. 2010). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.
"A pro se litigant's pleadings 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). The court, however, may not serve as Plaintiff's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
II. Plaintiff's claims and request for relief.
Plaintiff alleges that in April of 2017, while Plaintiff was incarcerated at Oklahoma County Jail, he was "beaten" by "guards for Oklahoma County." Doc. 1, at 6-7, 11. According to Plaintiff, he was informed by his cell mate that he needed to "leave the cell." Id. at 6. Then, when a "guard came by for pill call, [Plaintiff] informed him [he] needed to be moved," and "[t]he guard said ok." Id. Shortly after, the guard "tried to push [Plaintiff] in side the cell. [Plaintiff] managed to get a hold of the railing and [the guard] tryed to pull on [Plaintiff]." Id. at 6-7. Plaintiff alleges the guard then began to hit him in the ribs "10 to 15 Times." Id. at 7. Plaintiff claims "[t]his was hurting so badly at the time, and in intence pain I just didn't know what to do. So i reach around and grabed [the guard] . . . ." Id. Plaintiff states he told the guard that he would let go if the guard stopped hitting him, and the guard agreed. Id.
Plaintiff alleges he "was taken to medical and [nothing] was done. No exrays . . . Thay just put me back in my cell and I was releiced on Monday the next day. I had went to an doctor complaning of my pain in my side. I had 2 Broke ribs." Id.
Plaintiff states he "never did anything to provoke this matter," but that "after 2 to 3 weeks [he] was called in buy Oklahoma City Police," and was charged with assault on an officer. Id. at 8. Plaintiff alleges that he has been refused "full disclosure under the Open Records Act," and that the "Court is suppress the evidence" of the alleged beating. Id. at 11. Plaintiff claims the "Dristrict Attorney and counsel and Judge refuses to disclose the exculpatory evidence of the veiedo survelance camara, and my two sworn statements from witness that seaw it all." Id. at 8. Plaintiff states he tried to compel disclosure of this evidence through the Court of Criminal Appeals. Id. Plaintiff seeks to "see [video] of the alleged abuse," and wants to "[r]etain [his] liberty of tort claims for the abuse." Id.
Plaintiff states he is "trying to regaine my liberty due to this unconditional confinement." Id. at 9. He lists the "5, 6, 14, 8" amendments to the Constitution. Id. Plaintiff seeks to "compel full disclosurse as required by law or grant me liberty as required by the United States Constitution. And give me my liberty from this unconstitutional confinement. It is so prayed. 6, 14, 5, 8 amendment constitution (Immediate relice)." Id. at 10.
Construing Plaintiff's vague allegations liberally, Plaintiff appears to raise several claims: (1) that a prison guard used excessive force against Plaintiff; (2) that Plaintiff did not receive adequate medical care following his injury; and (3) that video evidence of the alleged incident was not disclosed at Plaintiff's trial. Although Plaintiff states "the amount exceedes 10,000.00 Dollars in tort Claims," id. at 2, even liberally construed, the only relief Plaintiff appears to seek is "full disclosurse" of the video evidence and "[i]mmediate relice" from confinement. Id. at 10.
III. Analysis.
A. Defendants.
1. Defendant District Attorney David Prater is not a proper party before this court.
David Prater, the District Attorney for Oklahoma County, is not a proper defendant in this case, whether in his individual or official capacity. "State prosecutors are entitled to absolute immunity against suits brought pursuant to § 1983 for activities intimately associated with the judicial process, such as initiating and pursuing criminal prosecutions." Gagan v. Norton, 35 F.3d 1473, 1475 (10th Cir. 1994). This immunity extends to prosecutors' "decisions to prosecute, their investigatory or evidence-gathering actions, their evaluation of evidence, their determination of whether probable cause exists, and their determination of what information to show the court." Nielander v. Bd. of Cty. Comm'rs of Cty. of Republic, Kan., 582 F.3d 1155, 1164 (10th Cir. 2009). Allegations "that a prosecutor willfully used perjurious testimony [or] claims that a prosecutor willfully suppressed evidence," do not defeat this immunity. Esquibel v. Brian Williamson, 421 F. App'x 813, 816 (10th Cir. 2010). Thus, Plaintiff cannot state a viable § 1983 claim against Defendant Prater.
