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Cohee v. United States of America Federal Government

United States District Court, Tenth Circuit

January 2, 2014

Donald L. Cohee, Plaintiff,
v.
United States of America Federal Government, Defendant.

ORDER

Sam A. Crow U.S. Senior District Judge

This pro se civil rights complaint was filed by an inmate of the Jackson County Jail, Holton, Kansas. Plaintiff claims that his right to the pursuit of happiness and other constitutional rights are being violated because he has been required to register as a sex offender for over 16 years even though he has not committed a crime since the crime that led to his designation as a sex offender. Having examined the materials filed, the court finds that the complaint is deficient in several ways. Plaintiff is given time to cure the deficiencies discussed herein. If he fails to cure all deficiencies within the prescribed time this action may be dismissed without further notice.

FILING FEE AND FORMS REQUIRED

The fees for filing a civil rights complaint in federal court total $400.00 and consist of the statutory fee of $350.00 plus an administrative fee of $50.00; or for one that is granted leave to proceed in forma pauperis (IFP), the fee is $350.00. Plaintiff has submitted an Application to Proceed without Prepayment of Fees (Doc. 2). However, this motion is incomplete. 28 U.S.C. § 1915 requires that a prisoner seeking to bring a civil action without prepayment of fees submit an affidavit described in subsection (a)(1), and a “certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing” of the action “obtained from the appropriate official of each prison (or jail) at which the prisoner is or was confined.” 28 U.S.C. § 1915(a)(2). The clerk shall be directed to provide forms for filing a proper motion to proceed without fees, and plaintiff is given time to submit a proper motion. This action may not proceed until he has submitted a motion that conforms to the requirements of § 1915(a).

Mr. Cohee is warned that under 28 U.S.C. § 1915(b)(1) being granted leave to proceed without prepayment of fees will not relieve him of the obligation to pay the full amount of the filing fee. Instead, it merely entitles him to pay the fee over time through payments automatically deducted from his inmate account as funds become available.[1]

Furthermore, local court rule requires that a civil complaint filed by an inmate be submitted upon court-approved forms. Plaintiff’s complaint is not upon forms and, possibly as a consequence, does not contain adequate information. Plaintiff is given time to submit his complaint upon the court-approved forms, which will be sent to him by the clerk.

ALLEGATIONS AND CLAIMS

Mr. Cohee claims that his rights to the pursuit of happiness and to freedom of religion have been violated. As factual support for these claims, he alleges that being required to register as a sex offender has hurt his marriage in that it has prevented him from being in the life of the woman he has impregnated, from helping her with food, from being a loving father and taking care of his unborn child, and from being happy in his marriage.

Mr. Cohee also claims that the law requiring him to register as a sex offender is unconstitutional. In support, he alleges that the federal Government and “the people in the white house” made the law when the law is supposed to be voted on by the American people. He also alleges that forcing him to register is making him act against his will, which violates the Constitution. He further alleges that he registers when he is in his right mind and can think of it and knows where to go, but has broken no other laws.

Plaintiff seeks the following relief from the court: a driver’s license that never expires, his criminal record wiped clean, “a card that say (sic)” he cannot be arrested or prosecuted, insurance on any vehicle he is driving, a new car or truck of his choice, and $300, 000, 000, 000, 000.

SCREENING

Because Mr. Cohee is a prisoner, the court is required by statute to screen his complaint and to dismiss the complaint or any portion thereof that is frivolous, fails to state a claim on which relief may be granted, or seeks relief from a defendant immune from such relief. 28 U.S.C. § 1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B). A court liberally construes a pro se complaint and applies “less stringent standards than formal pleadings drafted by lawyers, ” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition, the court accepts all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006). Nevertheless, “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, ” dismissal is appropriate. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007). A pro se litigant’s “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The complaint must offer “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. To avoid dismissal, the complaint’s “factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. There must be “enough facts to state a claim to relief that is plausible on its face. Id. at 570. The court “will not supply additional factual allegations to round out a plaintiff’s complaint or construct a legal theory on plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). Having applied these standards to the complaint filed herein, the court finds it is subject to being dismissed for the following reasons.

IMPROPER DEFENDANT

The only defendant named by plaintiff is the “United State of American Federal Government, ” which this court construes as the United States Government. The United States is absolutely immune to suit for money damages. It follows that plaintiff’s claim for money damages against the only named defendant is subject to being dismissed under 28 U.S.C. § 1915A(a), ...


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