McKinney v. State of Okl., Dept. of Human Services, Shawnee OK, OK--U

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before LOGAN, MOORE and BALDOCK; BALDOCK
• Citation: 925 F.2d 363
• Parties: Robert Dale McKINNEY, Plaintiff-Appellant, v. STATE of OKLAHOMA, DEPARTMENT OF HUMAN SERVICES, SHAWNEE,nknown names representing McKinney Children; Ken Cadaret, Director of Health Services; Billie Clark; John G. Canavan, Jr.; Bill Roberson, District Attorney of Pottawatomie County; Pottawatomie County Board of County Commissioners, Defendants-Appellees.
• Docket Number: OK--U,No. 90-6282
• Decision Date: 08 February 1991

Page 363

925 F.2d 363 18 Fed.R.Serv.3d 1255 Robert Dale McKINNEY, Plaintiff-Appellant,
v.
STATE of OKLAHOMA, DEPARTMENT OF HUMAN SERVICES, SHAWNEE,
OK--Unknown names representing McKinney Children; Ken
Cadaret, Director of Health Services; Billie Clark; John
G. Canavan, Jr.; Bill Roberson, District Attorney of
Pottawatomie County; Pottawatomie County Board of County
Commissioners, Defendants-Appellees. No. 90-6282. United States Court of Appeals,
Tenth Circuit. Feb. 8, 1991.

Page 364

Submitted on the Briefs ^*

Robert Dale McKinney, pro se.

William D. Simpson, Asst. Dist. Atty., Pottawatomie County, Shawnee, Okl., Jonna S. Geitgey, Asst. Gen. Counsel, Dept. of Human Services, Oklahoma City, Okl., for defendants-appellees.

Before LOGAN, MOORE and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Plaintiff-appellant Robert Dale McKinney appeals pro se from the dismissal of his 42 U.S.C. Sec. 1983 civil rights complaint pursuant to 28 U.S.C. Sec. 1915(d). He also seeks leave to proceed on appeal in forma pauperis, the district court having denied his petition to appeal in forma pauperis. See 10th Cir.R. 24.1.

Plaintiff sought $360,000 in damages against state, tribal and county officials for alleged civil rights violations arising out of his felony conviction and a juvenile proceeding involving his minor children. The district court held that the eleventh amendment barred plaintiff from proceeding against the Oklahoma Department of Human Services. U.S. Const. Am. XI. It also found that his allegations against the remaining defendants were "frivolous, improper and totally void of merit" and dismissed the entire action pursuant to 28 U.S.C. Sec. 1915(d). See McKinney v. State of Okla., No. CIV-90-488-W, unpub. order at 2, 4 (W.D.Okla. June 25, 1990).

"Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal ... without prepayment of fees and costs ... by a person who makes affidavit that he is unable to pay such costs or gives security therefor." 28 U.S.C. Sec. 1915(a). However, a court also "may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious." 28 U.S.C. Sec. 1915(d). In Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) the Supreme Court explained that this section

accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the

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complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless. Examples of the former class are claims against which it is clear that the defendants are immune from suit, see, e.g., Williams v. Goldsmith, 701 F.2d 603 (7th Cir.1983), and claims of infringement of a legal interest which clearly does not exist.... Examples of the latter class are claims describing fantastic or delusional scenarios, claims with which federal district judges are all too familiar.

Id. at 327-28, 109 S.Ct. at 1833.

Dismissals under Sec. 1915(d) are...