October 17, 2011
Plaintiff Heath Nearon, a state prisoner appearing pro se, filed this § 1983 action alleging he was subject to excessive force in violation of his constitutional rights. Consistent with 28 U.S.C. § 636(b)(1)(B), the matter was referred to Magistrate Judge Gary M. Purcell, who has recommended that the action be dismissed without prejudice pursuant to 28 U.S.C. §§ 1915A and 1915(e)(2)(B), unless certain deficiencies in the complaint are corrected.
Plaintiff failed to object to the magistrate judge's Report and Recommendation and thereby waived his right to appellate review of the factual and legal issues it addressed. United States v. One Parcel of Real Property, 73 F.3d 1057, 1059-60 (10th Cir. 1996). See 28 U.S.C. § 636(b)(1)(C). Accordingly, the court adopts Magistrate Judge Purcell's Report and Recommendation and DISMISSES the complaint without prejudice. Plaintiff is GRANTED twenty (20) days within which to correct the deficiencies identified by the magistrate judge in his Report and Recommendation. If an amended complaint is not filed that includes the allegations necessary to state claims against the defendants, this action will be dismissed without prejudice. The Court Clerk is directed to send plaintiff a copy of the August 22, 2011, Report and Recommendation along with this order.
IT IS SO ORDERED.
SUPPLEMENTAL REPORT AND RECOMMENDATIONPlaintiff, a state prisoner appearing pro se and in forma pauperis, brings this civil rights action pursuant to 42 U.S.C. § 1983. In his Complaint filed May 5, 2011, Plaintiff asserts that unidentified Oklahoma City police officers used excessive force when they shot Plaintiff twice, once in his arm and once in his upper torso, on April 29, 2010, while he was walking on a street in Oklahoma City. He names as Defendants the City of Oklahoma City, Oklahoma City Police Chief Citty, Oklahoma City Mayor Cornett, and Oklahoma City Police Sergeant Jones. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended that the cause of action be dismissed without prejudice upon filing pursuant to 28 U.S.C. §§ 1915A and 1915(e)(2)(B) unless Plaintiff files an amended complaint which cures the deficiencies in his Complaint as found herein.
I. Statutory Screening of Prisoner Complaints
The Court must screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity to determine whether summary dismissal is appropriate. 28 U.S.C. § 1915A(a). The same screening of a civil complaint filed in forma pauperis is required by 28 U.S.C. § 1915(e)(2). On review, the Court must dismiss a complaint or any portion of it presenting claims that are frivolous or malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B).
"Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend." Perkins v. Kansas Dep't of Corr., 165 F.3d 803, 806 (10th Cir. 1999). Although a pro se litigant's pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520 (1972), "[t]he burden is on the plaintiff to frame a `complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Robbins v. Oklahoma, 519 F.3d 1242, 1247-1248 (10th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). The allegations in a complaint must present "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570.
II. Eighth Amendment
Plaintiff alleges in the Complaint that Oklahoma City police officers shot him twice "without just cause" while he was walking on a city street and that he was subsequently transported to a hospital for medical treatment. He contends that the shooting constituted the use of excessive force in violation of his constitutional rights under the Eighth Amendment's cruel and unusual punishment clause. "Excessive force claims can be maintained under the Fourth, Fifth, Eighth, or Fourteenth Amendment," but it is the Fourth Amendment, and its protections against "unreasonable searches and seizures," which "pertains to the events leading up to and including an arrest of a citizen previously at liberty. . . ." Porro v. Barnes, 624 F.3d 1322, 1325 (10th Cir. 2010). See Graham v. Connor, 490 U.S. 386, 395 (1989) ("[A]ll claims that law enforcement officers have used excessive force . . . in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard."). The Eighth Amendment's protections do not arise until after an individual is convicted of a crime. See Hudson v. McMillian, 503 U.S. 1 (1992) (analyzing Eighth Amendment claim of inmate assaulted by prison guards); Whitley v. Albers, 475 U.S. 312 (1986) (analyzing Eighth Amendment claim of inmate shot by prison guard); Porro, 624 F.3d at 1326 (holding "prisoners already convicted of a crime who claim that their punishments involve excessive force must proceed under the . . . Eighth Amendment's `cruel and unusual punishments' clause"). Thus, Plaintiff's sole claim of unconstitutional conduct by Oklahoma City police officers should be liberally construed to assert a violation of the Fourth Amendment.
III. Municipal Liability
In his Complaint, Plaintiff alleges that unidentified municipal police officers used unconstitutionally excessive force when the officers shot Plaintiff twice while he was walking on a city street. Plaintiff seeks damages and equitable relief from Defendants City of Oklahoma City and municipal/county officials Citty, Cornett, and Jones. Under 42 U.S.C. § 1983, a municipality may be held liable "only for its own unconstitutional or illegal policies and not for the tortious acts of its employees." Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998) (quotation omitted). "[A] municipality is liable only when the official policy is the `moving force' behind the injury alleged." Id. "Proving a single incident of unconstitutional conduct is not enough. Rather, a plaintiff must show that the incident resulted from an existing, unconstitutional policy attributable to a municipal policymaker." Nielander v. Bd. of County Comm'rs of County of Republic, Kan., 582 F.3d 1155, 1170 (10th Cir. 2009). "The mere fact that city police officers may have acted unconstitutionally cannot be the basis for municipal liability."Allen v. Muskogee, Okla., 119 F.3d 837, 846 (10th Cir. 1997) (citing, e.g., Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1977)). "A [§ 1983] suit against individual defendants in their official capacities is essentially the same as a suit against the [municipality.]" Barney, 143 F.3d at 1307 n. 4.
