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Lolar v. State

United States District Court, N.D. Oklahoma

May 3, 2017

MARCUS E. LOLAR, Plaintiff,
v.
THE STATE OF OKLAHOMA; STUART L. TATE, Special Judge; MIKE FISHER, Defendants.

          OPINION AND ORDER

          James H. Payne District Judge.

         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 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.

         A. Plaintiff's allegations

         In his 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.[1] 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 (I.I.E.D.)
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.

         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 fails to state a claim

         1. Any request for relief from conviction[s] is precluded in ...


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