Opinion
Case No. CIV-20-717-R
08-07-2020
PHILLIP LEE KELLEY, Plaintiff, v. JEORLD BRAGGS, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff Phillip Lee Kelley, appearing pro se, brings this action under 42 U.S.C. § 1983. (ECF No. 1). United States District Judge David L. Russell referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). A review of the complaint has been conducted pursuant to 28 U.S.C. § 1915A(a). Based on that review, it is recommended that the Court DISMISS the Complaint, without prejudice, for failure to state a claim.
I. SCREENING REQUIREMENT
The Court must review each complaint in which a prisoner seeks redress against a governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). The Court is required to dismiss the complaint or any portion of the complaint that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b).
II. STANDARD OF REVIEW
The Court must accept Plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from them, in the light most favorable to Plaintiff. See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Since Plaintiff is proceeding pro se, his complaint must be construed liberally. See id. at 1218. The Court "review[s] the complaint for plausibility; that is, to determine whether the complaint includes enough facts to state a claim to relief that is plausible on its face." Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009) (quotations and citation omitted). "Plausible" in this context does not mean "likely to be true," but rather refers "to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct," then the plaintiff has not "nudged (his) claims across the line from conceivable to plausible." Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). The plausibility requirement "serves not only to weed out claims that do not (in the absence of additional allegations) have a reasonable prospect of success, but also to inform the defendants of the actual grounds of the claim against them." Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008).
Whether a complaint contains sufficient facts to avoid dismissal is context-specific and is determined through a court's application of "judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
III. PLAINTIFF'S COMPLAINT/ALLEGATIONS
Mr. Kelley alleges a violation of his Fifth Amendment right to Due Process while incarcerated at Lexington Assessment and Reception Center (LARC). (ECF No. 1:8). According to Plaintiff:
On 3/18/20, [he] was removed from his job, restrained and taken to (SHU) and placed there (P.I.) pending investigation. [He] was never formally charged, given any documentation, nor brought before reviewing authority within 72 hours. He was released 13 days later having his earned credit level dropped from 4 to 1 without documentation or said "bad behavior."(ECF No. 1:9). Mr. Kelley names three Defendants: (1) Jeorld Braggs, warden at LARC; (2) Mark Knutson, the Oklahoma Department of Corrections (DOC) Administrative Reviewing Authority's Director's Designee; and (3) Scott Crow, the DOC Director. (ECF No. 1:1, 5-6). Mr. Kelley sues these Defendants in their individual and official capacities and seeks monetary damages. (ECF No. 1:5-6, 9).
IV. DISMISSAL OF THE COMPLAINT
Plaintiff clearly believes that his constitutional rights were violated through his job removal, placement in segregated housing, and credit-level demotion, all of which were allegedly done without explanation or any form of procedural due process. But Mr. Kelley has failed to provide any specific details in support of how he believes each Defendant had participated in the alleged deprivations.
In a case such as this one where Mr. Kelley has brought claims against more than one defendant, "it is particularly important . . . that the complaint make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him." Robbins v. Oklahoma, 519 F.3d at 1250. Mr. Kelley has failed to do so and the Court "will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). Mr. Kelley's failure to link Defendants Braggs, Knutson, or Crow with any of the alleged violations, renders the Complaint legally deficient. See Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th Cir. 2007) (explaining "that, to state a claim in federal court, a complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant did it; how the defendant's action harmed (the plaintiff); and, what specific legal right the plaintiff believes the defendant violated.").
Additionally, to the extent that Plaintiff alleges liability against any of the Defendants in a supervisory capacity, he must allege that the Defendants: (1) promulgated, created, implemented, or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm and (3) acted with the state of mind required to establish the alleged constitutional deprivation. Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010). But here, Plaintiff has failed to allege the violation of any particular policy which any Defendant created or possessed responsibility over which caused the alleged harm.
Based on the forgoing, the Court should dismiss the Complaint without prejudice because it does not "make clear exactly who is alleged to have done what to whom," and, as such, does not provide any of the Defendants with "fair notice as to the basis of the claims against him[.]" Robbins v. Oklahoma, 519 F.3d at 1250; see also Brooks v. Colo. Dep't of Corr., 762 F. App'x 551, 557-58 (10th Cir. 2019) (explaining that the standard set forth in Robbins, is "the standard by which [courts] review complaints asserting § 1983 claims against multiple defendants"); see also Mayfield v. Presbyterian Hospital Administration, 772 Fed. App'x 680, 686 (10th Cir. 2019) (affirming dismissal when complaint contained "undifferentiated allegations" that did not "provide fair notice" to defendants because plaintiff had not "attributed specific acts to them").
V. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
The Court should DISMISS the Complaint, without prejudice, for failure to state a claim upon which relief may be granted.
Plaintiff is hereby advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by August 24, 2020. See 28 U.S.C. § 636(b)(1); and Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VI. STATUS OF THE REFERRAL
This Report and Recommendation terminates the referral to the undersigned magistrate judge in the captioned matter.
ENTERED on August 7, 2020.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE