United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE.
before the Court are plaintiff's civil rights complaint
(Dkt. # 2, supplemented by Dkt. # 6) and motion to proceed
in forma pauperis (Dkt. # 3). For the reasons below,
the Court will grant the motion but dismiss the complaint
appearing pro se, is incarcerated at the Lawton
Correctional Facility (LCF) in southwest Oklahoma.
See Dkt. # 2 at 1. He raises constitutional claims
against the prosecutor in his state revocation proceeding;
the presiding judge; and the county who employed them.
Id. at 1-2. The following facts are drawn from
plaintiff's complaint (Dkt. # 2) and supplement thereto
(Dkt. # 6).
2003, plaintiff was charged with an unspecified crime in
Washington County. See Dkt. # 6 at 4. Defendant
Curtis Delapp - then a prosecutor - appeared for the state in
a “benign . . . pre-trial hearing.” Id.
at 5. Plaintiff eventually pled guilty, and the state court
sentenced him to 20 years imprisonment, 15 of which were
suspended. Id. In 2007, the state filed an
application to revoke the suspended sentence. Id.
Defendant Kevin Buchanon [sic] represented plaintiff as
defense counsel, and the application was dismissed.
Id.; see also Dkt. # 2 at 3.
2012, the state again moved to revoke plaintiff's
suspended sentence. See Dkt. # 6 at 5. By this time,
Delapp had been appointed as the presiding judge, and
Buchanon was the district attorney. Id. at 5, 9.
Buchanon's name appeared on the revocation motion, though
it does not appear he otherwise participated in the
proceeding. Id. Plaintiff stipulated to violating
the terms of his release and requested a residential
treatment placement in lieu of incarceration. Id. at
5. Delapp instead ordered plaintiff to serve the remaining 15
years of his original sentence. See Dkt. # 2 at 3.
Delapp resigned years later amidst unrelated accusations of
voter fraud and abuse of power. Id. at 1.
filed a 42 U.S.C. § 1983 complaint (Dkt. # 2) on January
14, 2019. He appears to argue that Delapp and Buchanon had a
conflict of interest in the 2012 revocation proceeding, and
that their involvement violated his due process rights.
See generally Dkt. # 2. The complaint names the
Delapp, Buchanon; and Washington County, which employed both
defendants. See Dkt. # 2 at 1-2. Plaintiff recites
that he exhausted all available remedies through the Oklahoma
appellate system and the state bar association, and that a
civil action “now . . . is [the] proper way to get
comp[en]sated.” Id. at 5. He seeks $1 million
in compensatory damages and $2 million in punitive damages.
initial matter, plaintiff wishes to prosecute his claims
without prepaying the $400 fee for this civil
action. See Dkt. # 3. Plaintiff's
financial information reflects that he lacks sufficient funds
to prepay the filing fee. Accordingly, the Court will grant
the in forma pauperis motion, which reduces the fee
to $350, and allow plaintiff to pay in installments.
See 28 U.S.C. § 1915(b). Pursuant to §
1915(b)(1), plaintiff shall be required to pay the full $350
filing fee as set forth below.
thirty days of the entry of this Order, plaintiff shall make
an initial partial payment of $62.64, which
represents 20 percent of the greater of: (1) the average
monthly deposits, or (2) average monthly balance in
plaintiff's inmate account(s) for the six-month period
preceding the filing of the complaint. See 28 U.S.C.
§ 1915(b)(1). After payment of the initial fee, he must
make monthly payments of 20 percent of the preceding
month's income credited to his prison account(s) until he
has paid the entire $350. Id. at § 1915(b)(2).
Court will enter an order directing LCF to collect, when
plaintiff's prison account(s) exceeds $10, and forward
such monthly payments to the Clerk of the Court until the
filing fee is paid in full. Id. Notwithstanding any
filing fee, or any portion thereof, that may have been paid,
the Court must dismiss at any time all or any part of such
complaint which (1) is frivolous or malicious; (2) fails to
state a claim on which relief can be granted; or (3) seeks
monetary relief from a defendant who is immune from such
relief. Id. at §§ 1915A, 1915(e). Monthly
payments will be collected until full payment of the filing
fee has been received by the Court even after dismissal of
the Prison Litigation Reform Act (PLRA), federal courts must
engage in a preliminary screening of cases in which prisoners
seek redress from a government entity or officer.
See 28 U.S.C. § 1915A(a). The Court must
dismiss any claim which is frivolous, malicious, or fails to
state a claim upon which relief may be granted. See
28 U.S.C. § 1915A(b). To avoid dismissal for failure to
state a claim, a complaint must present factual allegations,
assumed to be true, that “raise a right to relief about
the speculative level.” Bell Atlantic 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, and must construe the allegations in the light most
favorable to the plaintiff. Id. at 555. However,
“when the allegations in a complaint . . . could not
raise a [plausible] claim of entitlement to relief, ”
the cause of action should be dismissed. Id. at 558.
plaintiff is pro se, his “pleadings are to be construed
liberally and held to a less stringent standard than formal
pleadings drafted by lawyers.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If the
court can “reasonably read the pleadings to state a
valid claim on which the plaintiff could prevail, it should
do so despite the plaintiff's failure to cite proper
legal authority, . . . confusion of various legal theories, .
. . poor syntax and sentence construction, or . . .
unfamiliarity with pleading requirements.” Id.
However, the generous construction “does not relieve
the plaintiff of the burden of alleging sufficient facts on
which a recognized legal claim could be based.”
Id. The Court need not accept “mere
conclusions characterizing pleaded facts, ” see
Bryson v. City of Edmond, 905 F.2d 1386, 1390
(10th Cir. ...