Opinion
CIV-21-371-PRW
03-17-2023
MICHAEL L. SHIVERS, Plaintiff, v. STEPHENS COUNTY, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, a state prisoner appearing pro se and in forma pauperis, brings this civil rights action under 42 U.S.C. § 1983 alleging violation of his constitutional rights. Plaintiff has also alleged jurisdiction pursuant to the Racketeer Influenced and Corrupt Organizations Act (“RICO”). United States District Court Judge Patrick R. Wyrick referred this matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B).
At all times relevant to this action, Plaintiff was incarcerated in the Stephens County Detention Center (“SCDC”) as a pretrial detainee.
The various defendants named in this action have filed four separate dispositive motions. This Report and Recommendation is limited to consideration of the alternative Motion to Dismiss or Motion for Summary Judgment and Brief in Support, Doc. No. 74, filed by the Board of County Commissioners of Stephens County, Oklahoma (“the Board”), contending dismissal is proper because Plaintiff has failed to state a claim upon which relief may be granted. Plaintiff has not responded to the Motion. For the reasons set forth herein, it is recommended the Board's Motion to Dismiss be granted.
Plaintiff named “Stephens County” as a Defendant. Under Oklahoma law, however, a county's board of county commissioners is not a separate legal entity from the county. Rather, in general, it is the board of county commissioners that exercises the powers of the county. See Okla. Stat. tit. 19, § 3. A suit brought against a county's board of county commissioners is the manner in which Oklahoma law contemplates suing the county. Okla. Stat. tit. 19, § 4. Moreover, in the § 1983 context, a suit against the board of county commissioners or some other county official in their official capacity is, in substance, a suit against the county. Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2008); Lopez v. LeMaster, 172 F.3d 756, 762 (10th Cir. 1999), abrogated in part on other grounds by Brown v. Flowers, 974 F.3d 1178, 1182 (10th Cir. 2020). Here, the Board recognized that it was the proper Defendant and filed its Motion to Dismiss on substantive grounds.
I. Background and Issues Raised in Plaintiff's Complaint
Plaintiff's claims arise from his incarceration as a pretrial detainee in the SCDC from December 2020 through April 2021. Plaintiff states he was sexually abused by Defendant Almeda Emerick, a female guard at SCDC. He further contends Defendant Emerick brought contraband (methamphetamine, tobacco, and lighters) into the jail and used him to sell the contraband to other prisoners.
Plaintiff also asserts that another guard, Defendant Jennifer Smiddy, also brought drugs into the jail for Plaintiff to distribute. Finally, Plaintiff states that Defendant Smiddy and other named defendants attempted to extort $400.00 from him in return for filing his tax return so that he could receive stimulus payments. Doc. No. 1.
Plaintiff styles his first claim as “deliberate indifference / dereliction of duty.” Id. at 14. This claim is based on his allegations that the two female guards referenced above, Defendants Emerick and Smiddy, provided him with contraband that altered his mind and destabilized his judgment. With what Plaintiff describes as “nominal mental acuity” resulting from his own drug use, he contends the actions of these Defendants caused him to fall under “corrupt RICO operations and extortion schemes.” Id.
Plaintiff's second claim is based on alleged sexual harassment and rape. Id. Plaintiff alleges Defendant Emerick ultimately raped him, threatening to tell his wife about their relationship if Plaintiff did not submit to her demands. Id.
Plaintiff's third claim is styled as “Abuse of Authority / Coerced Induction into Trafficking of Drugs / Deliberate Indifference in a Rico Enterprise.” Id. at 15. This claim is based on Defendant Emerick's alleged introduction of contraband into SCDC and Plaintiff's subsequent use and distribution of the contraband. Id.
Plaintiff's fourth claim is styled as “Extortion / Abuse of Authority / Deliberate Indifference in a RICO Enterprise.” Id. The factual basis of this claim is an alleged extortion scheme allegedly perpetrated by Defendants Smiddy, Kyle Hanson, Bruce Guthrie, William Noah Anderson, and Bobbi Yearney.
In addition to damages from the individual Defendants, Plaintiff seeks the following monetary damages from the Board: $280,000 on claim one, $1,280,000 on claim two, $560,000 on claim three, and $416,000 on claim four. The Board seeks dismissal of Plaintiff's claims against it under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. Doc. No. 74. Plaintiff does not assert any allegations pertaining to the Board's actions, nor does he explain the basis for the Board's liability under 42 U.S.C. § 1983 for the alleged unconstitutional acts of the individual Defendants. Plaintiff has also failed to state sufficient grounds for a RICO claim.
Although the Board's Motion is styled alternatively as a Motion for Summary Judgment, this Court need not consider any documents outside the four corners of the Complaint and the Board's Motion to determine that dismissal of claims against the Board is appropriate. Thus, the court need not convert the Motion to Dismiss to a Motion for Summary Judgment.
II. Standard of Review
To survive a motion to dismiss, the two seminal Supreme Court cases, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), require a complaint to contain enough allegations of fact, taken as true, “to state a claim to relief that is plausible on its face.” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Twombly, 550 U.S. at 570). Under this standard, “the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)). The “plausibility” standard announced in Twombly and Iqbal is not considered a “heightened” standard of pleading, but rather a “refined standard,” which the Tenth Circuit has defined as “refer[ring] ‘to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiff[] ha[s] not nudged [his] claims across the line from conceivable to plausible.'” Khalik, 671 F.3d at 1191 (quoting Robbins, 519 F.3d at 1247) (additional quotations omitted).
The Tenth Circuit has noted that the nature and specificity of the allegations required to state a plausible claim will vary based on context. Robbins, 519 F.3d at 1248. Thus, the court concluded the Twombly/Iqbal standard is “a middle ground between heightened fact pleading, which is expressly rejected, and allowing complaints that are no more than labels and conclusions or a formulaic recitation of the elements of a cause of action, which the Court stated will not do.” Id. at 1247 (citations and quotations omitted). Accordingly, in deciding Twombly and Iqbal, there remains no indication the Supreme Court “intended a return to the more stringent pre-Rule 8 pleading requirements.” Khalik, 671 F.3d at 1191 (citing Iqbal, 556 U.S. at 678). It remains true that “[s]pecific facts are not necessary; the statement need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555).
Finally, “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 (1991). 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. In analyzing a motion to dismiss under Rule 12(b)(6), the court “accept[s] as true all well-pleaded factual allegations in the complaint and view[s] them in the light most favorable to the plaintiff.” Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013). A complaint fails to state a claim on which relief may be granted 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.
III. Civil Rights Claims
Under 42 U.S.C. § 1983, any “person” acting under color of state law who “subjects . . . [another] to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured[.]” The Supreme Court has held that “municipalities and other local government units [are] included among those persons to whom § 1983 applies.” Monell v. Dep't. of Soc. Servs., 436 U.S. 658, 690 (1978). Nevertheless, “[i]t is well established that in a § 1983 case a city or other local governmental entity cannot be subject to liability at all unless the harm was caused in the implementation of ‘official municipal policy.'” Lozman v. City of Riviera Beach, __U.S.__, 138 S.Ct. 1945, 1952 (2018) (quoting Monell, 436 U.S. at 691). In other words, “a municipality cannot be held liable . . . solely because it employs a tortfeasor.” L.A. County v. Humphries, 562 U.S. 29, 36 (2010) (quoting Monell, 436 U.S. at 691). “Rather, to establish municipal liability, a plaintiff must show 1) the existence of a municipal policy or custom, and 2) that there is a direct causal link between the policy or custom and the injury alleged.” Jensen v. West Jordan City, 968 F.3d 1187, 1204 (10th Cir. 2020) (quoting Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010)); see also Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006) (noting that “a municipality may not be held liable where there was no underlying constitutional violation by any of its officers”).
[T]o establish municipal liability, a plaintiff must first demonstrate a ‘municipal policy or custom,' which may take one of the following forms:
(1) a formal regulation or policy statement; (2) an informal custom amounting to a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law; (3) the decisions of employees with final policymaking authority; (4) the ratification by such final policymakers of the decisions-and the basis for them-of subordinates to whom authority was delegated subject to these policymakers' review and approval; or (5) the failure to adequately train or supervise employees, so long as that failure results from deliberate indifference to the injuries that may be caused.Waller v. City & Cty. of Denver, 932 F.3d 1277, 1283 (10th Cir. 2019) (quoting Bryson, 627 F.3d at 788); see also Abila v. Funk, No. 14-1002 JB/SMV, 2016 WL 9021834, at *19 (D.N.M. Dec. 14, 2016) (reviewing numerous municipal liability cases and concluding that “[they] all stand for the same thing: at the pleading stage, the existence of a Monell policy is a ‘conclusion' to be built up to, rather than a ‘fact' to be baldly asserted”).
Second, a plaintiff must “demonstrate a direct causal link between the municipal action and the deprivation of federal rights.” Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 770 (10th Cir. 2013) (quoting Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 404 (1997)). In other words, a plaintiff must “show[] that ‘the municipality was the “moving force” behind the injury alleged'” because “municipal liability in a § 1983 case cannot be established on a theory of vicarious liability.” Id. See also Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1188 (10th Cir. 2010) (observing that a municipality “will only be held liable for its own acts-acts it has officially sanctioned or ordered” (quotations omitted)).
In this case, Plaintiff has not alleged that a policy or practice attributable to the Board is in any way linked to the alleged violations of his constitutional rights. What is more, none of the documents attached to the Complaint implicate the existence of such a policy or practice. The absence of allegations regarding the existence of a policy or practice attributable to the Board that could be linked to the alleged constitutional violations is fatal to Plaintiff's 42 U.S.C. § 1983 action against the Board.
IV. RICO Claims
Plaintiff has also attempted to state a civil RICO claim based on his allegations that Defendant guards at SCDC forced him into “drug trafficking” within the prison and attempted to extort $400.00 from him. Doc. No. 1 at 15. RICO “creates a civil cause of action for ‘any person injured in his business or property by reason of a violation of [18 U.S.C.] section 1962.” Beck v. Prupis, 529 U.S. 494, 495 (2000) (internal quotation omitted). In turn, § 1962 makes it unlawful for any person to engage in “a pattern of racketeering activity” that affects interstate commerce. 18 U.S.C. §§ 1962(c), 1961(4). “Racketeering activity” includes, among other predicate acts, any act involving extortion chargeable under state law. 18 U.S.C. § 1961(1)(A)-(B). A “pattern of racketeering activity” consists of two or more acts of racketeering activity. Id. § 1961(5).
In this case, Plaintiff has simply named the Board as a Defendant and made the bald assertion that the Board was involved in a RICO violation. As discussed, supra at 5, a complaint that contains no more than labels and conclusions or a formulaic recitation of the elements of a cause of action is insufficient to state a claim for damages. Plaintiff has stated no facts to demonstrate the Board participated in a racketeering activity, much less a pattern of racketeering activity affecting interstate commerce. Thus, Plaintiff has failed to state a RICO claim against the Board, and all claims against the Board should be dismissed.
RECOMMENDATION
For the reasons stated herein, it is recommended the Motion to Dismiss filed by the Board of Commissioners of Stephens County (Doc. No. 74) be granted, and Plaintiff's Complaint against the Board be dismissed without prejudice. The parties are hereby advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by August 2nd , 2022, 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.”).
This Report and Recommendation DOES NOT dispose of all issues referred to the undersigned Magistrate Judge in the captioned matter.