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Everly v. Washington County

United States District Court, N.D. Oklahoma

April 29, 2019

PAUL EVERLY, Plaintiff,
WASHINGTON COUNTY, et al., Defendants.



         Now 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 with prejudice.


         Plaintiff, 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).

         In 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.

         In 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.

         Plaintiff 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. Id.


         As an initial matter, plaintiff wishes to prosecute his claims without prepaying the $400 fee for this civil action.[1] 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.

         Within 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).

         The 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 case.


         Under 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.

         Because 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. ...

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