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Pilson v. Grand Casino

United States District Court, W.D. Oklahoma

March 11, 2019

DONALD PILSON, JR., Plaintiff,
v.
GRAND CASINO, et. al., Defendants.

          REPORT AND RECOMMENDATION

          GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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 prejudice.

         I. Background

         In 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.

         This 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.

         II. Screening of Prisoner Complaints

         1. 42 U.S.C. § 1983 Screening

         A 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).

         In 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).

         2. Habeas Screening

         Under 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 recommendation).

         III. 42 U.S.C. Section 1983 Action

         Plaintiff's 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.[1] 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. PC-2018-1201.[2]

         State 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 ...


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