United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
M. PURCELL, UNITED STATES MAGISTRATE JUDGE
a state prisoner appearing pro se and in forma
pauperis, brings this action purportedly pursuant to 42
U.S.C. § 1983. The matter has been referred to the
undersigned Magistrate Judge for initial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B). Having
reviewed the sufficiency of the Complaint pursuant to 28
U.S.C. § 1915A and 1915(e)(2)(B), the undersigned
recommends Plaintiff's action be dismissed without
Plaintiff's initial Complaint, he asserted that he was
wrongfully arrested and subsequently charged with a crime
based on an incident that occurred at Grand Casino located in
Shawnee, Oklahoma. See generally Doc. No. 1. He
asserted that someone at Grand Casino falsified a police
report, leading him to be wrongfully imprisoned. Id.
at 3. He explained that he was arrested for assaulting a
woman, the witness for the District Attorney could not
identify him, the assault charge was dropped, but he was
bound over for trial. Id. Plaintiff also stated that
his attorney refused to go trial, which resulted in Plaintiff
being forced into a blind plea agreement. Id. at 4.
The state court judge ordered drug treatment with a review
but he never received the review, which Plaintiff contends
became a breach of the court's agreement. Id. at
5. Rather than stating the relief he was seeking by this
action, Plaintiff stated only that he seeks relief because he
is “being wrongfully treated.” Id. at 7.
Court issued an Order directing Plaintiff to amend his
pleading. Doc. No. 12. The Court explained that it was
unclear from Plaintiff's pleading whether he intended to
challenge a wrongful conviction, properly brought as an
action for writ of habeas corpus, or was seeking monetary
damages based on alleged violations of his constitutional
rights pursuant to 42 U.S.C. § 1983. Id. The
Court directed Plaintiff to file either an Application for
Writ of Habeas Corpus or an Amended Complaint for a §
1983 action no later than March 6, 2019. Id. at 7.
Instead, Plaintiff filed both an Amended Complaint,
see Doc. No. 13, and an Application for Writ of
Habeas Corpus. Doc. No. 13-1. As explained below, however,
both actions warrant dismissal.
Screening of Prisoner Complaints
42 U.S.C. § 1983 Screening
federal district court must review complaints filed by
prisoners seeking relief against a governmental entity or an
officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). After conducting an initial review, the
court must dismiss a complaint or any portion of it
presenting claims that 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).
conducting this review, the reviewing court must accept the
plaintiff's allegations as true and construe them, and
any reasonable inferences to be drawn from the allegations,
in the light most favorable to the plaintiff. Kay v.
Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Although a
pro se litigant's pleadings are liberally construed,
see Haines v. Kerner, 404 U.S. 519, 520 (1972),
“[t]he burden is on the plaintiff to frame a
‘complaint with enough factual matter (taken as true)
to suggest' that he or she is entitled to relief.”
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556 (2007)). The allegations in a complaint must present
“enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. Further, a claim is frivolous “where it lacks an
arguable basis either in law or in fact” or is
“based on an indisputably meritless legal
theory.” Neitzke v. Williams, 490 U.S. 319,
325, 327 (1989).
Rule 4 of the Rules Governing Section 2254 Cases, the Court
is required to promptly examine a habeas petition and to
summarily dismiss it “[i]f it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief . . . .” Rule 4, Rules Governing
§ 2254 Cases. “[B]efore acting on its own
initiative, a court must accord the parties fair notice and
an opportunity to present their positions.” Day v.
McDonough, 547 U.S. 198, 210 (2006). Petitioner has such
notice by this Report and Recommendation, and he has an
opportunity to present his position by filing an objection to
the Report and Recommendation. Further, when raising a
dispositive issue sua sponte, the district court
must “assure itself that the petitioner is not
significantly prejudiced . . . and determine whether the
interests of justice would be better served by addressing the
merits . . . .” Id. (quotations omitted);
Thomas v. Ulibarri, 214 Fed.Appx. 860, 861 n.1 (10th
Cir. 2007); Smith v. Dorsey, No. 93-2229, 1994 WL
396069, at *3 (10th Cir. July 29, 1994) (noting no due
process concerns with the magistrate judge raising an issue
sua sponte where the petitioner could “address
the matter by objecting” to the report and
42 U.S.C. Section 1983 Action
claims arise from his 2015 arrest and subsequent conviction
of attempted robbery by force or fear and possession of a
stolen vehicle after former conviction of two or more
felonies. See Oklahoma State Courts Network,
District Court of Pottawatomie County, No.
CF-2015-35. Plaintiff did not directly appeal his
conviction but did file an Application for Post-Conviction
Relief on May 2, 2018. Id. On October 17, 2018, the
state district court denied the same. Id.; Doc. No.
13-1 at 10. Plaintiff appealed this denial on November 29,
2018, to the Oklahoma court of Criminal Appeals
(“OCCA”) and that appeal remains pending.
See Oklahoma State Courts Network, OCCA, No.
records clearly indicate, as does Plaintiff's Amended
Complaint and additional filings, that the state criminal
proceeding underlying Plaintiff's arrest is ongoing. As a
result, under Younger v. Harris, 401 U.S. 37 (1971),
the Court should abstain from exercising jurisdiction over