Opinion
CIV-22-233-D
05-10-2022
ELGRET BURDEX, Plaintiff, v. GINA LOWE, et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Plaintiff, proceeding pro se, seeks civil rights relief under 42 U.S.C. § 1983. Doc. 1. Chief United States District Judge Timothy D. DeGiusti referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. §§ 636(b)(1)(B) and (C). Doc. 4. Plaintiff brings two claims: one against Grady County Judge Gina Lowe presumably relating to a 2022 arrest, Doc. 1, at 2, and another against then-prosecutor Tyler Lowe relating to a 2010 conviction, id. at 7. Plaintiff names each Defendant in their individual and official capacities. Id. at 3. He seeks as relief a “verbal reprimand, ” “habeas corpus relief, ” and an “ability to pay hearing.” Id. at 7. He also alleges he “received no credit for 11 days waiting on Grady County.” Id. at 5. The undersigned recommends the Court dismiss Plaintiff's complaint and amended complaint, Docs. 1, 7, in their entirety.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
Judicial District 6, OKLA. STATE CT. NETWORK, https://www.oscn.net/courts/grady (last visited Mar. 29, 2022) (listing Regina Lowe as special judge).
Although Plaintiff does not specify which prosecution Judge Lowe allegedly presided over, he states that he has “been in custody since President['s] Day 2022.” Doc. 1, at 2.
See State v. Burdex, Case No. CF-2008-49, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=caddo&number= CF-2008-00049&cmid=4420 (last visited Mar. 29, 2022), Docket Entry dated Oct. 17, 2017 (Modified Judgment and Sentence issued Sept. 15, 2010, listing Tyler T. Lowe as attorney for the State of Oklahoma). See United States v. Ahidley, 486 F.3d 1184, 1192 (10th Cir. 2007) (exercising judicial 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”).
Rule 8.1 of the Rules of the Oklahoma Court of Criminal Appeals provides: “When the Judgment and Sentence of a court, either in whole or in part, imposes a fine and/or costs upon a defendant, a judicial hearing shall be conducted and judicial determination made as to the defendant's ability to immediately satisfy the fine and costs.” OKLA. STAT. tit. 22, Ch. 18, App., Rule 8.1; see also Feenstra v. Sigler, 2019 WL 6064854, at *4 (N.D. Okla. Nov. 14, 2019) (“The statute makes mandatory an ability-to-pay hearing when a Judgment and Sentence . . . imposes fines and/or costs.”).
Adoption of this report and recommendation would render moot Plaintiff's pending motions for leave to proceed in forma pauperis, Docs. 5, 8. It would also render moot his motions for production of documents, Docs. 10, 11, as well as his requests for appointment of counsel submitted in the form of letters, Docs. 9, 12.
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 the complaint, or any portion of the complaint, if it is “frivolous, malicious, or fails to state a claim upon which relief may be granted” or seeks monetary relief from a defendant who is immune from such relief. Id. §§ 1915A(b), 1915(e)(2)(B).
This Court construes “[a] pro se litigant's pleadings . . . liberally, ” holding them “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). If the Court can reasonably read the pleadings “to state a valid claim on which the plaintiff could prevail, [they should be read] so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall, 935 F.2d at 1110. The Court may not, however, serve as Plaintiff's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
This Court typically does not consider letters as pleadings. See generally LCvR7.1 (explaining format requirements for motions and pleadings); see also Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992) (“Although we construe [Plaintiff's] pleadings liberally because he is a pro se litigant, he nevertheless must follow the same rules of procedure that govern other litigants.”).
II. Plaintiff's claims do not satisfy Rule 8 of the Federal Rules of Civil Procedure.
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to contain “(1) a short and plain statement of the grounds for the court's jurisdiction . . .; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought.” Fed.R.Civ.P. 8(a). To avoid a dismissal for failure to state a claim, a complaint must set out factual allegations that “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
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 Twombly, 550 U.S. at 570). “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). That is, from the allegations in the complaint, Defendants must be able to learn “what [they] did to [Plaintiff]; when [they] did it; how [their] action harmed [Plaintiff]; and, what specific legal right [Plaintiff] believes [they] violated.” Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe Cty. Justice Ctr., 492 F.3d 1158, 1163 (10th Cir. 2007).
Pro se litigants are not excused from complying with these minimal pleading demands. “This is so because 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, 935 F.2d at 1110.
A. Claims against Defendant Tyler Lowe.
Plaintiff alleges “Tyler Lowe used prosecutorial misconduct to have [him] sentenced to life in 2010 for uttering a forged instrument ....” Doc. 1, at 7.
Plaintiff does not identify any specific actions by Tyler Lowe-much less actions that might amount to prosecutorial misconduct. A pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall, 935 F.2d at 1110. And the Court “will not supply additional factual allegations to round out a plaintiffs complaint or construct a legal theory on a plaintiffs behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997); see also Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) (The Court cannot “supply additional facts, [or] construct a legal theory for [P]laintiff that assumes facts that have not been pleaded.”). Plaintiff's claims against Defendant Tyler Lowe therefore do not satisfy the Rule 8 pleading requirements.
B. Claims against Defendant Judge Gina Lowe.
Plaintiff alleges Defendant Judge Lowe “punish[ed] [him] for being poor” by imposing “excessive fines for misdemeanors” for which he had “already served time.” Doc. 1, at 1, 5. He further alleges Judge Lowe declined to offer him a “Rule 8 or ability to pay hearing.” Id. at 7. As in his allegations against Defendant Tyler Lowe, Plaintiff has not provided the Court with sufficient information to adjudicate his claims.
The Court's review of the Oklahoma State Courts Network site revealed Plaintiff is a defendant in multiple state court actions. Plaintiff does not specify which prosecution gave rise to his civil rights claims against Defendant Judge Lowe. A Plaintiff's allegations must give the Court “sufficient clarity to adjudicate the merits” of his claims by explaining when Defendant's alleged misconduct occurred. Nasious, 492 F.3d at 1163. Plaintiff has not specified- and the Court has not been able to determine-which state-court case gave rise to his claims against Defendant Judge Lowe. The Court therefore cannot assess the veracity of his claims. Plaintiff's claims against Defendant Judge Lowe therefore do not satisfy the Rule 8 pleading requirements.
Liberally construing Plaintiff's allegations as excessive-bail claims under the Eighth Amendment, Plaintiff has not provided the Court sufficient information to satisfy Fed.R.Civ.P. 8. “The Eighth Amendment provides all criminal defendants a right to be free from excessive bail.” Smalkowski v. Hardesty Pub. Sch. Dist., No. CIV-06-845-M, 2007 WL 2401891, at *3 (W.D. Okla. Aug. 17, 2007) (quoting Galen v. Cty. of Los Angeles, 322 F.Supp.2d 1045, 1051 (D. Cal. 2004)). “Requirement of bail in an amount that staggers the imagination is obviously a denial of bail.” Carlisle v. Landon, 73 S.Ct. 1179, 1182 (1953). Although “[v]iolation of this right can give rise to a claim under 42 U.S.C. § 1983, ” Smalkowski, 2007 WL 2401891, at *3, Plaintiff has not provided the Court sufficient information to rule on an excessive bail claim- he has not specified the nature of his charges or the amount of his bail. Therefore, Plaintiffs allegations, liberally construed as an excessive bail claim, do not satisfy Rule 8.
Plaintiff suggest his claims against Defendant Judge Lowe arise from an ongoing prosecution: He states that he has “been in custody since President['s] Day 2022.” Doc. 1, at 2. If his prosecution is indeed ongoing, the Court may also dismiss his claims under Younger v. Harris, 401 U.S. 37 (1971). See Taylor v. Jaquez, 126 F.3d 1294, 1297 (10th Cir. 1997) (setting forth conditions requiring dismissal under Younger).
Because Plaintiff's allegations are not sufficiently specific to “state a claim to relief that is plausible on its face, ” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570), the Court must dismiss Plaintiff's claims against both Defendants.
III. Relief sought.
Aside from the insufficiency of Plaintiff's allegations-and even assuming Plaintiff could overcome any immunity doctrines shielding Defendants-the Court also cannot grant the specific relief requested by Plaintiff.
Plaintiff first requests an ability-to-pay hearing under Oklahoma law. The Court cannot grant injunctive relief in the form of a particular hearing in an ongoing prosecution, as his case before Defendant Judge Lowe appears to be. See Taylor, 126 F.3d at 1297. The Court also cannot grant an ability-to-pay hearing in his case involving Defendant Tyler Lowe. That case appears to be a decade-old prosecution. This Court cannot order injunctive relief in the form of an ability-to-pay-hearing if Plaintiff has already paid the state-court-ordered judgment. See O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974) (“Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.”); Green v. Branson, 108 F.3d 1296, 1300 (10th Cir. 1997) (holding plaintiff's claims for declaratory and injunctive relief were moot, “[s]ince he [was] no longer a prisoner” and “the entry of a declaratory judgment in [his] favor would amount to nothing more than a declaration that he was wronged, and would have no effect on the defendants' behavior towards him”) (collecting cases). Plaintiff does not state whether he has any outstanding fine or restitution. The Court's review of the docket sheet in Plaintiff's state-court case did not reveal whether he has already paid his fine and restitution. See Burdex, Case No. CF-2008-49, Docket Entry dated Oct. 17, 2017 (Modified Judgment and Sentence setting out fine and restitution payment).
Plaintiff next requests a “verbal reprimand.” This Court does not have authority to order that a state official be reprimanded. Cf. Derringer v. New Mexico Supreme Ct., 2004 WL 7338177, at *3 (D.N.M. Mar. 29, 2004) (“This Court has no authority to remove Defendant [], an appointed state officer, from office.”) (citing Walton v. House of Representatives of the State of Okla., 44 S.Ct. 628 (1924), United States v. White Cty. BridgeComm'n, 275 F.2d 529 (7th Cir. 1960)).
Finally, Plaintiff requests habeas corpus relief. To obtain habeas corpus relief, Plaintiff must file a habeas corpus action, rather than a civil rights action like this one. See 28 U.S.C. §§ 2241, 2254.
IV. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends dismissal of Plaintiff's complaint and amended complaint, Docs. 1, 7, in their entirety without prejudice to refiling.
The undersigned advises Plaintiff of his right to file an objection to this report and recommendation with the Clerk of this Court on or before May 31, 2022, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to make a timely objection to this report and recommendation waives the right to appellate review of both factual and legal questions contained herein. See 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 this matter.