Opinion
CIV-23-1151-HE
05-09-2024
FRANK BATES WHITEHEAD, III, Plaintiff, v. OFFICER COLT LOWRY, ELK CITY PD et al., Defendants.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Plaintiff Frank Whitehead, III, appearing pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983, alleging various violations of federal and state law. (ECF No. 6). United States District Judge Joe Heaton 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 Amended Complaint has been conducted pursuant to 28 U.S.C. § 1915A(a) and 28 U.S.C. § 1915(e)(2)(B). Based on that review, it is recommended that the Court: (1) dismiss Plaintiff's requests for declaratory and injunctive relief; (2) dismiss Plaintiff's conspiracy claim; (3) dismiss the official capacity claims for monetary damages against both Defendants; (4) dismiss the individual capacity claims for monetary damages against Defendant Marsee; (5) dismiss the Fourth Amendment individual capacity claim against Officer Lowry based on false arrest; (6) dismiss the Fifth Amendment individual capacity claim against Defendant Lowry; (7) dismiss the state law claim for false imprisonment against Defendant Lowry; and (8) conclude that Mr. Whitehead has stated a claim for excessive force under the Fourth Amendment, against Defendant Lowry, in his individual capacity, limited to the recovery of monetary damages.
Mr. Whitehead also alleges jurisdiction pursuant to 18 U.S.C. § 241 and 28 U.S.C. §§ 139(b)(2), 1346, 1367, 2201, 2202, 2283, 2284 and Rule 65 of the Federal Rules of Civil Procedure. (ECF No. 6:8). But aside from Section 1367, the cited statutes are not jurisdictional provisions. Section 241 concerns the available penalty in conspiracy cases; Section 139 does not have a subsection (b)(2) and concerns the “times for holding regular sessions” of district courts; Section 1346 concerns civil actions against the United States of America; Sections 2201 and 2202 concern the creation and implementation of the remedy of declaratory relief; Section 2283 states that absent an Act of Congress, a United States District Court may not enjoin state proceedings; Section 2284 allows for the appointment of a three-judge panel in district court cases which are filed challenging the constitutionality of the apportionment of congressional districts of any statewide legislative body; and Rule 65 of the Federal Rules of Civil Procedure sets forth various rules related to injunctive relief. However, 28 U.S.C. § 1367 does concern jurisdiction-it states: “in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction[.]” Here, Mr. Whitehead has asserted a state law claim for false imprisonment, see ECF No. 6:4, which could arguably be maintained under Section 1367, but the Court should dismiss this claim. See infr .
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); 28 U.S.C. § 1915(e)(2). 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); 1915(e)(2)(B).
II. STANDARD OF REVIEW
The Court must accept Mr. Whitehead's allegations as true and construe them, and any reasonable inferences to be drawn from them, in the light most favorable to Plaintiff. See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Since Mr. Whitehead 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).
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.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
III. PLAINTIFF'S AMENDED COMPLAINT
The allegations in Mr. Whitehead's Amended Complaint stem from events which occurred during and after he was arrested on May 17, 2023. See ECF No. 6. Mr. Whitehead asserts two Claims-one against the arresting officer, Colt Lowry, and one against the Beckham County District Attorney prosecuting his case, Angela Marsee. (ECF No. 6). In Claim One, Plaintiff alleges that Officer Lowry violated his 4th, 5th, 8th, and 14th Amendment rights. (ECF No. 6:2-4). Specifically, Mr. Whitehead alleges that Officer Lowry:
• violated Plaintiff's Fourth and Fourteenth Amendment rights by arresting him without a warrant;
• violated Plaintiff's Fifth Amendment rights by taking and destroying his property without a warrant or Plaintiff's permission; and
• violated Plaintiff's Eighth Amendment rights by beating him with a “lethal weapon” so that he would comply with the arrest.(ECF No. 6:3-4). Plaintiff also asserts a state law claim of false imprisonment against Defendant Lowry. (ECF No. 6:3).
In Claim Two, Plaintiff alleges that District Attorney Marsee “has been complicit and compliant with Officer Lowry's unlawfull [sic] and unconstitutional actions.” (ECF No. 6:7). As a result, Mr. Whitehead alleges that Ms. Marsee violated his 4th, 5th, 8th, and 14th Amendment rights, based on Defendant Lowry's actions. (ECF No. 6:7). Mr. Whitehead also alleges liability against Ms. Marsee for malicious prosecution and excessive bond. (ECF No. 6:6-7). Mr. Whitehead sues each Defendant in their official and individual capacities and as relief, Plaintiff requests monetary damages, injunctive relief, declaratory relief, and release on an “O.R. Bond.” (ECF No. 6:3, 5-7).
IV. PLAINTIFF'S REQUESTS FOR DECLARATORY AND INJUNCTIVE RELIEF
In the Amended Complaint, Plaintiff requests a “Declaration stopping any act or omission they are doing.” (ECF No. 6:3, 6). The Court could read this request as seeking either injunctive or declaratory relief. However, the Court should find this request as vague and conclusory, as Plaintiff fails to define a specific “act or omission” which he would like to stop. See North Brevard Cnty. Hospital District v. C.R. Bard, Inc., ___ F.Supp.3d ___, No. 2-22:cv-00144-RJS-JCB, 2023 WL 8936389, at *15 (D. Utah Dec. 27, 2023) (denying party's request for injunctive relief, stating: “[the] sweeping, conclusory request lacks any “reasonably particular detail” as to the injunctive relief sought and fails to describe-without reference “to the complaint or other document”-what specific acts the court is to restrain or how it is to craft an injunction.”) (citations omitted). As a result, the Court should dismiss Plaintiff's request.
Mr. Whitehead also requests injunctive relief in the form of: (1) “A temporary and a permanent injunction ordering all defendants to stop prosecution or other legal proceedings while this matter gets resolved” and (2) “Release on O.R. Bond[.]” (ECF No. 6:3, 5, 6, 7). But absent an Act of Congress, federal courts lack the authority to issue a writ to direct state courts or their judicial officers in the performance of their duties. See Knox v. Bland, 632 F.3d 1290, 1292 (10th Cir. 2011); see also 28 U.S.C. § 2283. Thus, the Court should dismiss these requests.
V. PLAINTIFF'S CONSPIRACY CLAIM
In the Amended Complaint, Plaintiff identifies Defendants Lowry and Marsee as co-conspirators. See ECF No. 6:2, 3, 4, 7. And in the body of the Amended Complaint, Plaintiff alleges that “Angela Marsee has been complicit and compliant with Officer Lowry's unlawfull [sic][ and unconstitutional actions.” (ECF No. 6:7). As a result, the undersigned liberally construes these statements to allege a claim of conspiracy against both Defendants. The Court should dismiss any such claim.
To state a conspiracy claim under § 1983, a plaintiff must plead that he was deprived of a constitutional right as a result of a conspiracy comprised of or including conspirators acting under color of state law. See Dixon v. City of Lawton, 898 F.2d 1443, 1449 & n.6 (10th Cir. 1990) (stating elements and holding that state action element is satisfied when private actors conspire with a state actor). In pleading the conspiracy element, “conclusory allegations of conspiracy are insufficient to state a valid § 1983 claim.” Brooks v. Gaenzl, 614 F.3d 1213, 1228 (10th Cir. 2010) (internal brackets and quotation marks omitted); see also Ashcrof, 556 U.S. at 678, 129 S.Ct. 1937 (stating that complaint must do more than recite elements of claim). Instead, the plaintiff must allege “specific facts showing an agreement and concerted action amongst the defendants.” Brook, 614 F.3d at 1228 (internal quotation marks omitted). Here, Mr. Whitehead has made only conclusory allegations regarding the alleged conspiracy between the Defendants. As a result, the Court should dismiss Plaintiff's conspiracy claim against both Defendants. See Leatherwood v. Rios, 705 Fed.Appx. 735, 739 (10th Cir. 2017) (affirming dismissal of § 1983 conspiracy claim, stating: “[the plaintiff's] allegations regarding the alleged conspiracy are conclusory and devoid of the requisite specific facts showing agreement and concerted action by the . . . Defendants.”).
With the dismissal of the conspiracy claim, the Court should likewise dismiss the constitutional claims against Defendant Marsee for violating Plaintiff's 4th, 5th, 8th, and 14th Amendment rights, as Plaintiff failed to allege that Defendant Marsee had personally participated in any of the actions on which those claims are based, outside of allegedly conspiring with Defendant Lowry. See supra; see also ECF No. 6:7; Trujillo v. Williams, 465 F.3d 1210, 1227-28 (10th Cir. 2006) (noting that “In order for liability to arise under § 1983, a defendant's direct personal responsibility for the claimed deprivation of a constitutional right must be established” and dismissing claim where “[n]othing in [the plaintiff's] complaint indicates any personal participation by the . . . defendants.”).
VI. PLAINTIFF'S REMAINING FEDERAL CLAIMS
With the forgoing recommendations, what remains are: (1) Plaintiff's individual and official capacity claims for monetary damages against Defendant Lowry for violating Plaintiff's 4th, 5th, 8th, and 14th Amendment rights, and (2) Plaintiff's individual and official capacity claims for monetary damages against Defendant Marsee for malicious prosecution and excessive bond. See supra.
A. Official Capacity Claims
The Tenth Circuit Court of Appeals has long held that “Section 1983 plaintiffs may sue individual-capacity defendants only for money damages and official-capacity defendants only for injunctive relief.” Brown v. Montoya, 662 F.3d 1152, 1161 n.5 (10th Cir. 2011). As a result, the Court should dismiss, with prejudice, the official capacity claims for monetary damages against both Defendants Lowry and Marsee.
B. Individual Capacity Claims
Against Defendant Marsee, Mr. Whitehead has alleged: (1) malicious prosecution (“D.A. Angela Marsee under color of state law, falsely charged me with a felony crime”) and (2) that this Defendant “asked for an extremely high bond of $100,000.00.” (ECF No. 7). These activities, however, are considered “core prosecutorial functions” which are exempted from liability under the doctrine of prosecutorial immunity. See Arnold v. McClain, 926 F.2d 963, 966 (10th Cir. 1991) (noting that prosecutors enjoy absolute immunity to liability under § 1983 for actions “within the scope of their prosecutorial duties.”); Kirby v. Dallas Cnty. Adult Probation Dept., 359 Fed.Appx. 27, 31, 2009 WL 5064789, at *2 (10th Cir. 2009) (affirming dismissal of plaintiff's claims on the basis of prosecutorial immunity, finding the claims were “primarily based on defendants' decision to prosecute and participation in bond proceedings, which are core prosecutorial functions.”). As a result, the Court should dismiss the remaining claims against Defendant Marsee.
Against Defendant Lowry, Plaintiff alleges violations of his 4th, 5th, 8th, and 14th Amendment rights. The undersigned will address each in turn.
First, Mr. Whitehead alleges that his Fourth Amendment rights were violated “when [he] was arrested without a warrant, signed by a judge, and without an affidavit describing me, under color of State laws.” (ECF No. 6:2). But without more, the Court should find these allegations insufficient to state a Fourth Amendment claim. See McGregor v. City of Neodesha, Kansas, No. 22-10330EFM, 2022 WL 6728149, at *5 (D. Kan. Oct. 11, 2022) ("conclusory allegations that there was no probable cause for an arrest are insufficient to state a claim for false arrest under § 1983.”). Thus, the Court should dismiss Plaintiff's Fourth Amendment individual capacity claim against Officer Lowry based on false arrest.
Plaintiff also invokes the Fourteenth Amendment in his claim of false arrest. See ECF No. 6:4. But a claim of false arrest without a warrant implicates the Fourth Amendment. See Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir. 1995) (holding that an arrest by police officers without probable cause violates the Fourth Amendment's guarantee of security from unreasonable searches and seizures, giving rise to a claim for false arrest under § 1983).
Second, Plaintiff alleges that Defendant Lowry violated his Fifth Amendment rights by taking and destroying his personal property without a warrant or his permission. (ECF No. 6:4). Specifically, Mr. Whitehead states: "Officer Lowry took, and broke, my prescription eyeglasses and my phone unlawfully.” (ECF No. 6:4). The Court should dismiss this claim.
