United States District Court, N.D. Oklahoma
MARCUS E. LOLAR, Plaintiff,
THE STATE OF OKLAHOMA and BRUCE DAVID GAMBILL, Defendants.
OPINION AND ORDER
Y.K. Frizzell, Judge
March 16, 2017, Plaintiff Marcus E. Lolar, a pro se prisoner
incarcerated at Davis Correctional Facility in Holdenville,
Oklahoma, filed this civil rights complaint pursuant to 42
U.S.C. § 1983, naming the State of Oklahoma and Osage
County Associate District Judge Bruce David Gambill as
defendants (Dkt. 1). On that same date, Plaintiff filed a
motion to proceed in forma pauperis (Dkt. 2), which
was granted on March 20, 2016 (Dkt. 3). The initial partial
filing fee was paid on March 27, 2017 (Dkt. 5).
alleges his Fourth, Eighth, and Fourteenth Amendment rights
were violated by Defendant Judge Gambill (Dkt. 1 at 2). He
specifically claims Judge Gambill refused to allow DNA
testing of exculpatory evidence that was withheld from the
jury in Plaintiff's criminal prosecution. Id. at
3. In addition, Judge Gambill allegedly discriminated against
him, because Plaintiff is black. Id. Finally,
Plaintiff claims Judge Gambill conspired with Assistant
District Attorney Mike Fisher to withhold from an all-white
jury the exculpatory evidence that could have proven
Plaintiff's innocence. Id. at 4. Plaintiff is
seeking “Any and ALL Applicable relief that shall be
awarded under ANY and ALL STATE and FEDERAL LAWS . . . deemed
Appropriate by a jury, or $15, 000, 000. Id. at 6.
Standard of Review
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. 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. 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
Atl. 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. Nonetheless, “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).
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 to 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).
Notwithstanding a pro se plaintiff's various mistakes or
misunderstandings of legal doctrines or procedural
requirements, “if a court can reasonably read the
pleadings to state a valid claim on which the plaintiff could
prevail, it should do so . . . .” Id. 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).
Complaint Fails to State a Claim Upon Which Relief May be
Defendant State of Oklahoma
State of Oklahoma is entitled to dismissal on the basis of
Eleventh Amendment sovereign immunity. Absent a specific
waiver of immunity or express abrogation of the State's
immunity by Congress, “[n]onconsenting States may not
be sued by private individuals in federal court.”
Opala v. Watt, 454 F.3d 1154, 1157 (10th Cir. 2006)
(quotations omitted). The State of Oklahoma has not expressly
waived its Eleventh Amendment immunity to suit in federal
court. See Okla. Stat. tit. 51, § 152.1.
Tenth Circuit, the Court can consider the issue of Eleventh
Amendment immunity sua sponte. See V-1 Oil Co.
v. Utah State Dep't of Public Safety, 131 F.3d 1415,
1420 (10th Cir. 1997). Moreover, the Supreme Court has held
that § 1983 does not abrogate state sovereign immunity.
Will v. Mich. Dep't of State Police,
491 U.S. 58, 66 (1989). Therefore, Plaintiff's claims
against the State of Oklahoma are dismissed without
prejudice, pursuant to 28 U.S.C. § 1915A(b). See
Rural Water Sewer & Solid Waste Mgmt., Dist. No. 1, Logan
Cnty., Okla. v. Guthrie, 654 F.3d 1058, 1069 n.9 (10th
Defendant Judge Bruce David Gambill
Judge Gambill is entitled to absolute judicial immunity for
his actions regarding Plaintiff's criminal prosecution.
It is well established that “[a]bsolute immunity bars
suits for money damages for acts made in the exercise of
prosecutorial or judicial discretion.” Andrews v.
Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007) (quoting
Guttman v. Khalsa, 446 F.3d 1027, 1033 (10th Cir.
2006)). The Court finds Judge Gambill was “performing
judicial acts and [was] therefore clothed with absolute
judicial immunity.” Hunt v. Bennett, 17 F.3d
1263, 1267 (10th Cir. 1994), cert. denied, 513 U.S.
832 (1994). Plaintiff's claims for money damages against
Judge Gambill are dismissed with prejudice, pursuant to 28
U.S.C. § 1915A(b).
“Prior Occasion” under 28 ...