Opinion
CIV-22-778-F
11-03-2022
JOHN MIGUEL SWAN, Plaintiff, v. OKLAHOMA CITY POLICE DEPARTMENT, et al., Defendants.
REPORT AND RECOMMENDATION
Amanda Maxfield Green Judge.
Plaintiff John Miguel Swan (“Plaintiff”), a federal prisoner appearing pro se and in forma pauperis, has filed this civil rights action pursuant to 42 U.S.C. § 1983.(Doc. 1, at 2). The matter was referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). (Doc. 7). The undersigned has reviewed the Complaint (Doc. 1) pursuant to 28 U.S.C. § 1915A(a). As explained fully below, it is recommended that the Court DISMISS Plaintiff's Complaint.
A Section 1983 action is properly brought against defendants acting under color of state law, while an action brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), addresses action under color of federal law. See Darr v. Town of Telluride, 495 F.3d 1243, 1256 (10th Cir. 2007) (stating that 42 U.S.C. § 1983 allows recovery only when the wrongdoing took place under color of state law); Ashcroft v. Iqbal, 556 U.S. 662 (2009) (stating that Bivens provides an implied private action for constitutional violations by federal officers). Plaintiff asserts claims against both state and federal actors, as will be distinguished below.
I. The Court's Duty to Screen Prisoner Complaints
Federal law mandates the screening of each complaint in a civil action filed by a prisoner seeking redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or any portion of it 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. Id. at § 1915A(b).
The court's review of a complaint under § 1915A(b)(1) mirrors that required for reviewing a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. 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). 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) (internal quotation marks and citation omitted). A complaint fails to state such a claim when it lacks factual allegations sufficient “to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (footnote and citation omitted). Bare legal conclusions in a complaint, however, are not assumed to be true; legal conclusions “must be supported by factual allegations” to state a claim upon which relief may be granted. Iqbal, 556 U.S. at 679.
“[A] pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (noting that although courts construe pro se pleadings liberally, courts “will not supply additional factual allegations to round out a plaintiff's complaint”). 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.” Iqbal, 556 U.S. at 679; see also Gee v. Pacheco, 627 F.3d 1178, 1184-85 (10th Cir. 2010) (discussing Iqbal). “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, 935 F.2d at 1110. 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. Overview of Complaint
Plaintiff is a federal prisoner currently incarcerated at McCreary United States Penitentiary in Pine Knot, Kentucky. (Doc. 5). On June 1, 2021, Plaintiff pled guilty in this Court to one count of Felon in Possession of Ammunition, an offense that occurred on September 9, 2020. United States v. Swan, WDOK Case No. 21-CR-28-F (Docs. 1, 24, 25, 64); (see also Doc. 1, at Ex. 1, at 18). On July 13, 2022, Plaintiff was sentenced to 120 months of imprisonment. (Id. at 18-19).
In the instant Complaint, Plaintiff brings twenty claims against thirty Defendants. (Doc. 1, at 1; Doc. 1, at Ex. 1, at 57, 59-78). Liberally construing his Complaint, Plaintiff's claims stem from an alleged illegal search of his residence and seizure of property that ultimately led to the federal criminal charge referenced above. Plaintiff states “on or about September 9th [2020] at 1700 hrs at 10901 NE 38th St. in Spencer OK 73084 Officers invaded private property unlawfully with no search warrant violating 4th Amendment and 5th Amendment Due Process Clause.” (Doc. 1, at 6, 8). He also alleges that Defendants “executed an alleged search warrant in a[n] area they had no Jurisdiction over. Removed private property without a search warrant.” (Id. at 8). As relief, Plaintiff seeks “just compensation in fair Payment for stealing Plaintiffs vehicle and selling it for public use, Loss of time of life, and mental trauma, and severe psychological injuries and Physical Anguish for civil liberties and Human Rights infringed upon.” (Id. at 6; see id. at 8).