2. Claims against Defendant Sheriff P.D. Taylor should be dismissed.
"Personal participation is an essential allegation in a § 1983 claim." Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). Plaintiff's complaint must "identify specific actions taken by particular defendants." See Pahls v. Thomas, 718 F.3d 1210, 1226 (10th Cir. 2013) (quoting Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 532 (10th Cir. 2011)). A plaintiff's "undifferentiated contention that 'defendants' infringed his rights" is insufficient to state a § 1983 claim because "a plaintiff must show that each defendant acted with the requisite state of mind." Id.
The undersigned liberally construes Plaintiff's claims against Sheriff Taylor in his individual capacity to be premised upon a so-called supervisory liability. To impose supervisory liability, a plaintiff first must "establish the supervisor's subordinates violated the [C]onstitution." Dodds v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010) (alteration in original) (citation omitted). Then, Plaintiff "must show an 'affirmative link' between [Sheriff Taylor] and the constitutional violation." Estate of Booker v. Gomez, 745 F.3d 405, 435 (10th Cir. 2014) (quoting Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir. 2013)). To show that link, "three elements [are] required to establish a successful § 1983 claim against a defendant based upon his or her supervisory responsibilities: (1) personal involvement; (2) causation; and (3) state of mind." Schneider, 717 F.3d at 767. Specifically, "to state a claim against Sheriff [Taylor] in his individual capacity, [Plaintiff] must allege that the Sheriff directly violated his constitutional rights. Section 1983 demands more than mere control over subordinates to support supervisor liability." Meadows v. Whetsel, 245 F. App'x 860, 863 (10th Cir. 2007).
Here, Plaintiff's factual allegations do not refer to any actions by, or omissions of, Sheriff Taylor. See Doc. 1. Even liberally construed, it is unclear to the undersigned which of the factual allegations—the alleged attack on Plaintiff by an unidentified guard, the lack of medical attention to Plaintiff's resulting injuries, or the alleged suppression of video evidence—are attributed to the Sheriff. Because Plaintiff has failed to show Sheriff Taylor was personally involved in the alleged constitutional violations at issue or that there exists an "affirmative link" to render him liable for any of these alleged violations for failure to supervise, the undersigned recommends the dismissal without prejudice of Plaintiff's claims against Sheriff Taylor.
B. Relief requested cannot be granted.
Although it appears from Plaintiff's complaint he seeks only injunctive relief, he does state "the amount exceedes 10,000.00 Dollars in tort Claims." Doc. 1, at 2. Therefore, to the extent Plaintiff seeks monetary damages for the state court video evidentiary issue, the undersigned notes any such request would be barred because Plaintiff has not demonstrated that any conviction or sentence have been reversed or vacated. See Heck v. Humphrey, 512 U.S. 477, 487 (1994) (holding damages may not be recovered in a § 1983 action "for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid" unless the plaintiff first proves "that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254."). The purpose behind Heck is "to prevent litigants from using a § 1983 action, with its more lenient pleading rules, to challenge their conviction or sentence without complying with the more stringent exhaustion requirements for habeas actions." Butler v. Compton, 482 F.3d 1277, 1279 (10th Cir. 2007).
1. Disclosure of evidence in state court proceeding.
Judicial notice is taken of the publicly-available electronic records of the State of Oklahoma, as Plaintiff references in his complaint Case No. CF-18-1553 in the District Court of Oklahoma County. See Doc. 1, at 3; id. Ex. 1, at 1. Those records reflect that on April 12, 2018, the State of Oklahoma charged Plaintiff with Assault and Battery upon a Police or Other Law Enforcement Officer. The records also reflect that Plaintiff: (a) filed a "Request to review video surveillance and full disclosures" in this criminal proceeding on January 7, 2019; (b) pleaded guilty on January 25, 2019; (c) filed two additional requests "for full disclosure of surveillance video" on January 28 and 29, 2019; and (d) filed a motion to withdraw his plea on February 7, 2019 and then withdrew that motion on February 15, 2019. To the best of the undersigned's understanding of Plaintiff's claim for relief, it appears Plaintiff is requesting this Court compel the state court to disclose this evidence. See Doc. 1, at 10.
