Opinion
CIV-19-398-D
10-23-2019
ALVIN PARKER, Plaintiff, v. JOE ALLBAUGH, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, a state prisoner appearing pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Before the Court is a Motion to Dismiss filed by Defendant Joe Allbaugh. Doc. No. 23. For the following reasons, it is recommended Defendant Allbaugh's Motion to Dismiss be granted.
I. Background Information
Plaintiff is incarcerated at Dick Conner Correctional Center ("DCCC") located in Hominy, Oklahoma. Doc. No. 1 ("Comp.") at 3. Plaintiff's Complaint asserts a First Amendment right of access to the courts claim against Joe Allbaugh, Director of the Oklahoma Department of Corrections ("ODOC"). Id. at 5-10. Defendant Allbaugh has filed a Motion to Dismiss arguing Plaintiff failed to sufficiently allege personal participation in violation of Plaintiff's First Amendment rights and that his allegations do not rise to the level of a First Amendment violation. See generally Doc. No. 23.
II. Failure to State a Claim Upon Which Relief Could be Granted
A motion to dismiss may be granted when the plaintiff has "failed to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In applying this standard the court must assume the truth of all well-pleaded factual allegations in the complaint and construe them in the light most favorable to the plaintiff. See Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011); Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005). To survive a motion to dismiss, a complaint must present factual allegations that "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). This review contemplates the assertion of "enough facts to state a claim to relief that is plausible on its face." Id. at 570. Thus, "when the allegations in a complaint, however true, could not raise a [plausible] claim of entitlement to relief," the cause of action should be dismissed. Id. at 558.
A pro se plaintiff's complaint must be broadly construed under this standard. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the generous construction to be given the pro se litigant's allegations "does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). See Whitney v. New Mexico, 113 F.3d 1170, 1173-1174 (10th Cir. 1997) (courts "will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf").
A court evaluating a Rule 12(b)(6) motion to dismiss may consider the complaint as well as any documents attached to it as exhibits. Bellmon, 935 F.2d at 1112. Additionally, "[a] district court may consider documents (1) referenced in a complaint that are (2) central to a plaintiff's claims, and (3) indisputably authentic when resolving a motion to dismiss without converting the motion to one for summary judgment." Thomas v. Kaven, 765 F.3d 1183, 1197 (10th Cir. 2014).
III. Factual Allegations
In order to place the factual allegations underlying Plaintiff's claim in proper context, the Court must review Plaintiff's history of filing with the United States Supreme Court. On November 3, 2003, the United States Supreme Court issued an Order in a case filed by Plaintiff in which the Supreme Court denied his request for leave to proceed in forma pauperis. Doc. No. 22-2; Parker v. Oklahoma, 540 U.S. 978 (2003). The Supreme Court also stated, "As petitioner has repeatedly abused this Court's process, the Clerk is directed not to accept any further petitions in noncriminal matters from petitioner unless the docketing fee required by Rule 38(a) is paid and petition submitted in compliance with Rule 33.1." Id. Supreme Court Rules 33.1 provides, in relevant part, "[E]very document filed with the Court shall be prepared in a 6 ? - by 9 ¼ -inch booklet format using a standard typesetting process . . . to produce text printed in typographic (as opposed to typewriter) characters."
In 2018, Plaintiff filed a habeas action in the Northern District of Oklahoma. Petition, Parker v. Allbaugh, No. 18-cv-232-JED-FHM (N.D. Okla. April 25, 2018), Doc. No. 1. Ultimately, the Northern District of Oklahoma denied Plaintiff's request for habeas corpus relief. Opinion and Order, Judgment, Parker v. Allbaugh, No. 18-cv-232-JED-FHM (N.D. Okla. Oct. 22, 2018), Doc. Nos. 16, 17. Petitioner requested a Certificate of Appealability with the Tenth Circuit United States Court of Appeals. Application for Certificate of Appealability, Parker v. Allbaugh, No. 18-5115 (10th Cir. December 17, 2018). The Tenth Circuit denied the same on January 16, 2019. Order Denying Certificate of Appealability, Parker v. Allbaugh, No. 18-5115 (10th Cir. Jan. 16, 2019). Plaintiff intended to file a Petition for Certiorari Review with the United States Supreme Court. Comp. at 5-6.
Based on the Supreme Court's 2003 Order requiring Plaintiff to comply with Rule 33.1 by filing any noncriminal matters in the specified booklet format, Plaintiff was required to file his Petition for Writ of Certiorari accordingly. See, supra. On February 8, 2019, Plaintiff submitted a Request to Staff to DCCC's law library supervisor, Dianna Collins, informing her that he had 90 days to file a Petition for Writ of Certiorari and that the DCCC law library was not equipped to produce his Petition in the required booklet format. Comp. at 5-6; Doc. No. 22-3 at 8. Plaintiff requested Ms. Collins contact the Supreme Court and advise it of the situation so that he could seek leave of court to file his certiorari petition under Supreme Court Rule 33.2. Id.
Supreme Court Rule 33.2 describes the requirements for parties proceeding in forma pauperis, allowing them to file documents on 8 1/2 x 11 inch paper, stapled in the left hand corner, and legible.
On March 12, 2019, Plaintiff filed a Grievance stating that he had requested the law library contact the Supreme Court regarding his inability to prepare the required booklets in the DCCC law library and that he had not received copies of any correspondence proving this had been done. Doc. No. 22-3 at 6-7. On March 29, 2019, DCCC Warden responded to Plaintiff's grievance explaining that DCCC staff had contacted the Supreme Court Clerk's Office and referred Plaintiff to resources in the law library explaining how a prisoner may file a petition for certiorari review with the Supreme Court that are not in booklet format. Id. at 5.
However, on March 13, 2019, the United States Supreme Court issued a letter to Plaintiff explaining that based on the 2003 Order, Plaintiff was not allowed to proceed in forma pauperis and was also required to comply with Rule 33.1 that sets out the booklet format requirements. Doc. No. 22-4. On March 20, 2019, Plaintiff appealed the Warden's grievance response, complaining that the DCCC staff member who contacted the Supreme Court did not specify that Plaintiff had been previously ordered to comply with Rule 33.1. Doc. No. 22-3 at 3. Plaintiff explained that he must order the booklet format to be prepared by a third party and that because DCCC is not equipped to meet the Supreme Court's requirements, ODOC should advance him the money required for such an order. Id. at 4. On April 4, 2019, the administrative reviewing authority denied Plaintiff's appeal, affirming the DCCC Warden's denial of Plaintiff's grievance. Id. at 2. Plaintiff's deadline to file his petition for certiorari review expired on April 30, 2019. Comp. at 7.
IV. First Amendment
Inmates have a First Amendment right to "petition the Government for a redress of grievances." U.S. CONST. amend. I. This right, which is more informally referred to as a "right of access to the courts," requires States "to give prisoners a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights." Bounds v. Smith, 430 U.S. 817, 821, 825 (1977), abrogated on other grounds, Lewis v. Casey, 518 U.S. 343, 350 (1996). The Supreme Court noted that "[m]eaningful access . . . is the touchstone" of the inmate right to court access. Bounds, 430 U.S. at 823 (quotation omitted). It held that all states have "affirmative obligations to assure all prisoners meaningful access to the courts." Id. at 824. Nevertheless, prison regulations that infringe on an inmate's constitutional rights are valid if they are "reasonably related to legitimate penological interests." Gee v. Pacheco, 627 F.3d 1178, 1187 (10th Cir. 2010) (citing Turner v. Safley, 482 U.S. 78, 89 (1987)).
A. Official Capacity Claim
In part, Plaintiff sues Defendant Allbaugh in his official capacity for monetary relief. Comp. at 3, 5. "Official-capacity suits . . . generally represent only another way of pleading an action against an entity of which an officer is an agent." Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quotations omitted). As the ODOC Director, Plaintiff's official capacity suit against Defendant Allbaugh is, in essence, a suit against the State of Oklahoma.
Unless the State unequivocally waives its Eleventh Amendment immunity, it prevents an award of money damages against the State of Oklahoma. See Guttman v. Khalsa, 669 F.3d 1101, 1110 (10th Cir. 2012) ("Although a state may waive the sovereign immunity granted to it under the Eleventh Amendment, we require a showing of unequivocal intent to do so."). Oklahoma has not waived sovereign immunity for § 1983 claims. See Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006) ("Oklahoma has not waived sovereign immunity against § 1983 claims in federal district court."). Thus, the Eleventh Amendment bars any claim for monetary relief against Defendant Allbaugh in his official capacity and the Court should dismiss this claim without prejudice. See Wauford v. Richardson, 450 F. App'x 698, 699 (10th Cir. 2011) (holding that claims dismissed under the Eleventh Amendment "should have been dismissed without prejudice").
B. Personal Participation
Personal participation is necessary for individual liability under § 1983. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976) ("Personal participation is an essential allegation in a [§] 1983 claim."). Plaintiff does not allege Defendant Allbaugh personally participated in any of the actions or events underlying his claim. Indeed, Plaintiff's only reference to Defendant Allbaugh in his Complaint is to list him as a Defendant. Comp. at 2.
Plaintiff does assert a conclusory allegation that he "notified the Defendant of DCCC law library's inadequacies, but Defendant refused to change the ODOC's access to courts policy that created the conditions [P]laintiff alleged to be unconstitutional." Id. at 10. In his Response to the Motion to Dismiss, Plaintiff clarifies this allegation by stating that he notified Defendant Allbaugh through his grievance appeal that the DCCC law library was inadequate. Doc. No. 25 at 4. However, as Plaintiff also acknowledges, Plaintiff's grievance appeal was not submitted to Defendant Allbaugh. Id. Plaintiff states that although Defendant Allbaugh "did not personally deny [P]laintiff's grievance appeal, Mark Knutson was designated by the Defendant to provide an answer to the same. Therefore, the Defendant is chargeable with knowledge of the constitutional violation." Doc. No. 25 at 4.
