Opinion
CIV-23-10-JD
01-31-2023
MARGARITO RIOS TORREZ, JR., Plaintiff, v. CHRIS BAYLES, et al., Defendants.
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Margarito Rios Torrez, Jr., appearing pro se, brings this action under 42 U.S.C. § 1983, alleging civil rights violations. (ECF No. 1). United States District Judge Jodi W. Dishman has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). A review of the Complaint has been conducted pursuant to 28 U.S.C. § 1915A(a). Based on that review, it is recommended that the Court: (1) dismiss the claims against Defendants Waurika County Jail and Hammond, with prejudice; and (2) dismiss the claims against Defendants Bayless, Buckholt-Spears, and Gay, without prejudice.
I. SCREENING REQUIREMENT
The Court must review each complaint in which a prisoner seeks redress against a governmental entity, officer, or employee and each case in which a plaintiff proceeds in forma pauperis. 28 U.S.C. § 1915A(a). The Court is required to dismiss the complaint or any portion of the complaint that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b); see also Kay v. Bemis, 500 F.3d 1214, 121718 (10th Cir. 2007) (indicating that court uses same analysis for complaint's sufficiency whether performed sua sponte or pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)).
II. STANDARD OF REVIEW
The Court must accept Mr. Torrez' allegations as true and construe them, and any reasonable inferences to be drawn from them, in the light most favorable to Plaintiff. See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Since Mr. Torrez is proceeding pro se, his complaint must be construed liberally. See id. at 1218. The Court “review[s] the complaint for plausibility; that is, to determine whether the complaint includes enough facts to state a claim to relief that is plausible on its face.” Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009) (quotations and citation omitted). “Plausible” in this context does not mean “likely to be true,” but rather refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct,” then the plaintiff has not “nudged (his) claims across the line from conceivable to plausible.” Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). The plausibility requirement “serves not only to weed out claims that do not (in the absence of additional allegations) have a reasonable prospect of success, but also to inform the defendants of the actual grounds of the claim against them.” Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008).
A complaint fails to state such a claim when it lacks factual allegations sufficient “to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555 (footnote and citation omitted). 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 v. Iqbal, 556 U.S. 662, 679 (2009).
Whether a complaint contains sufficient facts to avoid dismissal is context-specific and is determined through a court's application of “judicial experience and common sense.” Iqbal, 556 U.S. at 679; see also Gee v. Pacheco, 627 F.3d 1178, 1184-85 (10th Cir. 2010) (discussing Iqbal).
III. DISMISSAL OF THE COMPLAINT
Mr. Torrez is currently incarcerated in the Jefferson County Jail in Waurika, Jefferson County, Oklahoma, after pleading guilty to misdemeanor charges involving Stalking and Public Intoxication. In the criminal matter, Chris Bayless was the arresting officer, Allison Spears-Buckholts was the prosecutor, Dennis Gay was the presiding judge, and David Hammond was Mr. Torrez' attorney. State of Oklahoma v. Torrez, Case No. CM-2021-161 (Jefferson Co. Dist. Ct.). Mr. Torrez has filed the instant Complaint, and has named all four individuals as Defendants, along with the Waurika County Jail. See ECF No. 1. Plaintiff alleges that the charges caused him embarrassment and he is suing for: (1) defamation of character, (2) slander, (3) false imprisonment, (4) “self-incrimination,” and (5) “Breathing Black mold.” (ECF No. 1:4, 6, 8, 10-12). The Court should dismiss the Complaint in its entirety.
See ECF No. 1; see also Judgment and Sentence or Deferment of Misdemeanor, State of Oklahoma v. Torrez, Case No. CM-2021-161 (Jefferson Co. Dist. Ct. Jan. 25, 2022). The Court may take judicial notice of Plaintiff's state court case. See St. Louis BaptistTemple, Inc. v. Federal Deposit Insurance Corporation, 605 F.2d 1169 (10th Cir. 1979) (“federal 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.”). Although Mr. Torrez did not name Mr. Hammond in the style of the lawsuit, he has made it clear in the body of the Complaint that Mr. Hammond is a Defendant. See ECF No. 1:10 (“i [sic] want to also sue David W. Hammond for all my pain & suffering as well as for Self incrimination.”)
In the Complaint, Plaintiff has referred to Mr. Bayless as “Chris Bayles” and Ms. Spears-Buckholts as “Alicen Buckholds.” See ECF No. 1:1. The undersigned will utilize the correct spelling of the Defendants' names in this document.
A. Waurika Jail
Although Plaintiff's Complaint is difficult to decipher, it appears as though Mr. Torrez is suing the Waurika County Jail based on allegations that he has been breathing black mold in the jail for 6 months. See ECF No. 1:6. However, the Court should dismiss any claims against the Waurika Jail, because it is not an entity legally capable of being sued.
On page 11 of the Complaint, Plaintiff also states: “Waurika County jail Self incrimination.” (ECF No. 1:11). But without further explanation, the undersigned will not consider the statement as it is unclear.
Section 1983 creates a private right of action for redressing the violation of federal law by those acting under color of state law. See Migra v. Warren City Sch. Dist. Bd. ofEduc., 465 U.S. 75, 82 (1984). It “provides that ‘every person' who acts under color of state law to deprive another of constitutional rights ‘shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.'” Lawrence v.Reed, 406 F.3d 1224, 1229 (10th Cir. 2005) (quoting 42 U.S.C. § 1983) (alterations omitted).
