Herd v. Allbaugh
Filing
4
OPINION AND ORDER by Judge Ronald A. White: This action is DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. 1915A, for failure to state a claim under 42.U.S.C.1983.(case terminated) (acg, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
MILTON HERD,
Plaintiff,
v.
JOE M. ALLBAUGH,
Defendant.
)
)
)
)
)
)
)
)
)
CIV 16-443-RAW-SPS
OPINION AND ORDER
Plaintiff, a prisoner seeking to bring a civil action, has filed a civil rights complaint (Dkt. 1)
and an Affidavit In Forma Pauperis (Dkt. 2 at 2), which the Court construes as a motion for leave
to proceed in forma pauperis. For the reasons set forth below, the Court finds the complaint must
be dismissed, and Plaintiff may file a petition for a writ of habeas corpus to pursue his claims.
Federal courts must engage in a preliminary screening of cases in which prisoners seek
redress from a governmental entity or officer or an employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The Court must identify any cognizable claim and dismiss any claim which is frivolous,
malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2)(B). To
avoid dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a complaint must present
factual allegations, assumed to be true, that “raise a right to relief above the speculative level.” Bell
Atl. Corp. 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 wellpleaded allegations of the complaint as true, even if doubtful in fact, and must construe the
allegations in the light most favorable to the plaintiff. Id. at 555. “So, when the allegations in a
complaint, however true, could not raise a [plausible] claim of entitlement to relief,” the cause of
action should be dismissed. Id. at 558. Twombly articulated the pleading standard for all civil
actions. See Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). The Court applies the same standard of
review for dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii) that is employed for Fed. R. Civ. P.
12(b)(6) motions to dismiss for failure to state a claim. Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th
Cir. 2007).
A pro se plaintiff’s complaint must be broadly construed under this standard. Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972). The generous
construction given to the pro se litigant’s allegations, however, “does not relieve the plaintiff of the
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).
Plaintiff has sued Joe M. Allbaugh, Director of the Oklahoma Department of Corrections
(DOC), alleging Mr. Allbaugh oversees all DOC operations. (Dkt. 1 at 1). Plaintiff asserts he has
been discriminated against “[d]ue to the actions committed by DOC personel [sic],” because he is
not allowed to earn Ekstrand1 credits by working at Oklahoma Correctional Industries (OCI). Id.
at 2. He claims the discrimination arises from the wrong interpretation of Okla. Stat. tit. 57, § 216,
which is a section of the Prisoners Public Works Act. Id. Plaintiff requests relief in the form of
monetary damages, additional earned credits, and release from custody. Id. at 28.
“[H]abeas corpus is the exclusive remedy for a state prisoner who challenges the fact or
duration of his confinement and seeks immediate or speedier release, even though such a claim may
come within the literal terms of § 1983.” Heck v. Humphrey, 512 U.S. 477, 481 (1994) (citing
Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973)). See also Boutwell v. Keating, 399 F.3d 1203,
1209 (10th Cir. 2005). Plaintiff, therefore, may present his claims in a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241.
To the extent Plaintiff seeks compensatory damages for his alleged unconstitutional
1
Ekstrand v. State, 791 P.2d 92 (Okla. Crim. App. 1990), abrogated on other grounds by
Waldon v. Evans, 861 P.2d 311 (Okla. Crim. App. 1993).
2
incarceration, he first must prove his “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, 512 U.S. at 487 (citing
28 U.S.C. § 2254). When judgment for a plaintiff in a § 1983 suit “would necessarily imply the
invalidity of his . . . sentence, . . . the complaint must be dismissed unless the plaintiff can
demonstrate that the . . . sentence has already been invalidated.” Id. Because Plaintiff has not
presented evidence that his sentence has been so invalidated, the Court finds his claim for damages
is not cognizable under § 1983.
ACCORDINGLY, this action is DISMISSED WITHOUT PREJUDICE pursuant to 28
U.S.C. § 1915A, for failure to state a claim under 42 U.S.C. § 1983. Plaintiff’s motion for leave to
proceed in forma pauperis (Dkt. 2) is DENIED as moot. The Court Clerk is directed to send
Plaintiff the forms for filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
IT IS SO ORDERED this 25th day of October 2016.
Dated this 25th day of October, 2016.
J4h4i0
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?