PLAINTIFF’S RESPONSE TO DEFENDANTS’ JOINT REPLY TO MOTION TO DISMISS

February 3, 2023

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

JANICE CASSANDRA WRENN, 

                                           Plaintiff,

            vs.

OKLAHOMA OFFICE OF THE ATTORNEY GENERAL, and

SCOTT PRUITT, and 

MIKE HUNTER, and

MYKEL FRY, and

LORY DEWEY, and

OKLAHOMA HEALTH CARE AUTHORITY, and

JOEL NICO GOMEZ, and

KEVIN CORBETT, and

NICOLE M NANTOIS, and 

JEREMIAH STRECK, and 

TRAVIS KIRKPATRICK, and

TRAYLOR RAINS, and

WENDY LARSEN, and

MELINDA THOMASON, and

LISA GIFFORD, and

CARRIE EVANS, and

OKLAHOMA MEDICAID FRAUD CONTROL UNIT, and

THOMAS SIEMS, and 

MYKEL FRYE, and                                          Defendants 

Case No.: CIV – 21-0060jd

 

PLAINTIFF’S RESPONSE TO DEFENDANTS’ JOINT REPLY TO MOTION TO DISMISS

 

COMES NOW Plaintiff, JANICE CASSANDRA WRENN, Pro-se, hereby files this Repsonse to Defendants’ Joint Reply to Motion to Dismiss, and states as follows:

ARGUMENTS

  1. DEFENDANTS WERE PROEPRLY SERVED

Defendants allege that Plaintiff has not complied with Fed. R. Civ. P. 4(j) by servicing the State and the Defendants in their official capacity with proof that she has served each agency’s “chief executive officer.” They also allege that the Defendants sued individually have not been properly served within 90 days pursuant to Rule 4(e) and (m). 

Plaintiff avers that dismissal for failure to adhere to Fed. R. Civ. P. 4(j) would be a harsh result for the plaintiff. Although dismissal under Rule 4(m) is formally without prejudice, in this case, because the short 60-day time limit on bringing such actions has long since expired, dismissal would effectively end plaintiff’s opportunity to seek legal redress. For that reason, this Honorable Court should be inclined to favorable to Plaintiff. See McGregor v. U.S., 933. F. 2d 156.

It is accepted law that “Absent a showing of good cause to justify a failure to effect timely service, the Federal Rules of Civil Procedure compel dismissal.” Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996). It is therefore Plaintiff’s responsibility to establish good cause, which “necessitates a demonstration of why service was not made within the time constraints of Fed. R. Civ. P. 4(j).” Habib v. General Motors Corp., 15 F.3d 72, 74 (6th Cir. 1994). In Plaintiff’s opposition to Defendant’s Motion, Plaintiff avers that the delay was caused by USPS time delay in delivery of service. Also, Plaintiff had trouble finding the appropriate address(es) for some of the Defendants. These reasons amount to good cause why service was done past the required timeline. 

  • THE ELEVENTH AMENDMENT, EX PARTE YOUNG and THE YOUNGER DOCTRINE

Defendants argue that Ex Parte Young may only be brought when the Plaintiff is seeking “prospective non-economic relief.” Defendants also allege that Plaintiff misapplied Sprint Commc’ns, Inc. v. Jacobs, 690 F.3d 864 (8th Cir. 2012), and relied on the selfsame case at the U.S. Supreme Court, which held that the case does not fall within any of the three classes of exceptional cases for which Younger abstention is appropriate. Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 134 S. Ct. 584 (2013). 

However, Plaintiff avers that the ruling in the Supreme Court does not permanently preclude Federal Courts from hearing such claims. It stated in that regard that, “we have cautioned, however, that federal courts ordinarily should entertain and resolve on the merits an action … and should not ‘refus[e] to decide a case in deference to the States.’” Accordingly, the merits of Plaintiff’s action, as alleged in Plaintiff’s Complaint, allows the Federal Court to hear Plaintiff’s case.

It is worth noting that in Defendants’ response, they make no rebuttal on Plaintiff’s allegation that Defendants attempted to strong arm the plaintiff for $644,264.32 32 (See Exhibit 2-Cover Pages that state used) in which they have no claim of record who the money is owed to. Accordingly, Defendants seem to admit that they were on the wrong and that they are attempting, by all means, to hinder Plaintiff’s access to justice in protection of his rights. 

  • Fed. R. Civ. P. 12(b)(6)

Defendants aver that Plaintiff has failed to properly plead sufficient plausible claims in his Complaint. They also allege that the Complaint fails to state who is alleged to have done what to violate Plaintiff’s federal rights. 

Plaintiff reiterates that she adhered to the provisions of Fed. R. Civ. P. 8(a)(2) that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Plaintiff also maintains that to survive a Fed. R. Civ. P. 12(b)(6) motion to dismiss, Plaintiff need only allege “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 721 (9th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Further, in considering a motion to dismiss for failure to state a claim, a court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. The court construes all material allegations in the light most favorable to the plaintiff. Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir. 2001).

Plaintiff’s Complaint sufficiently meets the threshold in Fed. R. Civ. P. 8(a)(2). Every Count/Claim for Relief contains plain statement(s) of the claim and how the Defendants are liable thereat. Plaintiff also makes reference to Exhibits which contain further facts and/or information pertaining the counts. It follows; Plaintiff maintains that his Complaint raises sufficient facts to establish a case to answer against the Defendants.   

  • HECK vs. HUMPHREY

Defendants allege that Heck applies in Plaintiff’s case because it bars Plaintiff from bringing his § 1983 claim. 

Plaintiff reiterates that interpreting Heck so narrowly as the Defendants do only serves to limit Plaintiff’s rights. Plaintiff refers Defendants to Justice Souter’s contribution in Heck, which provided that a convicted criminal’s federal claims against state actors always deserve an opportunity to be heard in a federal forum. Justice Souter describes the absence of such an opportunity as an “untoward result.” Heck, 512 U.S. 477, 501 (1994), at 500-01. Accordingly, Heck should not be used to preclude Plaintiff’s claim because it stretches Heck far beyond what it was intended to avoid.

CONCLUSION

For the reasons detailed above, Plaintiff vehemently opposes Defendants’ Joint Reply to Motion to Dismiss and prays this honourable court to deny and dismiss it in toto.

Respectfully submitted,

                                                                                                

              

 

CERTIFICATE OF MAILING

I, DARRICK EDWARD WRENN, certified on this day of       2021, I deposited a true copy of the above to the defendant by placing the documents with prepaid postage in the United States mailbox address to each person.

 

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