Dunlap v. Scruggs

Filing 6

ORDER dismissing case without prejudice for failure to state a claim upon which relief may be granted; this dismissal counts as a "strike" for purposes of 28 USC 1915(g); the Court certifies that an ifp appeal taken from the order and judgment dismissing this action is considered frivolous and not in good faith. Signed by Judge William R. Wilson Jr. on 4/18/07. (mkf)

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Dunlap v. Scruggs Doc. 6 Case 4:07-cv-00335-WRW Document 6 Filed 04/18/2007 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS LITTLE ROCK DIVISION MICHAEL DE'ANGELO DUNLAP ADC #114705 V. RAMAON SCRUGGS ORDER Plaintiff, an inmate at the Varner Unit of the Arkansas Department of Correction ("ADC"), filed this pro se complaint (docket entry #2), pursuant to 42 U.S.C. 1983, on April 4, 2007. I. Screening Before docketing the complaint, or as soon thereafter as practicable, the Court must review the complaint to identify cognizable claims or dismiss the complaint if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. 1915A. In conducting its review, the Court is mindful that a complaint should be dismissed for failure to state a claim only if it appears beyond doubt that a plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. Springdale Educ. Ass'n v. Springdale Sch. Dist., 133 F.3d 649, 651 (8th Cir. 1998). The Court must accept the factual allegations in the complaint as true and hold a plaintiff's pro se complaint "to less stringent standards than formal pleadings drafted by lawyers. . . ." Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). However, such liberal pleading standards apply only to a plaintiff's factual allegations. Neitzke v. Williams, 490 U.S. 319, 330 n. 4:07CV00335-WRW DEFENDANT PLAINTIFF 1 Dockets.Justia.com Case 4:07-cv-00335-WRW Document 6 Filed 04/18/2007 Page 2 of 3 9 (1989). A plaintiff's complaint still must contain allegations sufficient to state a claim, as a matter of law, and must not be merely conclusory in its allegations. Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). II. Plaintiff's Claims According to Plaintiff's complaint, Defendant offered false testimony at his jury trial, which led to his conviction and 50 year sentence. Plaintiff requests an investigation, and that he be released from prison. III. Analysis Because Plaintiff is seeking to be released from prison, his only federal remedy is a petition for a writ of habeas corpus. See Wilson v. Lockhart, 949 F.2d 1051 (8th Cir. 1991). To the extent that he may be seeking to impose liability upon Defendant for the testimony that Defendant offered at Plaintiff's trial, Plaintiff's complaint also fails to state a claim upon which relief may be granted. Witnesses, including police officers, are immune from civil liability for giving perjured testimony at any criminal proceeding. Briscoe v. LaHue, 460 U.S. 325, 326 (1983). Accordingly, Plaintiff's complaint should be dismissed for failure to state a claim upon which relief may be granted. IV. Conclusion IT IS THEREFORE ORDERED THAT: 1. Plaintiff's complaint (docket entry #2) is DISMISSED WITHOUT PREJUDICE for failure to state a claim upon which relief may be granted. 2. This dismissal counts as a "strike" for purposes of 28 U.S.C. 1915(g). 2 Case 4:07-cv-00335-WRW Document 6 Filed 04/18/2007 Page 3 of 3 3. The Court certifies that an in forma pauperis appeal taken from the order and judgment dismissing this action is considered frivolous and not in good faith. DATED 18th day of April, 2007. /s/Wm. R. Wilson, Jr. UNITED STATES DISTRICT JUDGE 3

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