Opinion
Case No. CIV-19-348-HE
09-12-2019
EDWARD JOE WALTON, Plaintiff, v. KARRI JEAN McBRIDE, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, an Oklahoma inmate appearing pro se, filed a complaint under 42 U.S.C. § 1983. Doc. 1. Plaintiff names as defendants Karri Jean McBride and Kay McBride of McBride Bail Bonds, Judge Susan Worthington, Judge Louis Duel, and the Guthrie Police Department. Id. at 4, 5, 7. United States District Judge Joe Heaton has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 19. Because Plaintiff fails to state any cognizable claims under § 1983, the undersigned recommends dismissal of the complaint.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
Plaintiff does not list Judge Duel or the Guthrie Police Department as "Parties to [the] Current Lawsuit," Doc. 1, at 4, but he clearly accuses both of violating his rights. See id. at 5, 7. For that reason, the undersigned has construed the complaint to name Judge Duel and the Guthrie Police Department as Defendants. See, e.g., Sheridan v. U.S., 214 F. App'x 857, 859 (10th Cir. 2007) (construing a complaint to include parties as defendants when a pro se plaintiff had included their names and a description of their alleged violations in the complaint's body).
I. Screening.
Federal law requires the court to screen complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss any frivolous or malicious claim, any claim asking for monetary relief from a defendant who is immune from such relief, or any claim on which the court cannot grant relief. Id. §§ 1915A(b), 1915(e)(2)(B).
"To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). The complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556); see also Gee v. Pacheco, 627 F.3d 1178, 1184 (10th Cir. 2010). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.
"A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). The court, however, may not serve as Plaintiff's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
II. Plaintiff's claims.
In his first claim, Plaintiff alleges "McBride Bail Bonds" stole his home using the court system. Doc. 1, at 5. He explains he let "her" hold the deed to his home in good faith, but "she" put it in her name using "her Mothers Notory stamp." Id. He asserts he did not jump bond or miss court but "the Judge gave her [his] home." Id. He names Karri McBride, Kay McBride, Judge Susan Worthington, and Judge Louis Duel as the Defendants responsible under this claim and adds that "the Bondsmans and Judges, Court Clerk D.A Office all have a working relationship." Id. at 5, 7. He asks this court to "over turn" the judgments against his home and him. Id. at 7.
In his second claim, Plaintiff alleges the Guthrie Police Department failed to "protect-serve" because "the police would not file a report on the Bondsman McBride and give it to the D.A to be charged because they don't like [him]." Id. He asks this court to give him back his home and award him damages for his "suffering" in the amount of one hundred million dollars. Id. at 8.
III. State court proceedings.
The undersigned takes judicial notice of the electronic records of the District Court in and for Logan County, Oklahoma. Those records reflect that Plaintiff is a criminal defendant in at least two cases, CF-2017-215 and CF-2017-298. As part of the criminal proceedings, where Judge Worthington presided, a separate surety bond was posted in each case, one for $20,000 and another for $50,000, by Karri Jean McBride on Plaintiff's behalf and he was released on bond. See Sept. 11, 2017 docket entries, Case Nos. CF-2017-215 and CF-2017-298. When Plaintiff was arrested on new charges and he was returned to custody, Ms. McBride filed a "motion to exonerate bond" in each matter which Judge Worthington granted. See April 26, 2018 docket entries, Case Nos. CF-2017-215 and CF-2017-298.
See Fed. R. Evid. 201; see also United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007) (noting court's "discretion to take judicial notice of publicly-filed records in our court and certain other courts concerning matters that bear directly upon the disposition of the case at hand").
See http://www.oscn.net/dockets/GetCaseInformation.aspx?db=logan&number=cf 2017-215 (last visited on Aug. 30, 2019); http://www.oscn.net/dockets/GetCaseInformation.aspx?db=logan&number=cf 2017-298 (last visited on Aug. 30, 2019).
IV. Discussion.
A. Plaintiff's claims against private citizens.
"To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988); see Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995) ("[T]he only proper defendants in a [§] 1983 claim are those who represent the state in some capacity . . . ." (citation and internal brackets omitted)). "'[T]he under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.'" Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1143 (10th Cir. 2014) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)).
Here, Plaintiff seeks to hold two private actors-Karri Jean McBride and Kay McBride of McBride Bail Bonds-accountable under 42 U.S.C. § 1983 for their alleged roles in taking his house to satisfy his forfeited bond. Doc. 1, at 5, 7. But, Plaintiff does not expressly plead that the two Defendants acted under color of state law and their status as bondspersons does not designate them as state actors. See United States v. Poe, 556 F.3d 1113, 1124 & n.14 (10th Cir.2009) (rejecting plaintiff's argument of a "symbiotic relationship" between bail bonds industry and law enforcement and finding a bounty hunter, who was acting out of self-interest for the bond posted by the bail bonds company rather than at the behest of law enforcement, was not a state actor for purposes of Fourth Amendment search and seizure, and noting that the result would be the same for the state action element of a § 1983 claim because the same test applies in both Fourth Amendment and § 1983 contexts); Dean v. Olibas, 129 F.3d 1001, 1006 n.4 (8th Cir. 1997) ("As a general matter, bondsmen are private citizens who interact with the state in the course of pursuing their private interests. Their conduct is therefore not attributable to the state."). Thus, to establish these private citizens were acting under color of state law, Plaintiff generally must show they were a "willful participant in joint action with the State or its agents." Gallagher, 49 F.3d at 1453 (quoting Dennis v. Sparks, 449 U.S. 24, 27 (1980)).
Plaintiff asserts the two Defendants used the court system to steal his home and they have a "working relationship" with the judges, the court clerk and the District Attorney's office. Doc. 1, at 7. The court liberally construes Plaintiff's assertion as an attempt to allege a conspiracy among the Defendants. But while allegations that "a private actor conspired with a state actor" can establish the color of state law requirement, the claim must rest on specific facts. Olson v. Carmack, 641 F. App'x 822, 827 (10th Cir. 2016). Conclusory assertions suggesting private citizens and state actors conspired or cooperated cannot attribute state-actor status to private individuals. See id. (holding plaintiff did not show private citizens were acting under color of state law because "the amended complaint is devoid of any factual allegations, as opposed to unsupported conclusions, that the [private citizens] reached an agreement with a state actor to violate [plaintiff's] constitutional rights"); see also Gross v. Samudio, 630 F. App'x 772, 777 (10th Cir. 2015) ("A plaintiff asserting that a private actor deprived him of a constitutional right while acting under color of state law must rely on more than conclusory allegations to state such a cause of action . . . ."). To state a valid claim for a conspiracy, Plaintiff must "'allege specific facts showing an agreement and concerted action amongst the defendants.'" Valdez v. Derrick, 681 F. App'x 700, 704 (10th Cir. 2017) (citation omitted); see Scott v. Hern, 216 F.3d 897, 907 (10th Cir. 2000) ("When a plaintiff in a § 1983 action attempts to assert the necessary 'state action' by implicating state officials or judges in a conspiracy with private defendants, mere conclusory allegations with no supporting factual averments are insufficient; the pleadings must specifically present facts tending to show agreement and concerted action." (internal quotation marks omitted)).
Plaintiff vaguely accuses the private Defendants of having a "working relationship" with the court system. Doc. 1, at 7. However, use of the court system does not transform a private individual's conduct into state action. See Scott, 216 F.3d at 906 ("A private individual does not engage in state action simply by availing herself of a state procedure."); cf. Bennett v. Johnson, 500 F. App'x 776, 778 (10th Cir. 2012) (noting plaintiff had not established that a private citizen, who reported plaintiff's conduct to police and testified against plaintiff, was acting "under color of state law"). Although Plaintiff alleges one of the private Defendants wrongfully put the deed to his home in her name with help from her mother, he makes no factual averments of an agreement or concerted action between the private Defendants and any state officials. See, e.g., Hern, 216 F.3d at 907 (noting the court's continued application of a "heightened pleading requirement to § 1983 claims alleging a conspiracy between private individuals and state officials"). Thus, no matter how wrongful the private Defendants' alleged conduct might be, "[i]n the absence of any valid claim of a conspiracy among federal or state officials, there is no basis for a claim under § 1983 against . . . a private citizen." Green v. Seymour, 59 F.3d 1073, 1078 (10th Cir. 1995); see Brokers' Choice of Am., Inc., 757 F.3d at 1143 (holding "merely private conduct, no matter how discriminatory or wrongful," is excluded from § 1983's reach); Shaffer v. Cook, 634 F.2d 1259, 1260 (10th Cir. 1980) (no basis for a conspiratorial nexus when there was nothing alleged in the complaint which showed "that the court or the attorneys were acting outside the confines of the neutral function of a judicial forum").
Because Plaintiff's complaint fails to sufficiently allege either of the two private Defendants were acting under color of state law, this Court lacks jurisdiction over these Defendants under § 1983. See Whitehead v. Marcantel, 766 F. App'x 691, 700 (10th Cir. 2019) ("We conclude that the complaint failed to provide sufficient factual matter to allege that Keefe was a state actor; therefore, the federal courts lack jurisdiction over this claim."). So the undersigned recommends the court dismiss without prejudice Plaintiff's claims against these Defendants. See Lay v. Otto, 530 F. App'x 800, 802-803 (10th Cir. 2013) (remanding case to district court for an order of dismissal "'without prejudice' for lack of subject matter jurisdiction" where plaintiff failed to show that the named defendants were acting "under color of state law" under § 1983).
B. Plaintiff's claims against two state court judges.
"The Supreme Court of the United States has long held that judges are generally immune from suits for money damages." Stein v. Disciplinary Bd. of Sup. Ct. of N.M., 520 F.3d 1183, 1195 (10th Cir. 2008) (citation omitted). Two exceptions may apply: "(1) when the act is 'not taken in the judge's judicial capacity,' and (2) when the act, 'though judicial in nature, is taken in the complete absence of all jurisdiction.'" Id. (quoting Mireles v. Waco, 502 U.S. 9, 12 (1991) (internal brackets omitted)). "An act taken in excess of a court's jurisdiction is not to be confused with an act taken in the complete absence of all jurisdiction." Quintana v. Waters, 769 F. App'x 648, 649 (10th Cir. 2019) (internal quotations and brackets omitted).
Plaintiff does not state whether he is suing Judge Worthington and Judge Duel in their individual or official capacities, or both. The court liberally construes the complaint to assert both but recommends the court dismiss any official-capacity claims against these Defendants. See, e.g., Lewis v. Mikesic, 195 F. App'x 709, 710 (10th Cir. 2006) ("The district court properly dismissed the claims for monetary damages asserted against the State of Kansas and against Judge Mikesic while acting in his official capacity because neither a State nor its officials acting in their official capacities are 'persons' against whom a claim for damages can be brought pursuant to § 1983." (internal quotation marks omitted)).
Plaintiff's allegation is based on Judge Worthington signing an order exonerating Plaintiff's bond to the bondsperson. Doc. 1, at 5, 7. Plaintiff does not allege Judge Worthington's judicial act was taken outside the court's jurisdiction, much less in a complete absence of all jurisdiction. Under such circumstances, the undersigned finds Judge Worthington is absolutely immune from liability for her judicial acts. See Quintana v. Adair, 673 F. App'x 815, 819 (10th Cir. 2016) (holding Oklahoma judges were acting within their judicial jurisdiction and entitled to judicial immunity for allegedly issuing "false bench warrants" and "unlawfully confin[ing]" the plaintiff); Barnett v. Sielert, No. 14-1284-HE, 2016 WL 3802678, at *4-5 (W.D. Okla. May 31, 2016) (finding an Oklahoma judge's "decisions to issue arrest warrants and to set or revoke bail" were made in his "judicial capacity, and within his judicial jurisdiction" and finding the judge absolutely immune from monetary damages), adopted, 2016 WL 3829027 (W.D. Okla. July 12, 2016); Tucker v. Loftiss, No. 14-1053-R, 2014 WL 7158282, at *2 (W.D. Okla. Dec. 15, 2014) ("Defendant Judge Kelly is entitled to judicial immunity for his acts involving . . . setting bail.").
Plaintiff makes no allegations against Judge Duel. "For a complaint to withstand dismissal it must state specific factual allegations that make a legal claim for relief plausible." Hinton v. Dennis, 362 F. App'x 904, 907 (10th Cir. 2010). While Plaintiff names Judge Duel as a Defendant to Claim 1, Doc. 1, at 5, he does not identify his role, if any, in the bond decision. As a result, Plaintiff fails to state a claim against Judge Duel upon which relief may be granted and, even if Plaintiff sought to amend his complaint, Judge Duel enjoys absolute immunity for his judicial acts. Quintana, 673 F. App'x at 819.
Both Judge Worthington and Judge Duel are absolutely immune from suit on any claim based on the conduct of their office. See Christensen v. Ward, 916 F.2d 1462, 1473 (10th Cir. 1990) ("[J]udges are absolutely immune from suit on any claim based on the conduct of their office, including allegations that a decision is erroneous, malicious, or in excess of their judicial authority."). The undersigned therefore recommends the court dismiss with prejudice the claims against these Defendants. See Phan v. Babcock, 764 F. App'x 837, 838 (10th Cir. 2019) (holding that the district court had properly dismissed with prejudice the claims against two judges who were entitled to absolutely immunity from a civil rights suit).
C. Plaintiff's claims against the Guthrie Police Department.
The Guthrie Police Department is subject to dismissal because it is not a suable entity under § 1983. Section 1983 provides a remedy when a "person" acting under color of state law has violated another's federal rights. 42 U.S.C. § 1983. "Generally, governmental sub-units are not separate suable entities that may be sued under § 1983." Hinton, 362 F. App'x at 907; see also Martinez v. Winner, 771 F.2d 424, 444 (10th Cir. 1985) ("The 'City of Denver Police Department' is not a separate suable entity, and the complaint will be dismissed as to it.").
Plaintiff alleges the Guthrie Police Department would not take his report concerning the bondsperson but he does not demonstrate why or how this allegation states a claim for § 1983 relief against a non-suable entity, and amendment would be futile. Martinez, 771 F.2d at 444. Therefore, the undersigned recommends the court dismiss with prejudice the Guthrie Police Department as a Defendant.
V. Recommendation and notice of right to object.
For the reasons discussed above, the undersigned recommends Plaintiff's complaint be dismissed in its entirety. Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before October 3, 2019, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). Plaintiff is further advised that the failure to file a timely objection to this Report and Recommendation waives the right to appellate review of both the factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.
ENTERED this 12th day of September, 2019.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE