United States District Court, N.D. Oklahoma
MARCUS E. LOLAR, Plaintiff,
THE STATE OF OKLAHOMA; MIKE FISHER, Osage County Associate District Attorney, Defendants.
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE UNITED STATES DISTRICT COURT
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.
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
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
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.
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
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).
Plaintiff's complaint ...