See http://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-2018-1553&cmid=3645569 (last visited Mar. 12, 2019); see also Fed. R. Evid. 201; United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (noting court's "discretion to take judicial notice of publicly-filed records in our court and certain other courts concerning matters bearing directly upon the disposition of the case at hand.").
Although Plaintiff claims the events in question took place in April of 2017, see Doc. 1, at 6, the undersigned assumes Plaintiff's allegations refer to the same incidents underlying this charge given Plaintiff's reference to the case in his complaint.
"Federal courts are courts of limited jurisdiction, and a party who brings an action in federal court bears the burden of establishing that the exercise of jurisdiction is proper." Thornton v. Jones, 2007 WL 4563750, at *2 (W.D. Okla. Dec. 20, 2007) (order adopting report & recommendation) (citing In Re Longhorn Sec. Litig., 573 F. Supp. 255, 264 (W.D. Okla. 1983)). Therefore, any request for relief filed in federal court must contain a short and plain statement of the grounds upon which the Court's jurisdiction depends. Id.; see Fed. R. Civ. P. 8(a). "Jurisdiction cannot be conferred upon this Court by consent, inaction or stipulation, and a lack of jurisdiction cannot be waived." Thornton, 2007 WL 4563750, at *2 (citation omitted).
Plaintiff has filed a form complaint intended to be used by those seeking relief pursuant to 42 U.S.C. § 1983. However, the complaint fails to allege a factual basis in support of this Court's jurisdiction under § 1983. Rather, as relief in this action, Plaintiff requests only that this Court compel disclosure of video evidence in state court—but such requests have been denied by the state district and appellate courts. The undersigned finds that such allegations and request for relief are more consistent with a mandamus action.
However, this Court does not have the power to compel state officials to action, nor does it "serve as an appellate or reviewing court for alleged illegal actions in state court." Cobray v. Mullins, 2007 WL 1500179, at *1 (W.D. Okla. May 21, 2007) (order adopting report & recommendation). Specifically, a federal district court's mandamus power extends only to federal officials or agencies, and thus, this Court has no authority under the mandamus provision to direct a state judge's actions as Plaintiff requests. See 28 U.S.C. § 1361 ("The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff."). See Harris v. Dep't of Corr., 426 F. Supp. 350, 351 (W.D. Okla. 1977) ("United States District Courts simply do not have any jurisdiction [to issue a writ of mandamus] to compel a state or its officers to perform any duty owed to the plaintiff under state law."). See also Amisub (PSL), Inc. v. State of Colo. Dep't of Soc. Servs., 879 F.2d 789, 790 (10th Cir. 1989) ("No relief against state officials or state agencies is afforded by § 1361."); Van Sickle v. Holloway, 791 F.2d 1431, 1436 n.5 (10th Cir. 1986) (federal courts "have no authority to issue [ ] a writ [of mandamus] to direct state courts or their judicial officers in the performance of their duties."). Accordingly, to the extent Plaintiff seeks a writ of mandamus, the undersigned recommends that this claim be dismissed without prejudice for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3).
2. Plaintiff's request for release.
Plaintiff requests "[i]mmediate relice" from confinement. Doc. 1, at 10. But § 1983 is an inappropriate avenue for that relief—Plaintiff should instead file a writ of habeas corpus. See Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) ("This Court has held that a prisoner in state custody cannot use a § 1983 action to challenge 'the fact or duration of his confinement.' He must seek federal habeas corpus relief . . . instead.") (citations omitted); see also McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997) ("The fundamental purpose" of a § 2254 habeas proceeding is "an attack by a person in custody upon the legality of that custody, and . . . the traditional function of the writ is to secure release from illegal custody."). Perhaps aware of this distinction, Plaintiff did file a "Request to leave to proceed writ Habeas Courpus 2254" on November 26, 2018, describing his attempts to "retain [his] liberty, and recieve an full and fair hearing." Doc. 14, at 2. Plaintiff then filed a petition for writ of habeas corpus on the same day in this court, which was dismissed consistent with Younger v. Harris, 401 U.S. 37 (1971). See Jaquez v. Okla. Cty., No. CIV-18-1166-HE, 2019 WL 611624 (W.D. Okla. Feb. 13, 2019) (order adopting report & recommendation).
Under some circumstances, the court may liberally construe a § 1983 complaint to be a writ of habeas corpus. See Padilla v. Enzor, 279 F. App'x 606, 610 (10th Cir. 2008) ("[A] federal court, affording a pro se inmate's pleadings liberal construction, might treat § 1983 claims such as these to be, instead, claims seeking habeas relief under 28 U.S.C. § 2254."). However, while Plaintiff may be seeking habeas relief here, in light of the disposition in his habeas case and "the 'strict limitations' the Antiterrorism and Effective Death Penalty Act of 1996 . . . places on second or successive habeas claims," id. (quoting Davis v. Roberts, 425 F.3d 830, 834-35 (10th Cir. 2005)), the undersigned recommends the court dismiss without prejudice Plaintiff's § 1983 challenge to his confinement rather than treat his claim as one for habeas relief.
C. Excessive force and deliberate indifference claims.
Although it is unclear from the face of the complaint whether Plaintiff also intends to raise claims of excessive force and/or deliberate indifference to a serious medical need, the undersigned liberally construes the factual allegations—and reference to "10,000.00 Dollars in tort Claims," Doc. 1, at 2—as an attempt to seek relief under these claims and recommends they be dismissed without prejudice.
As an initial matter, Plaintiff has not clearly stated whether he was a convicted and sentenced prisoner or a pretrial detainee at the time of the alleged beating by the prison guard and subsequent inadequate medical care, though he states he was "incarcerated . . . for tickets. In which i plaintiff was to due [approximately] 6+7 days." See Doc. 1, at 3, 6. Accordingly, though it appears Plaintiff was a convicted and sentenced prisoner, the court cannot be sure whether Plaintiff's rights are properly evaluated pursuant to the Eighth or the Fourteenth Amendment. However, the undersigned finds that under either analysis, Plaintiff's allegations are insufficient to state a claim for relief.
Pretrial detainees are protected under the Due Process Clause of the Fourteenth Amendment rather than the Eighth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979).
Though Plaintiff alleges specific actions and injuries implicating potential claims for excessive force and deliberate indifference to serious medical needs, Plaintiff does not "identify specific actions taken by particular defendants." Pahls, 718 F.3d at 1226. As previously discussed, "[p]ersonal participation is an essential allegation in a § 1983 claim." Bennett, 545 F.2d at 1262-63. Plaintiff fails to allege any personal participation by Defendant Taylor, or to identify and name as defendants any of the prison officials involved in the alleged beating or denial of medical care. Even with a liberal construction of Plaintiff's complaint, Plaintiff fails to make the minimum necessary allegations to state a § 1983 claim and the undersigned therefore recommends Plaintiff's claims be dismissed without prejudice.
IV. Recommendation and notice of right to object.
For the reasons discussed, the undersigned recommends (1) the dismissal with prejudice of Plaintiff's claims against Defendant Prater; (2) the dismissal without prejudice of Plaintiff's claims against Defendant Taylor; (3) the dismissal without prejudice for lack of subject matter jurisdiction of Plaintiff's request for relief seeking disclosure of certain evidence in state court; (4) the dismissal without prejudice of Plaintiff's challenge to his confinement; and (5) the dismissal without prejudice of Plaintiff's § 1983 claims alleging excessive force and deliberate indifference to serious medical need.
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before April 4, 2019, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises Plaintiff that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter. Adoption of this Report and Recommendation will moot Plaintiff's pending motions, Docs. 5, 14, 20.
ENTERED this 14th day of March, 2019.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE