United States District Court, N.D. Oklahoma
MARCUS E. LOLAR, Plaintiff,
THE STATE OF OKLAHOMA; STUART L. TATE, Special Judge; MIKE FISHER, Defendants.
OPINION AND ORDER
H. Payne District Judge.
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 21, 2017 (Dkt. # 3), the Court granted
Plaintiff's motion to proceed in forma pauperis and
required payment of an initial partial filing fee. On April
20, 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 three defendants:
the State of Oklahoma; Stuart L. Tate, Special Judge; and
Mike Fisher, Osage County Assistant District Attorney.
Plaintiff states that “Judge Stuart Tate was the judge
who did not sign warrant for probable cause, and was the
judge for preliminary hearing and ruled that enough evidence
was found, bound over for DCA, Mike Fisher was/is the ADA in
case.” Id. at 2. Plaintiff sets forth three
causes of action, as follows:
Count 1: False arrest/false imprisonment, procedural due
process - violation of 4th Amendment and 14th Amendment Mike
Fisher. On 9-22-14, Plaintiff was arrested and charged for
said crimes, Robb I, Ass w/ deadly weapon, Burglary I. On
9-23-14, warrant was issued and bond given. On 9-24-14,
probable cause was filed in district court. On 9-26-14,
another warrant issued for same allegations. First warrant
never signed by judge.
Count 2: Negligence, malicious denial of equal protection of
law, malicious denial of state or fed. laws due to
conspiracy, neglect to prevent conspiracy. Allowed ADA to
falsely arrest and falsely imprison plaintiff on a[n] invalid
warrant that was never sign[ed] by him (Judge) Tate.
Count 3: Intentional infliction of emotional distress
1) falsely imprisoned, 2) malicious denial of equal
protection of law, 3) Judge Stuart Tate, ADA Mike Fisher, 4)
loss [sic] wages, 5) loss of family, 6) falsely accused.
Mental anguish, pain & suffering, slander.
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 $25, 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 fails to state a claim
request for relief from conviction[s] is precluded in ...