Opinion
Case No. CIV-18-520-D
09-04-2018
RICHARD LYNN DOPP, Petitioner, v. JIMMY MARTIN, Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, brings this action under 28 U.S.C. § 2241, seeking to expunge three prison disciplinary convictions and have his sentence recalculated. See Pet. [Doc. No. 1]. United States District Judge Timothy D. DeGiusti has referred the matter for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B) and (C). Respondent filed a Motion to Dismiss [Doc. No. 11], and Petitioner filed a Response [Doc. No. 12]. Both parties attached exhibits to their pleadings, and thus the Court has converted Respondent's motion into one for summary judgment.
Respondent filed a motion to dismiss under Rule 12(b)(6) but asked the Court to consider materials not attached to, or referenced within, Petitioner's Petition. See Motion at 1 & Exs. 1-6. When a party presents matters outside of the pleadings for consideration, "'the court must either exclude the material or treat the motion as one for summary judgment.'" Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 (10th Cir. 2017). Here, the Court elects to treat the motion as one for summary judgment. Typically, if the Court decides to convert a Rule 12(b) motion to a Rule 56 motion for summary judgment, it must provide parties with notice. See Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). But here, both parties have attached documents outside the pleadings, essentially inviting the Court to treat the motion to dismiss as a motion for summary judgment. Under these circumstances, no formal notice of conversion is required. See Jones v. Midland Funding, 656 F. App'x 913, 915 (10th Cir. 2016) (finding no error in the court's lack of notice that it was converting a motion to dismiss into one for summary judgment where the parties "filed materials outside the pleadings . . . and therefore cannot now claim conversion was unfair or a surprise").
For the reasons set forth below, it is recommended that Respondent's motion be DENIED.
I. Petitioner's Claims
Petitioner was convicted on three prison disciplinary charges - Escape (October 29, 2010), Possession of Contraband (February 3, 2011), and Disruptive Behavior (February 22, 2012). See Pet. at 2-3 & Exs. 1-1 at 1-2; 1-19 at 1, 3; 1-36. Petitioner was only sanctioned with the loss of earned credits for the Escape charge, but because he was at the time serving a life sentence, the credits were not actually deducted until his sentence was commuted in 2018. See id. at Exs. 1-17; 1-47.
Citations to page and exhibit numbers refer to this Court's CM/ECF pagination.
Petitioner claims to be "actually innocent" on each charge and alleges various procedural due process violations in the convictions. Id. at 7-8. Accordingly, Petitioner seeks to have each disciplinary conviction dismissed and expunged and then to have his sentence recalculated. See id. at 8.
II. Respondent's Converted Motion for Summary Judgment
Although Respondent indicated his motion was filed under Fed. R. Civ. P. 12(b)(6), his overriding argument relies on attached evidence. See Motion at 1-7. Thus, the Court has converted the motion to one for summary judgment. See supra at 1 & n.1.
Under Rule 56 of the Federal Rules of Civil Procedure, a court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). Because Respondent's overriding argument (non-exhaustion of remedies) asserts an affirmative defense, he "must demonstrate that no disputed material fact exists regarding the affirmative defense asserted." Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997); see also Acosta v. Daniels, 589 F. App'x 870, 873 (10th Cir. 2014) (discussing a pre-answer motion filed in a § 2241 case and noting: "The burden was on the government to prove the affirmative defense of exhaustion."). If Respondent meets his initial burden, Petitioner "must then demonstrate with specificity the existence of a disputed material fact." Hutchinson, 105 F.3d at 564. To succeed at this stage, Petitioner must present some evidence, other than his initial pleadings, to show that there is more than just a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also Celotex, 477 U.S. at 324 (noting Rule 56 "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by [other evidence] designate 'specific facts showing that there is a genuine issue for trial'" (citation omitted)). Of course, in evaluating the motion for summary judgment, the Court must consider the evidence in the light most favorable to Petitioner (the nonmovant) and will draw all reasonable inferences from those facts in favor of him. See Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009). Petitioner's evidence must be such that a "rational trier of fact could find" in his favor. Aldler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998).
The Court analyzes Respondent's arguments for summary judgment in reverse order.
A. The Alleged Unavailability of 28 U.S.C. § 2254
According to Respondent, this Court cannot grant Petitioner habeas relief under § 2254 because he "has not alleged that a State court judgement has resulted in his custody in violation of the Constitution or laws or treaties of the United States." Motion at 7. Respondent further explains that under "§ 2254, a prison misconduct is not a 'judgment of a State court,'" and thus "this Court has no jurisdiction to entertain Petitioner's Petition for Habeas Corpus . . . ." Id. at 7-8.
Respondent misreads Petitioner's Petition. Petitioner clearly filed his Petition under 42 U.S.C. § 2241 - not § 2254 - and because he challenges his disciplinary convictions and resulting sentence calculation, this was entirely proper. See McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997) ("Petitions under § 2241 are used to attack the execution of a sentence, in contrast to § 2254 habeas . . . proceedings, which are used to collaterally attack the validity of a conviction and sentence[.]"); Prost v. Anderson, 636 F.3d 578, 581 (10th Cir. 2011) (noting that it is "the nature of a prisoner's confinement, not the fact of his confinement" that is the basis of a § 2241 petition (emphasis in original)). So, the Court should deny summary judgment based on this argument.
B. Petitioner's Alleged Failure to Exhaust State-Court and Administrative Remedies
In his overriding argument, Respondent further seeks summary judgment on grounds that Petitioner has not exhausted his state-court or administrative remedies. See Motion at 3-7. The Court should also deny summary judgment on these grounds.
1. Requirements for Exhaustion
The Tenth Circuit Court of Appeals has held that Oklahoma state prisoners must exhaust available state judicial and administrative remedies before pursuing federal relief involving disciplinary proceedings. See Dulworth v. Evans, 442 F.3d 1265, 1268-69 (10th Cir. 2006). However, the exhaustion requirement may be excused if exhaustion would be futile, i.e., there is "an absence of available State corrective process" or where "circumstances exist that render such process ineffective to protect the rights of the applicant." Magar v. Parker, 490 F.3d 816, 818 (10th Cir. 2007) (citations omitted).
2. Petitioner's Alleged Failure to Exhaust State-Court Remedies
Oklahoma affords a statutory remedy for due process challenges to "prison disciplinary proceedings that result in the revocation of earned credits . . . ." Okla. Stat. tit. 57, § 564.1(A). The suit for judicial review must be filed within ninety days after the prison appellate procedures are complete. Id.
Respondent insists that Petitioner never filed any state-court pleadings attempting to challenge his disciplinary convictions for Possession of Contraband and Disruptive Behavior. See Motion at 5. Further, he attaches Petitioner's state-court records to show that Petitioner's attempt to challenge his Escape charge was unsuccessful because he never paid the filing fee. See id., Exs. 3-6. But as Petitioner adeptly argues, his disciplinary convictions for Possession of Contraband and Disruptive Behavior did not result in the revocation of earned credits. See Pet.'s Resp. at 1; see also supra at 2. So, Okla. Stat. tit. 57, § 564.1 was entirely unavailable to challenge these disciplinary convictions. See § 564.1(A) (allowing for state-court review "[i]n those instances of prison disciplinary proceedings that resulted in the revocation of earned credits"). And, though officials did sanction Petitioner with the revocation of earned credits for his Escape conviction when it occurred in October 2010, he was then serving a life sentence. Under those circumstances, § 564.1 was equally unavailable to Petitioner. See, e.g., Johnson v. Jones, No. CIV-07-1148-F, 2008 WL 474381, at *1-2 (W.D. Okla. Feb. 19, 2008) (unpublished district court order) (noting that the Oklahoma state-court had dismissed petitioner's § 564.1 motion for judicial review of a disciplinary conviction "because Petitioner is serving a life sentence, does not earn sentence credits, and is not entitled to judicial review under Okla. Stat. tit. 57, § 561.1."), certificate of appealability denied, 314 F. App'x 92 (10th Cir. 2008); Easterwood v. Oklahoma Dept. of Corr., No. CIV-06-1023-C, 2007 WL 853736, at *1-2 (W.D. Okla. Mar. 16, 2007) (unpublished district court order) (noting that "the trial court . . . found the remedy under § 564.1 to be inapplicable due to the fact that inmates serving life sentences do not earn credits under Oklahoma's earned credit statute").
Petitioner alludes to a state-court ruling verifying that he could not file for judicial review under § 564.1 because he was ineligible for earned credits. See Pet.'s Resp. at 1. That ruling is not attached to either party's pleadings.
In sum, the Court finds that Petitioner has "demonstrate[d] with specificity the existence of a disputed material fact" regarding whether state-court judicial remedies were available to him. Supra at 2. Accordingly, this Court should reject Respondent's motion for summary judgment based on Petitioner's alleged failure to exhaust his state-court remedies. See, e.g., Baughman v. Harless, 142 F. App'x 354, 357-60 (10th Cir. 2005) (holding, in a 42 U.S.C. § 1983 case, that the district court erred in granting defendants' summary judgment where plaintiff demonstrated a genuine issue of material fact regarding whether he had any further available remedies to exhaust).
