GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE

Plaintiff, a pre-trial detainee appearing pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Having reviewed the sufficiency of the pleadings pursuant to 28 U.S.C. §§ 1915A and 1915(e)(2)(B), the undersigned recommends Plaintiff's action be dismissed.

I. Factual Allegations

Plaintiff is currently confined at the Alfalfa County Jail located in Cherokee, Oklahoma. Doc. No. 1 at 5. In his Complaint, Plaintiff names three Defendants: Tristan Hall, a Cherokee Municipal Police Department Officer, the Cherokee Municipal Police Department, and Ryan McNeil, Chief of Cherokee Municipal Police Department. Id. at 5-6. He names the individual Defendants in both their individual and official capacities. Id.

Though by no means a model of clarity, construing Plaintiff's Complaint liberally, the Court concludes that he intends to assert claims under the First and Fourteenth Amendments. Id. at 7-14. As described below, his claims arise from three interactions with Defendant Hall.

Plaintiff contends that in late March 2022, he had been hired by NAPA, a local automobile parts business, to remove scrap metal from both behind the garage of the business and from the bin in front of the same. Id. at 7-8. Defendant Hall saw Plaintiff removing said material and used an “overly assertive . . . tone” in demanding that Plaintiff quit going through the trash and leave the area. Id. Plaintiff asserts Defendant Hall intended to “eradicate” him from the area because Plaintiff was new to town, without funds, and was staying with friends. Id. at 8. Based these events, Plaintiff contends Defendant Hall violated his right to equal protection and due process under the Fourteenth Amendment and his First Amendment right to peaceably assemble. Id. at 8, 12-13.

On May 8, 2022, Plaintiff was smoking and charging his cellular phone in the employee area behind a Jiffy Trip convenience store. Id. at 8. Because Plaintiff did not work at the store, the manager asked that Plaintiff not use the employee area, to “smoke out front,” and to charge his phone in the restaurant area. Id. Plaintiff explains in his Complaint that Defendant Hall was in the Jiffy Trip store when the manager spoke to Plaintiff and “with smug fulfillment” later told Plaintiff that he was banned from the store, contrary to the manager's statements. Id. at 8-9. Plaintiff contends Defendant Hall is “overly aggressive in both uniform and with gun & badge or without but in casual dress .... Mr. Hall is an illict [sic] despot whom frequently and unconstitutionally abuses his office.” Id. at 9. Based on these events, Plaintiff asserts claims under the First Amendment, contending Defendant Hall violated his right to peaceable assembly, as well as violating his rights to due process and equal protection. Id.

On May 28, 2022, Defendant Hall noticed Plaintiff walking in an alley and “pursue[d] him while off-duty with his smug valor or illict [sic] despotism and start[ed] a manhunt and situation of emergency.” Id. at 10 (quotations omitted). As Plaintiff concedes, Defendant Hall was aware Plaintiff had failed to appear for a court appearance two days prior in a criminal case. Id. Defendant Hall arrested Plaintiff at an “abandoned hospital,” and he was subsequently charged with two counts of Entering with Intent to Steal Copper. Id. at 10-11, 14; Doc. No. 1-3 at 2. Plaintiff's criminal charges remain pending in state court. See Oklahoma State Courts Network, State v. Benshoof, District Court of Alfalfa County, Case No. CF-22-28. Based on the events giving rise to Plaintiff's arrest and criminal charges, Plaintiff contends Defendant Hall violated his right to due process and also asserts a claim of “wrongful detainment.”

Additionally, Plaintiff asserts each of the above claims against Defendant McNeil based on his contention Defendant McNeil was aware of Defendant Hall's actions. Id. at 10-11, 13. Finally, Plaintiff asserts some or all of the above claims against the Cherokee Municipal Police Department. Id. at 12, 13.

II. Screening of Prisoner Complaints

A federal district court must review complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity or proceeding in forma pauperis. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(a). After conducting an initial review or at any time during the proceeding, the court must dismiss a complaint or any portion of it presenting claims that are frivolous, 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. Id.

In conducting this review, the reviewing court must accept the plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from the allegations, in the light most favorable to the plaintiff. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). 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, 1247-48 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (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. Further, a claim is frivolous “where it lacks an arguable basis either in law or in fact” or is “based on an indisputably meritless legal theory[.]” Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989).

III. Claims Against Cherokee Municipal Police Department

Though unclear the extent to which he intends to name the Cherokee Municipal Police Department as a Defendant, it is clear Plaintiff intends to assert at least some of his claims against the same. Federal Rule of Civil Procedure 17(b)(3) provides that a non-corporate entity's capacity to be sued is determined by the law of the state in which the district court is located. Under well-established Oklahoma law, police departments are not entities amenable to suit. Thus, the Cherokee Municipal Police Department is not a proper party to Plaintiff's action, and any claims against it should be dismissed with prejudice. Lindsey v. Thomson, No. 06-7114, 2007 WL 2693970 at *3 (10th Cir. Sept. 10, 2007) (affirming dismissal of § 1983 claims against police department and county sheriff's department because they are entities with no apparent legal existence); see, e.g., White v. Utah, No. 00-4109, 2001 WL 201980 at *1 (10th Cir. March 1, 2001) (affirming dismissal of county jail because no state law supported directing a cause of action directly against a county's subdivisions, including its jails).

IV. Claims Arising from March 2022 and May 8, 2022 Incidents

Plaintiff asserts First and Fourteenth Amendment claims against Defendant Hall based on allegations regarding the events of late March and May 8, 2022. See, supra. Plaintiff alleges Defendant Hall was overly aggressive in tone in telling him to leave the NAPA business and abusive of his authority when telling Plaintiff that he was banned from a convenience store when the convenience store manager had not banned Plaintiff. Id. Based on these allegations, Plaintiff contends Defendant Hall violated his First Amendment right to peaceable assembly and his Fourteenth Amendment rights to due process and equal protection.

In pertinent part, the First Amendment to the United States Constitution provides that “Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people peaceably to assemble ....” U.S. Const. amend. I. Contrary to the implication of Plaintiff's allegations, the right to assemble under the First Amendment is not merely the right to loiter or be in a specific space. Instead, the right refers to the citizenry's right to protest or otherwise gather in order to present a redress of grievances, petition, or simply complain to/about a governmental body. See Weiss v. Willow Tree Civic Ass'n, 467 F.Supp. 803, 817 (S.D.N.Y. 1979) (describing contested action as “peaceable assembly petitioning municipal authorities for redress of grievances and . . . [therefore] entitled to First Amendment protection”) (citing Aknin v. Phillips, 404 F.Supp. 1150, 1153 (S.D.N.Y. 1975), aff'd mem., 538 F.2d 307 (2d Cir. 1976) (upholding First Amendment right of citizens to complain, even officiously and clamorously, to municipal officials at public hearings and assemblies); Farmer v. Meeker, 163 A.2d 729 (1960) (upholding New Jersey zoning law protecting right to petition)).

Moreover, “the First Amendment does not guarantee a right to assemble wherever one chooses. The First Amendment right to assemble does not create an exception to private property rights and gives no right to assemble on property belonging to another.... Furthermore, the right to assemble appears to be a collective or group right, rather than the right of a single individual.” Brown v. City of Maize, No. 07-1178-JTM, 2009 WL 872905, at *6 (D. Kan. March 30, 2009) (citing Van Deelen v. Johnson, 535 F.Supp.2d 1227, 1233 (D. Kan. 2008) (holding that the plaintiff's claim that he was individually denied the right to assemble at the Douglas County Courthouse did not fall within the protection of the right to assemble, observing “[t]he right of assembly is the right to physically hold and attend meetings, marches, pickets, demonstrations, parades, and the like.” (citing Hague v. Comm. for Indus. Org., 307 U.S. 496, 512 (1939)). Clearly, Plaintiff's allegations do not implicate the First Amendment's right to peaceably assemble.

Similarly, Plaintiff has not set forth allegations implicating the rights preserved in the Fourteenth Amendment. The Fourteenth Amendment states: “No State shall . . . deprive any person of life, liberty, or property, without due process of law ....” U.S. Const. amend. XIV, § 1. The Due Process Clause encompasses two distinct forms of protection: (i) procedural due process, which requires a state to employ fair procedures when depriving a person of a protected interest; and (ii) substantive due process, which guarantees that a state cannot deprive a person of a protected interest for certain reasons. Reid v. Pautler, 36 F.Supp.3d 1067, 1136 (D.N.M. 2014) (citing Cty. of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998)).

Here, Defendant Hall's actions did not deprive Plaintiff of any interest. In late March 2022, while Defendant Hall was overly aggressive in tone, Plaintiff concedes that Defendant Hall ultimately permitted him to remove scrap metal from the NAPA business. On May 8, 2022, Defendant Hall told Plaintiff that he was banned from a convenience store when, according to Plaintiff, the manager had merely told Plaintiff to not utilize the employee only area. Again, Defendant Hall's described actions did not deprive Plaintiff of a liberty interest.

Finally, the Equal Protection Clause of the Fourteenth Amendment guarantees that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. “The Equal Protection Clause ‘keeps governmental decision makers from treating differently persons who are in all relevant respects alike.'” Soskin v. Reinertson, 353 F.3d 1242, 1247 (10th Cir. 2004) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)). “The Clause ‘creates no substantive rights. Instead, it embodies a general rule that States must treat like cases alike but may treat unlike cases accordingly.'” Teigen v. Renfrow, 511 F.3d 1072, 1083 (10th Cir. 2007) (quoting Vacco v. Quill, 521 U.S. 793, 799 (1997)). Generally, to state a claim under § 1983 for violation of the Equal Protection Clause, a plaintiff must show that he is a member of a class of individuals that is being treated differently from similarly situated individuals who are not in that class. SECSYS, LLC v. Vigil, 666 F.3d 678, 688 (10th Cir. 2012).

