Tabor v. Beckham County Detention Center et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
TERRY DEWAYNE TABOR, )
)
Plaintiff, )
)
v. ) Case No. CIV-25-781-PRW
)
FNU FREEMAN et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
Plaintiff Terry Dewayne Tabor, appearing
pro se and in forma pauperis, filed this
action under 42 U.S.C § 1983. (ECF No. 1). United States District Judge Patrick R. Wyrick
has referred this matter to the undersigned magistrate judge for initial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B)-(C). A review of the Complaint has been conducted
pursuant to 28 U.S.C. § 1915A(a) and 28 U.S.C. § 1915(e)(2)(B). Based on that review, the
Court should DISMISS the Complaint.
I. SCREENING REQUIREMENT
The Court must review each complaint in which a prisoner seeks redress against a
governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). The Court likewise must
review each case brought by a prisoner with respect to prison conditions and each case in
which a plaintiff proceeds	
in forma pauperis. 42 U.S.C. § 1997e(c)(1); 28 U.S.C. §
1915(e)(2). The Court is required to dismiss the complaint or any portion of the complaint
that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks
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monetary relief against a defendant who is immune from such relief.
See 28 U.S.C. §§
1915A(b), 1915(e)(2)(B); 42 U.S.C. § 1997e(c)(1).
II. PLAINTIFF’S COMPLAINT
Mr. Tabor is a convicted state prisoner who currently resides at the Oklahoma State
Reformatory (OSR).
See ECF No. 1-2. Mr. Tabor has filed a civil rights complaint, naming,
as Defendants: (1) FNU Freeman, an employee at OSR; (2) “Medical” at OSR; (3) Ms.
Forgette, case manager at “John Lilly prison;” and (4) the Oklahoma Department of
Corrections. (ECF No. 1:1, 4). The Complaint sets forth two claims. In Claim One, Plaintiff
alleges that his First Amendment rights were violated by Defendant Freeman who refused
to send Plaintiff’s mail “out of Oklahoma to other Supreme Courts.” (ECF No. 1:6). In support
of this claim, Plaintiff attaches an affidavit which states that another inmate heard Mr.
Freeman the law librarian at OSR “say he was not going to send.” (ECF No. 1-1:3). Plaintiff
explains further “They don’t want me sending out the evidence I have for my innocent about
them lying on me about a car accident.” (ECF No. 1-1:3). And in a request to staff, Mr.
Tabor states: “My rights being violated being told he is not sending out my legal mail to
these outside states, about what is going on here in Oklahoma with the illegal MK Ultra,
Area 54.” (ECF No. 1-1:4).
In Claim Two, Plaintiff alleges that “Medical” at OSR are responsible for violating his
Eighth Amendment rights to receive medical care. (ECF No. 1:7). In support of this claim,
Plaintiff states he “ha[s] proof of the illegal Alien human experimentation” apparently
occurring at the prison. (ECF No. 1:7). Plaintiff sues Defendant Freeman in his official
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capacity only and seeks monetary damages. (ECF No. 1:4, 7). Plaintiff sues Ms. Forgette in
her individual and official capacity, but fails to raise any allegations in the Complaint against
this specific Defendant and seeks no relief against her.
See ECF No. 1. And finally, as relief
on Claim Two, Mr. Tabor requests the Court to “file on the medical staff. Also on DOC for
doing the illegal experimentation.” (ECF No. 1:8).
III. THE DEPARTMENT OF CORRECTIONS
As stated, Plaintiff names four Defendants, one of which is the Oklahoma Department
of Corrections (DOC).
See supra. But the DOC is not a proper defendant under section 1983,
because governmental entities are not “persons” subject to suit under this section.
See
McLaughlin v. Bd. of Trustees of State Colls. of Colo., 215 F.3d 1168, 1172 (10th Cir. 2000)
(explaining that a governmental entity which is an arm of the state is not a “person” under
section 1983). Thus, the Court should dismiss this Defendant, with prejudice.
IV. DEFENDANT FREEMAN
As stated, Plaintiff has sued Defendant Freeman in his official capacity only and seeks
monetary relief.
See supra. However, the Tenth Circuit Court of Appeals has long held that
“Section 1983 plaintiffs may sue individual-capacity defendants only for money damages
and official-capacity defendants only for injunctive relief.”
Brown v. Montoya, 662 F.3d 1152,
1161 n.5 (10th Cir. 2011). As a result, the Court should dismiss, with prejudice, the official
capacity claim for monetary damages as set forth against Defendant Freeman in Claim One.
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V. DEFENDANT “MEDICAL” AT OSR
In Claim Two, Plaintiff alleges that “Medical” at OSR are violating his Eighth
Amendment rights to receive proper medical care.
See supra. But the Tenth Circuit has
stated: “it is particularly important . . . that the [1983] complaint make clear exactly
who is
alleged to have done
what to
whom, to provide each individual with fair notice as to the
basis of the claims against him.”
Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir.
2008). Mr. Tabor has failed in this regard by presenting only generalized allegations against
general medical staff at OSR, and the Court “will not supply additional factual allegations to
round out a plaintiff’s complaint or construct a legal theory on plaintiff’s behalf.”
Whitney v.
New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). Plaintiff’s failure in this regard
renders the Complaint legally deficient.
See Nasious v. Two Unknown B.I.C.E. Agents, at
Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th Cir. 2007) (explaining “that, to
state a claim in federal court, a complaint must explain what each defendant did to [the pro
se plaintiff]; when the defendant did it; how the defendant’s action harmed (the plaintiff);
and, what specific legal right the plaintiff believes the defendant violated.”). Thus, the Court
should dismiss Claim Two as asserted against “Medical” at OSR, without prejudice.
VI. DEFENDANT FORGETTE
Plaintiff has named “Ms. Forgette Case Manager John Lilly Prison” as a Defendant in
this case, but in the body of the Complaint he has asserted no allegations against this
individual or explained her connection to his case. As a result, the Court should dismiss this
Defendant, without prejudice for failure to state a claim against her.
See supra,
Nasious.
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VII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based on the foregoing, the undersigned recommends the Court dismiss the
Complaint in its entirety.
Plaintiff is hereby advised of his right to file an objection to this Report and
Recommendation by filing objections with the Clerk of this Court by December 29, 2025,
in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. Plaintiff is further
advised that failure to make timely objection to this Report and Recommendation waives
the right to appellate review of both factual and legal questions contained herein.
Casanova
v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VIII. STATUS OF THE REFERRAL
This Report and Recommendation disposes of all issues referred to the undersigned
magistrate judge in the captioned matter.
ENTERED on December 10, 2025.
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