Opinion
CIV-21-783-D
10-07-2021
GLEN FOLSOM, Plaintiff, v. RICK WHITTEN, et al., Defendants.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner appearing pro se, has filed this action pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). (Doc. 1). United States Chief District Judge Timothy D. DeGiusti referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). (Doc. 5). The undersigned has reviewed the Complaint (Doc. 1) pursuant to 28 U.S.C. § 1915A(a) and 28 U.S.C. § 1915(e)(2)(B). As explained fully below, it is recommended that the Court dismiss Plaintiff's claims without prejudice to the re-filing and deny his pending motions (Docs. 7, 9) as moot.
I. The Court's Duty To Screen Prisoner Complaints
Federal law mandates the screening of each complaint in a civil action filed by a prisoner seeking redress from a governmental entity or an officer or employee of a governmental entity and each case in which the plaintiff proceeds in forma pauperis. 28 U.S.C. §§ 1915A(a), 1915(e)(2). The court must dismiss a complaint or any portion of it 1 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. Id.
The court's review of a complaint under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii) mirrors that required for reviewing a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. The court must accept Plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from them, in the light most favorable to Plaintiff. See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). The court “review[s] the complaint for plausibility; that is, to determine whether the complaint includes enough facts to state a claim to relief that is plausible on its face.” Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009) (internal quotation marks and citation omitted). A complaint fails to state such a claim when it lacks factual allegations sufficient “to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (footnote and citation omitted). Bare legal conclusions in a complaint, however, are not assumed to be true; legal conclusions “must be supported by factual allegations” to state a claim upon which relief may be granted. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
“[A] pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (noting that although courts construe pro se pleadings liberally, courts 2 “will not supply additional factual allegations to round out a plaintiff's complaint”). Whether a complaint contains sufficient facts to avoid dismissal is context-specific and is determined through a court's application of “judicial experience and common sense.” Iqbal, 556 U.S. at 679; see also Gee v. Pacheco, 627 F.3d 1178, 1184-85 (10th Cir. 2010) (discussing Iqbal). “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall, 935 F.2d at 1110. The court, however, may not serve as Plaintiff's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
II. Overview of Complaint
Plaintiff is a state prisoner currently incarcerated at Lawton Correctional Facility in Lawton, Oklahoma. (Doc. 1, at 3). Plaintiff claims a violation of his constitutional rights based on lack of access to courts while incarcerated at the North Fork Correctional Center (“NFCC”) in Sayre, Oklahoma. (Doc. 1, at 6). Specifically, he claims that Warden Rick Whitten of NFCC “had his staff stop [Plaintiff's] access to courts or did not let [Plaintiff] exhaust while at his prison” because “they stopped [Plaintiff's] mail” and consequently Plaintiff “lost two court deadlines” in Folsom v. Beckham County Court et. al, Western District of Oklahoma No. CIV-21-582-G, “d[ue] to them holding [his] legal mail . . . .” (Id.) Plaintiff also alleges that Magistrate Judge Shon T. Erwin “gave wrong orders” and “wrong ruling” in that same matter, “to cover up bad act done on [him] as [Plaintiff] feel[s] this court [has] done befor[e].” (Id. at 6, 8). Plaintiff brings his claims against Defendants Whitten, Erwin, and “unknown mailroom staff, ” in both their individual and official capacities. (Id. at 3-4). For relief, Plaintiff seeks “max damage[s] on [NFCC] for 3 holding [his] mail to file federal criminal charge mail crimes and to do same on Judge now without delay and send this prison all orders to give [Plaintiff] full access to all courts.” (Id. at 8).
III. The Court Should Dismiss the Complaint for Failure To State A Claim.
A. Plaintiff's Claims Against Defendant Erwin Are Precluded By Bivens And Judicial Immunity.
Plaintiff invokes Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), to seek monetary damages and/or the imposition of federal criminal charges against Defendant Erwin for issuing an order as the United States Magistrate Judge currently handling the referral of another civil matter filed by Plaintiff. As a Magistrate Judge, Defendant Erwin is a federal actor, and a plaintiff alleging a constitutional violation by a federal actor has a right of action under Bivens. However, Bivens claims are solely for money damages against the federal actor in his individual capacity. See Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231 (10th Cir. 2005); see also Solida v. McKelvey, 820 F.3d 1090, 1093 (9th Cir. 2016) (“[W]e join our sister circuits in holding that relief under Bivens does not encompass injunctive and declaratory relief where, as here, the equitable relief sought requires official government action.”); Higazy v. Templeton, 505 F.3d 161, 169 (2nd Cir. 2007) 4 (“The only remedy available in a Bivens action is an award for monetary damages from defendants in their individual capacities.”). Defendant Erwin is immune from monetary damages for actions taken in his judicial capacity unless he acted in the clear absence of all jurisdiction. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991); see also Folsom v. Erwin et al., No. CIV-21-895-R, 2021 WL 4219239, at *1-2, n.1 (W.D. Okla. Sept. 15, 2021) (sua sponte dismissing claims against Defendant Judges DeGiusti and Erwin). Therefore, Plaintiff does not state a cognizable Bivens claim against Defendant Erwin for issuing orders in his judicial capacity in a case in which he had jurisdiction to do so.
Plaintiff cites “Doc 9” as the order at issue. (Doc. 1, at 6). Upon review of Plaintiff's other matter, “Doc 9” corresponds to the court's order requiring Plaintiff to cure his initiating document and his application to proceed in forma pauperis by July 5, 2021. See Folsom v. Beckham County Court et. al, No. CIV-21-582-G (W.D. Okla. June 16, 2021). The undersigned takes judicial notice of the docket sheets and related documents in Petitioner's other pending civil cases. See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising discretion “to take judicial notice of publicly-filed records in [this] court and certain other courts concerning matters that bear directly upon the disposition of the case at hand”) (citation omitted).
B. Plaintiff Has Not Sufficiently Alleged An Actual Injury To Support His Claim of Denial of Access to the Courts; Therefore, His Claim Should Be Dismissed.
Plaintiff alleges denial of access to courts because Defendant Whitten caused “unknown mailroom staff” to “stop [his] access to courts or did not let [him] exhaust while at [NFCC]” because “they stopped [his] mail.” (Doc. 1, at 6). As a result, Plaintiff claims he missed two deadlines in Folsom v. Beckham County Court et. al, No. CIV-21-582-G, “due to them holding [his] legal mail.” (Id.)
A prison official's failure to deliver an inmate's mail may interfere with an inmate's First Amendment right of access to the courts via mail. See Wardell v. Maggard, 470 F.3d 954, 959 (10th Cir. 2006). To establish the denial of access to courts via interference with legal mail, a plaintiff “must show that non-delivery of his legal mail resulted in actual injury by frustrating, impeding, or hindering his efforts to pursue a legal claim.” Simkins v. Bruce, 406 F.3d 1239, 1243 (10th Cir. 2005) (quotation and footnote omitted); see also Treff v. Galetka, 5 74 F.3d 191, 194 (10th Cir. 1996) (establishing a claim for denial of access to courts via interference with mail requires “that any denial or delay of access to the court prejudiced [the prisoner] in pursuing litigation.”).
As a threshold matter, Plaintiff's claim regarding the non-receipt of legal mail while at NFCC appears duplicative of that asserted in his other pending civil matter, which has been referred to Magistrate Judge Erwin. See Folsom v. Beckham County Court et. al, No. CIV-21-582-G (W.D. Okla. June 7, 2021). Regardless, Plaintiff has failed to state an actual injury or prejudice resulting from the alleged denial of access to courts. Plaintiff references two “lost” deadlines in Folsom v. Beckham County Court et. al, No. CIV-21-582-G: “Document 9 July 5, 2021 deadline and July 30, 2021 Document 14.” (Doc. 1, at 6). Upon review of these filings, “Document 9” corresponds to Judge Erwin's order requiring Plaintiff to cure his initiating document and his application to proceed in forma pauperis by July 5, 2021. See Folsom v. Beckham County Court et. al, No. CIV-21-582-G, Doc. 9 (W.D. Okla. June 16, 2021). “Document 14” corresponds to Judge Erwin's sua sponte order extending Plaintiff's deadline to cure until July 30, 2021. See Folsom v. Beckham County Court et. al, No. CIV-21-582-G, Doc. 14 (W.D. Okla. July 13, 2021). On August 13, 2021, Judge Erwin noted that “it appears [Plaintiff] is experiencing difficulty meeting the deadlines set forth by this Court” and “[Plaintiff] also argues that he is not receiving his mail” and thus again sua sponte extended Plaintiff's deadline to cure until August 31, 2021. See Folsom v. Beckham County Court et. al, No. CIV-21-582-G, Doc. 20 (W.D. Okla. Aug. 13, 2021). On September 20, 2021, Plaintiff filed a revised application to proceed in forma pauperis, and as of this date the court has 6 not ruled on that application. See Folsom v. Beckham County Court et. al, No. CIV-21-582-G, Doc. 22 (W.D. Okla. Sept. 20, 2021). Thus, Plaintiff's other civil case is still pending. Due to Judge Erwin's sua sponte orders, Plaintiff has not missed any deadlines nor been prejudiced by the passing of any deadlines to date. Plaintiff has thus not pled any actual injury sufficient to sustain an access-to-courts claim. Plaintiff's claim should therefore be dismissed.
IV. Recommendation and Notice of Right to Object
In accordance with the foregoing analysis, the undersigned recommends that the Court DISMISS Plaintiff's claims without prejudice to the re-filing, and DENY as moot Plaintiff's Motion for Leave to Proceed In Forma Pauperis (Doc. 7) and “Motion for Access to Your Court” (Doc. 9). Additionally, the dismissal should be counted as a “strike” pursuant to 28 U.S.C. § 1915(g). See also Folsom v. Knutson, et al., No. CIV-13-632-D (W.D. Oka. August 30, 2017) (assessing strike for frivolous appeal); Folsom v. Erwin, et al., No. CIV-21-895-R (W.D. Okla. September 15, 2021) (dismissal for failure to state a claim on screening).
“Dismissal for failure to state a claim under § 1915A counts as a strike.” Payton v. Ballinger, 831 Fed.Appx. 898, 902 (10th Cir. 2020). “[T]hat strike [is] immediately effective.” Id.
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before October 28, 2021, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to file a timely objection to this Report and Recommendation waives 7 his right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge and terminates the referral unless and until the matter is re-referred. 8