Opinion
CIV-21-231-G
06-15-2021
JAMES PATRICK LESLEY, JR., Plaintiff, v. DAVID PRATER, Defendant.
REPORT AND RECOMMENDATION
SHONT. ERWINK, UNITED STATES MAGISTRATE JUDGE
Plaintiff James Patrick Lesley, Jr., appearing pro se, brings this action under 42 U.S.C. § 1983. (ECF No. 1). United States District Judge Charles B. Goodwin 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, it is recommended that the Court DISMISS the Complaint.
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, 1217- 18 (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)).
II. STANDARD OF REVIEW
The Court must accept Mr. Lesley'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. Lesley 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).
“[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). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. As a result, courts “look to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief.” Kay, 500 F.3d at 1218 (quotation marks and citations omitted).
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. THE COMPLAINT
In November 2002, a jury in Oklahoma County convicted Mr. Lesley of felony murder in violation of 21 O.S. § 701.7(B) and sentenced him to life with the possibility of parole. (ECF No. 1:2). In January 2021, the Oklahoma Pardon and Parole Board denied Plaintiff a recommendation to the Governor for parole at the first stage of parole proceedings. (ECF No. 1:2). Plaintiff contends that the denial was based on an “Investigative Report” submitted to the parole board by Dedric Johnson which included a section entitled “District Attorney's Version.” (ECF No. 1:2). According to Mr. Lesley, Defendant David Prater, the Oklahoma County District Attorney, made “false, defamatory, malicious, and unprivileged claims” against Plaintiff in the report, “for the sole purpose of persuading the pardon and parole board to deny the recommendation of the Plaintiff to the Governor for parole, which the Board did.” (ECF No. 1:2, 3). As a result, Mr. Lesley has filed a lawsuit against Defendant Prater, alleging libel based on the allegations in the report. Plaintiff believes that the conduct was intentional, and that Defendant Prater knowingly made false claims, based on the fact that the same theory in the “District Attorney's Version” had been presented at trial in support of a first-degree murder charge for which Mr. Lesley was acquitted. (ECF No. 1:2-3). Mr. Lesley seeks a “retraction of [the] false claims regarding Plaintiff and monetary damages. (ECF No. 1:5).
IV. DISMISSAL OF THE COMPLAINT
The Court should dismiss the Complaint, without prejudice, based on Plaintiff's failure to allege a constitutional violation.
Section 1983 provides redress against those persons who, under color of state law, deprive an individual of “any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must allege that he has been deprived of a federal right and that the person who deprived him of that right acted under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
“ ‘Section 1983 itself does not create any substantive rights.' ” Brown v. Buhman, 822 F.3d 1151, 1161 n.9 (10th Cir. 2016) (citation omitted). Rather, it “is a remedial vehicle for raising claims based on the violation of [federal] constitutional rights.” Id.
In the Complaint, Mr. Lesley has very plainly asserted a claim of libel against Defendant Prater. See ECF No. 1. A claim of libel, while actionable under Oklahoma law, is insufficient to state a constitutional violation, a requisite to filing an action under 42 U.S.C. § 1983. See Pierson v. City of Jenks, 2019 WL 1560452, at *2 (N.D. Okla. Apr. 10, 2019) (stating that “libel” simply refers to the publication of defamatory matter by written, as opposed to oral, means. . . . [which is] insufficient to allege a constitutional violation). Based on Mr. Lesley's failure to allege a constitutional violation, the Court should dismiss the Complaint, without prejudice. See Pierson v. City of Jenks, at *2.
See 12 O.S. § 1441, et seq.
V. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
The Court should dismiss the Complaint, without prejudice. In light of this recommendation the Summons (ECF No. 9) issued on May 14, 2021, is STRICKEN and shall not be served.
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 7, 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).
VI. STATUS OF THE REFERRAL
This Report and Recommendation disposes of all issues referred to the undersigned magistrate judge in the captioned matter.