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Lolar v. State

United States District Court, N.D. Oklahoma

March 30, 2017

MARCUS E. LOLAR, Plaintiff,
v.
THE STATE OF OKLAHOMA; MIKE FISHER, Osage County Associate District Attorney, Defendants.

          OPINION AND ORDER

          GREGORY K. FRIZZELL, CHIEF JUDGE UNITED STATES DISTRICT COURT

         On March 16, 2017, Plaintiff, a prisoner in custody of the Oklahoma Department of Corrections and appearing pro se, filed a 42 U.S.C. § 1983 civil rights complaint (Dkt. # 1) and a motion to proceed in forma pauperis (Dkt. # 2). By Order filed March 20, 2017 (Dkt. # 3), the Court granted Plaintiff's motion to proceed in forma pauperis and required payment of an initial partial filing fee. On March 27, 2017, Plaintiff paid the initial partial filing fee. See Dkt. # 5. For the reasons discussed below, the complaint fails to state a claim upon which relief may be granted and is dismissed without prejudice.

         A. Plaintiff's allegations

         In his complaint (Dkt. # 1), Plaintiff identifies two defendants: the State of Oklahoma, and Mike Fisher, Osage County Associate District Attorney. Plaintiff sets forth three causes of action, as follows:

Count 1: Due process, 14th Amendment, equal protection of the law, DNA testing of exculpatory evidence that was withheld from jury; not allowing testing. Mike Fisher - A.D.A. exculpatory evidence withheld from jury by Mike Fisher. He also refused to have evidence tested that was requested by Plaintiff - which would have proved Plaintiff's innocence.
Count 2: Malicious denial of equal protection.
Refusing to test evidence (DNA) which it states in federal law, refusing to allow access to biological evidence for purpose of forensic DNA testing violated Plaintiff's due process.
Count 3: Malicious denial of State or Fed. laws due to conspiracy. Malicious prosecution.
Conspiracy with judge to have exculpatory evidence (DNA) not tested that he (Mike Fisher) withheld from jury and would have proven Plaintiff's innocence. For conviction ONLY.

Id. at 2-3. In his request for relief, Plaintiff asks for “any and all applicable relief that shall be awarded under any and all state and federal laws that's deemed appropriate by a jury or $15, 000, 000.” Id. at 3.

         B. Screening/Dismissal standards

         Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must identify any cognizable claim and dismiss any claim which is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2)(B). To avoid dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6), a complaint must present factual allegations, assumed to be true, that “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. A court must accept all the well-pleaded allegations of the complaint as true, even if doubtful in fact, and must construe the allegations in the light most favorable to the plaintiff. Id. at 555. However, “when the allegations in a complaint, however true, could not raise a [plausible] claim of entitlement to relief, ” the cause of action should be dismissed. Id. at 558. Twombly articulated the pleading standard for all civil actions. See Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). The Court applies the same standard of review for dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii) that is employed for Fed.R.Civ.P. 12(b)(6) motions to dismiss for failure to state a claim. Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007).

         A pro se plaintiff's complaint must be broadly construed under this standard. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972). The generous construction to be given the pro se litigant's allegations “does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A reviewing court need not accept “mere conclusions characterizing pleaded facts.” Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990); see also Twombly, 550 U.S. at 555 (“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” (quotations and citations omitted)). The court “will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).

         C. Plaintiff's complaint ...


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