Opinion
No. CIV-18-631-SLP
08-10-2018
HERBERT H. GREEN, JR., Petitioner, v. ROGER LAVICK, Respondent.
REPORT AND RECOMMENDATION
Herbert H. Green, Jr., is a pretrial detainee who has been incarcerated in the Jackson County Jail since June 14, 2018 pursuant to charges brought in Jackson County Case No. CF-2018-147. (ECF No. 5:1). On July 11, 2018, proceeding pro se and in forma pauperis, Mr. Green filed a petition for a writ of habeas corpus under 28 U.S.C. §2254. (ECF No. 5). Because of Petitioner's status as a pretrial detainee, the undersigned has recharacterized the petition as arising under 28 U.S.C. § 2241. See Walck v. Edmondson, 472 F.3d 1227, 1235 (10th Cir. 2007) (noting that 28 U.S.C. § 2241 "is the proper avenue by which to challenge pretrial detention."); Yellowbear v. Wyoming Atty. Gen., 525 F.3d 921, 925 (10th Cir. 2008) (recognizing that a petition filed under § 2254 is "properly characterized as a § 2241 petition because it was filed pretrial and not while he was in custody pursuant to judgment of a state court."). However, based on the nature of the allegations in the petition and type of relief sought, the undersigned also construes the habeas petition as a "hybrid" action, seeking relief under 28 U.S.C. § 2241 (habeas corpus), 42 U.S.C. § 1983 (civil rights) and 28 U.S.C. § 1361 (mandamus).
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=jackson&number=CF-2018-147
See Whitmore v. Parker, 484 F. App'x 227, 239-40 (10th Cir. 2012) (permitting inmate to lodge both § 2241 claims and § 1983 claims in the same filing); Ellibee v. Feleciano, 374 F. App'x 789, 790 (10th Cir. 2010) (same); United States v. Dotson, 430 F. App'x 679, 682 (10th Cir. 2011) (alternatively construing claims as arising under either 28 U.S.C. § 2241 or 28 U.S.C. § 1361).
United States District Judge Scott L. Palk has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). In accordance with Rule 4 of the Rules Governing Section 2254 Cases, and pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915, the undersigned has examined the Petition and taken judicial notice of various state court records.
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").
Based on that review, the undersigned recommends that the Court: (1) dismiss, without prejudice, the habeas portion of the petition on screening under the Younger abstention doctrine and based on Petitioner's failure to exhaust state court remedies, (2) dismiss, without prejudice, the civil rights claims for failure to state a claim upon which relief may be granted, and/or alternatively (3) dismiss the entire petition, with prejudice, for lack of subject matter jurisdiction to the extent that Petitioner is seeking mandamus relief.
I. FACTUAL BACKGROUND/PETITIONER'S CLAIMS
A stated, Petitioner is a pre-trial detainee currently incarcerated in the Jackson County Jail. In the Petition and accompanying brief, Mr. Green raises four grounds for relief. In Ground One, Mr. Green alleges a denial of due process since his incarceration began resulting from:
1. "no preliminary hearing for 60 days;"(ECF Nos. 5:5; 5-1:2).
2. "no plea taken for 60 days;"
3. "accused incarcerated and accessed [sic] excessive bail while awaiting hearing set for 60 days;" and
4. "no legal counsel until 60 days."
In Ground Two, Mr. Green alleges a denial of his First Amendment right to freedom of speech due to an alleged lack of evidence to support the pending state court charges. (ECF Nos. 5:6-7; 5-1:3).
In Ground Three, Mr. Green alleges that the Jackson County District Court lacks jurisdiction over the state court case. (ECF Nos. 5:8; 5-1:3).
In Ground Four, Mr. Green alleges multiple civil rights violations related to his current incarceration including:
1. "not receiv[ing] adequate medical attention;"
2. "no pain meds administered;"
3. "force[d] to sleep on floor in insect-infested cell;"
4. "forced to wear unsanitary prison clothing;"
5. "abusive guards and staff—both physically and verbally;"(ECF Nos. 5:9-10; 5-1:3). The sole relief Mr. Green requests is for this Court to "issue a writ of habeas corpus commanding Roger Lavick, Sheriff of Jackson County in the State of Oklahoma to appear before this honorable court, with said inmate, Herbert H. Green, Jr., and show evidence that he was justly incarcerated for a crime(s) committed in Jackson County and the State of Oklahoma for which they have legal jurisdiction." (ECF No. 5:14). Based on the nature of the allegations, Grounds One through Three are construed as claims for habeas relief under 28 U.S.C. § 2241 and Ground Four is construed as a claim arising under 42 U.S.C. § 1983. Based on the nature of the relief sought, the entire Petition is construed as one seeking a writ of mandamus pursuant to 28 U.S.C. § 1361.