Whether an entity is a “person” subject to suit under § 1983 is a matter of statutory interpretation. See Lippoldt v. Cole, 468 F.3d 1204, 1212 (10th Cir. 2006). Plaintiff has sued the Oklahoma County Detention Center. (ECF No. 1:1). However, the Tenth Circuit Court of Appeals has stated that a county detention facility “is not a person or legally created entity capable of being sued.” Aston v. Cunningham, 2000 WL 796086 at *4 n. 3 (10th Cir. 2000); see also Ketchum v. Albuquerque Police Dep't, 1992 WL 51481, at *2 (10th Cir. 1992) (holding that a municipal police department is not a suable entity because it lacks a legal identity apart from the municipality); see also Lindsey v. Thomson, 275 F. App'x. 744, 747 (10th Cir. 2007) (unpublished op.) (affirming dismissal of § 1983 claims against police departments and county sheriff's department, entities with no apparent legal existence).
Accordingly, the Court should dismiss Plaintiff's claim against the Waurika County Jail for failure to state a claim upon which relief may be granted.
B. Defendant Hammond
Plaintiff is also suing his attorney, David Hammond, Because he believes Mr. Hammond “did not represent [him] in the way [he] wanted to be represented.” (ECF No. 1:8). Most of Mr. Torrez' complaints against Mr. Hammond are illegible, see ECF No. 1:8, but it appears as if Plaintiff believes that Mr. Hammond should have had the case transferred to a different county and Mr. Hammond is liable for Plaintiff's “self-incrimination.” (ECF No. 1:8, 10-12).
To state a claim for relief under 42 U.S.C. § 1983, “a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v Atkins, 487 U.S. 42, 48 (1988). The Tenth Circuit Court of Appeals has held that “Neither public defenders performing their traditional functions as counsel to a defendant in a criminal proceeding nor private attorneys act under color of state law.” EHibee v. Hazlett, 122 Fed.Appx. 932, 934, 2004 WL 2850097, at *1 (10th Cir. 2004) (citing Pok County v. Dodson, 454 U.S. 312, 325, (1981); Barnard v. Young, 720 F.2d 1188, 1189 (10th Cir. 1983)). Because Mr. Hammond did not act “under color of state law,” the Court should dismiss any claim against him, with prejudice. See Jackson v. Brummett, 311 Fed.Appx. 114, 115-16 (10th Cir. 2009) (affirming district court's dismissal with prejudice of the pro se plaintiff's § 1983 claims against his state public defender where leave to amend would be futile).
C. The Remaining Defendants
With the forgoing recommendations, the remaining Defendants are: (1) Arresting Officer Bayless, (2) Assistant District Attorney Spears-Buckholts, and (3) Judge Gay. Throughout the Complaint, and in a somewhat rambling and piecemeal fashion, Plaintiff states that he is suing for: “slandering [his] name on channel 7 news, false imprisonment in Waurika County Jail, self incrimination, Breathing Black mold . . . false judgment . . . [and] pain and suffering.” (ECF No. 1:11). See also ECF No. 1:4 ('“Seuing [sic] for Slandering my name on channel 7 news, false imprisonment, self incrimination, [and] Breathing Black mold.”); ECF No. 1:6 ('“I what [sic] to seu [sic] for my Reputation and Defimation [sic] of Churacter. . . . And for them putting me in channle [sic] 7 news out of Lawton. And also I am here in Waurika Breathing Black mold.”).
In a case such as this one where Mr. Torrez has brought claims against more than one defendant, “it is particularly important . . . that the complaint make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him.” Robbins v. Oklahoma, 519 F.3d at 1250. The aforementioned allegations fail to meet this pleading standard and the Court “will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
On page 6 of the Complaint, Plaintiff states that Mr. Bayless “is the one that gave [Mr. Torrez] these charges” and on page 11 of the Complaint, Mr. Torrez provides what appears to be some sort of numerical identification for Defendant Bayless and informs the Court that he now works for Oklahoma County. (ECF No. 1:11). But beyond these allegations, the undersigned is unable to discern what, exactly, Plaintiff is alleging that Mr. Bayless did wrong or under what legal theory he is allegedly liable. Also on page 11 of the Complaint, Plaintiff states:
• “judge Dennis gay false imprisonment false judgment;”
• DA/Alicen Buckholds/false judgment pain & suffering.”(ECF No. 1:11). But the Court should find these statements legally insufficient to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ('“A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.”) (citation and internal quotation marks omitted). Based on the conclusory fashion of the allegations against Defendants Bayless, Spears-Buckholts, and Gay, the Court should dismiss any claims against these Defendants, without prejudice.
IV. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
The Court should: (1) dismiss the claims against Defendants Waurika County Jail and Hammond, with prejudice; and (2) dismiss the claims against Defendants Bayless, Buckholt-Spears, and Gay, without prejudice.
Plaintiff is hereby advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by February 17, 2023. See 28 U.S.C. § 636(b)(1); and Fed.R.Civ.P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
V. STATUS OF THE REFERRAL
This Report and Recommendation terminates the referral to the undersigned magistrate judge in the captioned matter.