United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL, UNITED STATES DISTRICT COURT CHIEF JUDGE
April 24, 2017, Plaintiff Marsden Voltaire Elias, a pro se
prisoner incarcerated at Jess Dunn Correctional Center, filed
a civil rights complaint pursuant to 42 U.S.C. § 1983
(Dkt. 1), a motion to proceed in forma pauperis
(Dkt. 2), and a request for issuance of summons (Dkt. 3). The
Court granted the in forma pauperis motion on May
19, 2017 (Dkt. 4), and Plaintiff paid the initial partial
filing fee on June 2, 2017 (Dkt. 6).
alleges he was not fully advised of the consequences of his
plea, and he is factually innocent (Dkt. 1 at
He claims that Defendant Washington County District Judge
Curtis L. DeLapp “has maliciously halted or stalled
[Plaintiff's] attempts at redress or
appeal/certiorari.” Id. at 1. Plaintiff
further asserts his conviction is “bogus, ” and
the state district court “is not complying with court
rules, nor [sic] owning its numerous mistakes.”
Id. at 2. He requests the following relief:
“My conviction should be vacated and I should be
exonerated. Steps should be made to atone for my numerous
losses and suffering.” Id. at 3.
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 d o s o . . . . ” 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
Granted A. Judicial Immunity
Washington County District Court Judge Curtis L. DeLapp 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 DeLapp 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).
Therefore, Plaintiff's claims for money damages against
Judge DeLapp are dismissed with prejudice pursuant to 28
U.S.C. § 1915A(b).
Relief from Conviction
alleges he was misinformed about whether his sentence fell
under the 85% Rule of Okla. Stat. tit. 21, §§ 12.1,
13.1. To the extent Plaintiff requests equitable relief in
the form of vacation of his conviction and exoneration, a
§ 1983 cause of action is not the appropriate means for
seeking such relief. Rather, habeas corpus is the exclusive
remedy for a state prisoner challenging the fact or duration
of his confinement when the relief sought includes immediate
or speedier release. Preiser v. Rodriguez, 411 U.S.
475, 489-90 (1973). See also Heck v. Humphrey, 512
U.S. 477, 481 (1994). Thus, any such claim brought as part of
a § 1983 complaint is subject to being dismissed without
prejudice to refiling in a separate habeas action, if
appropriate. See Preiser, 411 U.S. 475 at 500.
See also McIntosh v. U.S. Parole Comm'n, 115
F.3d 809, 812 (10th Cir. 1997) (“A habeas corpus
proceeding attacks the fact or duration of a prisoner's
confinement and seeks the remedy of immediate release or a
shortened period of confinement. In contrast, a civil rights
action . . . attacks the conditions of the prisoner's
confinement and requests monetary compensation for such
conditions.” (internal quotation marks and citation
omitted)). Plaintiff's request for relief from his
conviction is dismissed without prejudice pursuant to 28
U.S.C. § 1915A(b).
“Prior Occasion” under 28 U.S.C. §
noted above, Plaintiff was granted leave to proceed in
forma pauperis. Because Plaintiff has failed to state a
claim upon which relief may be granted, the dismissal of the
complaint shall count as a “prior occasion” under
1915(g) (providing that “[i]n no event shall a prisoner
bring a civil action or appeal a judgment in a civil action
or proceeding under this section if the prisoner has, on 3 or
more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which
relief may be granted, unless the prisoner is under imminent
danger of serious physical injury”).
IT IS ...