United States District Court, E.D. Oklahoma
OPINION AND ORDER
A. White United States District Judge
is a pro se state prisoner incarcerated at Joseph Harp
Correctional Center in Lexington, Oklahoma. He is proceeding
in forma pauperis in this civil rights complaint
pursuant to 42 U.S.C. § 1983, seeking relief for alleged
violations of his constitutional rights in Cherokee County,
Oklahoma (Dkt. 1). The defendants are Shelly Kissinger,
Cherokee County Court Clerk; Don LNU, Transportation Officer;
Chris LNU, Transportation Officer; Crystal Jackson, Attorney,
Jackson Law Firm; and Rachelle Dallis, Assistant District
Attorney for Cherokee County.
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
claims and dismiss any claims which are frivolous, malicious,
fail to state a claim upon which relief may be granted, or
seek monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915A(b); 28 U.S.C. §
pleading standard for all civil actions was articulated in
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
See Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). 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.” Twombly,
550 U.S. at 555. 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
555-56. “So, when the allegations in a complaint,
however true, could not raise a claim of entitlement to
relief, ” the cause of action should be dismissed.
Id. at 558. 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, however, “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).
“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.” Twombly, 550
U.S. at 555 (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).
for Release from Custody
initial matter, Plaintiff has requested relief in the form of
monetary damages or release from custody. Claims for release
from custody, however, cannot be considered in a civil rights
action. This form of relief may be pursued through a petition
for a writ of habeas corpus.
has set forth the following allegations in his complaint:
My Notice to Appeal Criminal Conviction was not Legally Filed
or Acknoledged being Deliberately ignored and or Destroyed by
Defendants. D/O Don Told me I Turned it in to Court Clerk
Kissinger and Advise Rachielle Dallis and Crystal Jackson of
Your wanting to Appeal. They Got Your Letter “Notice to
Appeal” on 12-4-17.
(Dkt. 1 at 3) (errors in original).
Don LNU and Chris LNU
alleges Transportation Officers Don LNU and Chris LNU
delivered Plaintiff's notice of appeal to Defendant Court
Clerk Shelly Kissinger on December 4, 2017 (Dkt. 1 at 5).
Plaintiff, however, has failed to allege how ...