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Fishinghawk v. Kissinger

United States District Court, E.D. Oklahoma

June 11, 2018

EVAN FISHINGHAWK, Plaintiff,
v.
SHELLY KISSINGER, et al., Defendants.

          OPINION AND ORDER

          Ronald A. White United States District Judge

         Plaintiff 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.

         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. 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. § 1915(e)(2)(B).

         The 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).

         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 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).

         Request for Release from Custody

         As an 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.

         Plaintiff's Allegations

         Plaintiff 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).

         Defendants Don LNU and Chris LNU

         Plaintiff 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 ...


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