III. Dismissal of Entities Not Subject to Suit.
Plaintiff filed the Complaint against thirty defendants. (Doc. 1, at 1; Doc. 1, at Ex. 1, at 57). Plaintiff named as Defendants the Santa Fe Division of the Oklahoma City Police Department (“OCPD”) and the Spring Lake Division of the OCPD, both in their official capacities. (Doc. 1, at 4). Additionally, Plaintiff named in both their individual and official capacities, Defendants: the State of Oklahoma; the District Court of Oklahoma County; the Federal Bureau of Investigation; the United States of America; the U.S. Marshal Service; the Oklahoma County Jail; the Cleveland County Detention Center; United States Attorney Robert J. Troester; Assistant United States Attorney Jacquelyn M. Hutzell; OCPD Officer Paige Cook, Sergeant Jesse McRay, Lieutenant Dustin Motley, Supervisor Christopher Graham, Supervisor Jeffery Padgett, Lieutenant Vance, Officer Clark Traci, Sergeant Erick Howell, Sergeant Fincham, Sergeant Justin Bailey, Lieutenant Joshua Castlebury, Officer Burwell, Detective Reed, Sergeant Moore, and Lieutenant Andrew Ritchie; S. Nolan of the Cleveland County Sheriff's Department; an unknown sheriff's deputy; Oklahoma County Judge Kevin C. McCray; and United States District Judge Stephen P. Friot. (Doc. 1, at Ex. 1, at 57.
A. Defendants OCPD Santa Fe Division, OCPD Spring Lake Division, the Oklahoma County Jail, and the Cleveland County Detention Center are Not Entities Subject to Suit Under § 1983.
Plaintiff's Complaint alleges claims against the Santa Fe Division of the OCPD, the Spring Lake Division of the OCPD, the Oklahoma County Jail, and the Cleveland County Detention Center (Doc. 1, at 1; Doc. 1, at Ex. 1, at 57). “In order to state a § 1983 claim, a plaintiff must ‘allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.'” Bruner v. Baker, 506 F.3d 1021, 1025-26 (10th Cir. 2007).
“Generally, governmental sub-units are not separate suable entities that may be sued under § 1983.” Hinton v. Dennis, 362 Fed.Appx. 904, 907 (10th Cir. 2010) (finding that a county criminal justice center was not a suable entity under § 1983). Indeed, the Tenth Circuit has recognized that sheriff's departments and police departments “are not legally suable entities.” Lindsey v. Thomson, 275 Fed. App'x. 744, 747 (10th Cir. 2007); see also Dunbar v. Hammans, 2021 WL 1521589, at *3 (W.D. Okla. Jan. 25, 2021) (“A police department is not a suable entity under § 1983.”), adopted, 2021 WL 1143781 (W.D. Okla. Mar. 25, 2021). Moreover, “[a] county jail in Oklahoma, as a subdivision of the county in which it is located, has no separate legal identity under Oklahoma law” and thus is “not amendable to suit” under § 1983. Hickey v. Oklahoma Cnty. Det. Ctr., 2022 WL 1221645, at *5 (W.D. Okla. Feb. 23, 2022), adopted, 2022 WL 945319 (W.D. Okla. Mar. 29, 2022).
Thus, Plaintiff's claims against Defendants the OCPD Santa Fe Division, the OCPD Spring Lake Division, the Oklahoma County Jail, and the Cleveland County Detention Center should be dismissed.
B. Defendant the State of Oklahoma is Not an Entity Subject to Suit Under § 1983.
Plaintiff's Complaint alleges claims against the State of Oklahoma. (Doc. 1, at 1). Section 1983 prohibits a “person” acting under color of state law from violating another's civil rights. 42 U.S.C. § 1983. The State of Oklahoma “is not a person within the meaning of § 1983.” Will v. Mich. Dept. of State Police, 491 U.S. 58, 64 (1989). “Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties.” Id. at 66. Thus, Plaintiff's claims against the State of Oklahoma should be dismissed.
C. Defendant the District Court of Oklahoma County is Not an Entity Subject to Suit Under § 1983.
Plaintiff's Complaint alleges claims against the District Court of Oklahoma County. (Doc. 1, at Ex. 1, at 57). These claims should be dismissed for three reasons:
(1) the Oklahoma courts are not suable entities, (2) Oklahoma courts constitute “arms of the state” and are shielded by Eleventh Amendment immunity, and/or (3) Oklahoma district courts are sub-entities of their respective counties, and Plaintiff has not shown that the execution of the policies or customs of any county deprived him of any rights under the Constitution or laws of the United States.Agrawal v. Cts. of Oklahoma, 2018 WL 3354881, at *2 (W.D. Okla. July 9, 2018) (collecting cases), aff'd, 764 Fed.Appx. 809 (10th Cir. 2019). See also Davis v. Oklahoma, 2012 WL 1836274, at *4 (W.D. Okla. Apr. 11, 2012) (“Any claims Plaintiff brings against the Cleveland County District Court . . . should be dismissed because [this entity is] not suable . . . for purposes of § 1983.”). Thus, Plaintiff's claims against the District Court of Oklahoma County should be dismissed.
D. Defendants the Federal Bureau of Investigation and the U.S. Marshal Service are Not Entities Subject to Suit.
Because a claim under 42 U.S.C. § 1983 requires state action, the federal government and its employees are not subject to suit under 42 U.S.C. § 1983. Instead, Plaintiff's claims are governed by Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), in which the Supreme Court recognized an implied cause of action against federal actors in their individual capacities for deprivation of Fourth Amendment rights. Id. at 389. Bivens actions lie only against federal actors in their individual capacities, not in their official capacities and not against the federal agencies for which they work. See F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994) (“An extension of Bivens to agencies of the Federal Government is not supported by the logic of Bivens itself.”); Steele v. Fed. Bur. of Prisons, 355 F.3d 1204, 1214 (10th Cir. 2003), abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007); see also Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001). As no cause of action lies against a federal agency, Plaintiff's claims against the Federal Bureau of Investigation and the U.S. Marshal Service should be dismissed.
E. Defendant the United States of America is Entitled to Sovereign Immunity and Is Not Subject to Suit Under § 1983 .
Plaintiff has named the United States of America as a Defendant in his Complaint. (Doc. 1, at Ex. 1, at 57). “[T]he doctrine of sovereign immunity prohibits suits against the United States except in those instances in which it has specifically consented to be sued. The United States consents to be sued only when Congress unequivocally expresses in statutory text its intention to waive the United States' sovereign immunity.” Fent v. Oklahoma Water Res. Bd., 235 F.3d 553, 556 (10th Cir. 2000) (internal citation and quotation marks omitted); United States v. Mitchell, 445 U.S. 535, 538 (1980) (“It is elementary that [t]he United States, as sovereign, is immune from suit save as it consents to be sued .... A waiver of sovereign immunity cannot be implied but must be unequivocally expressed.”) (internal citations and quotation marks omitted). The United States has not waived sovereign immunity for Bivens claims. See Correctional Services Corp. v. Malesko, 534 U.S. 61, 72 (2001) (recognizing that a “prisoner may not bring a Bivens claim against the officer's employer, the United States, or the BOP”). Thus, Plaintiff's claims against the United States of America should be dismissed.
F. Defendants Judge Kevin C. McCray and Judge Stephen P. Friot are Immune from Suit Under § 1983.
Plaintiff's Complaint alleges claims against Oklahoma County District Judge Kevin C. McCray and United States District Judge Stephen P. Friot. The Tenth Circuit has held:
A judge is absolutely immune from suit for acts taken within his or her judicial capacity. Whitesel v. Sengenberger, 222 F.3d 861, 867 (10th Cir. 2000). To overcome this immunity, a plaintiff must demonstrate that a judge's actions were either outside the judge's judicial capacity or were taken
in the complete absence of all jurisdiction. Mireles v. Waco, 502 U.S. 9, 11, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991).Hinton v. Dennis, 362 Fed.Appx. 904, 906 (10th Cir. 2010) (affirming district court's finding that judges were absolutely immune from § 1983 suit). Plaintiff does not list Judge McCray or Judge Friot as Defendants in any of his twenty claims. (Doc. 1, at, Ex. 1, at 5978). However, Plaintiff includes in his supporting documents transcripts from a plea hearing presided over by Judge Friot. (Id. at 26-27). Judge McCray issued an arrest warrant for Plaintiff on September 8, 2020, the day before the allegedly illegal search of Plaintiff's residence, he set Plaintiff's bond, and he conducted certain proceedings on state charges that were filed on September 15, 2020, and December 9, 2020, and then later dismissed due to a federal prosecution. Oklahoma County District Court, Case No. MI-2020-949, Case No. 2020-4565,and Case No. 2020-5858. Even liberally construing these attached documents and these facts as “allegations,” they fail to overcome the absolute judicial immunity to which Judge McCray and Judge Friot are entitled because they do not demonstrate that either judge acted outside their judicial capacities or without jurisdiction. Thus, Plaintiff's claims against Judge Kevin C. McCray and Judge Stephen P. Friot should be dismissed.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=MI 2020-949&cmid=3907590 (Docket Sheet) (last visited November 3, 2022). The undersigned takes judicial notice of the docket sheets and related documents in Petitioner's state criminal proceedings. See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising discretion “to take judicial notice of publicly-filed records in [this] court and certain other courts concerning matters that bear directly upon the disposition of the case at hand”) (citation omitted).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF - 2020-4565&cmid=3910026 (Docket Sheet) (last visited November 3, 2022).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF - 2020-5858&cmid=3933408 (Docket Sheet) (last visited November 3, 2022).