The Fifth Amendment Takings Clause provides that “private property [shall not] be taken for public use, without just compensation.” U.S. Const. amend. V. That clause is applicable to the States through the Fourteenth Amendment. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536 (2005). "A party challenging governmental action as an unconstitutional taking bears a substantial burden.” Pittsburg County Rural Water Dist. No. 7 v. City of McAlester, 358 F.3d 694, 718 (10th Cir. 2004) (quotation omitted). Here, Mr. Whitehead alleges a violation of the Takings Clause based on the confiscation of his personal property. See supra. But Plaintiff does not allege that his property was taken for any type of "public use.” See ECF No. 1. Thus, the Court should: (1) conclude that Mr. Whitehead has failed to state a claim under the Fifth Amendment and (2) dismiss this claim against Defendant Lowry.
Third, Mr. Whitehead alleges that Officer Lowry used excessive force against him during his arrest which involved him being "unlawfully beaten by a lethal weapon.” (ECF No. 6:4). Plaintiff does not describe the circumstances of the arrest or at what point during the arrest the lethal force was allegedly used. Mr. Whitehead cites the Eighth Amendment for this claim, but it is instead governed by the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 394 (1989) ("Where, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment[.]”).
“To state a claim of excessive force under the Fourth Amendment, a plaintiff must show both that a seizure occurred and that the seizure was unreasonable.” Bela v. Chamberlain, 24 F.3d 1251, 1255 (10th Cir. 1994) (quotation omitted). "[W]ithout a seizure, there can be no claim for excessive use of force.” Jones v. Norton, 809 F.3d 564, 575 (10th Cir. 2015). Here, Plaintiff has alleged that Officer Lowry beat him with a lethal weapon to force his compliance with the arrest. See supra. Based on these allegations, the Court should conclude Mr. Whitehead has stated a claim for excessive force under the Fourth Amendment, against Defendant Lowry, in his individual capacity, limited to the recovery of monetary damages.
VII. PLAINTIFF'S REMAINING STATE CLAIMS
With the foregoing recommendations, what remains is Plaintiff's state law claim against Defendant Lowry for false imprisonment. For this claim, Plaintiff alleges "I have been unlawfuly [sic] imprisoned because of Officer Lowry's unlawfull [sic] actions since May 17th 2023.” (ECF No. 6:4). Under Oklahoma law, false imprisonment is described as "purely a matter between private persons for a private end, [with] no intention of bringing the person detained before a court, or of otherwise securing the administration of the law.” Delong v. State ex rel. Okla. Dept of Pub Safet, 956 P.2d 937, 938 (Okla. 1998) (internal quotation marks omitted). Because Defendant Lowry, as a police officer, was acting under authority of law at the time of Plaintiff's arrest, Mr. Whitehead cannot bring a cause of action against this Defendant. As a result, the Court should dismiss Plaintiff's state law claim for false imprisonment. See Meadows v. City of Oklahoma City, No. CIV-17-226-G, 2019 WL 1430000, at *7 (W.D. Okla. Mar. 29, 2019) (dismissing a state law claim for false imprisonment against police officer).
VIII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
The Court should: (1) dismiss Plaintiff's requests for declaratory and injunctive relief; (2) dismiss Plaintiff's conspiracy claim; (3) dismiss the official capacity claims for monetary damages against both Defendants; (4) dismiss the individual capacity claims for monetary damages against Defendant Marsee; (5) dismiss the Fourth Amendment individual capacity claim against Officer Lowry based on false arrest; (6) dismiss the Fifth Amendment individual capacity claim against Defendant Lowry; (7) dismiss the state law claim for false imprisonment against Defendant Lowry; and (8) conclude that Mr. Whitehead has stated a claim for excessive force under the Fourth Amendment, against Defendant Lowry, in his individual capacity, limited to the recovery of monetary damages.
In addition, on March 27, 2024, two (2) summonses were issued and mailed to Plaintiff. See ECF No. 14. Any adoption of this recommendation would affect the necessity for service on any remaining or terminated Defendants. Should service be executed during the pendency of this recommendation, any Defendant dismissed following a ruling would not be required to file an answer.
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 May 28, 2024. 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).
XI. STATUS OF THE REFERRAL
This Report and Recommendation does not terminate the referral to the undersigned magistrate judge in the captioned matter.