Plaintiff's allegations in his Complaint do not identify any official Oklahoma City policy or custom. Even assuming from the nature of Plaintiff's allegations that he is challenging the constitutionality of the Oklahoma City Police Department's policy concerning the permissible use of deadly force, that policy has been upheld in this Court and in the Tenth Circuit Court of Appeals as facially constitutional. See Carr v. Castle, 337 F.3d 1221, 1225-1226 (10th Cir. 2003); Myers v. Okla. County Bd. of County Comm'rs, 151 F.3d 1313, 1318-1319 (10th Cir. 1998). Plaintiff has therefore failed to state a claim against Defendant Oklahoma City and against Defendants Citty, Cornett, and Jones, who are sued only in their official capacities.
IV. Personal Participation
Even assuming that Plaintiff has named Defendants Citty, Cornett, and Jones in their individual capacities in this § 1983 action, he has failed to state a claim for relief against these individual Defendants. Because "[s]ection 1983 will not support a claim based on a respondeat superior theory of liability," Polk County v. Dodson, 454 U.S. 312, 325 (1981), personal participation is an essential element of a § 1983 action seeking damages from a defendant in his or her individual capacity.Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1993) (quotation omitted); Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993); Bennett v. Passic, 545 F.2d 1260, 1262-1263 (10th Cir. 1976). "[T]he defendant's role must be more than one of abstract authority over individuals who actually committed a constitutional violation." Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008). "It is not enough to establish that the official should have known of the risk of harm." Barney, 143 F.3d at 1310. To establish a § 1983 claim for damages against a supervisor, the plaintiff "must show that an affirmative link exists between the [constitutional] deprivation and either the supervisor's personal participation, his exercise of control or direction, or his failure to supervise." Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997) (quotations omitted). Accord, Meade v. Grubbs, 841 F.2d 1512, 1527 (10th Cir. 1988).
Plaintiff's allegations in his Complaint do not allege the requisite personal participation by Defendants Citty, Cornett, and Jones, and he has failed to state a claim under § 1983 against these Defendants in their individual capacities. Thus, Plaintiff's claim against Defendants Citty, Cornett, and Jones should be dismissed without prejudice.
V. Opportunity to Amend
The "dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend." Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (quotation and citation omitted). Accord, Gee v. Pacheco, 627 F.3d 1178, 1195 (10th Cir. 2010) (quoting Oxendine). Because Plaintiff's factual allegations are "missing some important element" of which he may not have been aware, Plaintiff should be allowed the opportunity to amend his Complaint. Gee, 627 F.3d at 1195 (quotation and citation omitted). Thus, the Court should dismiss the cause of action without prejudice pursuant to 28 U.S.C. §§ 1915A(b) and 1915(e)(2)(B) for failure to state a claim upon which relief may be granted unless Plaintiff files an amended complaint within twenty days of the date of this Supplemental Report and Recommendation which cures the deficiencies in the Complaint as described herein.
Based on the foregoing findings, it is recommended that Plaintiff's cause of action be DISMISSED without prejudice pursuant to 28 U.S.C. §§ 1915A(b) and 1915(e)(2)(B) for failure to state a claim upon which relief may be granted unless Plaintiff files an amended complaint within twenty days of the date of this Supplemental Report and Recommendation which cures the deficiencies in the Complaint as described herein. It is further recommended that a dismissal of this cause of action count as one "prior occasion" or "strike" pursuant to 28 U.S.C. § 1915(g). See Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1176, 1177 (10th Cir. 2011) ("When an action or appeal is dismissed as frivolous, malicious, or for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B), the dismissal counts as a strike" and "a dismissal under [28 U.S.C.} § 1915A counts as a strike when the action was dismissed as frivolous, malicious, or for failure to state a claim. . . ."). Plaintiff is advised of the right to file an objection to this Supplemental Report and Recommendation with the Clerk of this Court by September 12th , 2011, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991);cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Supplemental Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
ENTERED this 22nd day of August, 2011.http://www.oscn.net/applications/oscn/GetCaseInformation.asp?submitted=trueviewtype=caseGeneralcasemasterID=2609874db=Oklahoma (docket sheet in State of Oklahoma v. Heath George Nearon, Case No. CF-2010-3423 accessed August 18, 2011). See State Farm Mut. Auto. Ins. Co. v. Boellstorff, 540 F.3d 1223, 1226 n. 7 (10th Cir. 2008) (recognizing courts may take judicial notice of documents from the public record); St. Louis Baptist Temple, Inc. v. Federal Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979) ("[F]ederal courts, in appropriate circumstances, may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.").