Opinion
CIV-21-575-G
07-13-2021
DENNIS RAY RIGSBY, JR. Plaintiff, v. THE GREAT STATE OF OKLAHOMA, et al., Defendants.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Plaintiff Dennis Ray Rigsby, Jr., a pretrial detainee, appearing pro se, and in forma pauperis, has filed a Complaint under Bivens v. Six Unknown named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). (ECF No. 1). United States District Judge Charles B. Goodwin 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, 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, 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)).
II. STANDARD OF REVIEW
The Court must accept Mr. Rigsby'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. Rigsby 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. PLAINTIFF'S ALLEGATIONS
Mr. Risgby is a pretrial detainee in the Custer County Jail and has sued three Defendants: (1) the State of Oklahoma, (2) the State of California, and (3) “Any Great state that are using after former convictions to twice punish 'we the people' of the United States of America on Earth of North America.” (ECF No. 1:3, 4-5 & 1-1). Mr. Rigsby asserts two Claims-one against the State of Oklahoma and one against the State of California. (ECF No. 1:7, 9). According to the Complaint, Plaintiff “was sentenced 10 years for each p[r]ior felony on case Felony 2003-2175 in district court of Oklahoma County Oklahoma.” (ECF No. 1:9). In Claim One, Mr. Rigsby alleges that the State of Oklahoma violated his Fifth, Eighth, and Fourteenth Amendment rights. (ECF No. 1:7). In Claim Two, Plaintiff challenges “the Great State of Californians] three strikes law!” (ECF No. 1:9). Both claims appear to be based on Mr. Risgby's sentence in Custer County Case No. CF-2003-2175. See ECF No. 1:7, 9, 10. As relief, Plaintiff requests "For states to no longer twice punish “we the people” for the same offence . . . [and] To give $10, 000.00 for every 365 days of lose [sic] of Libertys [sic] and freedoms for this wrong inhansements of sentences.” (ECF No. 1:8).
IV. DISMISSAL OF THE COMPLAINT
As stated, Plaintiff has filed a civil rights Complaint under Bivens. See supra. In Bivens, the Supreme Court established that an individual may seek monetary damages from a federal official in his or her individual capacity for an alleged violation of the Fourth Amendment's prohibition on unreasonable search and seizure. Bivens, 403 U.S. 388 at 396-397. Bivens has evolved to provide an avenue for relief for other constitutional violations, including the Fifth and Eighth Amendments, but regardless, a Bivens claim can be brought only against federal officials in their individual capacities. See Smith v. U.S., 561 F.3d 1090, 1099 (10th Cir. 2009).
See Davis v. Passman, 442 U.S. 228, 248-49 (1979) (providing a Bivens remedy for gender discrimination under the Fifth Amendment Due Process Clause); Carson v. Green, 446 U.S. 14, 18-21 (1980) (providing a Bivens remedy for failure to provide adequate medical treatment under the Eighth Amendment Cruel and Unusual Punishments Clause).
Here, Mr. Rigsby has sued two States and has alleged violations of the Fifth, Eighth, and Fourteenth Amendments. See supra. Two problems exist with Plaintiff's allegations. First, Mr. Rigsby has not named any individual federal official who is responsible for the alleged constitutional violations, as required by Bivens. Second, Mr. Rigsby has failed to provide any specific details in support of his claims; instead, relying only on “labels and conclusions, ” which are insufficient. Twombly, 550 U.S. at 555. For example, Mr. Rigsby provides no facts describing the alleged violations, including when they allegedly occurred and what each individual allegedly did. Plaintiff's failure to do so renders the Complaint legally deficient. See Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th Cir. 2007) (explaining “that, to state a claim in federal court, a complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant did it; how the defendant's action harmed (the plaintiff); and, what specific legal right the plaintiff believes the defendant violated.”).
Instead, Plaintiff seems to base the alleged constitutional violations on what he believes was an improper sentence enhancement in his 2003 Oklahoma County felony case. See supra. To be sure, an inmate may challenge an alleged improperly enhanced sentence. But the proper means to do so is by filing a petition for a writ of habeas corpus under 28 U.S.C. § 2254, not by filing a civil rights complaint, as Mr. Rigsby has done. See Williams v. Sirman, 172 Fed.Appx. 862, 864, 2006 WL 775172, at *2 (10th Cir. 2006) (noting that a challenge to an improper sentence enhancement is properly pursued under 28 U.S.C. § 2254); Green v. Sirmons, 2008 WL 649202, at *5 (W.D. Okla. Mar. 10, 2008) ("To the extent Petitioner . . . challenges his current state sentence as having been improperly enhanced . . ., such a challenge is to the legality of the state sentence and must be brought pursuant to 28 U.S.C. § 2254.”).
A search of the Oklahoma Department of Corrections records indicates that Mr. Rigsby was discharged from custody on the 2003 conviction on June 2, 2020, a fact which may complicate a habeas challenge to the 2003 sentence. See Lackawanna County District Attorney v. Coss, 532 U.S. at 394, 403-404 (2001) (holding that "once a state conviction is no longer open to direct or collateral attack in its own right, ” a habeas petitioner "generally may not challenge, ” a later sentence that was enhanced by that expired conviction.). However, exceptions to the general rule do exist, which may allow Mr. Rigsby to proceed. See id. at 404-405. But the applicability of any exception is not an issue for this Court to decide based on the recommended dismissal and the lack of specific factual allegations in the Complaint.
See https://okoffender.doc.ok.gov.
In sum, in the event the action is construed as properly arising under Bivens, the Court should find that dismissal is appropriate, based on Plaintiff's failure to: (1) name an individual federal official as the responsible party and (2) provide the Court with specific facts regarding the alleged constitutional violations. Alternatively, if Plaintiff's action is construed as challenging a sentence enhancement, the Court should dismiss the action as improperly pursued under Bivens.
V. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
For the forgoing reasons, the Court should DISMISS Plaintiff's Complaint (ECF No. 1).
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 30, 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.