Opinion
CIV-22-226-JD
10-31-2022
CHRIS RYAN MILLS, Plaintiff, v. JOSH TINSLEY, et al., Defendants.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner proceeding pro se and in forma pauperis (without prepayment of fees), has filed this action pursuant to 42 U.S.C. § 1983. (Doc. 1). The matter was referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 4). The undersigned has reviewed the Complaint (Doc. 1) pursuant to 28 U.S.C. § 1915A(a) and 28 U.S.C. § 1915(e)(2)(B). As explained fully below, it is recommended that the Court DISMISS Plaintiff's request for habeas relief; DISMISS Plaintiff's claims against Defendant Oklahoma Department of Public Safety, Defendant Oklahoma Highway Patrol, and Defendant Tinsley in his official capacity; and DISMISS Plaintiff's Fourth Amendment illegal search and seizure claim against Defendant Tinsley in his individual capacity. However, the undersigned recommends that the Court find Plaintiff has stated a Fourth Amendment claim for excessive force against Defendant Tinsley in his individual capacity.
I. The Court's Duty to Screen Prisoner Complaints
Federal law mandates the screening of each complaint in a civil action filed by a prisoner seeking redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or any portion of it 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. Id.
II. Standard of Review
The court's review of a complaint under § 1915A(b)(1) mirrors that required for reviewing a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. 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 (10th Cir. 2007). 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) (internal quotation marks and citation omitted). 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).” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (footnote and citation omitted). Bare legal conclusions in a complaint, however, 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).
“[A] pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (noting that although courts construe pro se pleadings liberally, courts “will not supply additional factual allegations to round out a plaintiff's complaint”). 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). “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, 935 F.2d at 1110. 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).
III. Overview of Complaint
Plaintiff was charged in Jackson County District Court on April 9, 2019, with Aggravated Assault and Battery on a Peace Officer (Count One); Possession of a Firearm After Conviction or During Probation (Count Two); Committing a Felony with a Firearm with Defaced ID Number (Count Three); Resisting an Officer (Count Four); and Trafficking in Illegal Drugs (Count Five). See Oklahoma State Courts Network, Case No. CF-2019-76, District Court of Jackson County.On October 30, 2020, Plaintiff was convicted by a jury and later sentenced to life imprisonment (Counts Two, Three, and Five), 30 years of imprisonment (Count One), and one year in the county jail (Count Four), with Counts One, Two, Three, and Five to run consecutively and Count Four to run concurrently. Id. Plaintiff is currently incarcerated at the Davis Correctional Center in Holdenville, Oklahoma. See Oklahoma Department of Corrections OK Offender, https://okoffender.doc.ok.gov/ (OK DOC# 702869).
https7/www.oscn.net/dockets/GetCaseInformation.aspx?db=jackson&number=CF2019-00076 (Docket Sheet) (last visited October 31,2022). The undersigned takes judicial notice of the docket sheet 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).
Liberally construing his Complaint, Plaintiff claims that he was subjected to violations of his Fourth Amendment rights by an illegal search and seizure and excessive force during the traffic stop that led to his eventual charges and conviction. (Doc. 1, at 24). Plaintiff claims that, on March 17, 2019, he was pulled over by Defendant Josh Tinsley, an Oklahoma Highway Patrol trooper, “for an undisclosed reason” and taken to the patrol car where Plaintiff sat in the front seat with Defendant Tinsley while Defendant Tinsley looked up information on his laptop. (Id. at 2). Plaintiff alleges that Defendant Tinsley then exited the patrol car, came to the passenger door, and ordered Plaintiff to “give [him] [his] hands.” (Id.) In response to Plaintiff's questions regarding the stop and arrest, Plaintiff alleges that Defendant Tinsley began choking Plaintiff, twice stated “I'm about to shoot you in this [expletive] car,” and fired three rounds at Plaintiff, “hitting [him] once in the abdomen, catastrophically.” (Id.) Plaintiff claims that Defendant Tinsley “did not follow[] protocol” and used “the unorthodox ‘in-car cuffing' technique” during the arrest. (Id. at 2-3). For relief, Plaintiff seeks immediate release from prison, total pardon and the expungement of his criminal record, and $10,000,000 in damages. (Id. at 6).
IV. Analysis
A. Plaintiff Cannot Seek Habeas Relief in a Section 1983 Action.
As a threshold matter, Plaintiff seeks as relief “[i]mmediate release from prison” and “total pardon [and] expungement of [his] criminal record” in addition to monetary damages. (Doc. 1, at 6). “[H]abeas corpus is the only avenue for a challenge to the fact or duration of confinement, at least when the remedy requested would result in the prisoner's immediate or speedier release from that confinement.” Boutwell v. Keating, 399 F.3d 1203, 1209 (10th Cir. 2005) (citing Preiser v. Rodriguez, 411 U.S. 475, 499 (1973)). Thus, to the extent Plaintiff seeks an invalidation of his convictions or his release from custody, this relief is not available in a 42 U.S.C. § 1983 action, and these claims should be dismissed without prejudice to refiling as a separate action under 28 U.S.C. § 2254, if appropriate.
B. The Eleventh Amendment Bars Suit Against Defendant Oklahoma Department of Public Safety, Defendant Oklahoma Highway Patrol, and Defendant Tinsley In His Official Capacity.
“The Eleventh Amendment bars suits in federal court against a nonconsenting state brought by the state's own citizens.” Williams v. Utah Dep't of Corrs., 928 F.3d 1209, 1212 (10th Cir. 2019). “This immunity extends to arms of the state and state officials who are sued for damages in their official capacity.” Id. Claims for damages against a state official in his official capacity are construed as claims against the State and, so, are barred by the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159, 169 (1985) (holding that a suit against an individual acting in an official capacity is properly treated as a suit against the State itself and “the Eleventh Amendment bars a damages action against a State in federal court”); see also White v. Colorado, 82 F.3d 364, 366 (10th Cir. 1996) (holding Eleventh Amendment sovereign immunity barred § 1983 claims “for money damages” against state prison officials in their official capacities).
There are three exceptions to Eleventh Amendment immunity: (1) “a state may consent to suit in federal court;” (2) “Congress may abrogate a state's sovereign immunity by appropriate legislation;” and (3) “the complaint alleges an ongoing violation of federal law and the plaintiff seeks prospective relief.” Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012). Oklahoma has not consented to be sued in federal court, and Congress has not abrogated state sovereign immunity by creating a private right of action under § 1983. Berry v. Oklahoma, 495 Fed.Appx. 920, 921-22 (10th Cir. 2012) (citing Okla. Stat. tit. 51, § 152.1). Indeed, neither States, nor arms of the State, nor state officials acting in their official capacities are considered “persons” subject to suit within the meaning of 42 U.S.C. § 1983. Will v. Mich. Dep't. of State Police, 491 U.S. 58, 71 (1989).
Plaintiff seeks monetary damages from Oklahoma Highway Patrolman Josh Tinsley, the Oklahoma Department of Public Safety (“DPS”), and the Oklahoma Highway Patrol (“OHP”). (Doc. 1, at 1-2). But “DPS is an arm of the State of Oklahoma,” and “OHP, as a DPS division, is also to be treated as an arm of the State.” Morris for Est. of Morris v. Humphrey, 2015 WL 13721530, at *1 (W.D. Okla. Jan. 21, 2015) (internal citation and quotation marks omitted); see also Derenak v. United States, 2016 WL 6068191, at *3 (N.D. Okla. Oct. 14, 2016) (holding that DPH and OPH are entitled to Eleventh Amendment immunity from § 1983 claim). Likewise, Defendant Tinsley, as a state official sued in his official capacity, falls under this immunity. See White, 82 F.3d at 366.
Thus, the Court should dismiss with prejudice Plaintiff's claims against Defendants Oklahoma Department of Safety and Oklahoma Highway Patrol, and the official capacity claim against Defendant Tinsley acting in his role as an Oklahoma highway patrolman.
C. Plaintiff's Illegal Search and Seizure Claim is Barred by Heck v. Humphrey; However, Plaintiff Has Stated a Claim for Excessive Force Against Defendant Tinsley in His Individual Capacity.
Plaintiff alleges that Defendant Tinsley “pulled [him] over without cause, held [him] for an unreasonable amount of time, then shot [him] using excessive force that was also unjustified causing catastrophic injury to [him].” (Doc. 1, at 4). Plaintiff also alleges that he “was followed for 10 miles, before being pulled over by [Defendant] Tinsley for an undisclosed reason.” (Id. at 2). Plaintiff describes his action as a “[r]ight to be free from illegal search and seizure.” (Id. at 4).
Plaintiff's Fourth Amendment claim for damages against Defendant Tinsley premised upon an allegedly illegal search and seizure is barred by Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that
in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.Id. at 486-87 (footnote omitted) (emphasis in original). “[T]he district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id. at 487. See also Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (“[A] state prisoner's § 1983 action is barred (absent prior invalidation) - no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings) - if success in that action would necessarily demonstrate the invalidity of the confinement or its duration.”). On the other hand, “if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.” Id. (footnotes omitted).
Plaintiff's allegations against Defendant Tinsley regarding an improper search and seizure, if successful, would necessarily imply the invalidity of Plaintiff's convictions because the challenged traffic stop led to Plaintiff's charges for Aggravated Assault and Battery on a Peace Officer, Possession of a Firearm After Conviction or During Probation, Committing a Felony with a Firearm with Defaced ID Number, Resisting an Officer, and Trafficking in Illegal Drugs. Because the convictions have not been invalidated, Heck applies to preclude the claim. See Esquibel v. Brian Williamson, 421 Fed.Appx. 813 (10th Cir. 2010) (holding that prisoner's § 1983 claims against police officers, alleging illegal search and seizure, if successful, would have necessarily implied invalidity of prisoner's previous conviction, and thus claims were barred by Heck, absent showing that prisoner's state convictions had been reversed, expunged, declared invalid, or called into question); Dunbar v. Hammans, No. CIV-20-595-F, 2021 WL 1521589, at *5 (W.D. Okla. Jan. 25, 2021) (holding that Heck barred wrongful seizure claim premised on a wrongful arrest for his criminal charges), report and recommendation adopted, No. CIV-20-0595-F, 2021 WL 1143781 (W.D. Okla. Mar. 25, 2021).
However, Plaintiff's excessive force claim against Defendant Tinsley, which appears to be the gravamen of his Complaint, is not barred by Heck. As a preliminary matter, the Court should conclude that this allegation is evaluated under the Fourth Amendment's reasonableness standard. See Graham v. Connor, 490 U.S. 386, 395 (1989). (“[A]ll claims that law enforcement officers have used excessive force - deadly or not - in the course of an arrest, investigatory stop, or other ‘seizure' of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness' standard, rather than under a ‘substantive due process' approach.”). 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.” Brower v. County of Inyo, 489 U.S. 593, 599 (1989); Childress v. City of Arapaho, 210 F.3d 1154, 1156 (10th Cir. 2000).
Under the Fourth Amendment reasonableness standard, an officer's use of force is analyzed with “careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. But in analyzing the surrounding facts and circumstances, courts must judge the officer's actions from the perspective of a reasonable officer on the scene, who is often forced to make split-second judgments about the amount of force that is necessary under the particular circumstances. Id. at 396-397.
Plaintiff has alleged that Defendant Tinsley fired three rounds at him, hitting him once in the abdomen, while Plaintiff was seated in the passenger seat of the patrol car with his hands up. (Doc. 1, at 2). Plaintiff alleges that Defendant Tinsley “attacked [him] suddenly, deliberately, and he was not provoked to do so.” (Id. at 3). The Court should conclude that these allegations state a claim for relief against Defendant Tinsley for excessive force under the Fourth Amendment. See Dunbar, 2021 WL 1521589, at *6 (holding that “Mr. Dunbar has alleged that Defendant Cedillo placed his knee on Plaintiff's neck, preventing him from breathing, after he had already been ‘laid out' on the ground, palms up, and tased several times. The Court should conclude that these allegations state a claim for relief against Defendant Cedillo for excessive force under the Fourth Amendment.”).
This excessive force claim against Defendant Tinsley is not barred by Heck v. Humphrey because success on the claim would not necessarily imply the invalidity of Plaintiff's convictions. Indeed, the question of whether Plaintiff's arrest was lawful is “a question separate and distinct” from the question of whether Defendant Tinsley utilized “excessive or unreasonable force in effectuating his arrest.” Martinez v. City of Albuquerque, 184 F.3d 1123, 1127 (10th Cir. 1999) (noting that while allegations challenging the validity of an arrest would be barred by Heck pending an invalidation of the arrest/conviction, allegations of excessive force were not barred by Heck; holding that “[a] finding that the police officers utilized excessive force to arrest Martinez would in no manner demonstrate the invalidity of Martinez' state court conviction for resisting arrest under these circumstances.”). See Dunbar, 2021 WL 1521589, at *6 n.4.
Thus, the undersigned finds that while Plaintiff's Fourth Amendment illegal search and seizure claim is barred by Heck, Plaintiff has successfully stated a Fourth Amendment excessive force claim against Defendant Tinsley in his individual capacity.
IV. Recommendation and Notice of Right to Object.
In accordance with the foregoing analysis, the undersigned recommends that the Court (1) DISMISS without prejudice Plaintiff's request for habeas relief; (2) DISMISS with prejudice Plaintiff's claims against Defendant Oklahoma Department of Public Safety, Defendant Oklahoma Highway Patrol, and Defendant Tinsley in his official capacity, as the claims seek monetary damages from Defendants who are immune from suit; (3) DISMISS Plaintiff's Fourth Amendment claim against Defendant Tinsley in his individual capacity for illegal search and seizure pursuant to Heck v. Humphrey, 512 U.S. 477 (1994); and (4) find that Plaintiff has stated a Fourth Amendment excessive force claim against Defendant Tinsley in his individual capacity.
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before November 21, 2022, 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).
ENTERED this 31st day of October, 2022.