United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL UNITED SJATES DISTRICT JUDGE
the Court are the plaintiff's Complaint (Doc. 1) and
Motion for Leave to Proceed In Forma Pauperis and Supporting
Affidavit (Doc. 2). The plaintiff, proceeding pro se,
initiated this case against the State of Oklahoma. (Doc. 1 at
1). Although the style of the Complaint lists only the State
of Oklahoma as a defendant, plaintiff has set forth the names
of other putative defendants under section I.B. of the
Complaint. In addition to the State of Oklahoma, plaintiff
asserts that the following are defendants: the Delaware
County District Attorney (id. at 2); Maggie McBane,
which plaintiff indicates is a “passive defendant due
to her interest and credibility impairment, ”
(id. at 3); “Dennis Smith and/or Angela
Marsee, District Attorney” (id.); and Catina
Drywater, Attorney for Rogers County Child Support
Services” (Id. at 4). Plaintiff asserts that
“the culprit was the State in general, ” and all
of the defendants are sued in their official capacities, with
the exception of Maggie McBane. (Id. at 2-4).
seeks to commence the action without prepayment of fees
pursuant to 28 U.S.C. § 1915(a)(1), which provides that
“any court of the United States may authorize the
commencement, prosecution or defense of any suit . . .
without prepayment of fees . . . by a person who submits an
affidavit that includes a statement of all assets such
prisoner possesses that the person is unable to pay such
fees.” Despite the statute's reference to
“prisoner, ” it applies to all persons who apply
for in forma pauperis status. Brown v. Eppler, 725
F.3d 1221, 1229 n.6 (10th Cir. 2013). In enacting §
1915(a), Congress intended to provide indigent litigants
meaningful access to the federal courts. Neitzke v.
Williams, 490 U.S. 319, 324 (1989). “Congress
recognized, however, that a litigant whose filing fees and
court costs are assumed by the public, unlike a paying
litigant, lacks an economic incentive to refrain from filing
frivolous, malicious, or repetitive lawsuits.”
Id. To prevent frivolous filings, the statute
authorizes a court to sua sponte dismiss a case filed in
forma pauperis where the action is frivolous or malicious,
the plaintiff has failed to state a claim upon which relief
can be granted, the defendant is entitled to immunity, or the
plaintiff has included false allegations of poverty.
See 28 U.S.C. § 1915(e)(2); Stafford v.
United States, 208 F.3d 1177, 1179 n.4 (10th Cir. 2000).
pro se pleadings must be liberally construed and must be held
to less stringent standards than formal pleadings drafted by
lawyers, Haines v. Kerner, 404 U.S. 519, 520 (1972),
a district court should not assume the role of advocate.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991); United States v. Pinson, 584 F.3d 972, 975
(10th Cir. 2009); Garret v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005). Moreover,
even pro se plaintiffs are required to comply with the
“fundamental requirements of the Federal Rules of Civil
and Appellate Procedure” and substantive law, and the
liberal construction to be afforded does not transform
“vague and conclusory arguments” into valid
claims for relief. Ogden v. San Juan County, 32 F.3d
452, 455 (10th Cir. 1994). 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,
1173-1174 (10th Cir. 1997).
impossible to discern from the Complaint a basis for the
maintenance of any claim against any of the defendants
identified by the plaintiff. Plaintiff indicates that his
claims arise under both 42 U.S.C. § 1983 and Bivens
v. Six Unknown Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971). Bivens does not apply, as that
case only authorizes certain claims against federal
agents, and none are named in plaintiff's Complaint.
Plaintiff has also not alleged any facts that would state a
plausible claim under § 1983. Plaintiff alleges that he
is “suing on the equal protection clause and it's a
piece of ideological repugnance; but I think it's
accurate and fair.” (Doc. 1 at 5). He has not asserted
any facts that would allege any colorable claim under the
Equal Protection Clause or any other provision of the
Constitution. He also refers generally to some right of
“liberty” that he suggests has been violated, but
his allegations are without factual support. (Id.).
He further contends that he has been “grotesquely
infringed upon as a result of the false-light
misrepresentation of [him] in Delaware County by way of
criminal charges coming up on background checks, ” but
he does not state any facts to support that assertion or
explain how that violates a federal right.
gist of plaintiff's Complaints relates to proceedings in
state court regarding dissolution of his marriage, and his
acquiescence in 2008 to “step out” of the life of
his then-wife, Maggie McBane, and be absent from his
daughter's life. (See Id. at 8-9). Plaintiff has
many complaints about Ms. McBane and her attorney in the
divorce proceedings, and their actions in 2008. He further
asserts that, “[b]etween May and July of 2008, there
was a family relations quagmire that resulted in a domestic
battery charge against [him] in Las Vegas Nevada, ” but
“nobody can find this case” now and
“[a]pparently, Nevada doesn't care anymore.”
(Id. at 9). According to plaintiff, Maggie McBane
then committed some form of tax evasion. (Id.). He
alleges that, at some point, McBane's new husband adopted
plaintiff's daughter without his consent. (Id.).
Plaintiff's Complaint also alleges that his sister
punched his 7-month old baby, whom plaintiff was holding at
the time. (Id.). There were protective orders, a DUI
in May of 2012, which he “committed . . . because [he]
was flagrantly driving under the influence with
indifference” and he “also altered a tie rod end
on [his] car because of where [he] lived so that [he] would
never drive left of center.” (Id. at 10-11).
In some court proceeding in Rogers County, Oklahoma,
plaintiff addressed the judge as “Yo Judgeness”
and “used the word ‘crap' in material that
[he] supplied to the court, ” and he was “getting
hammered in his car with no intent to drive” but was
“arrested for public intox . . . where these people
finally nabbed the nefarious ‘Otis' from the Andy
Griffith Show.” (Id. at 11). These and similar
unconnected allegations continue throughout the
plaintiff's Complaint, and they do not state any claim
under § 1983. His ex-wife's or her attorney's
alleged transgressions are not state action as is required to
render them defendants under § 1983.
the Complaint in this case liberally in light of
plaintiff's pro se status, the allegations do not state a
colorable claim under § 1983 or any other federal law.
As a result, the Court lacks subject matter jurisdiction over
this case. See Arbaugh v. Y & H Corp., 546 U.S.
500, 513, n.10 (2006) (federal court cannot exercise federal
question jurisdiction over a case absent a colorable claim
arising under federal law). The plaintiff's claims should
thus be dismissed without prejudice pursuant to §
assuming plaintiff had described facts that would support a
claim for a violation of federal rights (which he has not),
he may not maintain any claim(s) against the State of
Oklahoma. Except for Maggie McBane, who is plaintiff's
ex-wife, the defendants are the State of Oklahoma and others
sued in their official capacities as agents of the State of
Oklahoma. Suits against state officials, in their official
capacities, are suits against the state itself. See
Kentucky v. Graham, 473 U.S. 159 (1985). Absent a
specific waiver of immunity, the Eleventh Amendment bars
suits in federal court against a state and its agencies. U.S.
Const. amend. XI; see Bd. of Trustees of Univ. of Ala. v.
Garrett, 531 U.S. 356, 363 (2001); Reames v.
Oklahoma ex rel. Okla. Health Care Authority, 411 F.3d
1164, 1167-68 (10th Cir. 2005); Jones v. Courtney,
466 Fed.Appx. 696, 698 (10th Cir. 2012) (unpublished). Under
Oklahoma law, a district attorney is an arm of the state and
is entitled to Eleventh Amendment immunity from actions
against him in his or her official capacity. Erikson v.
Pawnee County Bd. Of County Comm'rs, 263 F.3d 1151,
1153-54 (10th Cir. 2001). Oklahoma has not waived its
Eleventh Amendment immunity to suit, and the Supreme Court
has held that 42 U.S.C. § 1983 does not abrogate state
sovereign immunity. Will v. Michigan Dep't of State
Police, 491 U.S. 58 (1989); see also generally Okla.
Stat. tit. 51, § 152.1(B).
Eleventh Amendment applies regardless of the relief sought.
See Higganbotham v. Oklahoma, 328 F.3d 638, 644
(10th Cir. 2003); Steadfast Ins. Co. v. Agricultural Ins.
Co., 507 F.3d 1250, 1252 (10th Cir. 2007). Any claims
against the State of Oklahoma, Delaware County District
Attorney, “Dennis Smith and/or Angela Marsee, District
Attorney, ” and Catina Drywater, Attorney for Rogers
County Child Support Services are subject to dismissal
without prejudice. See Shue v. Lampert, 580 F.
App'x 642, 644 (10th Cir. 2014) (unpublished).
THEREFORE ORDERED that plaintiffs claims are
dismissed without prejudice. Plaintiffs
Motion for Leave to Proceed In Forma Pauperis (Doc. 2) is
 The Court also notes that any claims
under § 1983 would be time-barred under the applicable
two-year statute of limitations. See Kripp v. Luton,
466 F.3d 1171, 1174-75 (10th Cir. 2006) (§ 1983 claims
are subject to Oklahoma's two-year statute of limitations
for actions “for injury to the rights of
another.”). Plaintiff's Complaint was filed four to
nine years after the events which he references between 2008
and 2013. (See Doc. 3 at 2 [asserting ...