3. Petitioner's Alleged Failure to Exhaust Administrative Remedies
Finally, Respondent argues that Petitioner also failed to exhaust his administrative remedies. As evidence, Respondent attaches an affidavit from a prison official, first describing the exhaustion process. See Motion, Ex. 2. Then, the affiant states he reviewed the records and "Inmate Dopp has not exhausted his administrative remedies concerning misconducts for Escape (16-1/X) on 11/5/09, Possession of Contraband (09-5/B) on 1/7/11 and Individual Disruptive Behavior (02-5/B) on 12/9/11." Id. The Court finds this affidavit insufficient for purposes of summary judgment.
For example, the affidavit is lacking in detail and relies on an impermissible legal conclusion. See, e.g., Toevs v. Milyard, 563 F. App'x 640, 643 (10th Cir. 2014) ("What constitutes proper exhaustion under the PLRA is generally a legal conclusion. Legal conclusions, even if made in affidavit form, are not enough to defeat summary judgment."); Thomas v. Avis Rent a Car, 408 F. App'x 145, 149 (10th Cir. 2011) ("Even where an affidavit . . . is based on personal knowledge and sworn, it may be insufficient to create a triable issue of fact if, as here, it is non-specific or otherwise non-responsive, vague, conclusory, or self-serving."). More importantly, the affidavit is also incorrect, as least partially. That is, according to the affiant, Petitioner needed to appeal first to the facility head and then, if necessary, to the Administrative Review Authority (ARA). See Motion, Ex. 2. For Petitioner's Possession of Contraband charge, he did both. See Pet., Ex. 1-21 at 1-3; 1-24 at 1-2.
The ARA ultimately rejected the appeal, finding that because Petitioner was ineligible to "receive earned credits" he was "not entitled to a due process review from this office." Id., Ex. 1-25. But Petitioner "is not required to have his appeal actually reviewed by the ARA to exhaust his administrative remedies. All he has to do is request such review and 'see the process to its conclusion.'" Harrison v. Morton, 490 F. App'x 988, 994 (10th Cir. 2012) (citation omitted).
Additionally, even if Respondent's affidavit was viable, Petitioner has yet again demonstrated a genuine issue of material fact regarding whether he had an available remedy. That is, the ARA informed Petitioner that because he was serving a life sentence, he was not entitled to due process review. See Pet., Ex. 1-25. Construing that evidence in a light most favorable to Petitioner, a rational trier of fact could find that it would have been futile for Petitioner to then pursue such relief from prison officials, thus excusing the need for exhaustion. See Staples v. Maye, 711 F. App'x 866, 867 (10th Cir. 2017) (holding, in a § 2241 action, "inmates need not exhaust their administrative remedies if they can show that exhaustion would have been futile"). Accordingly, Respondent is not entitled to summary judgment on this issue. See Baughman, 142 F. App'x at 357-60.
Petitioner also presents evidence which, when construed in a light most favorable to him, suggests interference with the administrative process. For example, such interference could render administrative remedies unavailable. See Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010) (when "prison officials prevent, thwart, or hinder a prisoner's efforts to avail himself of an administrative remedy, they render that remedy 'unavailable' and a court will excuse the prisoner's failure to exhaust." (citation omitted)). For example, Petitioner repeatedly tried to mail his Escape appeal to the facility warden but was denied postage. See Pet., Ex. 1-4 at 1; 1-15 at 1; Pet.'s Resp. at 2. And, according to Petitioner, he did not attempt to appeal his Disruptive Behavior charge because officials had informed him that the case had been dismissed. See Pet., Ex. 1-30 at 1-2; 1-31 at 1; Pet.'s Resp. at 3. --------
4. Summary
In sum, the Court finds that Petitioner has presented sufficient evidence to create a genuine disputed fact regarding whether he had any available state-court and administrative remedies to exhaust. Under such circumstances, the Court should deny Respondent's motion for summary judgment based on non-exhaustion of state-court and administrative remedies.
RECOMMENDATION
For the foregoing reasons, it is recommended that the Court deny Respondent's converted motion for summary judgment [Doc. No. 11]. Should this Recommendation be adopted, and consistent with Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts, an order for Response will be entered, allowing Respondent to address the merits of Petitioner's Petition.
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by September 25, 2018. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. See Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation does not terminate the referral by the District Judge in this matter.
ENTERED this 4th day of September, 2018.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE