Green v. Oklahoma Department of Human Services

Filing 4

OPINION AND ORDER by Judge Ronald A. White: granting 3 Motion for Leave to Proceed in Forma Pauperis and dismissing case with prejudice (cjt, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
Larry Green,
Plaintiff,
v.

Case No. 15-CIV-187-RAW

Oklahoma Department of Human Services,
Sued as Department of Human Services
Tahlequah and Wagoner County,
Defendant.
OPINION AND ORDER
Before the court are the Complaint in this matter [Docket No. 2] and Plaintiff’s
Motion for Leave to Proceed In Forma Pauperis [Docket No. 3]. Plaintiff’s Motion for
Leave to Proceed In Forma Pauperis [Docket No. 3] is granted. Plaintiff alleges that the
defendant is pursuing collection of child support from him for “a child that I don’t know is
mine.” Complaint, Page 2. Plaintiff additionally states that they have been taking his money
for eight years. Complaint, Page 2.
Plaintiff’s complaint* is a rambling list of accusations against the Defendant.
Plaintiff’s arguments involve a child support collection matter, and are similar to what the
Tenth Circuit had rejected as the “hackneyed tax protester refrain.” United States v. Chisum,
502 F.3d 1237, 1243 (10th Cir. 2007). Plaintiff’s arguments are “completely lacking in legal
merit and patently frivolous.” Lonsdale v. United States, 919 F.2d 1440, 1448 (10 th Cir.
*

The court construes Plaintiff’s allegation liberally as he is pro se. See Haines v.
Kerner, 404 U.S. 519 (1972).

1990).
28 U.S.C. § 1915
Section 1915 of the United States Code, Title 28, states as follows:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that–
(A) the allegation of poverty is untrue; or
(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.
28 U.S.C.A. § 1915(e)(2).
A complaint is frivolous “where it lacks an arguable basis either in law or in fact.”
Further, the term frivolous “embraces not only the inarguable legal conclusion, but also the
fanciful factual allegation.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A plaintiff is
not required to make out a perfect case in their complaint. Rather, “It suffices for him to
state claims that are rationally related to the existing law and the credible factual allegations.”
Lemmons v. Law Firm of Morris and Morris, 39 F.3d 264 (10 th Cir. 1994).
Sua Sponte Dismissal
“Sua sponte dismissals are generally disfavored by the courts.” Banks v. Vio
Software, 275 Fed.Appx. 800 (10th Circ. 2008). A court shall dismiss a case at any time,
however, if the court determines that the action fails to state a claim on which relief may be
granted, or seeks monetary relief against a defendant who is immune from such relief. 28
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U.S.C. § 1915(e)(2)(B)(ii) and (iii).
Indeed, the Tenth Circuit Court of Appeals has stated that a district court is required
to dismiss an IFP claim that is frivolous or malicious, fails to state a claim on which relief
may be granted, or seeks monetary relief against a defendant who is immune from such relief.
Trujillo v. Williams, 465 F.3d 1210, 1216 n.5 (10th Cir. 2006).
The court may sua sponte dismiss an action pursuant to § 1915 when “on the face of
the complaint it clearly appears that the action is frivolous or malicious.” Hall v. Bellmon,
935 F.2d 1106, 1108 (10th Cir. 1991). “The term ‘frivolous’ refers to ‘the inarguable legal
conclusion’ and ‘the fanciful factual allegation.’” Id. (citation omitted). Further, a “trial
court may dismiss a claim sua sponte without notice where the claimant cannot possibly win
relief.” McKinney v. State of Oklahoma, 925 F.2d 363, 364 (10 th Cir. 1991).
Conclusion
The court does not take lightly its decision in this matter. The allegations listed in the
complaint, however, do not create a claim upon which this lawsuit can proceed.
The court finds that Plaintiff’s action is frivolous, that Plaintiff fails to state a claim
on which relief can be granted, and that Plaintiff seeks monetary relief against a Defendant
who is immune from such relief. This matter is dismissed with prejudice.
Dated this 27th day of May, 2015.
_______________________________________
H ONORABLE R ONALD A. W HITE
U NITED S TATES D ISTRICT J UDGE
E ASTERN D ISTRICT OF O KLAHOMA
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