Cotner v. Campbell, 85-497-C

• Decision Date: 20 September 1985
• Docket Number: 85-515-C,85-502-C,No. 85-497-C,85-507-C,85-508-C,85-526-C and 85-577-C.,85-525-C,85-514-C,85-497-C
• Parties: Robert E. COTNER, Plaintiff, v. Melvin CAMPBELL, et al., Defendants. Robert E. COTNER, Plaintiff, v. Denny HOPKINS, et al., Defendants. Scott E. HICKS, Plaintiff, v. William BECKMAN, et al., Defendants. Wesley E. OWENS, Plaintiff, v. William BECKMAN, et al., Defendants. Patrick S. OWENS, Plaintiff, v. William BECKMAN, et al., Defendants. Raymond Herschel JOHNSON, Plaintiff, v. Larry MEACHUM, et al., Defendants. Wendell W. LEADER, Plaintiff, v. William BECKMAN, et al., Defendants. Harold HENDERSON, Plaintiff, v. Peggy FRIES, et al., Defendants. Dennis J. REED, Jr., Plaintiff, v. Larry MEACHUM, et al., Defendants.
• Court: U.S. District Court — Eastern District of Oklahoma

618 F. Supp. 1091

Robert E. COTNER, Plaintiff, v. Melvin CAMPBELL, et al., Defendants.

Robert E. COTNER, Plaintiff, v. Denny HOPKINS, et al., Defendants.

Scott E. HICKS, Plaintiff, v. William BECKMAN, et al., Defendants.

Wesley E. OWENS, Plaintiff, v. William BECKMAN, et al., Defendants.

Patrick S. OWENS, Plaintiff, v. William BECKMAN, et al., Defendants.

Raymond Herschel JOHNSON, Plaintiff, v. Larry MEACHUM, et al., Defendants.

Wendell W. LEADER, Plaintiff, v. William BECKMAN, et al., Defendants.

Harold HENDERSON, Plaintiff, v. Peggy FRIES, et al., Defendants.

Dennis J. REED, Jr., Plaintiff, v. Larry MEACHUM, et al., Defendants.

Nos. 85-497-C, 85-502-C, 85-507-C, 85-508-C, 85-514-C, 85-515-C, 85-525-C, 85-526-C and 85-577-C.

United States District Court, E.D. Oklahoma.

September 20, 1985.

Michael C. Turpen, Atty. Gen. for State of Okl., Oklahoma City, Okl., for defendants.

ORDER

SEAY, Chief Judge.

These cases are before the court on its own motion to be tested under 28 U.S.C. § 1915(d) to determine whether they are frivolous, malicious, or improper. Because these cases involve common questions of law, on its own motion the court orders that they should be consolidated, pursuant to Rule 42(a) of the Federal Rules of Civil Procedure.

Each and every plaintiff is an inmate of the Oklahoma State Penitentiary. They instituted these actions pursuant to 42 U.S.C. §§ 1983-88 and 28 U.S.C. § 1343(3) seeking declaratory and injunctive relief and compensatory damages for claimed deprivations of their civil rights.

In 85-577-C, plaintiff Cotner alleges defendants have interfered with his mail by intercepting and censoring it in accordance with "illegal" Department of Correction policies.

In the remaining cases, each complaint is a virtual verbatim copy of plaintiff Cotner's complaint in 85-502-C. Indeed, a few of the complaints are merely photocopies of another prisoner's complaint. Each complaint names the same defendants, makes the same allegations, contains identical causes of action, and seeks identical relief. Essentially, the complaints each allege that all named defendants are engaged in a conspiracy to violate the plaintiffs' civil and constitutional rights. Plaintiffs allege that the conspirators have developed a scheme to endanger the health and safety of the prisoners, to violate the Battle v. Anderson rulings, to use the Oklahoma prison system to defraud taxpayers and prisoners, and to carry on an illegal criminal enterprise for their own monetary and political interests. Plaintiffs allege defendants have exhibited a total disregard for the prisoners and society in general. As an example of this disregard for rights, each plaintiff makes the following recitation in his complaint:

"Defendants have had over 54 acts of violence at O.S.P. McAlester, and 5 escapes, and 8 murders in the 1st few months of 1985, while the plaintiff and others have been housed there, and NOW defendants have ordered double celling which will mean an additional 108 acts of violence, 10 escapes and 16 unsolved murders instead of the lower amount from single celling. Defendants NOW are forcing non-homosexual men to sleep and live in a one man cell with homosexual men, violent to live with nonviolent, smokers to live with nonsmokers, short time prisoners to live with long term prisoners, religious prisoners to live with non-religious, ones with a T.V. and ones with a radio (who will watch what, and when, etc.) and the people could not get along together BEFORE they were put in prison, so now it is forcing them into a deadly environment when NO medical help is available without a 45 min. delay (travel through 7 locked doors, 3 flights of stairs, another locked door, and ½ mile walk, for "EMERGENCY" help!) The food service and clothing service and laundry can NOT provide proper service to the prisoners already here, let alone 100% more!"

DISMISSING ALL ACTIONS

The complaints are subject to dismissal for a variety of legal reasons. Initially, the court notes that in every case, except No. 85-577-C, the plaintiffs do not allege they have been personally deprived of any constitutional right. State inmates may not assert the constitutional rights of other inmates. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Hall v. Wooten, 506 F.2d 564 (6th Cir.1974).

Secondly, each and every complaint in this action is fatally defective because each brings before the court only the conclusory allegations of plaintiffs. They have submitted no supporting facts or any details at all which would support the maintenance of a cause of action under 42 U.S.C. § 1983 or any of the other statutes cited by them. The plaintiffs have wholly failed to allege any factual matter which would demonstrate any substantial, identifiable federal constitutional deprivation warranting the scrutiny of the federal courts.

The court concludes that a special report, as contemplated by Martinez v. Aaron, 570 F.2d 317 (10th Cir.1978) and Martinez v. Chavez, 574 F.2d 1043 (10th Cir.1978) is unnecessary and unwarranted in light of a review of the plaintiffs' complaints. The court deems it unnecessary to obtain further information where the complaints are so clearly insufficient to raise claims of constitutional magnitude or devoid of any factual material evidencing constitutional violations.

Plaintiffs' broad conclusory allegations of constitutional violations are unsupported by any facts in support of such charges. The facts pleaded do not show any deprivation of constitutional rights in any of plaintiffs' causes of action.

The Tenth Circuit Court of Appeals has consistently held that bald conclusions, unsupported by allegations of fact, are legally insufficient; and pleadings containing only such conclusory language may be summarily dismissed or stricken without a hearing, Lorraine v. United States, 444 F.2d 1 (10th Cir.1971); Atkins v. Kansas, 386 F.2d 819 (10th Cir.1967); Hilliard v. United States, 345 F.2d 252 (10th Cir.1965); Martinez v. United States, 344 F.2d 325 (10th Cir.1965). In Wise v. Bravo, 666 F.2d 1328 (10th Cir.1981), the following appears:

"... Constitutional rights allegedly invaded, warranting an award of damages, must be specifically identified. Conclusory allegations will not suffice. Brice v. Day, 604 F.2d 664 (10th Cir.1979), cert. denied, 444 U.S. 1086 100 S.Ct. 1045, 62 L.Ed.2d 772 (1980)."

In Wells v. Ward, 470 F.2d 1185 (10th Cir.1972), the court quoted from the opinion of Judge Breitenstein in Freeman v. Flake, 448 F.2d 258 (10th Cir.1971), cert. denied, 405 U.S. 1032, 92 S.Ct. 1292, 31 L.Ed.2d 489 (1972), in part as follows:

"... The existence of the § 1983 remedy does not require that federal courts entertain all suits in which constitutional deprivations are asserted. A federal constitutional question must exist `not in mere form, but in substance, and not in mere assertion, but in essence and effect.' Cuyahoga River Power Co. v. Northern Ohio Traction & Light Co., 252 U.S. 388, 397, 40 S.Ct. 404, 408, 64 L.Ed. 626." 470 F.2d at 1189.

While the court views the complaints in the light most favorable to the plaintiffs in considering a motion to dismiss under Federal Rules of Civil Procedure 12(b), the court distinguishes between well pleaded facts and conclusory allegations. The court disregards unsupported conclusions, Mitchell v. King, 537 F.2d 385, 386 (10th Cir.1976). Therefore, the court finds that plaintiffs' complaints do not state claims for any constitutional deprivation, and are therefore frivolous.

Finally, in the case of Cotner v. Oklahoma National Guard, No. 83-174-C (E.D.Ok.1983), the court was apprised of a letter written by plaintiff Cotner and mailed to the Attorney General's Office. Cotner's letter is an open threat to taxpayers, demanding that he be released from prison lest he file numerous civil suits at taxpayer's expense, and encourage and train other inmates to do likewise. A copy of that letter is annexed to this order and is identified as "Attachment A". In that letter, plaintiff Cotner stated:

"..., plus that certain prisoner Cotner filed over 15 federal law suits which cost tax-payers another $100.00 each (totalling $1,500.00) just to file them, and another $100.00 pr. month, each just for the state attorneys to answer each one, each month, which is a total of another $1,200.00 of tax-payers money, pr. year, pr. case (totalling $18,000.00 per year) and if that is multiplied over the intire 10 years that that one prisoner is to be kept in prison, it comes to a total cost to the tax-payers of about $363,500.00 just to punish that one prisoner (one prisoner!) for $45.00 worth of marijuana! is it worth it? what about the other prisoners that that one prisoner will teach and/or help to file their own civil suits, what will that cost the tax-payers...."

In these cases, at least, the cost to taxpayers will be far less than what plaintiff Cotner obviously had hoped.

Cotner's "pupils" have followed their lessons so well that their complaints even read the same as their pedagogue—a bit too much so. It is readily apparent that Cotner has done much more than "teach and/or help" other prisoners to file their frivolous lawsuits. Their complaints are obvious copies of plaintiff Cotner's petition in No. 85-502-C. To suggest otherwise serves only to test the gullibility of the credulous, and requires this court to espouse a naivete unwarranted under the circumstances.

Cotner's prolific abuse of his in forma pauperis privilege is well-known, and will be discussed in detail later in this order. These complaints are but further examples of his malicious intent to disrupt the courts and to make others pay for his mistakes. These actions are frivolous, malicious and improper—and this court so finds.

Because of Cotner's demonstrated history of filing frivolous lawsuits, because his letter to the Attorney General clearly indicates those lawsuits were filed for malicious purposes, because he threatened...