Cross v. Frazier
| Decision Date | 06 July 2020 |
| Docket Number | Case No. 6:18-cv-00081-DAK-DBP |
| Court | U.S. District Court — Eastern District of Oklahoma |
| Parties | ADRIAN CROSS, Plaintiff, v. ROB FRAZIER, JEREMY GARVIN, and TERRY FREEMAN, Defendants. |
REPORT & RECOMMENDATION
On August 1, 2019, Plaintiff Adrian Cross ("Plaintiff" or "Mr. Cross") filed a third amended complaint in his pro se civil rights suit against Defendants Sheriff Rob Frazier ("Sherriff Frazier"), and Jeremy Garvin ("Mr. Garvin").2 On March 17, 2020, Sheriff Terry Freeman ("Sheriff Freeman"), the current Sheriff of Muskogee County, was added as a substitute party-defendant with respect to Plaintiff's official capacity claims.3
At the time of the events giving rise to his claims, Plaintiff was housed at the Muskogee County Jail (the "Jail") as a federal pretrial detainee.4 Mr. Cross filed his initial pleading on Mach 16, 2018, and was granted permission to amend twice thereafter.5 Plaintiff's third amended complaint is the operative complaint and the pleading stands on its own such that the allegations and claims set forth in Mr. Cross' prior complaints are not incorporated therein.6
Currently pending before this court is Sheriff Frazier, Mr. Garvin and Sheriff Freeman's (collectively, "Defendants") motion for judgment on the pleadings,7 Plaintiff's motion to supplement and/or amend the complaint,8 Plaintiff's motion for appointment of counsel,9 Defendants' motions to strike Plaintiff's "supplemented/amened [sic] complaint"10 and Defendants' motion to strike the declaration of Loretta Cross.11
For the reasons set forth herein, this court now recommends as follows.
I. Federal Rule of Civil Procedure 12(c)
Defendants move for judgment on the pleadings under Federal Rule of Civil Procedure12(c).12 The standard of review under Rule 12(c) is the same as under Rule 12(b)(6)13 and dismissal is proper "'when it appears that the plaintiff can prove no set of facts in support of the claims that would entitle the plaintiff to relief.'"14 In reviewing a claim, all factual allegations are presumed true and construed in a light most favorable to the plaintiff.15
To survive dismissal, a plaintiff must plead both a viable legal theory and enough factual matter that, taken as true, makes the claim for relief plausible on its face.16 When reviewing a complaint, the court accepts all plausible factual allegations but need not give credence to "unwarranted inferences, unreasonable conclusions, or arguments."17 In turn, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice."18
The determination of whether a complaint states a plausible claim is "context-specific" and "requires the reviewing court to draw on its judicial experience and common sense."19 Indeed, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged---but has not 'show[n]' that the pleader is entitled to relief."20
Because Mr. Cross proceeds pro se, the court construes his pleading "liberally."21 That said, it is not "the proper function" of the court "to assume the role of advocate for the pro se litigant,"22 and the court "will not supply additional facts, nor will [it] construct a legal theory" assuming "facts that have not been pleaded."23 As a result, even a "broad reading" of the complaint "does not relieve [Mr. Cross] of the burden of alleging sufficient facts on which a recognized legal claim could be based."24
Defendants move for dismissal of Plaintiff's claims pursuant to federal rule of civil procedure 12(c).26 In his third amended complaint, Mr. Cross brings § 1983 claims against Mr.Garvin27 and Sheriff Frazier28 in their individual capacities and, through substitution, against Sheriff Freeman in his official capacity, for violations of his 5th, 8th and 14th amendment rights.29
Standing alone, Section 1983 is not "a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred."30 Specifically, the statute creates a federal cause of action for violations of constitutional law by individuals acting "under color of state law."31 The statute is designed "to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails."32 Two prima facie elements "must be alleged in a § 1983 complaint: 1) the defendant deprived the plaintiff of a right secured by the 'Constitution and laws' of the United States and 2) the defendant acted 'under color of law.'"33 An individual acting under color of law"is a government official or person who acts under the authority of state law or a private person whose conduct is fairly attributable to the State."34
In the context of a civil rights action against multiple governmental actors, liability is predicated on each defendant's personal involvement in the constitutional violation.35 Accordingly, it is of particular importance "that the complaint make clear exactly who is alleged to have done what to whom, [in order] to provide each individual with fair notice as to the basis of the claims against him or her."36
In order to state a viable § 1983 claim against Mr. Garvin and Sheriff Frazier in their individual capacities, Mr. Cross must point to the defendants' personal involvement in the alleged violations. A grievance denial alone without any connection to "violation of constitutional rights alleged by plaintiff, does not establish personal participation under§ 1983."38
The allegations against Mr. Garvin and Sheriff Frazier are sparse.39 Plaintiff's third amended complaint simply identifies Mr. Garvin as "Administrator of the MCSO[,]"40 and Sheriff Frazier as "Sheriff of Muskogee County, Oklahoma,"41 and alleges that, while acting under color of law, they 42 Additionally, Mr. Cross references "written requests" he made to Mr. Garvin explaining that his medical condition caused him "to be very parched and [that he ] need[ed] to be hydrated."43
To survive dismissal, Mr. Cross may not rely upon unsupported and conclusory statements. To the contrary, he must provide "specific facts" highlighting each defendant's personal involvement in a constitutional violation.44 Notably, Plaintiff fails to identify any specific actions by either Mr. Garvin or Sheriff Frazier, or to tether those actions to a constitutional violation and Plaintiff's "written requests" are not sufficient to support Mr. Garvin's personal involvement or participation in a violation of Mr. Cross' constitutionalrights.45 As a result, the pivotal question of "who is alleged to have done what to whom" remains unanswered.46
Constitutional rights "allegedly invaded, [and] warranting an award of damages, must be specifically identified."47 Mr. Cross does not do so, and his conclusory allegations fail to support a § 1983 claim against Mr. Garvin and Sheriff Frazier in their individual capacities.
Even assuming Mr. Cross alleged personal participation by Mr. Garvin and Sheriff Frazier, the doctrine of qualified immunity would similarly bar Plaintiff's claims.
In a § 1983 action, qualified immunity attaches and immunizes governmental officials from "liability for civil damages insofar as their conduct does not violate clearly established constitutional rights of which a reasonable person would have known."48 In order to defeat immunity a plaintiff must show: "(1) that the defendant's actions violated a constitutional . . . right, and (2) that the right allegedly violated [was] clearly established at the time of the conductat issue."49 A right is "clearly established," if "a reasonable [government official] would understand that what he [or she] is doing violates that right."50
As discussed, Ms. Cross fails to connect any constitutional violation to Mr. Garvin or Sheriff Frazier and nothing in the amended pleading alleges that either defendant acted in a manner in which they should have known that Plaintiff's constitutional rights were being violated.51
To the extent that Plaintiff attempts to make an administrative claim against Mr. Garvin and Sheriff Frazier, supervisory "status by itself is insufficient to support liability."52
To state a claim for supervisory liability, Plaintiff must provide an affirmative link between the alleged constitutional violations and the defendants' failure to supervise.53 Of note, simply acting as a supervisor of subordinates who have allegedly committed constitutional violations does not give rise to liability.54 Rather, Plaintiff must allege that the supervisor actively participated in, or acquiesced to, the violations.55
Mr. Cross does not assert a supervisory relationship or offer an affirmative link between a constitutional violation and Sheriff Frazier and Mr. Gavin's "exercise of control of direction, or [ ] failure to supervise."56 Additionally, Mr. Cross does not address the requisite state of mind or allege that Sheriff Frazier and Mr. Gavin, in their supervisory capacities, "acted knowingly or with 'deliberate indifference' that a constitutional violation...
To continue reading
Request your trial