Opinion
CIV-20-1291-R
08-24-2021
DEDRICK LEMONT HICKEY, Plaintiff, v. OKLAHOMA COUNTY DETENTION CENTER, et. al., Defendants.
REPORT AND RECOMMENDATION
GARY M.PURCELL UNITED STATES MAGISTRATE JUDGE
Plaintiff, appearing pro se and in forma pauperis, initiated this lawsuit pursuant to 42 U.S.C. § 1983. Before the Court is Defendants' Motion to Dismiss, Doc. No. 24, to which Plaintiff has filed a Response. Doc. No. 30. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Motion to Dismiss be denied.
As an initial matter, Defendants did not file a brief in support of their request for dismissal, neither within their Motion or separately. Pursuant to LCvR 7.1(k), unless otherwise directed by the Court, all motions, with certain listed exceptions that do not include motions to dismiss, shall be accompanied by a brief in support of the same.
Additionally, regardless of Local Civil Rule requirements, in considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), all well-pleaded factual allegations in the complaint are construed in the light most favorable to the plaintiff. Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011); Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005). Liberally construing Plaintiff's Complaint, he has asserted due process claims against Defendants alleging that in November 2020, when he was placed in the Special Housing Unit, Oklahoma County Detention Center officials confiscated and threw away his personal property, including but not limited to his legal mail. See generally Doc. No. 1.
Defendants' Motion to Dismiss does not include any argument or citation to legal authority to support their request. Their four conclusory statements that Plaintiff failed to state a claim, has been made whole, was provided due process, and that they did not act with malice or ill intent is woefully inadequate to provide a basis for dismissal. See High v. Genesis Healthcare LLC, No. 1:14CV265, 2014 WL 6997492, at *1 n.1 (M.D. N.C. Dec. 5, 2014) (“Because no brief has been submitted nor has any basis for [] a motion [to dismiss] been specifically identified, this court will not consider Defendant's “defenses” at this time to the extent they are motions to dismiss pursuant to Rules 12(b)(1) and (6).”); Wilson v. Jordan Auto's, No. 1:08-CV-3778-JFK, 2009 WL 700391, at *4 (N.D.Ga. March 16, 2009) (“Defendant has offered absolutely no argument in support of its motion to dismiss based on Rule 12(b)(6) for failure to state a claim .... Defendant's motion is not accompanied by a memorandum of law supporting the motion to dismiss. In light of the lack of legal authority or argument offered by Defendant, the court cannot find based on its review of the complaint that Plaintiff has failed to state a claim upon which relief can be granted.”); Ma v. Chertoff, No. 07CV0033 JAH(POR), 2007 WL 2462103, at *2 (S.D. Cal. Aug. 27, 2007) (denying the defendants' motion to dismiss under Rule 12(b)(6) because they “present no argument or authority pursuant to that rule other than a general statement indicating plaintiff's complaint fails to state a claim upon which relief may be granted.”). Accordingly, Defendants' request for dismissal should be denied.
RECOMMENDATION
Based on the foregoing findings, it is recommended Defendants' Motion to Dismiss (Doc. No. 24) be DENIED. The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by September 16th, 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
To the extent the Clerk of Court filed Plaintiff's Response to Defendants' Motion to Dismiss as a separate Motion, said Motion (Doc. No. 30) should be denied as moot.
This Report and Recommendation does not dispose of all issues referred to the undersigned Magistrate Judge in the captioned matter.