G. Defendants United States Attorney Robert J. Troester and Assistant United States Attorney Jacquelyn M. Hutzell are Immune From Suit Under § 1983.
Plaintiff alleges that Defendants United States Attorney Robert J. Troester and Assistant United States Attorney Jacquelyn M. Hutzell
violated Plaintiff's Civil Rights by collecting illegally obtained evidence for use in a Federal criminal prosecution without conducting a thorough investigation and by relying on a dismissal of the state. By using Rule 60 obtained illegally gained evidence, violated Plaintiff's 5th Amendment Due Process and Double Jeopardy Clause by using case number 2021R00015 to illegally prosecute Plaintiff in Federal Court.(Doc. 1, at Ex. 1, at 68-69). Liberally construed, Plaintiff complains that evidence that was gathered in the allegedly illegal search of his residence to initiate state charges was then used by the United States Attorney and Assistant United States Attorney to bring the federal charge against him, to which he pled guilty. United States v. Swan, WDOK Case No. 21-CR-28-F (Docs. 1, 24, 25, 64).
“[I]t is well established that [a]bsolute immunity bars suits for money damages for acts made in the exercise of prosecutorial . . . discretion.” Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007). The Supreme Court holds that
acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity. Those acts must include the professional evaluation of the evidence assembled by the police and appropriate preparation for its presentation at trial or before a grand jury after a decision to seek an indictment has been made.Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). The alleged actions of Defendants United States Attorney Robert J. Troester and Assistant United States Attorney Jacquelyn M. Hutzell fit squarely into this immunity, and thus the claims against them should be dismissed.
IV. The Court Must Dismiss Plaintiff's Claims Under Heck and Wilkinson.
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that
in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove 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. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.Id. at 486-87 (footnote omitted) (emphasis in original). “[T]he district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id. At 487. See also Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (“[A] state prisoner's § 1983 action is barred (absent prior invalidation) - no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings) - if success in that action would necessarily demonstrate the invalidity of the confinement or its duration.”).
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. The starting point for the application of Heck then is the existence of an underlying conviction or sentence that is tied to the conduct alleged in the § 1983 action.Butler v. Compton, 482 F.3d 1277, 1279 (10th Cir. 2007).
Here, the conduct alleged by Plaintiff - the allegedly illegal search of his residence and seizure of property on September 9, 2020 - led to Plaintiff's state criminal charges, which were dismissed when the United States Attorney's Office used the evidence to initiate federal criminal charges, resulting in Plaintiff's guilty plea and current federal sentence. (Doc. 1; Doc. 1, at Ex. 1, at 59-78). Thus, a favorable judgment on Plaintiff's claims that the search and seizure were illegal would necessarily imply the invalidity of his federal criminal conviction. Plaintiff does not (and cannot) contend that his conviction or sentence have been reversed or invalidated as provided by Heck and Wilkinson. In fact, Petitioner is currently in the process of making his direct appeal to the Tenth Circuit Court of Appeals. See United States v. Swan, WDOK Case No. 21-CR-28-F (Doc. 71). Accordingly, the Court must dismiss the Complaint for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915A(b); see also Archilta v. Oklahoma, 123 Fed.Appx. 852, 857 (10th Cir. 2005) (“Since Archilta's claims necessarily imply the invalidity of his convictions and he cannot demonstrate that his convictions have already been invalidated, the district court properly [applied Heck and] held that the claims must be dismissed pursuant to 28 U.S.C § 1915[] for failure to state a claim.”).
V. Recommendation and Notice of Right to Object.
In accordance with the forgoing analysis, the undersigned recommends that the Court DISMISS Plaintiff's Complaint (Doc. 1).
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before November 25, 2022, 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 and terminates the referral unless and until the matter is re-referred.