Dillard v. Latimer County Oklahoma et al

Filing 11

OPINION AND ORDER by District Judge James H. Payne : This action is, in all respects DISMISSED as frivolous, pursuant to 28 U.S.C 1915(b). This dismissal shall count as a STRIKE, purusant 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.
LATIMER COUNTY,
OKLAHOMA, et al.,
Defendants.

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No. CIV 14-309-JHP-SPS

OPINION AND ORDER
Plaintiff, a former inmate of the Latimer County Detention Center in Wilburton,
Oklahoma, filed this civil rights action under the authority of 42 U.S.C. § 1983, seeking 7.5
billion dollars for alleged constitutional violations related to his criminal convictions and
sentencing in Latimer County District Court Case No. CF-2001-153.1 The defendants are
Latimer County, Oklahoma; Latimer County District Judge Bill Welch; and Latimer County
District Attorney Henry. At the time this action was initiated, plaintiff was awaiting
disposition of the State’s application to revoke the remainder of his suspended sentence. See
The Oklahoma State Courts Network at http://www.oscn. net.
Plaintiff claims in his amended complaint that Defendant Judge Henry sentenced him
to two consecutive, illegal sentences for five years and seven years, both suspended, and he
has discharged both sentences.2 Defendant Henry allegedly has harassed plaintiff with
threats against his life, blackmail, and terrorism. Plaintiff’s allegation against Latimer
County is that his sentencing occurred there.

1

The record in Dillard v. James, No. CIV-268-JHP-SPS (E.D. Okla.) (Dkt. 8-9), indicates that on
August 7, 2014, plaintiff was released from incarceration on a personal recognizance bond.
2

The record shows that plaintiff was convicted of three felonies on January 8, 2002, and he was
sentenced to suspended sentences of five years, seven years, and seven years. See The Oklahoma State Courts
Network; Dillard, Case No. CIV-268-JHP-SPS (Dkt. 8-1).

To the extent plaintiff seeks compensatory damages for his alleged unconstitutional
convictions and sentences, he first must prove his “conviction or sentence has been reversed
on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized
to make such determination, or called into question by a federal court’s issuance of a writ of
habeas corpus.” Heck v. Humphrey, 512 U.S. 477, 487 (1994) (citing 28 U.S.C. § 2254).
When judgment for a plaintiff in a § 1983 suit “would necessarily imply the invalidity of his
conviction or sentence, . . . the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been invalidated.” Id. Because
plaintiff has not presented evidence that his convictions or sentences have been invalidated,
the court finds his claim for damages is not cognizable under § 1983.
Furthermore, “judges 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). In addition, a prosecutor possesses prosecutorial immunity
from § 1983 lawsuits for damages 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).

This court is empowered to dismiss the amended complaint pursuant to 28 U.S.C. §
1915A:
(a) Screening.--The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or officer or
employee of a governmental entity.
(b) Grounds for dismissal.--On review, the court shall identity cognizable
claims or dismiss the complaint, or any portion of the complaint, if the
complaint-(1) is frivolous, malicious, or fails to state a claim upon which relief
may be granted; or
(2) seeks monetary relief from a defendant who is immune from such
relief.
2

28 U.S.C. § 1915A. See also Plunk v. Givens, 234 F.3d 1128, 1129 (10th Cir. 2000)
(“[Section] 1915A applies to all prison litigants, without regard to their fee status, who bring
civil suits against a governmental entity, officer, or employee.”). Here, the court finds
plaintiff’s complaint is frivolous, because his convictions and sentences have not been
invalidated, and Defendants Welch and Henry are immune from suit.
ACCORDINGLY, this action is, in all respects, DISMISSED as frivolous, pursuant
to 28 U.S.C. § 1915A(b). This dismissal shall count as a STRIKE, pursuant to 28 U.S.C. §
1915(g).
DATED this 19th day of December 2014.

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