Dillard v. Welch et al

Filing 5

OPINION AND ORDER by District Judge James H. Payne: All claims against the defendants are DISMISSED WITH PREJUDICE as frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B). This dismissal shall count as a STRIKE, pursuant to 28 U.S.C. § 1915(g). (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
FRANK DILLARD, JR.,
Plaintiff,
v.
JUDGE WELCH, et al.,
Defendants.

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No. CIV 14-226-JHP-SPS

OPINION AND ORDER
Plaintiff Frank Dillard, Jr., an inmate in the Latimer County Detention Center in
Wilburton, Oklahoma, has filed another civil rights complaint pursuant to 42 U.S.C. § 1983,
alleging, among other things, he received and served two invalid sentences. He claims he
has discharged the sentences, yet he is being resentenced on the same convictions, in
violation of the prohibition against double jeopardy.
Plaintiff further asserts that on June 6, 2014, he had to call for emergency services,
because he could not get his insulin at the detention center. In addition, he allegedly cannot
get clean syringes for his insulin injections. The defendants are Latimer County Judge
Welch; Latimer County, Oklahoma; and the Latimer County District Attorney. Plaintiff
requests relief in the form of 7.5 billion dollars. This lawsuit is very similar to Dillard v.
Welch, No. 14-204-RAW-SPS (E.D. Okla. June 5, 2014), and the court finds this action
should be dismissed essentially for the same reasons as the earlier case.
According to the Oklahoma State Courts Network at www. oscn.net, plaintiff entered
a guilty plea on January 11, 2002, in LeFlore County District Court Case No. CF-2001-419
for three counts of Use of a Lost Debit Card. He was sentenced to a fine and restitution.
Plaintiff also was convicted in Latimer County District Court Case No. CF-2001-153
for Knowingly Concealing Stolen Property and two counts of Second Degree Forgery. He
contends he never possessed stolen property, and none was recovered. On April 17, 2013,
an application to revoke his suspended sentences was filed in the Latimer County case, and

it apparently still is pending. Plaintiff alleges he was transported to the Latimer County
Detention Center on May 16, 2014.
The court has carefully reviewed the record and construes plaintiff’s pleadings
liberally. Haines v. Kerner, 404 U.S. 519 (1972). This relaxed standard, however, does not
relieve his burden of alleging sufficient facts on which a recognized legal claim could be
based. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
“[J]udges defending against § 1983 actions enjoy absolute immunity from damages
liability for acts performed in their judicial capacities.” Supreme Court of Virginia v.
Consumers Union, 446 U.S. 719, 734-35 (1980) (citations omitted). See also Dennis v.
Sparks, 449 U.S. 24, 27 (1980). The Latimer County District Attorney likewise possesses
prosecutorial immunity from § 1983 lawsuits which are predicated on his performance of
functions “in initiating a prosecution and in presenting the State’s case.” Imbler v.
Pachtman, 424 U.S. 409, 431 (1976). See also Buckley v. Fitzsimmons, 509 U.S. 259, 272
(1993). The court, therefore, finds both defendants are immune from this § 1983 lawsuit
with respect to plaintiff’s criminal proceedings. As for Defendant Latimer County, plaintiff
has failed to allege any facts supporting its liability.
The court further finds plaintiff has failed to show that any defendant personally
participated in the allegedly unconstitutional conditions of his confinement in the detention
center. “Personal participation is an essential allegation in a § 1983 claim.” Bennett v.
Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976) (citations omitted). See also Mee v. Ortega,
967 F.2d 423, 430-31 (10th Cir. 1992). If plaintiff wants to pursue his claims regarding the
conditions of his confinement in the Latimer County Detention Center, he must file a new
civil rights complaint with a motion for leave to proceed in forma pauperis on the court’s
forms.
The court authorized commencement of this action in forma pauperis under the
authority of 28 U.S.C. § 1915. Subsection (e) of that statute permits the dismissal of a case
when the court is satisfied that the complaint is without merit in that it lacks an arguable basis
either in law or fact. Nietzke v. Williams, 490 U.S. 319 (1989); Yellen v. Cooper, 828 F.2d
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1471, 1475 (10th Cir. 1987). Here, the court finds this action is frivolous, because plaintiff
has failed to state a claim upon which relief may be granted, and he is seeking monetary
relief from defendants who are immune from such relief.
ACCORDINGLY, all claims against the defendants are DISMISSED WITH
PREJUDICE as frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B). This dismissal shall count
as a STRIKE, pursuant to 28 U.S.C. § 1915(g).
IT IS SO ORDERED this 23rd day of June, 2014.

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