Opinion
CIV-22-370-PRW
07-01-2022
DEMETRIOUS SCOTT NERO, Plaintiff, v. STATE OF OKLAHOMA, Defendant.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Plaintiff Demetrious Scott Nero, a state prisoner appearing pro se and in forma pauperis, brings this action under 28 U.S.C. § 2201, seeking a declaratory judgment regarding the retention of his civil rights. (ECF No. 1). United States District Judge Patrick R. Wyrick 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) and 28 U.S.C. § 1915(e)(2)(B). Based on that review, the Court should DISMISS the Complaint, without prejudice.
I. SCREENING REQUIREMENT
The Court must review each complaint in which a prisoner seeks redress against a governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). The Court likewise must review each case brought by a prisoner in which the plaintiff proceeds in forma pauperis. 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 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). Since Plaintiff 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).
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).
III. PLAINTIFF'S ALLEGATIONS AND NAMED DEFENDANT
Mr. Nero is an inmate in the custody of the Department of Corrections at the Lawton Correctional Facility. Plaintiff has filed a civil rights lawsuit, arguing jurisdiction under the Declaratory Judgment Act pursuant to 28 U.S.C. § 2201. See ECF No. 1. Mr. Nero argues that the sole Defendant, the State of Oklahoma, has violated the 14th Amendment's prohibition against “maki[ing] or enforcing] any law which shall abridge the privileges or immunities of the citizens of the United States” by enacting 21 O.S. § 65 which suspends the civil rights of “all persons sentenced to the Department of Corrections.” (ECF No. 1:7-8). Plaintiff seeks both monetary damages and declaratory relief.
IV. DISMISSAL OF THE COMPLAINT
The Court should: (1) conclude that the Eleventh Amendment bars any lawsuit against the State of Oklahoma and (2) dismiss any related claims.
Pursuant to the doctrine of sovereign immunity, as adopted in the Eleventh Amendment, a federal court may not hear a claim brought by a private citizen against a U.S. state unless the state consents to suit or Congress unequivocally abrogates the state's immunity. U.S. Const. amend. XI; see Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54-55 (1996). The State of Oklahoma has not waived Eleventh Amendment immunity against § 1983 claims in federal court. See Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006). Nor has Congress abrogated state immunity in any way pertinent to Plaintiff's § 1983 claims. See, e.g., Quern v. Jordan, 440 U.S. 332, 342, 345 (1979).
Eleventh Amendment immunity extends to the states, state officials, and to those governmental entities that are considered “an arm of the state.” See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977); Ambus v. Granite Board ofEducation, 995 F.2d 992, 994 (10th Cir. 1993). Accordingly, the State of Oklahoma is protected by Eleventh Amendment immunity and the Court should dismiss any such claim against the State, without prejudice, for failure to state a claim upon which relief may be granted. See Large v. Oklahoma, 578 Fed.Appx. 752, 753 (10th Cir. 2014) (affirming district court's dismissal, without prejudice, of 1983 claims against the State of Oklahoma based on Eleventh Amendment immunity).
V. RECOMMENDATION
Upon preliminary review of Plaintiff's claims, the Court should dismiss the Complaint in its entirety, without prejudice. Adoption of this recommendation will render Plaintiff's Motions (ECF Nos. 11 and 12) Moot.
VI. NOTICE OF RIGHT TO OBJECT
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 June 24, 2022. 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 disposes of all issues and terminates the referral to the undersigned magistrate judge in the captioned matter.