Opinion
CIV-21-266-SLP
07-16-2021
ROCKY W. MITCHELL,, Plaintiff, v. STEPHENS COUNTY, et al.,, Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE.
Plaintiff, a pro se pretrial detainee housed at the Stephens County Jail, filed a complaint under 42 U.S.C. § 1983. Doc. 1. United States District Judge Scott L. Palk has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B) and (C). Doc. 6. Plaintiff brings three claims related to malicious prosecution and excessive bail under 42 U.S.C. § 1983 and Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968. Docs. 1, 9. Plaintiff seeks monetary and equitable relief and names all Defendants in their individual and official capacities. Id. The undersigned recommends the Court dismiss Plaintiff’s amended complaint in its entirety.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
Plaintiff stated two claims in his original complaint, Doc. 1, then sought to amend his complaint to add another related claim, Docs. 9, 10. He also filed a Motion for Order seeking to increase the monetary damages sought against each Defendant. Doc. 8. Because Plaintiff may amend his complaint “as a matter of course” under Fed. R. Civ. P. 15(a)(1), the undersigned will evaluate the related claim, Doc. 9. But given the undersigned’s recommendation that the Court dismiss the substance of Plaintiff’s claims, his Motion for Order to increase monetary damages is moot. See Doc. 8.
I. Screening.
Federal law requires the Court to screen complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss the complaint, or any portion of the complaint, if it is “frivolous, malicious, or fails to state a claim upon which relief may be granted” or seeks monetary relief from a defendant who is immune from such relief. Id. §§ 1915A(b), 1915(e)(2)(B).
“To state a claim under § 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 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).
This Court construes “[a] pro se litigant’s pleadings . . . liberally,” holding them “to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). 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).
II. Malicious prosecution claims.
Plaintiff brings two related claims for malicious prosecution. See Docs. 1, 9. First, Plaintiff claims to have faced “elevated charges” brought in “retaliation” for “being found not guilty last year in a jury trial case.” Doc. 1, at 8. Relevant here, Stephens County prosecutors charged Plaintiff with one count of abuse by a caretaker and one count of aggravated assault and battery. SeeStatev.Mitchell, Case No. CF-2021-43, https://www.oscn.net/dockets/GetCaseInformation.aspx?db'stephensνmbe r=CF-2021-00043&cmid=11060 (last visited July 12, 2021) (Mitchell).
The undersigned takes judicial notice of the docket report in Plaintiff’s state-court proceeding. 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 argues he was charged “even though there was no ev[i]dence of an assault or bodily harm or physical injur[y].” Id. at 7-8. Plaintiff argues he has “never been a caretaker nor assault[ed] [his] father,” he “did not hit [his] mother,” and neither his mother nor his father wanted to press charges but “the state picked up the charges anyway.” Id.
Plaintiff amended his complaint and added a second malicious prosecution claim. Doc. 9. This claim involved Plaintiff’s Motion to Dismiss for Lack of Jurisdiction in his state criminal case following the Supreme Court’s decision in McGirt v. Oklahoma, 140 S.Ct. 2452 (2020). When Plaintiff filed the motion in state court, “[t]he only objection was from D.A. Jason Hicks who stated he and his office needed to v[e]rify [Plaintiff’s] tribal membership.” Doc. 9, at 3. Plaintiff argues “this is a tactic of stalling and stonewalling my right to [due] process and delay[ing] my release from custody.” Id. Plaintiff further speculates that the delay might be in service of “personal vendet[t]as [and] prejudices.” Id. Plaintiff filed the Motion to Dismiss for Lack of Jurisdiction on April 9, 2021, then filed a Motion for Order in this Court five days later, requesting to bring an additional claim that Defendants were “maliciously prosecuting [him] and wrongfully keeping [him] incarcerated.” Id. at 1-2. Although Plaintiff requested to add this additional claim only five days after filing his Motion to Dismiss in state court, Plaintiff argues it should have taken “at the most 1 to 2 days to v[e]rify” his tribal membership. Id. at 3. The Stephens County Court granted Plaintiff’s Motion to Dismiss on May 28, 2021, finding that “at the time [Plaintiff] committed the charged acts, [he] was an enrolled, and active, member of a federally recognized tribe” and that “the State of Oklahoma is without jurisdiction to further pursue the prosecution of [Plaintiff].” Mitchell, Docket Entry Dated May 28, 2021 (Order of Dismissal).
A. Plaintiff’s first malicious prosecution allegation fails to state a claim.
To state a claim for malicious prosecution, Plaintiff must allege that the original action terminated in his favor. See Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008) (“Under our cases, a § 1983 malicious prosecution claim 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.”). Plaintiff “must show more than just the withdrawal or vacating of criminal charges.” M.G. v. Young, 826 F.3d 1259, 1262 (10th Cir. 2016). Plaintiff “cannot maintain a malicious prosecution action unless his charges were dismissed in a manner indicative of innocence, even when he was entitled to dismissal on statutory or constitutional grounds.” See Cordova v. City of Albuquerque, 816 F.3d 645, 653 (10th Cir. 2016). So, dismissal “on technical grounds having little or no relation to the accused’s guilt” does not suffice. M.G., 826 F.3d at 1262.
When Plaintiff filed this action, the underlying criminal charges against him were still pending. See generally Mitchell. Since then, the Stephens County court dismissed the charges, but not for reasons “indicative of innocence.” See Cordova, 816 F.3d at 653. Instead, the case terminated when the Stephens County court granted Plaintiff’s motion to dismiss for lack of subject matter jurisdiction under McGirt. See Mitchell, Docket Entry Dated May 28, 2021 (Order of Dismissal). This disposition does not bear on Plaintiff’s guilt or innocence of the criminal charges underlying his malicious prosecution claim. See Bextel v. Bryner, 836 F. App’x 706, 710 (10th Cir. 2020) (“The weight of authority holds that a dismissal for lack of jurisdiction does not reflect on the merits.”) (collecting cases); Allen v. Town of Colcord, Okla., 874 F.Supp. 2d 1276, 1289-90 (N.D. Okla. 2012) (finding that where “part of Plaintiff’s argument for the unlawful arrest center[ed] on the town’s lack of jurisdiction,” the court could not “foreclose the notion that Plaintiff may still be subject to charges” in another court, and therefore Plaintiff had not sufficiently alleged the “termination of a prior criminal proceeding in favor of the accused,” as required for a § 1983 malicious prosecution claim); cf. Cordova, 816 F.3d at 654 (holding dismissal on speedy trial grounds “does not indicate [plaintiff’s] innocence, so it is not a favorable termination” and explaining that “[i]t cannot be the case that all dismissals that result from granted motions are favorable terminations for purposes of malicious prosecution actions”). So, Plaintiff’s allegations do not satisfy the elements of a malicious prosecution claim, and he has therefore failed to state a claim upon which relief may be granted. See 28 U.S.C. § 1915A(b).
B. Plaintiff’s McGirt-related malicious prosecution claim also fails to state a claim.
Plaintiff’s second claim for malicious prosecution involving his Motion to Dismiss for Lack of Jurisdiction under McGirt fails for the same reason. See Doc. 9. Plaintiff alleges Defendants were “maliciously prosecuting [him] and wrongfully keeping [him] incarcerated in Stephens County Jail.” Id. at 1. Specifically, Plaintiff alleges the district attorney’s office maliciously delayed investigation of his tribal membership as a way “of stalling and stonewalling my right to [due] process and delay[ing] my release from custody.” Id. at 3. As explained above, supra § II.A., although Plaintiff ultimately prevailed, a “dismissal for lack of jurisdiction does not reflect on the merits.” See Bextel, 836 F. App’x at 710.
Because Plaintiff has failed to state a claim upon which relief may be granted, see 28 U.S.C. § 1915A(b), the undersigned recommends the Court dismiss Plaintiff’s malicious prosecution claims.
III. Excessive bail claims.
Plaintiff claims he faces “maliciously elevated” charges that “should not carry such an unreasonable bond.” Doc. 1, at 13. Plaintiff argues $200,000.00 is “unreasonable” and “against [his] 8th Amendment rights.” Id. Plaintiff argues he is “not a violent person,” is not “a flight risk,” has “never had a failure to appear in court,” and has “never eluded or resisted arrest.” Id. Plaintiff names as defendants Stephens County Court, Judge Jerry Herburger, District Attorney Jason Hicks, and Assistant District Attorney Bobby Lewis. Id. at 9. Plaintiff names as well Assistant District Attorney Cortnie Seiss, who he alleges is a “co-conspirator with Bobby Lewis in malicious prosecution of cases” motivated by her father’s business as a bail bondsman, her mother’s position as “head of the drug court program,” and her “relative[’s] position as “the court clerk of Stephens County.” Id. at 13-14. Plaintiff alleges Defendants are participating in a “rack[e]teering operation”-“Judge Jerry Herburger works with the D.A.’s in the malicious prosecution, elevated charges and excessive bond amounts.” Id. at 14.
Plaintiff names all individual Defendants in their official and individual capacities. Id. at 5-6. Plaintiff seeks $75,000.00 in money damages, as well as injunctive relief in the form of “discipline for the individuals and entities involved in the Stephens County Justice System.” Id. at 15.
A. The Court must dismiss Plaintiff’s excessive bail claims for injunctive relief as moot.
Plaintiff’s claims for injunctive relief are now moot. When Plaintiff filed this claim he was still incarcerated, but he has since been released. See Mitchell, Docket Entry Dated June 1, 2021 (Order of Release).
“Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974). Thus, release from custody renders moot a prisoner’s bail-related claim for injunctive relief. See Collins v. Daniels, 916 F.3d 1302, 1314 (10th Cir.) (holding the plaintiff’s bail-related claim for injunctive relief was “now moot because she [was] no longer subject to pretrial supervision”), cert. denied, 140 S.Ct. 203 (2019), reh’g denied, 140 S.Ct. 567 (2019); Green v. Branson, 108 F.3d 1296, 1300 (10th Cir. 1997) (holding plaintiff’s claims for declaratory and injunctive relief were moot, “[s]ince he [was] no longer a prisoner” and “the entry of a declaratory judgment in [his] favor would amount to nothing more than a declaration that he was wronged, and would have no effect on the defendants’ behavior towards him”) (collecting cases).
Because Plaintiff has been released, he can no longer state a claim for injunctive relief based on the amount of his bail. The undersigned recommends dismissal of Plaintiff’s claims for injunctive relief for failure to state a claim under 28 U.S.C. § 1915A(b).
B. The Court must also dismiss Plaintiff’s excessive bail claims for money damages.
1. The Court must dismiss Plaintiff’s claims for money damages against Stephens County Court and Defendants in their official capacities under Monell v. Dep’t. of Soc. Servs., 436 U.S. 658 (1978).
A municipality or a county can only be held liable for constitutional violations committed pursuant to official policy or custom. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978) (“[I]t is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.”); Cox v. Glanz, 800 F.3d 1231, 1254 (10th Cir. 2015) (applying Monell to a county). A § 1983 suit against an employee in their official capacity is “another way of pleading an action against the county or municipality they represent.” Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010).
To state a § 1983 claim against a county or its employees in their official capacities, a plaintiff must identify “‘a government’s policy or custom’ that caused [him] injury.” See Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 769 (10th Cir. 2013) (quoting Monell, 436 U.S. at 691-92). “A challenged practice may be deemed an official policy or custom for § 1983 municipal-liability purposes if it is a formally promulgated policy, a well-settled custom or practice, a final decision by a municipal policymaker, or deliberately indifferent training or supervision.” Id. at 770. As well, a plaintiff must establish “a direct causal link between the policy or custom and the injury alleged,” Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006), and must also show “that the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury,” Schneider, 717 F.3d at 769. These requirements apply to claims for both monetary and injunctive relief. See Fuerschbach v. Sw. Airlines Co., 439 F.3d 1197, 1210 (10th Cir. 2006) (“[A] municipality can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where ‘the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.’”).
Plaintiff alleges his bond was set at an “unreasonable” amount due to a conspiracy among Defendant Judge Herburger and several Defendant district attorneys, including Defendant Cortnie Seiss, whom Plaintiff alleges has a personal stake in elevated bail due to her father’s bail bond business. Doc. 1, at 13-14. However, to satisfy Monell’s policy-or-custom requirement, Plaintiff must allege his bail was set excessively high pursuant to “a formally promulgated policy, a well-settled custom or practice, a final decision by a municipal policymaker, or deliberately indifferent training or supervision.” Schneider, 717 F.3d at 770.
Plaintiff has not made such an allegation. Instead, he describes an alleged conspiracy among one judge, a district attorney, and several assistant district attorneys. He does not allege that these Defendants were trained to set bail excessively high, or that any supervisor is even aware of the alleged conspiracy. Indeed, he alleges Defendant Cortnie Seiss is participating in the conspiracy to benefit her father’s bail bond business-a motivation unrelated to any official policy or custom.
Because Plaintiff has not alleged his bail was excessively high due to an official policy or custom, see Monell, 436 U.S. at 691-92, the undersigned recommends dismissal of Plaintiff’s official-capacity claims for money damages for failure to state a claim under 28 U.S.C. § 1915A(b).
2. The Court must dismiss Plaintiff’s claims for money damages against Defendants in their individual capacities because Defendants are absolutely immune from suit.
Plaintiff also brings claims against Judge Jerry Herburger, Assistant District Attorney Bobby Lewis, District Attorney Jason Hicks, and Assistant District Attorney Cortnie Seiss in their individual capacities, Doc. 1, at 9, 13-14, seeking monetary damages and equitable relief in the form of “discipline,” id. at 15.
“[J]udges are generally immune from suits for money damages.” Stein v. Disciplinary Bd. of Supreme Ct. of N.M., 520 F.3d 1183, 1195 (10th Cir. 2008) (citing Mireles v. Waco, 502 U.S. 9, 9-10 (1991)). “There are only two exceptions to this rule: (1) when the act is ‘not taken in [the judge’s] judicial capacity,’ and (2) when the act, ‘though judicial in nature, [is] taken in the complete absence of all jurisdiction.’” Id. (alterations in original) (quoting Mireles, 502 U.S. at 12). But unless one of these exceptions applies, “[a] judge will not be deprived of immunity because the action he took was in error, [or] was done maliciously . . . .” Stump v. Sparkman, 435 U.S. 349, 356 (1978). “The ‘judicial acts’ for which judges enjoy immunity include all functions normally performed by a judge when the parties deal with the judge in [their] judicial capacity.” Bradley v. Gray, 78 F. App’x. 84, 85 (10th Cir. 2003) (quoting Stump, 435 U.S. at 362). Under Oklahoma law, these functions include setting a criminal defendant’s bail. Hicks v. Blythe, 1997 WL 8844, at *2-3 (10th Cir. Jan 9, 1997).
Because Defendant Herburger was acting in his judicial capacity when he set Plaintiff’s bail, and not in the absence of all jurisdiction, he is immune from Plaintiff’s excessive bail claim. See Sawyer v. Gorman, 317 F. App’x 725, 727-28 (10th Cir. 2008) (Plaintiff’s allegations “challenging the imposition of a $25,000 bail . . . clearly implicate actions taken in the judges’ judicial capacity, and also not in the absence of all jurisdiction.”); Tucker v. Loftiss, No. CIV-14-1053-R, 2014 WL 7158282, at *2 (W.D. Okla. Dec. 15, 2014) (“Judge Kelly was acting in his judicial capacity, and within his judicial jurisdiction, when he signed Plaintiff’s arrest warrant and set his bail.”).
Similarly, “[p]rosecutors enjoy absolute immunity to liability under § 1983 for actions ‘within the scope of their prosecutorial duties.’” Gradle v. Oklahoma, 203 F. App’x 179, 182 (10th Cir. 2006) (quoting Arnold v. McClain, 926 F.2d 963, 966 (10th Cir. 1991)). “The common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges . . . .” Imbler, 424 U.S. at 422-23. This immunity extends to “initiating a prosecution and in presenting the State’s case.” Id. (quoting Imbler, 926 F.2d at 430). “This is so even if the prosecutor acted ‘with an improper state of mind or improper motive.’” Medina v. Weber, 531 F. App’x 902, 903 (10th Cir. 2013) (quoting Shmueli v. City of New York, 424 F.3d 231, 237 (2d Cir.2005)). So, like Defendants Judge Herburger, District Attorney Jason Hicks, Assistant District Attorneys Bobby Lewis and Cortnie Seiss are immune from suit under § 1983 for their alleged involvement in setting Plaintiff’s bail.
Even setting aside Defendants’ immunity, Plaintiff does not explain how each of these Defendants was involved in setting an excessively high bail. Plaintiff therefore has not pled “factual content” that would allow the Court “to draw the reasonable inference” that Defendants are “liable for the misconduct alleged.” See Ashcroft, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
Because Defendants are absolutely immune from suit for money damages, the undersigned recommends dismissal with prejudice of Plaintiff’s individual-capacity claims under 28 U.S.C. § 1915A(b). See Phan v. Babcock, 764 F. App’x 837, 838 (10th Cir. 2019) (holding that the district court had properly dismissed with prejudice the claims against two judges who were entitled to absolutely immunity from a civil rights suit); Glaser v. City & County of Denver, 557 F. App’x 689, 705-06 (10th Cir. 2014) (affirming the district court’s dismissal, “with prejudice,” of plaintiff’s § 1983 claims against state prosecutor for which the prosecutor had absolute immunity).
IV. Recommendation and notice of right to object.
Finding Plaintiff has failed to state a claim upon which relief may be granted, the undersigned recommends the Court dismiss Plaintiff’s amended complaint in its entirety.
The undersigned advises Plaintiff of his right to object to this Report and Recommendation by August 6, 2021, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises Plaintiff that failure to make timely objection waives his right to appellate review of both factual and legal issues contained herein. See 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 in the captioned matter.