Opinion
CIV-21-265-SLP
06-24-2021
ROCKY W. MITCHELL, Plaintiff, v. STEPHENS COUNTY, et al., Defendants.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Plaintiff Rocky W. Mitchell, a pretrial detainee, appearing pro se, and in forma pauperis, has filed an Amended Complaint under 42 U.S.C. § 1983. (ECF No. 9). United States District Judge Scott L. Palk 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 the claims of malicious prosecution against Defendants Hicks, Lewis, Herberger, Graham, and Stephens County; (2) conclude that Plaintiff has stated a claim for malicious prosecution against Defendant Eades; and (3) dismiss the claims of excessive bond against Defendants Hicks, Lewis, Herberger, Graham, and Stephens County.
Plaintiff has also invoked jurisdiction under “Rackateering [sic] Influenced Corupt [sic] Organization ‘CIV-21-7-SLP' police corruption and haressement [sic].” (ECF No. 9:3). But the Court need not consider these additional bases for jurisdiction because Mr. Mitchell has not explained them, nor alleged any factual basis in support thereof, and a civil case in this Court for “CIV-21-7-SLP” does not exist.
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)).
In addition, the court has an ongoing duty to review its jurisdiction and may examine the matter sua sponte. See Image Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006) ('“Federal courts 'have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party,' and thus a court may sua sponte raise the question of whether there is subject matter jurisdiction 'at any stage in the litigation.' ”) (citation omitted)).
II. STANDARD OF REVIEW
The Court must accept Mr. Mitchell'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. Mitchell 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. BACKGROUND AND PLAINTIFF'S AMENDED COMPLAINT
On June 5, 2019, in Stephens County District Court Case CF-2019-116, Plaintiff was charged with making a telephone bomb threat after two or more felony convictions. See ECF No. 9-1:1; Information, State of Oklahoma v. Mitchell, Case No. CF-2019-116 (Stephens Co. Dist. Ct. June 5, 2019). According to Mr. Mitchell, the charges were brought as the result of a vindictive personal relationship between himself and a Duncan police officer. (ECF No. 9-1:1-2). On February 12, 2020, following a jury trial, Mr. Mitchell was found not guilty. See Verdict, State of Oklahoma v. Mitchell, Case No. CF-2019-116 (Stephens Co. Dist. Ct. Feb. 12, 2020).
The Court may take judicial notice of Plaintiff's state court case. See St. Louis Baptist Temple, 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.”).
On May 27, 2021, Plaintiff filed an Amended Complaint in this Court under 42 U.S.C. § 1983 alleging two Claims: (1) malicious prosecution and (2) excessive bond. (ECF No. 9-1:1-5). As Defendants, Mr. Mitchell names: (1) Jerry Herberger, Stephens County District Court Judge; (2) Ken Graham, Stephens County District Court Judge; (3) Jason Hicks, Stephens County District Attorney; (4) Bobby Lewis, Stephens County Assistant District Attorney; (5) Michael Eades, Lieutenant at the Duncan Police Department; and (6) Stephens County, Oklahoma. (ECF Nos. 9:5-8; 9-1:1, 4). Plaintiff sues each Defendant in both their individual and official capacities and seeks monetary damages only. (ECF Nos. 9:5, 6, 8, 9; 9-1:1, 3, 4, 6).
IV. CLAIM ONE
In Claim One, Plaintiff alleges a claim of malicious prosecution against all Defendants. See supra. The Tenth Circuit Court of Appeals has held that a claim of malicious prosecution may be asserted under Section 1983 and includes the following 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 original arrest, continued confinement, or prosecution; (4) the defendant acted with malice; and (5) the plaintiff sustained damages. Sanchez v. Hartley, 810 F.3d 750 754, n.1 (10th Cir. 2016).
In support of his claim of malicious prosecution, Plaintiff states that he telephoned the Duncan Police Department (DPD) in an attempt to file a complaint against a police officer and in doing so, spoke to Lt. Eades. (ECF No. 9-1:2). According to Mr. Mitchell, Lt. Eades “twisted and distorted [Plaintiff's] words and . . . said [Plaintiff] threatened to throw a grenade into the Stephens County Courthouse.” (ECF No. 9-1:2). Mr. Mitchell also states that:
• “D.A. Jason Hicks and ADA Bobby Lewis used officer Lt. Eades' false statement to maliciously prosecute [him]” and
• “Judge [Jerry] Herberger and Judge [Ken] Graham allowed this malicious prosecution to take place knowing that it was a bogus charge.”(ECF No. 9-1:2).
Plaintiff also alleges that Defendants Hicks and Lewis used Lt. Eades' statement to “confine [him] for 9 months.” (ECF No. 9-1:2). Mr. Mitchell has not indicated that he is alleging a false imprisonment claim under Oklahoma state law, but instead has invoked this Court's jurisdiction under 42 U.S.C. § 1983. See ECF No. 9:3; see supra. Section 1983 creates a “species of tort liability” that provides relief to persons deprived of rights secured to them by the Constitution. Carey v. Piphus, 435 U.S. 247, 253 (1978) (quotations omitted). The Tenth Circuit Court of Appeals has held that “[unreasonable seizures imposed without legal process precipitate Fourth Amendment false imprisonment claims [and] [unreasonable seizures imposed with legal process precipitate Fourth Amendment malicious-prosecution claims.” Margheim v. Bujko, 855 F.3d 1077, 1085 (10th Cir. 2017). Here, Mr. Mitchell was detained following the issuance of a felony warrant. See State of Oklahoma v. Mitchell, Case No. CF-2019-116 (Stephens Co. Dist. Ct.). Thus, the Court should conclude that Mr. Mitchell's allegations assert a claim of malicious prosecution under the Fourth Amendment, rather than false imprisonment, despite the claim that he was “confine[d].”
A. Defendants Hicks and Lewis
“State prosecutors are entitled to absolute immunity against suits brought pursuant to § 1983 for activities intimately associated with the judicial process, such as initiating and pursuing criminal prosecutions.” Gagan v. Norton, 35 F.3d 1473, 1475 (10th Cir. 1994) (emphasis, ellipsis, and internal quotation marks omitted). They enjoy such immunity even if it leaves “the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty.” Imbler v. Pachtman, 424 U.S. 409, 427 (1976).
Here, the only allegations against District Attorney Hicks and Assistant District Attorney Lewis in support of the malicious prosecution claim are that they “used officer Lt. Eades' false statement to maliciously prosecute [Plaintiff].” (ECF No. 9-1:2). “To the extent Plaintiff[] claim[s] that [the] prosecutor . . . violated [his] constitutional rights by presenting an allegedly false affidavit sworn to by someone else, [the prosecutor] enjoys absolute prosecutorial immunity from that claim.” Carbajal v. McCann, 808 Fed.Appx. 620, 632, n. 4 (10th Cir. 2020); See, e.g., Imbler, 424 U.S. at 413-17, 431 (affirming application of prosecutorial immunity where the prosecutor knowingly used perjured testimony). Thus, under the doctrine of absolute immunity, the Court should dismiss the malicious prosecution claims asserted against Defendants Hicks and Lewis in their individual capacities. See Powell v. Miller, 2013 WL 160790, at *2 (W.D. Okla. Jan. 14, 2013) (dismissing individual capacity claims against prosecutor based on the doctrine of prosecutorial immunity); Sawyer v. Gorman, 317 Fed.Appx. 725, 726-28 (10th Cir. 2008) (affirming sua sponte dismissal of claims against prosecutor under theory of absolute immunity under 28 U.S.C. § 1915(e)(2)(B)(iii)). The Court should also dismiss the official capacity claims against Defendants Hicks and Lewis on grounds of Eleventh Amendment immunity.
A court may, in its discretion, raise the issue of Eleventh Amendment immunity sua sponte. See Nelson v. Geringer, 295 F.3d 1082, 1098 n. 16 (10th Cir.2002) ('“[T]he [Supreme] Court has stated that judicial consideration of Eleventh Amendment issues sua sponte is discretionary, not mandatory.”). The Eleventh Amendment bars suit in federal court against a state. See Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 363 (2001). When a state official is named as a defendant, the Eleventh Amendment continues to bar the action "if the state is the real, substantial party in interest.” Frazier v. Simmons, 254 F.3d 1247, 1253 (10th Cir. 2001). Because Defendant Hicks and Lewis were state prosecutors, they would be considered officers of the state. See Arnold v. McClain, 926 F.2d 963, 966 (10th Cir. 1991) (holding that the Eleventh Amendment barred suit against the district attorney in his official capacity); Laidiey v. McClain, 914 F.2d 1386, 1392 (10th Cir. 1990) (concluding that the Eleventh Amendment prohibited a federal claim against an Oklahoma district attorney in his official capacity). As a result, the Court should sua sponte dismiss the official capacity claims against Defendants Hicks and Lewis as barred by the Eleventh Amendment. See Clay v. Smith, 2008 WL 3927124, at *7 (W.D. Okla. Aug. 26, 2008).
B. Defendants Herberger and Graham
Mr. Mitchell seeks monetary damages against Defendants Herberger and Graham based on allegations that the Defendants “allowed th[e] malicious prosecution to take place knowing that it was a bogus charge.” (ECF No. 9-1:2).
The doctrine of judicial immunity holds that “[a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather he will be subject to liability only when he has acted in the clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (citations and quotations omitted). However, the Supreme Court has clearly stated that judicial immunity applies only to claims asserted against Defendants in their personal capacities. See Kentucky v. Graham, 473 U.S. 159, 166-67 (1985) ("When it comes to defenses of liability, an official in a personal-capacity action may . . . be able to assert personal immunity defenses . . . . In an official-capacity action, these defenses are unavailable.”); see Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1156 (10th Cir. 2011) ("Judicial immunity applies only to personal capacity claims”). As a result, to the extent the malicious prosecution claim is asserted against Defendants Herberger and Graham in their individual capacities, the Court should find that they are immune from suit and dismiss the claims. See Sawyer v. Gorman, 317 Fed.Appx. at 726-28 (affirming sua sponte dismissal of claims against judges under theory of judicial immunity under 28 U.S.C. § 1915(e)(2)(B)(iii)).
To the extent that Plaintiff seeks monetary damages for malicious prosecution against Defendants Herberger and Graham in their official capacities, the Court should dismiss these claims on the grounds of Eleventh Amendment immunity. The Supreme Court has stated:
[A]bsent waiver by the State or valid congressional override, the Eleventh Amendment bars a damages action against a State in federal court. This bar remains in effect when State officials are sued for damages in their official capacity. That is so because ... a judgment against a public servant in his official capacity imposes liability on the entity that he represents.Graham, 473 U.S. at 169 (citations and quotations omitted). Because a claim for damages against Defendants Herberger and Graham in their official capacities are in reality claims against the state itself, the Court should conclude that it is precluded by the Eleventh Amendment.
C. Defendant Eades
Plaintiff alleges that DPD Lt. Eades falsely claimed that Plaintiff had “threatened to throw a grenade into the Stephens County Courthouse” which resulted in a felony charge being brought against him. See supra; ECF No. 9-1:2.
As stated, the essential elements of a malicious prosecution claim under Section 1983 are: (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 original arrest, continued confinement, or prosecution; (4) the defendant acted with malice; and (5) the plaintiff sustained damages.” Sanchez v. Hartley, 810 F.3d 750 754, n.1 (10th Cir. 2016). Here, the Court should conclude that Mr. Mitchell has adequately pled each of these elements to state a claim against Defendant Eades.
First, Plaintiff alleges that it was Defendant Eades' false statement which formed the basis of the criminal charge against him. See ECF No. 9-1:2. Second, Plaintiff's jury acquittal on the criminal charge is considered a “favorable termination” for purposes of a malicious prosecution claim. See Robinson v. Maruff, 895 F.2d 649, 654-55 (10th Cir. 1990). Third, Plaintiff alleges that it was Lt. Eades' statement which formed the basis of the malicious prosecution. See supra. Indeed, the state court record shows that the finding of probable cause to sustain the criminal charge against Plaintiff was based on an affidavit from Lt. Eades, which Plaintiff alleges contained false statements. See Affidavit, State of Oklahoma v. Mitchell, Case No. CF-2019-116 (Stephens Co. Dist. Ct. June 5, 2019); see also ECF No. 9-1:2. Fourth, Plaintiff alleges that Defendant Eades acted with malice. See ECF No. 9-1:2 (Mr. Mitchell's statement that Lt. Eades made false statements against Plaintiff “to be vendictive [sic] and punish [him]” because he, Plaintiff, had called the DPD to complain about another police officer.). Finally, Plaintiff alleges damages in the form of: being incarcerated, financial debt, the loss of his job and vehicle, and damage to his reputation. (ECF No. 9-1:3). Based on these allegations, the Court should conclude that Mr. Mitchell has adequately stated a claim against Defendant Eades for malicious prosecution under the Fourth Amendment.
D. Defendant Stephens County
As a Defendant to the malicious prosecution claim, Plaintiff also names Stephens County, Oklahoma. See supra. It is well-established that a county may be liable on a § 1983 claim only when a plaintiff is deprived of his constitutional rights pursuant to a policy or custom of the county. See Monell v. Dept of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). A county cannot “be held liable solely because it employs a tortfeasor- or, in other words, [it] cannot be held liable under § 1983 on a respondeat superior theory.” Id. at 691. A plaintiff claiming violation of constitutional rights by a county must demonstrate (1) the existence of a policy or custom by which he was denied a constitutional right and (2) that the policy or custom was the moving force behind the constitutional deprivation -- that “there is a direct causal link between the policy or custom and the injury alleged.” Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010). Here, two problems exist with Plaintiff's claim against Stephens County.
First, the remaining Defendant on the malicious prosecution claim is Defendant Eades, whom Plaintiff alleges is employed by the City of Duncan, Oklahoma police department. See supra; ECF No. 9:6. As an employee of the City of Duncan, Oklahoma, Stephens County could not be liable for any action taken by Lt. Eades, even if Mr. Mitchell had alleged a county policy violation. Second, Mr. Mitchell has not alleged that Defendant Eades, or any Defendant, had acted pursuant to a county policy. See ECF No. 9. As a result, the Court should dismiss, without prejudice, the malicious prosecution claim against Stephens County.
V. EXCESSIVE BOND
In Claim Two, Plaintiff complains that the bond initially set in his criminal case was excessive. (ECF No. 9-1:4-5). Although Plaintiff has named Defendants Hicks, Lewis, Herberger, Graham, and Stephens County, Oklahoma; Mr. Mitchell has only alleged specific action by Defendants Herberger and Graham. See ECF No. 9-1:4 ('“Judge Jerry Herburger and Judge Ken Graham held me on and set me an unreasonably high bond of $500, 000.00.”). As a result, the Court should dismiss Claim Two as it relates to Defendants Hicks and Lewis. In addition, based on Plaintiff's failure to allege a violation of county policy, the Court should also dismiss Claim Two as asserted against Stephens County.
“The Eighth Amendment's prohibition against excessive bail is the foundation of a bail system which, by conditioning release on the offer of financial security, seeks to reconcile the defendant's interest in, and society's commitment to, pretrial liberty with the need to assure the defendant's presence at trial.” Meechaicum v. Fountain, 696 F.2d 790, 791 (10th Cir. 1983) (internal quotation marks and citation omitted). “Bail is excessive when set at an amount higher than necessary to insure the appearance of the accused at trial.” Id. “[S]tate statutes restricting bail must be rational, reasonable, and nondiscriminatory.” Id. at 792.
What remains are Plaintiff's claims for excessive bond asserted against Defendants Herberger and Graham. Because the setting of bond is an action taken in a judge's judicial capacity, the Court should dismiss the personal capacity claims against these Defendants under the doctrine of judicial immunity, as discussed above. See supra; see Gonzalez v. Stephens County D.A. Ofce, 2017 WL 4769074, at *2 (W.D. Okla. Sept. 13, 2017) ('“Defendant Judge Herberger is entitled to absolute judicial immunity for any acts taken by him in relation to setting the amount of Plaintiff's bond.”). And the Court should dismiss the official capacity claims, seeking monetary damages only, on the basis of Eleventh Amendment immunity. See supra.
VI. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
The Court should: (1) dismiss the claims of malicious prosecution against Defendants Hicks, Lewis, Herberger, Graham, and Stephens County; (2) conclude that Plaintiff has stated a claim for malicious prosecution against Defendant Eades; and (3) dismiss the claims of excessive bond against Defendants Hicks, Lewis, Herberger, Graham, and Stephens County.
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 July 12, 2021. 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).
VII. STATUS OF THE REFERRAL
This Report and Recommendation does not terminate the referral to the undersigned magistrate judge in the captioned matter.