6. "unhealthy food;"
7. "no personal hygiene products;" and
8. "denied access to legal materials & legal attorney."
II. STANDARD FOR DISMISSAL
Rule 4 of the Rules Governing Habeas Corpus Cases under Section 2254, requires prompt examination of a habeas petition and requires dismissal if it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." The district court may apply any or all of the Rules governing § 2254 cases to a habeas petition brought under § 2241. R. 1(b), R. Governing § 2254 Cases in U.S. Dist. Ct.
Pursuant to 28 U.S.C. § 1915A, this Court must review complaints filed in civil actions by prisoners seeking redress from a governmental entity or officer or employee of a governmental entity. After conducting the initial review, the Court must dismiss the complaint, or any portion of the complaint, which is frivolous, malicious or fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1)-(2). See also 1915(e)(2)(B)(ii) (dismissal of a complaint filed in forma pauperis is proper for failure to state a claim upon which relief may be granted); Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009).
In determining whether sua sponte dismissal is appropriate, the Court applies the same standard of review applied to motions for dismissal brought pursuant to Fed. R. Civ. P. 12(b)(6), and 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). Additionally, a complaint "must contain enough factual allegations 'to state a claim to relief that is plausible on its face.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). III. DISMISSAL OF GROUNDS ONE, TWO, AND THREE
As noted, Mr. Green is currently involved in state court criminal proceedings in Jackson County Case No. CF-2018-147. See supra. Grounds One, Two, and Three in the habeas petition implicate his state court criminal case. See supra. For two reasons, the Court should dismiss these grounds.
First, the Court should dismiss Grounds One through Three based on Petitioner's failure to exhaust his state court remedies.
"A habeas petitioner is generally required to exhaust state remedies whether his action is brought under § 2241 or [28 U.S.C.] § 2254." Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000). "In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Federal courts "should abstain from the exercise of [§ 2241] jurisdiction if the issues raised in the petition may be resolved either by trial on the merits in the state court or by other state procedures available to the petitioner." Capps v. Sullivan, 13 F.3d 350, 354 n.2 (10th Cir. 1993) (internal quotation marks omitted). "A narrow exception to the exhaustion requirement applies if a petitioner can demonstrate that exhaustion is futile." Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010). "Courts may raise the issue of exhaustion on their own motion." Arter v. Gentry, 201 F. App'x 653 (10th Cir. 2006); accord Allen v. Zavaras, 568 F.3d 1197, 1202 (10th Cir. 2009) (noting that sua sponte dismissal of § 2254 petition for failure to exhaust was proper where the petitioner's "failure to exhaust was clear from the face of his petition").
In the Petition, Mr. Green admits that he has not exhausted Grounds One through Three. See ECF No. 5:5-8. In the Jackson County District Court, Petitioner filed: (1) a Motion to Reconsider his bond and (2) a Motion to Dismiss the charges against him based on an alleged lack of evidence to support his arrest and lack of jurisdiction in Jackson County. On June 19, 2018, the District Court denied both motions. But neither the habeas Petition nor the state court docket sheet indicates that Mr. Green has: (1) appealed those rulings to the Oklahoma Court of Criminal Appeals (OCCA), (2) alleged that such exhaustion would be "futile," or (3) filed any motion in the Jackson County District Court relating to his allegations regarding a lack of preliminary hearing, entry of plea, or appointment of counsel. See ECF No. 5; Docket Sheet, State of Oklahoma v. Green, Case No. CF-2018-147 (Jackson Co. Okla.); cf. Okla. Stat. tit. 12, § 1331 ("Every person restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus to inquire into the cause of the restraint, and shall be delivered therefrom when illegal."); id. tit. 22, ch. 18 app., R. 10.1, 10.6(C) (providing that the OCCA may review applications for extraordinary writs, including, in "extreme emergenc[ies]," writs of habeas corpus that have not yet been refused by the district court). Accordingly, the Court should dismiss Grounds One through Three based on Mr. Green's failure to exhaust his state court remedies.
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=jackson&number=CF-2018-147
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=jackson&number=CF-2018-147
The undersigned notes: (1) on June 15, 2018, the Jackson County District Court appointed the Oklahoma Indigent Defense System (OIDS) to represent Mr. Green and (2) on August 3, 2018, the Jackson County District Judge entered an order setting a preliminary hearing in Mr. Green's case for September 5, 2018. See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=jackson&number=CF-2018-00147&cmid=320879.
Second, the Court should dismiss Grounds One through Three pursuant to Younger v. Harris, 401 U.S. 37 (1971).
"Younger abstention is jurisdictional." D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 1223, 1228 (10th Cir. 2004). "[A]court may raise the issue of abstention sua sponte." D.A. Osguthorpe Family P'ship v. ASC Utah, Inc., 705 F.3d 1223, 1231 (10th Cir. 2013) (citations omitted); see also Sanchez v. Wells Fargo Bank, N.A., 307 F. App'x 155, 157 (10th Cir. 2009) (recognizing that both Supreme Court and Tenth Circuit precedent "have acknowledged the authority of a federal court to address application of the Younger doctrine sua sponte"). --------
In Younger, the United States Supreme Court held that federal courts should not intervene in state criminal prosecutions begun before institution of a federal suit when the state court proceedings are: (1) ongoing, (2) offer an adequate forum for a defendant's federal claims, and (3) implicate important state interests. Id. at 43-44; see Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982). "[T]he district court must abstain once the conditions are met, absent extraordinary circumstances." Weitzel v. Div. of Occupational & Prof'l Licensing of Dep't of Commerce, 240 F.3d 871, 875 (10th Cir. 2001) (quotation omitted). And, "Younger governs whenever the requested relief would interfere with the state court's ability to conduct proceedings, regardless of whether the relief targets the conduct of a proceeding directly." Joseph A. ex rel. Corrine Wolfe v. Ingram, 275 F.3d 1253, 1272 (10th Cir. 2002) (citations omitted).
Exceptions exist for "bad faith or harassment," prosecution under a statute that is "'flagrantly and patently'" unconstitutional, or other "extraordinary circumstances" involving irreparable injury. Younger, 401 U.S. at 46-55 (citation omitted); Amanatullah v. Colo. Bd. of Med. Exam'rs, 187 F.3d 1160, 1165 (10th Cir. 1999). A petitioner has a "heavy burden" of establishing an exception to the Younger abstention doctrine. Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir. 1997) (citation omitted).
In this case, consideration of three factors mandate that the Court should abstain under Younger. First, Petitioner's status as a pretrial detainee demonstrates that his state court criminal proceedings are ongoing. Second, the Oklahoma courts provide an adequate forum to hear Mr. Green's claims. See, e.g., Arter, 201 F. App'x at 653 (construing pretrial detainee's claim of excessive bail as a claim under § 2241 and dismissing claim pursuant to the Younger doctrine); Tucker v. Reeve, No. CIV-14-971-R, 2014 WL 11352784 at *1 (W.D. Okla. Oct. 2, 2014) (unpublished op.) (Oklahoma pretrial detainee's allegation of excessive bail could be challenged through "a petition for habeas corpus in state court seeking a reduction of bail") (citation omitted); see also Kugler v. Helfant, 421 U.S. 117, 124 (1975) (noting "ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights").
And third, Oklahoma has an important state interest in resolution of the claims raised by Mr. Green. See In re Troff, 488 F.3d 1237, 1240 (10th Cir. 2007) (recognizing that "state control over criminal justice" is "a lynchpin in the unique balance of interests" of federalism). Finally, Mr. Green's Petition does not allege any bad faith, harassment, or other extraordinary circumstances as outlined in Younger.
Under these circumstances, Younger abstention is "non-discretionary" and "[this] court is required to abstain." See Chapman v. Oklahoma, 472 F.3d 747, 749 (10th Cir. 2006) (citation omitted). Thus, the Court should dismiss, without prejudice, Grounds One through Three pursuant to Younger.
IV. DISMISSAL OF GROUND FOUR
In Ground Four, Mr. Green alleges multiple civil rights violations related to his current incarceration including:
1. "not receiv[ing] adequate medical attention;"(ECF Nos. 5:9-10; 5-1:3). The Court should construe these allegations as arising under 42 U.S.C. § 1983 and dismiss Ground Four for failure to state a claim.
2. "no pain meds administered;"
3. "force[d] to sleep on floor in insect-infested cell;"
4. "forced to wear unsanitary prison clothing;"
5. "abusive guards and staff—both physically and verbally;"
6. "unhealthy food;"
7. "no personal hygiene products;" and
8. "denied access to legal materials & legal attorney."
Mr. Green seeks liability against Defendant Lavick, as Sheriff of Jackson County and apparently believes that Defendant Lavick is responsible for the deprivations outlined in Ground Four. Petitioner does not indicate whether he is suing Defendant Lavick in his official or individual capacity. The undersigned therefore construes the allegations against Defendant Lavick in both capacities. See, e.g., Smith v. United States, 561 F.3d 1090, 1093, n.2 (10th Cir. 2009).
A. Official Capacity Claims
A claim by Mr. Green against Defendant Lavick in his official capacity "is essentially another way of pleading an action against the county or municipality []he[] represent[s]." Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010). In order to sufficiently allege such a claim, Plaintiff must effectively describe "official policy or custom [that] was both deliberately indifferent to his constitutional rights and the moving force behind his injury." Id. Plaintiff has not done so here and, accordingly, has failed to adequately state a claim for relief against Defendant Lavick in his official capacity.
B. Individual Capacity Claims
"A § 1983 defendant sued in an individual capacity may be subject to personal liability and/or supervisory liability." Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011). In a conclusory form, Mr. Green outlines various allegations regarding the conditions of confinement at the Jackson County Jail and various deprivations he has endured which he believes violate his constitutional rights. (ECF Nos. 5:9-10; 5-1:3). Even so, Mr. Green does not specifically allege that Defendant Lavick was personally involved in causing the conditions or deprivations, either directly or in a supervisory role. (ECF Nos. 5:9-10; 5-1:3). In a civil rights action under § 1983, the complaining party must sufficiently plead personal involvement, causation, and state of mind. Schneider v. City of Grand Junction Police Dept., 717 F.3d 760, 767 (10th Cir. 2013). Here, Mr. Green has failed to plead any of these three requisites. Thus, the Court should dismiss, without prejudice, any claim against Defendant Lavick in his individual capacity.
V. DISMISSAL OF ENTIRE PETITION BASED ON REQUESTED RELIEF
As stated, Petitioner's sole request for relief asks this Court to compel Defendant Lavick, Sheriff of Jackson County, to appear before this Court with evidence: (1) in support of the charges against Mr. Green in his state court case and (2) to prove that Jackson County has jurisdiction over the case. (ECF No. 5:14). The Court should construe this request for relief as one seeking a writ of mandamus under 28 U.S.C. § 1361. See Will v. United States, 389 U.S. 90, 95 (1967) (noting that the peremptory writ of mandamus has traditionally been used in federal courts "to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.").
However, 28 U.S.C. § 1361 states that federal district courts have jurisdiction over "any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361 (emphasis added). Consequently, a suit for federal mandamus relief must name a federal officer or employee as the subject of the request for relief. Id.; see also Amisub (PSL), Inc. v. Colo. Dep't of Soc. Servs., 879 F.2d 789, 790 n.2 (10th Cir. 1989) ("No relief against state officials or state agencies is afforded by § 1361.").
Here, Mr. Green has not alleged any duty owed to him by a federal official or agency, instead he names only the Sherriff of Jackson County. While this court broadly construes pleadings filed by pro se litigants, see Haines v. Kerner, 404 U.S. 519 (1972), it is not the proper function of the U.S. district court to assume the role of advocate for the pro se litigant. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court "will not . . . construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
Because this Court is not authorized to issue a writ of mandamus against a county official, Petitioner's action seeking such writ should be dismissed for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3). See Cottriel v. Jones, No. CIV-13-135-W, 2013 WL 706061, at *1 (W.D. Okla. Feb. 13, 2013), report and recommendation adopted, No. CIV-13-135-W, 2013 WL 706058 (W.D. Okla. Feb. 26, 2013) (dismissing petition seeking writ of mandamus for lack of subject matter jurisdiction because inmate sought to compel action from a state agency official).
VI. RECOMMENDATION
The Court should abstain from considering Grounds One through Three under Younger and/or alternatively, dismiss, without prejudice, those grounds based on Petitioner's failure to exhaust his state court remedies. Additionally, the Court should dismiss, without prejudice, Ground Four for failure to state a claim upon which relief may be granted and/or dismiss, with prejudice, the entire petition to the extent that is seeks a writ of mandamus.
VII. NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by August 27, 2018, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The parties are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VIII. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
ENTERED on August 10, 2018.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE