Opinion
CIV-23-675-D
12-08-2023
LUIS ANTONIO MALDONADO CASTILLO, Plaintiff, v. DAVID PRATER, et al., Defendants.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE
Plaintiff, appearing pro se, filed this action seeking relief pursuant to 42 U.S.C. § 1983, claiming violations of his constitutional rights. (Doc. 1).United States Chief District Judge Timothy D. DeGiusti referred the matter to the undersigned Magistrate Judge consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 4).
Citations to a court document are to its electronic case filing designation and pagination. Quotations are verbatim unless indicated.
Before the Court are the following motions filed by the Defendants in this case, along with responses and replies filed by Plaintiff:
• Defendant Sarah Stewart's Motion to Dismiss (Doc. 6), and Plaintiff's Response (Doc. 11);
• Defendant Wade Gourley's Motion to Dismiss (Doc. 22);
• Defendant Michael Callaway's Motion to Dismiss (Doc. 24), Plaintiff's Response (Doc. 30), Defendant Callaway's Reply (Doc. 33), and Plaintiff's Response to the Reply (Doc. 50);
• Defendant Judge Sara Bondurant's Motion to Dismiss (Doc. 26), and Plaintiff's Responses (Docs. 46, 67);
• Defendant Palomar's Motion to Dismiss (Doc. 37), and Plaintiff's Responses (Docs. 49, 62);
• Defendant Oklahoma County Criminal Justice Authority's Motion to Dismiss (Doc. 39), and Plaintiff's Responses (Docs. 45, 63);
• Defendant Turn Key's Motion to Dismiss (Doc. 41), Plaintiff's Response (Doc. 48), Defendant Turn Key's Reply (Doc. 59), and Plaintiff's Response to the Reply (Doc. 65);
• Defendant CJ's Bail Bonds' Motion for Summary Judgment (Doc. 16), and Plaintiff's Response (Doc. 19);
• Defendant Stewart's Motion for Sanctions (Doc. 32); and
• Defendant Callaway's Motion to Strike Response (Doc. 54), and Plaintiff's Response (Doc. 61).
Also before the court are the following motions and documents filed by Plaintiff:
• Motions to Dismiss Defendant Prater and Defendant Jaquez (Docs. 43, 53);
• Motions to Change Non-Prisoner 1983 Form to Prisoner 1983 Form (Docs. 44, 52, 60);
• Motion for Default Judgment Against Detention Officer Toledo (Doc. 47); and
• Plaintiff's Answer to Motion to Dismiss (2) By Stephanie Power (Doc. 64).
I. The Complaint
Plaintiff filed the instant Complaint against thirteen defendants. (Doc. 1, at 2-3, 7 9). Plaintiff's claims arise from four state district court cases as summarized below.
A. Oklahoma County District Court Case No. CF-2019-3953
On September 20, 2019, Plaintiff was charged with Kidnapping, Threatening to Perform an Act of Violence, Forcible Oral Sodomy, Child Neglect, Preventing a Witness from Giving Testimony, and two counts of Domestic Abuse (Assault & Battery). Oklahoma County District Court, CF-2019-3953. The state dismissed one count of Domestic Abuse, and Plaintiff was acquitted of all other charges on November 5, 2021, after a jury trial. Id.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-2019-3953&cmid=3812053 (Docket Sheet) (last visited Dec. 8, 2023). The undersigned takes judicial notice of the docket sheets and related documents in Plaintiff'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).
Plaintiff alleges that during his pretrial detention at the Oklahoma County Jail, Defendant Detention Officer Toledo lived in his house “rent free,” which Plaintiff reported to the Oklahoma City Police Department and Oklahoma County, and made threats against Plaintiff and his children. (Doc. 1, at 20-21). Plaintiff also alleges that “multiple inmates tried to kill [him],” a jail official “set [him] up” to be harmed by other inmates, and that the Oklahoma County Jail encourages its officers' criminal behaviors. (Id. at 20-22). Lastly, Plaintiff alleges that he suffered from bedbugs in his scalp and received no medication from staff.(Id. at 22).
Plaintiff also alleges that “[i]f Judge Timothy Henderson presided any part of my case, I belief [sic] he favored the ladies from [the] DA Office because he was having sex with them.” (Doc. 1, at 19). Judge Henderson presided over the pretrial conference in Oklahoma County District Court Case. No. CF-2019-3953 but did not preside over the trial, at which Plaintiff was acquitted of all remaining charges. See Oklahoma County District Court, CF-2019-3953, supra note 2. Plaintiff did not name Judge Timothy Henderson as a defendant in the Complaint or articulate harm resulting from his alleged actions. Therefore, the undersigned does not address Plaintiff's allegations against Judge Henderson.
B. Oklahoma County District Court Case No. PO-2021-3086
On November 22, 2021, Defendant Judge Sara Bondurant granted Plaintiff's exwife, Defendant Sarah Stewart, and Plaintiff's minor children a continuous protective order against Plaintiff based on Domestic Abuse. See Oklahoma County District Court, PO-2021-3086.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=PO-2021-3086&cmid=4025778 (Docket Sheet) (last visited Dec. 8, 2023).
Plaintiff alleges that Defendant Judge Bondurant was biased against him due to her friendship with Defendant Stewart and that she denied his parental rights without due process. (Doc. 1, at 25-26). He also claims that Defendant Judge Bondurant and Defendant Stewart violated his right to due process because he could not physically view Defendant Stewart's evidence during a hearing, as he appeared through video. (Id. at 27). Finally, Plaintiff alleges that Defendant Judge Bondurant maliciously prosecuted him because no evidence supported the protective order. (Id. at 28).
C. Oklahoma County District Court Case No. CF-2021-5168
On November 23, 2021, Plaintiff was charged with Rape in the First Degree, Domestic Abuse by Strangulation, and Threatening an Act of Violence. See Oklahoma County District Court, Case No. CF-2021-5168.On August 18, 2022, the state moved to dismiss the case, and District Judge Susan Stallings dismissed the case in the best interest of justice. Id.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-2021-5168&cmid=4030301 (Docket Sheet) (last visited Dec. 8, 2023).
In the instant Complaint, Plaintiff alleges that Defendant Oklahoma County Assistant District Attorney Stephanie Powers and Defendant Oklahoma County Police Department Detective Michael Callaway violated his Fourth Amendment right against malicious prosecution by prosecuting him in retaliation for his previous acquittal in CF-2019-3953, (Doc. 1, at 11, 13), and because he was “not popular with Oklahoma City Police Department,” from which he was fired prior to his trial, (id. at 15-16). Plaintiff alleges that “[i]n court documents, ADA [Powers] showed her disdain because I celebrated my acquittal.” (Id. at 11). Furthermore, Plaintiff alleges that no evidence supported the charges against him, as known by Defendant Powers and Defendant Callaway, and that Defendant Callaway fed information to the victim to bias her against Plaintiff. (Id. at 1516).
Plaintiff also claims that Defendant Powers and Defendant Oklahoma County Assistant District Attorney Merydith Easter violated his right to due process by knowingly presenting false evidence to the court. (Id. at 17-18). Plaintiff alleges that Defendant Powers “made allegations in court against the evidence she had,” (id. at 17), and that Defendant Easter offered testimony by Defendant Lilliana Jaquez that she knew was false and contradictory of jail records and calls, (id. at 18). Plaintiff also seems to allege a due process violation against Defendant Jaquez, the alleged victim in the case, for falsely testifying and “conceal[ing] evidence that would exonerate [Plaintiff].” (Id. at 18).
D. Oklahoma County District Court Case No. PO-2022-2836
On November 17, 2022, Defendant Judge Sara Bondurant granted Defendant Jaquez a continuous protective order against Plaintiff based on Domestic Abuse and Stalking. See Oklahoma County District Court, PO-2022-2836. She ordered that he stay at least two miles away from Defendant Jaquez and wear an ankle monitor until November 17, 2023. Id.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=PO-2022-2836&cmid=4126932 (Docket Sheet) (last visited Dec. 8, 2023).
Plaintiff alleges that Defendant Judge Bondurant was biased against him due to two bar complaints he filed against her and a friendship with his ex-wife, Defendant Stewart; that she incorrectly applied criminal law to the proceeding; and that the location monitor she ordered him to wear amounts to an unreasonable search in violation of the Fourth Amendment. (Doc. 1, at 23-24). He also alleges that Defendant “Palomar paid [Defendant] CJ [B]ailbonds for 3 months of my ankle monitor.” (Id. at 29)
Plaintiff also makes general claims unconnected to a particular case, alleging, “[t]he State of Oklahoma acts like a criminal enterprise where a group of government officials has a structure to engage in significant civil rights violations to control you or end your life.” (Id. at 30). Plaintiff seeks compensatory and punitive damages. (Id. at 29-31).
II. Defendants' Motions to Dismiss Should Be Granted.
A. Standard of Review
“To survive a motion to dismiss, 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). In reviewing the complaint, 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 (10thCir. 2007). Bare legal conclusions in a complaint are not assumed to be true; legal conclusions “must be supported by factual allegations” to state a claim upon which relief may be granted. Ashcroft, 556 U.S. at 679. “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).
“The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991) (emphasis added). The undersigned, therefore, has carefully considered the allegations in Plaintiff's Complaint but has ignored any new factual assertions Plaintiff includes in his own motions and his responses to the Defendants' motions.
B. Defendant Stewart's Motion to Dismiss Should Be Granted Because Plaintiff Has Failed to State a Claim Under Section 1983.
Defendant Sara Stewart, Plaintiff's ex-wife, filed a Motion to Dismiss Case as Frivolous on August 16, 2023. (Doc. 6). In her Motion, Defendant Stewart argues that Plaintiff has not properly brought a Section 1983 claim against her because he has not alleged facts showing that she acted under color of law or deprived him of “rights, privileges, or immunities secured by the Constitution and Federal laws.” (Id. at 9-12). The undersigned agrees.
To state a claim under 42 U.S.C. § 1983, a plaintiff “must establish that [he was] deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law.” Barnett v. Hall, Estill, Hardwick, Gable, Golden, & Nelson, P.C., 956 F.3d 1228, 1235 (10th Cir. 2020) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)). Though private conduct is typically outside the purview of Section 1983 claims, an exception exists when the private conduct “allegedly causing the deprivation of a federal right [is] fairly attributable to the State.” Wasatch Equality v. Alta Ski Lifts Co., 820 F.3d 381, 387 (10th Cir. 2016) (quoting Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995)). The Tenth Circuit has applied four tests in determining when to hold private action accountable as state action:
[I]n some instances this court has applied a symbiotic-relationship test, asking whether the state has so far insinuated itself into a position of interdependence with the private party that there is a ‘symbiotic relationship' between them. In others, this court has applied a nexus test, asking whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself. In still other instances, this court has applied a jointaction test, asking whether the private party is a willful participant in joint activity with the State or its agents. And finally, this court has applied a public-function test, asking whether the private entity exercises powers traditionally exclusively reserved to the State.Wasatch Equality, 820 F.3d at 386-87 (internal quotation marks and citations omitted); see also Wittner v. Banner Health, 720 F.3d 770, 775-781 (10th Cir. 2013) (applying each of the four state action tests to a private medical facility and two of its employees); Johnson v. Rodrigues, 293 F.3d 1196, 1203-06 (10th Cir. 2022) (applying each of the four state action tests to a private adoption agency and adoptive parents).
Plaintiff broadly alleges that “[n]on government Defendants were working with government official[s] as an extension of the government,” (Doc. 1, at 4), but alleges no other facts demonstrating that Defendant Stewart's actions could be attributable to the government. Plaintiff's allegations against Defendant Stewart-that she was friends with Defendant Judge Bondurant and presented an evidence binder that Plaintiff could not physically interact with-do not suggest that Defendant Stewart was entwined with the government, acted in close connection with the government, willfully participated in a state action, or engaged in a public function. Because Plaintiff's allegation that Defendant Stewart acted as an extension of the government is conclusory and unsupported by factual allegations, Plaintiff has not adequately pled that Defendant Stewart acted under color of state law. Thus, Plaintiff's claims against Defendant Stewart must be dismissed for failure to state a claim.
C. Defendant Gourley's Motion to Dismiss Should Be Granted Because Plaintiff Has Failed to State a Claim Against Him in His Individual or Official Capacities.
Defendant Wade Gourley, Chief of the Oklahoma City Police Department (“OCPD”), sued in his individual and official capacities, filed a Motion to Dismiss and Brief in Support on August 30, 2023. (Doc. 22). Defendant Gourley argues that Plaintiff fails to state a claim against him in his individual capacity because “[t]here is not a single allegation against Defendant Gourley in Plaintiff's Complaint.” (Id. at 4). Furthermore, he argues that that a claim against a defendant in his or her official capacity, or as a policymaker of a municipality, functions as a claim against the municipality itself. (Id. at 6).
In his Motion to Dismiss, Defendant Gourley also argues that any state law claim against him should be dismissed. (Doc. 22, at 5). Plaintiff's Complaint does not clearly allege any claims rooted in state law. To the extent that Plaintiff has attempted to allege any state law claims, they are dismissed for failure to state a claim.
Plaintiff does not allege any facts demonstrating that Defendant Gourley violated Plaintiff's constitutional rights. In fact, Plaintiff does not allege any facts against Defendant Gourley at all. Without allegations of a constitutional deprivation and supporting facts, Plaintiff has failed to state any claim against Defendant Gourley in his individual capacity.
An official capacity claim against Defendant Gourley under Section 1983 would impose municipal liability on the City of Oklahoma City, Oklahoma. Watson v. City of Kan. City, 857 F.2d 690, 695 (10th Cir. 1988) (“[A Section 1983] suit against a municipality and a suit against a municipal official acting in his or her official capacity are the same.”) (citing Brandon v. Holt, 469 U.S. 464, 471-72 (1985)). But Plaintiff has not named Oklahoma City as a defendant, nor has he pled any facts indicating that the City had an official custom, policy, or practice that caused the alleged violation of his constitutional rights. See Monell v. Dep't of Soc. Serv., 436 U.S. 658, 692 (1978) (holding that Section 1983 “plainly imposes liability on a government that, under color of some official policy, ‘causes' an employee to violate another's constitutional rights”). Stating that the OCPD has “targeted me because I was acquitted on a previous criminal case” and that Plaintiff has “never been popular” with the OCPD, (Doc. 1, at 13), is not sufficient to allege a custom, policy, or practice.
Furthermore, Plaintiff has not alleged that Defendant Gourley possesses final policy-making authority to establish municipal liability. See Pembaur v. City of Cincinnati, 475 U.S. 469, 482-83 (1986) (“The official must [ ] be responsible for establishing final government policy respecting such activity before the municipality can be held liable.”). As a result, the Court should dismiss the claims against Defendant Gourley in his official capacity. See Chester v. Parsons, No. CIV-19-860-G, 2020 WL 1536547, at *2 (W.D. Okla. Jan. 15, 2020) (dismissing claims against two police officers in their official capacities), report and recommendation adopted, 2020 WL 1528179 (W.D. Okla. Mar. 30, 2020).
Accordingly, all claims against Defendant Gourley in both his individual and official capacities should be dismissed for failure to state a claim.
D. Defendant Callaway's Motion to Dismiss Should Be Granted Because Plaintiff Has Failed to State a Claim Against Him in His Individual or Official Capacities.
Defendant Michael Callaway, an OCPD Officer sued in his individual and official capacities, filed a Motion to Dismiss and Brief in Support on August 30, 2023. (Doc. 24). In his Motion, Defendant Callaway argues that it is somewhat unclear which claims Plaintiff asserts against him but construes the Complaint as alleging that Defendant Callaway maliciously prosecuted Plaintiff.(Id. at 5). Defendant Callaway argues that he is entitled to qualified immunity regarding the malicious prosecution claim because Oklahoma District Judge Susan Stallings concluded there was probable cause to proceed to trial, cutting off the chain of causation between Defendant Callaway's actions and the alleged malicious prosecution. (Id. at 6-7). Additionally, Defendant Callaway argues that suing him in his official capacity amounts to a suit against the municipality, warranting dismissal of any official capacity claims. (Id. at 10).
Defendant Callaway also construes the Complaint to allege a constitutional violation based on false testimony. (Doc. 24, at 5). Because Plaintiff does not allege that Defendant Callaway falsely testified or that his testimony violated Plaintiff's constitutional rights, as Plaintiff affirms in his reply to the Motion, (Doc. 30, at 10), the Court should not address any claim regarding Defendant Callaway's testimony.
At the motion to dismiss stage, qualified immunity protects public officials from liability under Section 1983 unless the Plaintiff plausibly alleges that the official violated a constitutional right, and that right was clearly established at the time of violation. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011); see also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A plausible allegation of malicious prosecution requires five elements: “(1) the defendant caused the plaintiff's continued confinement or prosecution; (2) the original action terminated in favor of the plaintiff; (3) no probable cause supported the arrest, confinement, or prosecution; (4) the defendant acted maliciously; and (5) the plaintiff sustained damages.” Shrum v. Cooke, 60 F.4th 1304, 1310 (10th Cir. 2023) (emphasis omitted) (citing Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008)); see also Margheim v. Buljko, 855 F.3d 1077, 1085 (10th Cir. 2017). The Tenth Circuit has held that though a wrongful arrest could instigate a malicious prosecution, a preliminary hearing in which a judge finds probable cause breaks the “chain of causation” as to the defendant involved in the arrest. Taylor v. Meacham, 82 F.3d 1556, 1564 (10th Cir. 1996); Crudup v. Schulte, 12 Fed.Appx. 682, 685-686 (10th Cir. 2021); Maul v. Logan Cnty. Bd. Of Comm'rs, No. CIV-05-605-C, 2006 WL 2863227, at *6 (W.D. Okla. Oct. 4, 2006), aff'd sub nom. Maul v. City of Langston, 247 Fed.Appx. 158 (10th Cir. 2007).
Plaintiff contends that Defendant Callaway initiated his arrest even though no physical evidence supported the victim's statements. (Doc. 1, at 14-16). However, Defendant Callaway's own probable cause finding is irrelevant because Judge Kathryn R. Savage found probable cause after a preliminary hearing on February 17, 2022. See Oklahoma County District Court, Case No. CF-2021-5168, supra note 5. Judge Savage's finding of probable cause interrupted any chain of causation between Defendant Callaway's actions and the alleged malicious prosecution of Plaintiff. Thus, Plaintiff has not established that Defendant Callaway violated his constitutional right against malicious prosecution, and the claim should be dismissed.
Plaintiff's claim against Defendant Callaway in his official capacity fails for the reasons Plaintiff's claim against Defendant Gourley in his official capacity fails, namely a failure to allege a municipal custom, policy, or practice that led to a violation of Plaintiff's constitutional rights. Accordingly, all claims against Defendant Callaway should be dismissed.
E. Defendant Judge Bondurant's Motion to Dismiss Should Be Granted Because She Has Eleventh Amendment and Judicial Immunity.
Defendant Judge Sara Bondurant, sued in her individual and official capacities, filed a Motion to Dismiss on August 31, 2023. (Doc. 26). Defendant Judge Bondurant argues that Plaintiff's claims against her, which relate to two protective orders she issued in state district court, should be dismissed because she has Eleventh Amendment immunity and judicial immunity, protecting her from suit in her official and individual capacities, respectively. (Id. at 1, 4-10).
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. Three exceptions exist: a state's waiver of immunity, Congressional authorization of the suit per its Fourteenth Amendment powers, or a Plaintiff's seeking injunctive relief against an official in his or her official capacity. Id. at 66, 71 n.10; Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012). “[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office,” amounting to a suit against the State itself. Will, 491 U.S. at 71; see also Brandon v. Holt, 469 U.S. 464, 471 (1985).
In Oklahoma, state district courts function as arms of the State. See Okla. Const. art. 7, § 7; see also Edwards v. Whetsel, No. CIV-08-134-F, 2009 WL 368487, at *4 (W.D. Okla. Feb. 12, 2009). Since Defendant Judge Bondurant is a judicial officer of a state district court, a suit against Defendant Judge Bondurant in her official capacity is equivalent to a suit against the state. Oklahoma has not waived its Eleventh Amendment immunity nor has Congress authorized a lawsuit of this nature. Furthermore, Plaintiff does not seek injunctive relief but seeks monetary relief and for Defendant Judge Bondurant's past judgments to be vacated. (Doc. 1, at 5, 24). Thus, Defendant Judge Bondurant is immune from suit in her official capacity.
Regarding immunity for judges in their individual capacities, 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 Section 1983 suit).
The claims against Defendant Judge Bondurant wholly arise from actions she took in two protective order proceedings involving Plaintiff. Plaintiff pleads no facts that plausibly allege that Defendant Judge Bondurant acted outside her judicial capacity or jurisdiction. Broad and conclusory allegations that Defendant Judge Bondurant should have recused herself from the proceedings and acted without personal jurisdiction, (Doc. 1, at 23-25), do not suffice. Therefore, Defendant Judge Bondurant is immune from suit in her individual capacity.
Because Defendant Judge Bondurant has both Eleventh Amendment and judicial immunity, all claims against her in her official and individual capacities should be dismissed.
F. Defendant Palomar's Motion to Dismiss Should Be Granted Because Plaintiff Has Failed to State a Claim.
Defendant Palomar filed a Motion to Dismiss and Brief in Support on September 14, 2023. (Doc. 37). In its Motion, Defendant Palomar argues that Plaintiff fails to state a claim because the Complaint fails to plausibly allege that Palomar violated a constitutional right and that Palomar acted under color of law. (Id. at 7-11).
Palomar is a “social services charity that partners with other community agencies to provide wraparound services to victims of domestic violence, child abuse, sexual assault, stalking, elder abuse, and human trafficking.” (Doc. 37, at 1). Plaintiff broadly alleges that “[n]on government Defendants were working with government official[s] as an extension of the government,” (Doc. 1, at 4), and that “[t]he State of Oklahoma should not conspire with non[-]government entities to deny their citizens['] rights,” (id. at 29). Regarding Palomar specifically, Plaintiff alleges “Palomar paid [Defendant] CJ [B]ailbonds for 3 months of my ankle monitor.An unlawful order is subsidized by an NGO.” (Id.) Plaintiff alleges that the location monitor he was ordered to wear constitutes an unconstitutional search. (Id. at 24).
Palomar also contends that Plaintiff's allegations on this point are factually incorrect (Doc. 37, at 2), a contention the court need not address since Plaintiff's allegations, taken as true, fail to allege state action.
In referring to Palomar as an “NGO,” a non-governmental entity, Plaintiff acknowledges that Palomar is a private entity, not a state actor. Thus, the court must analyze whether Palomar's alleged conduct “[is] fairly attributable to the State.” Wasatch Equality, 820 F.3d 386-87. See Section II.B, supra. First, the undersigned takes judicial notice of the fact that Plaintiff was ordered by the state district court to pay the cost of his location monitoring services. See Oklahoma County District Court, PO-2022-2836 supra note 6; (Doc. 37, at Ex. 1, at 1). Plaintiff's allegation that Palomar paid a portion of his obligation does not suggest that the state had an interdependent or symbiotic relationship with Defendant Palomar, nor that there was a close nexus between the state and Palomar's action, nor that Palomar willfully participated in a state action, or exercised powers traditionally exclusively reserved to the state. See Wasatch, 820 F.3d at 386-87. Plaintiff does not allege any facts suggesting that Palomar and the state district court engaged in any communication or coordination at all. Because Plaintiff's allegation that Defendant Palomar conspired with the state is conclusory and unsupported by factual allegations, Plaintiff has not adequately pled that Defendant Palomar acted under color of law. Thus, any claims against Defendant Palomar must be dismissed. See, e.g., Arndt v. Peery, No. CIV-21-584-R, 2021 WL 5182667, at *4 (W.D. Okla. Nov. 8, 2021) (in Section 1983 case, plaintiff alleged that the YWCA discriminated against him on the basis of gender for failing to provide programs for male victims of domestic violence; held that plaintiff's factual allegations were insufficient to plead a plausible claim that the YWCA performed as a state actor).
G. Defendant Oklahoma County Criminal Justice Authority's Motion to Dismiss Should Be Granted Because It Was Not Properly Served Process.
The Oklahoma County Criminal Justice Authority (“OCCJA”) filed its Special Appearance and Motion to Dismiss Complaint on September 15, 2023.(Doc. 39). Defendant OCCJA argues that the Court lacks jurisdiction over it because Plaintiff did not properly effect service. (Id. at 8-9). Alternatively, Defendant OCCJA argues that Plaintiff fails to state a claim for failure to protect, unconstitutional conditions of confinement, denial of adequate medical care, and municipal liability. (Id. at 5-14).
In its Motion to Dismiss, Defendant OCCJA also argues that any state law claim against it should be dismissed for lack of subject matter jurisdiction. (Doc. 39, at 15). Plaintiff's Complaint does not clearly allege any claims rooted in state law. To the extent that Plaintiff has attempted to allege any state law claims, they are dismissed for failure to state a claim.
In the Complaint, Plaintiff listed “Oklahoma County Detention Center, Warden” as the name of Defendant No. 8, with “Board of Trustees” noted as Defendant No. 8's “Title.” (Doc. 1, at 8). This suggests that Plaintiff intended to name as a defendant the OCCJA, as it is the public trust that operates the Oklahoma County Detention Center. (Doc. 39, Ex. 1, at 1-5). On August 23, 2023, Oklahoma County Sheriff Tommie Johnson was served with process at the address Plaintiff provided for the Oklahoma County Detention Center Warden/Board of Trustees. (Docs. 5, 28).
“Personal service under Rule 4 . . . notif[ies] a defendant of the commencement of an action against him.” Okla. Radio Assocs. v. FDIC, 969 F.2d 940, 943 (10th Cir. 1992).
Further, such service “provides the mechanism” for the court to “assert[ ] jurisdiction over the person of the party served.” Id.; see also Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350-51 (1999). “Effectuation of service is a precondition to suit.” Jenkins v. City of Topeka, 136 F.3d 1274, 1275 (10th Cir. 1998). Thus, a plaintiff's unexcused failure to comply with Rule 4 allows a district court to dismiss the action. See Jones v. Frank, 973 F.2d 872, 873-74 (10th Cir. 1992); Fed.R.Civ.P. 4(m). Pursuant to Federal Rule of Civil Procedure 4(j)(2), service may be made upon a “state, municipal corporation, or any other state created governmental organization that is subject to suit” by serving its chief executive officer or complying with service procedures prescribed by state law. Fed.R.Civ.P. 4(j)(2). In Oklahoma, a public jail trust is “a governmental entity for purposes of a 42 U.S.C. § 1983 action because it was created under Oklahoma law as a public trust.” Lee v. Wyatt, No. CIV-07-773-W, 2009 WL 3401277, at *6 (W.D. Okla. Oct. 21, 2009), aff'd, 382 Fed.Appx. 697 (10th Cir. 2010); see also Rife v. Okla. Dept. of Pub. Safety, 854 F.3d 637 (10th Cir. 2017) (resolving a Section 1983 claim against the McCurtain County Jail Trust). Under Oklahoma law, service upon a public trust should be effected “by delivering a copy of the summons and of the petition to the officer or individual designated by specific statute; however, if there is no statute, then upon the chief executive officer or a clerk, secretary or other official whose duty it is to maintain the official records of the organization.” Okla. Stat. tit. 12, § 2004(C)(1)(c)(5).
No statute designates the individual to be served on behalf of the OCCJA. Though Tommie Johnson is a member of Defendant OCCJA, he is not the chief executive officer or a person in charge of maintaining OCCJA records. See OCDC Trust Board, Oklahoma County Detention Center, https://www.okcountydc.net/about/trustees (last visited Dec. 8, 2023). According to Article VII of the OCCJA Trust Indenture, the Oklahoma County Clerk is the Secretary of the Trustees and responsible for record-keeping. (Doc. 39, Ex. 1, at 8). Since Tommie Johnson was not the appropriate individual to serve on behalf of the Defendant OCCJA under federal or Oklahoma law, Plaintiff did not properly serve Defendant OCCJA within 90 days following the filing of the Complaint. Fed.R.Civ.P. 4(m). A plaintiff is entitled to a mandatory extension of time if he shows good cause for the failure to effect timely service. Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995). If a plaintiff fails to show good cause, the court must consider whether a permissive extension of time is warranted, or whether to dismiss the case without prejudice. Id. In response to Defendant OCCJA's Motion to Dismiss, Plaintiff asserts that
I took multiple steps to properly serve[] this defendant. First, their employee Detention Officer Toledo was properly served.... Second, Sherriff Tom[m]ie Johnson is part of the board of trustees over defendant. Third, as a pro se defendant I look[ed] into this organization and served decision makers within the organization. Fourth, as currently being an inmate with this defendant, Defendant Oklahoma County CJA hands me their motion to my cell. Oklahoma County CJA are fully aware of complaint nature and jurisdiction this court has over them.(Doc. 45, at 1). These explanations fail to show good cause for the failure to effect proper and timely service, and thus a mandatory extension is not warranted. The Tenth Circuit has held “in the pro se context that inadvertence or negligence alone do not constitute ‘good cause' for failure of timely service.” Murphy v. City of Tulsa, 556 Fed.Appx. 664, 668 (10th Cir. 2014) (internal quotation marks omitted).
The factors to be considered in weighing a permissive extension include Plaintiff's pro se status, the possibility of prejudice to the Defendant, the potential that the statute of limitations has run on the claims, and whether the Plaintiff has to navigate “the complex requirements of multiple service” on officers of the United States. See Espinoza, 52 F.3d at 841-42. In addition, a permissive extension of time is not warranted because Plaintiff has failed to state any plausible claims for municipal liability against the OCCJA.
Plaintiff alleges that the Oklahoma County Detention Center encourages the criminal behavior of its employees, including Defendant Toledo, who Plaintiff claims “took over [his] house.” (Doc. 1, at 21). Plaintiff also alleges that employees of the Oklahoma County Detention Center “helped inmate in an attack against me,” failed to keep him from encountering other inmates while in “super protective custody,” and “let the two inmates that were going to kill me out” after “set[ting] up an emergency.” (Id. at 22). Lastly, Plaintiff alleges that, despite multiple requests, staff failed to give him medication to treat a scalp infection caused by bedbugs. (Id.)
None of Plaintiff's allegations against OCCJA identifies a policy, practice, or custom that caused a constitutional violation. See Monell v. Dep't of Soc. Serv., 436 U.S. 658, 691-92 (1978). Though Plaintiff alleges that multiple employees helped facilitate an attack against Plaintiff and ignored his requests for medication, similar actions taken by multiple employees do not amount to a practice or custom. See Gates v. Unified Sch. Dist. No. 449 of Leavenworth Cnty., 996 F.2d 1035, 1041 (10th Cir. 1993). To establish municipal liability through a practice or custom, a Plaintiff must show that a “continuing, persistent and widespread practice of unconstitutional misconduct” caused the injury, and policymaking officials on notice of the misconduct showed deliberate indifference or “tacit approval” of the misconduct. Id. To establish that a practice was “widespread,” Plaintiffs typically demonstrate that similarly situated individuals were subjected to the same misconduct. Carney v. City & Cnty. of Denver, 534 F.3d 1269, 1274 (10th Cir. 2008). Plaintiff does not allege that the employees' conduct was widespread throughout the Oklahoma County Detention Center but instead argues that he was specifically targeted. (Doc. 1, at 21-22). Nor has Plaintiff alleged that the actions were persistent or continuous. Therefore, Plaintiff has not stated a claim for municipal liability through a practice or custom.
Next, Plaintiff has not identified a formal policy or decision made by an OCCJA policymaker that caused a violation of his constitutional rights. See Pembaur v. City of Cincinnati, 475 U.S. 469, 482-483 (1986). Plaintiff's vague allegation that the Oklahoma County Detention Center “encourage[s] the criminal behavior of their officers” fails to identify a municipal officer with policymaking authority or demonstrate the existence of a formal policy of encouraging or facilitating criminal acts. (Doc. 1, at 21). Plaintiff has not sufficiently alleged that a policy, custom, or practice caused him constitutional harm, so he fails to state a claim for municipal liability against Defendant OCCJA.
Since Plaintiff did not properly serve Defendant OCCJA and has failed to state a plausible claim for municipal liability, a permissive extension of time to serve is not warranted and any claims against Defendant OCCJA should be dismissed.
H. Defendant Turn Key's Motion to Dismiss Should Be Granted Because Plaintiff Fails to State a Claim for Municipal Liability.
On September 14, 2023, Defendant Turn Key filed a Motion to Dismiss and Brief in Support.(Doc. 41). Defendant Turn Key argues that Plaintiff fails to state any claim against it because Defendant Turn Key cannot be held responsible for a constitutional violation under the theory of respondeat superior, and Plaintiff has not alleged any policy, practices, or customs resulting in a constitutional violation. (Id. at 4-8).
In its Motion to Dismiss, Defendant Turn Key also argues that it is immune from any state law claim. (Doc. 41, at 11). Plaintiff's Complaint does not clearly allege any claims rooted in state law. To the extent that Plaintiff has attempted to allege any state law claims, they are dismissed for failure to state a claim.
A private entity acting under color of state law may be held liable for constitutional violations under Section 1983. Dubbs v. Head Start, Inc., 3363 F.3d 1194, 1216 (10th Cir. 2003). As a provider of medical services at correctional facilities, including the Oklahoma County Detention Center, Turn Key is subject to Section 1983 liability. See, e.g., Lucas v. Turn Key Health Clinics, LLC, 58 F.4th 1127 (10th Cir. 2023) (resolving a municipal liability claim against Turn Key). However, the Monell doctrine of municipal liability still applies-Turn Key cannot be held liable for the actions of its employees through the doctrine of respondeat superior, but must have promulgated a policy, practice, or custom that caused the constitutional violation. See Monell v. Dep't of Soc. Serv., 436 U.S. 658, 691-92 (1978). Plaintiff only mentions Defendant Turn Key as the employer of Defendant Lilliana Jaquez, (Doc. 1, at 12), whom Plaintiff has moved to dismiss as a defendant, (Doc. 53). Plaintiff does not identify a policymaker nor does he allege a policy, practice, or custom of Turn Key that caused a violation of his constitutional rights. Thus, Plaintiff has failed to state a claim against Defendant Turn Key, and any claims against it should be dismissed.
III. Plaintiff's Claims Against Defendant Easter and Defendant Powers Should Be Dismissed Because They Have Eleventh Amendment and Prosecutorial Immunity
Defendants Merydith Easter and Stephanie Powers, both Oklahoma County Assistant District Attorneys sued in their individual and official capacities, have not filed motions to dismiss. However, the Court may review the Complaint and sua sponte dismiss claims under Rule 12(b)(6) if it is patently obvious that the Plaintiff has not alleged facts sufficient to state a claim for relief, and no amendment could cure the failure. See McKinney v. Okla. Dep't of Hum. Servs., 925 F.2d 363, 365 (10th Cir. 1991); see also Phillips v. Public Serv. Co. of N.M., 58 Fed.Appx. 407, 409 (10th Cir. 2003). Such a dismissal does not violate a plaintiff's due process rights or obstruct his or her access to the courts. Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001); see also Phillips, 58 Fed.Appx. at 409.
Prosecutors are entitled to absolute immunity from suits for civil damages when such suits are based on the prosecutor's performance of functions “intimately associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430, (1976). Moreover, “[p]rosecutors are entitled to absolute immunity for their 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 Cnty. Comm'rs, 582 F.3d 1155, 1164 (10th Cir. 2009). Indeed, “[a]bsolute prosecutorial immunity applies to . . . claims that a prosecutor willfully suppressed evidence.” Esquibel v. Brian Williamson, 421 Fed.Appx. 813, 816 (10th Cir. 2010) (citing Imbler v. Pachtman, 424 U.S. 409, 431 n. 34 (1976); Robinson v. Volkswagenwerk AG, 940 F.2d 1369, 1372 n. 4 (10th Cir.1991) (it is a “well-settled rule that a prosecutor cannot be held personally liable for the knowing suppression of exculpatory information”) (internal quotation marks omitted)).
Plaintiff's allegations against Defendant Easter and Defendant Powers relate to their roles in the preliminary hearing and bond hearing in Oklahoma County District Court Case No. CF-2021-5168. (Doc. 1, at 13-18). Plaintiff challenges Defendant Powers' motive for prosecuting him and her determination of probable cause, (id. at 11-12), and he alleges that both Defendant Powers and Defendant Easter knowingly offered false evidence by calling Lilliana Jacquez as a witness, (id. at 17-18). These allegations wholly relate to the Defendants' prosecutorial discretion in the judicial phase of the proceedings. Thus, Defendant Powers and Defendant Easter are entitled to absolute immunity for the claims against them in their individual capacities.
Plaintiff's claims against Defendant Powers and Defendant Easter in their official capacities as assistant district attorneys is akin to a suit against the State of Oklahoma since “under Oklahoma law, a district attorney is an arm of the state.” Erikson v. Pawnee Cnty. Bd. of Cnty. Com'rs, 263 F.3d 1151, 1153 (10th Cir. 2001). Since no exception applies, Defendant Powers and Defendant Easter are entitled to Eleventh Amendment immunity for the claims against them in their official capacities. See Will v. Mich. Dept. of State Police, 491 U.S. 58, 66, 71 n.10 (1989).
No amendment to Plaintiff's Complaint could invalidate the Defendants' prosecutorial immunity or Eleventh Amendment immunity. Thus, the Court should sua sponte dismiss all claims against Defendant Powers and Defendant Easter.
IV. Plaintiff's Claims Against Defendant Toledo Should Be Dismissed for Failure to State a Claim.
Defendant Toledo, a former detention officer at the Oklahoma County Detention Center, has not filed a motion to dismiss, but the Court may also evaluate claims against him for sua sponte dismissal under Rule 12(b)(6). See Section III, supra.
Plaintiff alleges that while he was in custody Defendant Toledo “lived in [Plaintiff's] house rent free” and made threats against Plaintiff and his children that “destroyed [his] will.” (Doc. 1, at 20-21). Plaintiff states that he was “extorted by an officer with power and control.” (Id. at 20). Plaintiff does not allege what constitutional rights Defendant Toledo has violated, nor does he allege facts showing that Defendant Toledo acted under color of state law.
For a state official to be held liable for constitutional violations under Section 1983, he or she must have been acting “under color of state law.” David v. City & Cnty. of Denver, 101 F.3d 1344, 1353 (10th Cir. 1996). “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'” Id. (quoting West v. Atkins, 487 U.S. 42, 49 (1988)). The plaintiff must sufficiently plead that a “real nexus” exists between the action of the defendant and the defendant's actual or apparent authority as a state official. Id.; see also Jojola v. Chavez, 55 F.3d 488, 493-94 (10th Cir. 1995).
The facts alleged against Defendant Toledo in the Complaint clearly do not state a claim for relief. Even if Plaintiff were to allege a particular constitutional violation, Plaintiff could not plausibly allege that Defendant Toledo acted under color of state law by living in Plaintiff's house after threatening him and his family. Though Defendant Toledo could be held liable for such actions under state tort law, the alleged conduct bears no connection to Defendant Toledo's authority as a detention officer. Cf. Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1156 (10th Cir. 2016) (holding parking enforcement officers did not act under color of state law when they lied in witness statements while on duty because “any citizen can report suspicious activity to the police”); Jojola, 55 F.3d at 494 (holding a school custodian did not act under color of state law when he molested a student because plaintiff's allegations did not connect an exercise of authority to the molestation); Haines v. Fisher, 82 F.3d 1503, 1508 (10th Cir. 1996) (holding police officers did not act under color of law when they staged a prank robbery of a convenience store while on duty).
Since it is patently obvious that Plaintiff cannot state a plausible claim for relief even if given the opportunity to amend the Complaint, any claims against Defendant Toledo should be dismissed.
V. Defendant CJ's Bail Bonds' Motion for Summary Judgment Should Be Granted Because the Undisputed Facts Show that Defendant CJ's Bail Bonds Was Not Involved in Plaintiff's GPS Tracking.
Defendant CJ's Bail Bonds filed a Motion for Summary Judgment and for Dismissal of Defendant CJ's Bail Bonds on August 23, 2023. (Doc. 16). Attached to the Motion is an Affidavit of C.J. Knight, of CJ's Bail Bonds, in which Mr. Knight states,
CJ's did not supply or participate in any part of the ankle monitoring ordered by the judge, nor did CJ's ever attempt to post any sort of bond for plaintiff, so that plaintiff has no cause of action against CJ's as they are not a party in interest or necessary party in this matter.(Id. at 3). In response, Plaintiff filed an Answer Brief to Motion: Dismissal of Defendant CJ's Bail Bonds, in which he states,
I believe CJ's Bail Bonds is a responsible party for my ankle monitor. It is my belief that CJ['s] [B]ail [B]onds conspire[d] with government officials and Palomar to violate my civil rights. . . . I believe government officials contacted CJ's [B]ail [B]onds without my knowledge.(Doc. 19, at 1). Plaintiff did not attach an affidavit or any other exhibit.
Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Universal Underwriters Ins. Co. v. Winton, 818 F.3d 1103, 1105 (10th Cir. 2016). “An issue is ‘genuine' if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way” and “[a]n issue of fact is ‘material' if under the substantive law it is essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, (1986)). If the movant carries the burden of demonstrating an absence of a dispute as to material fact, “the nonmovant must then go beyond the pleadings and ‘set forth specific facts' that would be admissible in evidence and that show a genuine issue for trial.” Martin v. City of Okla. City, 180 F.Supp.3d 978, 983 (W.D. Okla. 2016) (citing Anderson, 477 U.S. at 248; Celotex, 477 U.S. at 324; Adler, 144 F.3d at 671).
The Court's inquiry must be whether the evidence, when viewed “through the prism of the substantive evidentiary burden,” Anderson, 477 U.S. at 254, “presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. Although the Court views all facts in the light most favorable to the non-moving party at the summary judgment stage, “there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249 (citations omitted).
“[I]n opposing a motion for summary judgment, the non-moving party ‘cannot rest on ignorance of facts, on speculation, or on suspicion.'” Bird v. W.Valley City, 832 F.3d 1188, 1199 (10th Cir. 2016) (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)). The non-moving party “must present affirmative evidence in order to defeat a properly supported motion for summary judgment. This is true even where the evidence is likely to be within the possession of the defendant, as long as the plaintiff has had a full opportunity to conduct discovery.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). A plaintiff may present affirmative evidence through submission of “depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials,” or the plaintiff may show that “the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A)-(B).
Here, Plaintiff has not submitted any evidence establishing a genuine dispute of fact but merely articulates his suspicion that CJ's Bail Bonds was involved in the Oklahoma County District Court's GPS tracking of him. Without any evidence challenging Mr. Knight's sworn statement regarding CJ's Bail Bonds' lack of involvement in any aspect of Plaintiff's protective order case, Plaintiff has not demonstrated the presence of a genuine dispute of any material fact. Accordingly, CJ's Bail Bonds is entitled to summary judgment.
VI. Plaintiff's Motions to Dismiss Defendants David Prater and Lilliana Jaquez Should Be Granted.
Plaintiff filed two nearly identical motions: a “Motion to dropped/dismiss [sic] [two] defendants from complaint,” filed on September 27, 2023, (Doc. 43), and a “Motion to drop/dismiss Defendant Prater and Defendant Jaquez,” filed on October 4, 2023, (Doc. 53). Plaintiff moves to dismiss Defendant David Prater because “[a]ll actions against me were perpetuated by other members of Prater's office,” (Doc. 43, at 1), and ‘[i]t is redundant to add Defendant Prater to [the] complaint,” (Doc. 53, at 1). Plaintiff moves to dismiss Defendant Lilliana Jacquez because “she committed perjury but is also a victim of law enforcement,” (Doc. 43, at 1), and “she was manipulated and pressure[d] to manufacture evidence,” (Doc. 53, at 1).
Under Federal Rule of Procedure 41, a “plaintiff may dismiss an action without a court order by filing . . . a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment.” Fed.R.Civ.P. 41(a)(1)(i). “The filing of a notice of dismissal pursuant to Rule 41(a)(1)(i) does not require an order of the court.” Janssen v. Harris, 321 F.3d 998, 1000 (10th Cir. 2003).
The effect of the filing of a notice of dismissal pursuant to Rule 41(a)(1)(i) is to leave the parties as though no action had been brought. Once the notice of dismissal has been filed, the district court loses jurisdiction over the dismissed claims and may not address the merits of such claims or issue further orders pertaining to them.Id. (quoting Duke Energy Trading & Mktg., L.L.C. v. Davis, 267 F.3d 1042, 1049 (9th Cir. 2001)). Several district courts in the Tenth Circuit, as well as the majority of circuit courts, have held that Federal Rule of Procedure 41 may be used to dismiss all claims against one defendant without dismissing the entire action. See Van Leeuwen v. Bank of America, 304 F.R.D. 691, 693, 697 (D. Utah 2015) (allowing the dismissal of all claims against one defendant under Rule 41(a)(1), and noting that “[t]he First, Third, Fifth, Eighth, and Ninth Circuits form the majority in holding that Rule 41(a)(1) allows a plaintiff to dismiss without a court order any defendant who has yet to serve an answer or a motion for summary judgment” (internal quotation marks omitted)); Southcrest L.L. C. v. Bovis Lend Lease, Inc., 2011 WL 1793388, at *4 (N.D. Okla. May 11, 2011) (converting a Rule 15 motion to a Rule 41 motion where plaintiff seeks to dismiss all claims against one defendant); Wojdacz v. Wood, 2019 WL 7289026, at *2 (D. Colo. July 17, 2019) (recommending dismissal of all claims against multiple defendants pursuant to Rule 41(a)(2)), report and recommendation adopted, 2019 WL 5616996 (D. Colo. Oct. 31, 2019).
Here, neither Defendant Prater nor Defendant Jacquez has filed an answer to the Complaint or motion for summary judgment. Therefore, in accordance with the majority interpretation of Rule 41, Plaintiff has voluntarily dismissed Defendant Prater and Defendant Jacquez from the lawsuit pursuant to Federal Rule of Procedure 41(a)(1)(i). No court action is required for this voluntary dismissal, but for the sake of clarity, this Court grants Plaintiff's Motions to Dismiss Defendant Prater and Defendant Jacquez.
VII. Defendant Stewart's Motion for Sanctions Should Be Denied.
Defendant Stewart filed a Motion for Sanctions Against Plaintiff for Bringing this Suit on September 11, 2023. (Doc. 32). Defendant Stewart argues that Defendant should be sanctioned-and she should be awarded attorney's fees, costs, and any other relief deemed appropriate by the court-because of “the complete absence of a plausible right to relief, and the vexatious, frivolous, and harassing nature of this lawsuit.” (Id. at 3).
Federal Rule of Civil Procedure 11 states:
By presenting to the court a pleading, written motion, or other paper- whether by signing, filing, submitting, or later advocating it-an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; [and] (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.Fed. R. Civ. P. 11(b)(1)-(3). The requirements of Rule 11 apply to attorneys and pro se litigants alike, but courts have discretion to consider “the special circumstances that often arise in pro se situations.” Fed.R.Civ.P. 11 advisory committee notes to 1983 amendment.
In assessing whether an attorney or unrepresented party has violated Rule 11, a court must use an objective standard and determine “whether a reasonable and competent attorney would believe in the merit of an argument.” Salmon v. Nutra Pharma Corp., 687 Fed.Appx. 713, 718 (10th Cir. 2017) (quoting Dodd Ins. Servs. v. Royal Ins. Co. of Am., 935 F.2d 1152, 1155 (10th Cir. 1991)). However, “a frivolous claim easily disposed of by the opposing party and the court might not warrant sanctions.” Dodd Ins. Servs., 935 F.2d at 1158; see also Oliveri v. Thompson, 803 F.2d 1265, 1280 (2d Cir. 1986) (“it appears doubtful whether anyone gave these claims serious consideration or devoted any significant work toward disposing of them; therefore, any technical violation of rule 11 that may have occurred was de minimis”), cert. denied, 480 U.S. 918 (1987).
Though Plaintiff is not excused from complying with Rule 11, the court may consider the special circumstances arising from his pro se status and the burden placed upon Defendant Stewart in determining whether sanctions are appropriate. Plaintiff certainly failed to state a claim against Defendant Stewart. As often occurs with numerous plaintiffs who file Section 1983 claims, Plaintiff's pro se status affected his ability to understand and litigate his claims and the undersigned is unwilling to declare his claims “frivolous.” Were the court to impose sanctions on every pro se plaintiff who files a Section 1983 claim without a firm grasp on the applicable law, it would unleash a floodgate of sanctions and chill access to the courts. Furthermore, Defendant Stewart, an attorney herself, “easily disposed of' Plaintiff's claim in her Motion to Dismiss. Dodd Ins. Servs., 935 F.2d at 1158. Such quick disposal greatly limits fees and costs associated with litigating a claim beyond the motion to dismiss stage.
Lastly, Defendant Stewart did not sufficiently demonstrate that Plaintiff filed the suit to harass her. Defendant Stewart argued that Plaintiff has raised the same issues found in the Complaint in the state protective order and divorce proceedings involving Plaintiff and Defendant Stewart, (Doc. 32 at 3), and that he has filed two state bar complaints against Defendant Stewart regarding the same matters, (Id. at 5). Defendant Stewart sought attorney's fees and sanctions in the state proceedings because of Plaintiff's “abusive litigation.” (Id. at 6). Plaintiff's usage of the state judicial process and bar complaint process does not demonstrate harassment in the instant lawsuit, and Defendant Stewart may not recover for the alleged previous harassment in this action.
For the reasons stated above, Defendant Stewart's Motion for Sanctions is denied.
VIII. All Remaining Motions Are Mooted by the Dismissals of Plaintiff's Claims.
The remaining motions-Defendant Callaway's Motion to Strike Response (Doc. 54), Plaintiff's Motions to Change Non-Prisoner 1983 Form to Prisoner 1983 Form (Docs. 44, 52, 60), and Plaintiff's Motion for Default Judgement Against Detention Officer Toledo (Doc. 47)-are mooted by the dismissal of all claims in the Complaint. Therefore, the remaining motions should be denied.
IX. Recommended Ruling and Notice of Right to Object.
For the reasons discussed above, the undersigned recommends the following motions be GRANTED:
• Defendant Sarah Stewart's Motion to Dismiss (Doc. 6);
• Defendant Wade Gourley's Motion to Dismiss (Doc. 22);
• Defendant Michael Callaway's Motion to Dismiss (Doc. 24);
• Defendant Judge Sara Bondurant's Motion to Dismiss (Doc. 26);
• Defendant Palomar's Motion to Dismiss (Doc. 37);
• Defendant Oklahoma Criminal Justice Authority's Motion to Dismiss (Doc. 39);
• Defendant Turn Key's Motion to Dismiss (Doc. 41);
• Defendant CJ's Bail Bonds' Motion for Summary Judgment (Doc. 16); and
• Plaintiff's Motions to Dismiss Defendant Prater and Defendant Jaquez (Docs. 43, 53).
The undersigned further recommends that the following claims be DIMISSED without prejudice:
• Plaintiff's claims against Defendant Toledo; and
• Plaintiff's claims against Defendant Easter and Defendant Powers.
Lastly, the undersigned recommends that the following motions be DENIED:
• Defendant Stewart's Motion for Sanctions (Doc. 32);
• Defendant Callaway's Motion to Strike Response (Doc. 54);
• Plaintiff's Motions to Change Non-Prisoner 1983 Form to Prisoner 1983 Form (Docs. 44, 52, 60); and
• Plaintiff's Motion for Default Judgment Against Detention Officer Toledo (Doc. 47).
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before December 29, 2023, 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.