Plaintiff does not allege Defendant Hall treated him differently than a similarly situated individual or group. As such, he has failed to state a claim under the Fourteenth Amendment's Equal Protection Clause. Accordingly, these causes of action should be dismissed based on a failure to state a claim upon which relief can be granted.

V. Claims Against Defendant McNeil

Plaintiff asserts the above claims against Defendant McNeil alleging that he was aware of Defendant Hall's actions. “In order to establish a § 1983 claim against a supervisor for the unconstitutional acts of his subordinates, a plaintiff must first show the supervisor's subordinates violated the constitution.” Serna v. Colo. Dep't of Corr., 455 F.3d 1146, 1151 (10th Cir. 2006); see also White v. City of Albuquerque, No. 12-0988 MV/KBM, 2014 WL 12639935, at *31 (D.N.M. Sept. 29, 2014) (“[A] plaintiff attempting to overcome an assertion of qualified immunity on a supervisory liability claim must establish that the supervisor's subordinates violated the [C]onstitution[.]” (quotations omitted)).

As explained above, Plaintiff has failed to sufficiently allege a constitutional violation against Defendant Hall based on his allegations regarding the late March and May 8, 2022 incidents. Accordingly, Plaintiff's claims against Defendant McNeil should also be dismissed.

VI. Claims Arising from May 28, 2022 Arrest

State records clearly indicate the state criminal proceeding resulting from Plaintiff's May 28, 2022 arrest is ongoing. See, supra. As a result, under Younger v. Harris, 401 U.S. 37 (1971), the Court should abstain from exercising jurisdiction over Plaintiff's claims as they seek relief related to ongoing criminal proceedings.

In Younger, the United States Supreme Court held that federal courts should not intervene in state criminal prosecutions begun before institution of a federal suit when the state court proceedings are: (1) ongoing, (2) offer an adequate forum for a defendant's federal claims, and (3) implicate important state interests. Id. at 43-44; see Middlesex Cty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982). “[T]he district court must abstain once the conditions are met, absent extraordinary circumstances.” Weitzel v. Div. of Occupational & Prof'l Licensing of Dep't of Com., 240 F.3d 871, 875 (10th Cir. 2001) (quotations omitted). Also, “Younger governs whenever the requested relief would interfere with the state court's ability to conduct proceedings, regardless of whether the relief targets the conduct of a proceeding directly.” Joseph A. ex rel. Corrine Wolfe v. Ingram, 275 F.3d 1253, 1272 (10th Cir. 2002).

Exceptions exist for “bad faith or harassment,” prosecution under a statute that is “flagrantly and patently” unconstitutional, or other “extraordinary circumstances” involving irreparable injury. Younger, 401 U.S. at 45-55; Amanatullah v. Colo. Bd. of Med. Exam'rs, 187 F.3d 1160, 1165 (10th Cir. 1999). A litigant has a “heavy burden” of establishing an exception to the Younger abstention doctrine. Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir. 1997) (quoting Phelps v. Hamilton, 59 F.3d 1058, 1065 (10th Cir. 1996)).

Application of the relevant factors to the present case warrants dismissal of Plaintiff's claims. First, as noted, Plaintiff's criminal case is currently ongoing. See supra. Second, the Oklahoma courts provide an adequate forum to hear Plaintiff's claims. Kugler v. Helfant, 421 U.S. 117, 124 (1975) (noting “ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights”). Third, Oklahoma has an important state interest in the resolution of claims raised by Plaintiff. See In re Troff, 488 F.3d 1237, 1240 (10th Cir. 2007) (recognizing “state control over criminal justice” is “a lynchpin in the unique balance of interests” of federalism). If the court found Defendant acted unlawfully in arresting and detaining Plaintiff, it could likely result in substantial disruption of the ongoing state process. See Buck v. Myers, 244 Fed.Appx. 193, 198 (10th Cir. 2007) (“A finding in this case that the defendants violated [the plaintiff's] constitutional rights would have a preclusive effect in the state-court proceedings.”).

Finally, Plaintiff's Complaint and the state record of his criminal proceedings, including the Criminal Information Plaintiff submitted to the Court, see Doc. No. 1-3, do not suggest bad faith, harassment, or other extraordinary circumstances as outlined in Younger. Thus, Plaintiff's claims arising from his May 28, 2022 arrest and resulting criminal charges should be dismissed for lack of jurisdiction based on the Younger doctrine.

RECOMMENDATION

Based on the foregoing findings, it is recommended Plaintiff's action be dismissed. Specifically, Plaintiff's claims against the Cherokee Municipal Police Department should be dismissed with prejudice. Plaintiff's First and Fourteenth Amendment claims against Defendants Hall and McNeil arising from the late March and May 8, 2022 incidents should be dismissed without prejudice based on Plaintiff's failure to state claims upon which relief can be granted. Finally, claims arising from Plaintiff's May 28, 2022 arrest and resulting criminal charges should be dismissed based upon the Younger doctrine.

Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by August 18^th , 2022, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this 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 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.