Assuming, arguendo, Plaintiff's grievance appeal had been submitted to Defendant Allbaugh, the law is clearly established that a denial of grievances alone is not sufficient to establish personal participation for purposes of a constitutional claim under § 1983. See Pemberton v. Patton, 673 F. App'x 860, 869 (10th Cir. 2016) ("We have said the denial of a grievance, by itself without any connection to the violation of constitutional rights alleged by plaintiff, does not establish personal participation under § 1983." (quotations omitted)).
In making this assertion, it is clear that Plaintiff's claim against Defendant Allbaugh is based solely on his supervisory role as ODOC Director. However, a supervisor may only be held liable if he is affirmatively linked to the constitutional violation. "Section 1983 does not authorize liability under a theory of respondeat superior." Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011). As a result, government officials have no vicarious liability in a § 1983 suit for the misconduct of their subordinates because "there is no concept of strict supervisor liability under section 1983." Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996) (quotations omitted).
Instead, a supervisor is liable only if he is "personally involved in the constitutional violation, and a sufficient causal connection [] exist[s] between the supervisor and the constitutional violation." Serna v. Colo. Dep't of Corr., 455 F.3d 1146, 1151 (10th Cir. 2006) (quotations omitted); see also Schneider v. Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir. 2013) (requiring a plaintiff to show an "affirmative link" between the supervisor and the constitutional violation). "Thus, [] Plaintiff must base supervisory liability 'upon active unconstitutional behavior' and 'more than a mere right to control employees.'" Davis v. Okla. Cty., No. CIV-08-0550-HE, 2009 WL 2901180, at *4 (W.D. Okla. Sept. 3, 2009) (quoting Serna, 455 F.3d at 1153).
Plaintiff fails to allege any affirmative link between Defendant Allbaugh and the events underlying his First Amendment claim. Accordingly, it is recommended the Court dismiss Defendant Allbaugh based on Plaintiff's failure to allege personal participation. Trujillo v. Williams, 465 F.3d 1210, 1227-28 (10th Cir. 2006) (upholding dismissal of § 1983 claims because the complaint did not indicate personal participation by the named defendants).
C. Qualified Immunity
As an alternative basis for dismissal, Defendant Allbaugh also argues that he is entitled to qualified immunity. Doc. No. 23 at 11-14. "Individual defendants named in a § 1983 action may raise a defense of qualified immunity, which shields public officials from damages actions unless their conduct was unreasonable in light of clearly established law." Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014) (alteration, citation, and quotations omitted). "Once an individual defendant asserts qualified immunity, the plaintiff carries a two-part burden to show: (1) that the defendant's actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant's unlawful conduct." Gutierrez v. Cobos, 841 F.3d 895, 900 (10th Cir. 2016) (quotations omitted).
The Supreme Court recognizes seven circumstances where district "courts should proceed directly to, 'should address only,' and should deny relief exclusively based on the second element" of the qualified immunity analysis. Kerns v. Bader, 663 F.3d 1173, 1180 (10th Cir. 2011) (quoting Camreta v. Greene, 563 U.S. 692, 707 (2011)). Those circumstances are as follows:
(1) when "the first, constitutional violation question 'is so factbound that the decision provides little guidance for future cases'; (2) 'it appears that the question will soon be decided by a higher court'; (3) deciding the constitutional question requires 'an uncertain interpretation of state law'; (4) 'qualified immunity is asserted at the pleading stage' and 'the precise factual basis for the . . . claim . . . may be hard to identify'; (5) tackling the first element 'may create a risk of bad decisionmaking' due to inadequate briefing; (6) discussing both elements risks 'bad decisionmaking' because the court is firmly convinced the law is not clearly established and is thus inclined to give little thought to the existence of the constitutional right; or (7) the doctrine of 'constitutional avoidance' suggests the wisdom of passing on the first constitutional question when 'it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.'Id. at 1180-81 (quoting Pearson v. Callahan, 555 U.S. 223, 236-42 2009)). The undersigned finds this case falls under the sixth example because the undersigned is "firmly convinced the law is not clearly established and is thus inclined to give little thought to the existence of the constitutional right." See, supra.
To determine whether a right is clearly established, the Court must determine whether "the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (alterations and quotations omitted). "Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Fogarty v. Gallegos, 523 F.3d 1147, 1161 (10th Cir. 2008) (quotations omitted). The right must be "so thoroughly developed and consistently recognized under the law of the jurisdiction as to be 'indisputable' and 'unquestioned.'" Lobozzo v. Colo. Dep't of Corr., 429 F. App'x 707, 710 (10th Cir. 2011) (quoting Zweibon v. Mitchell, 720 F.2d 162, 172-73 (D.C. Cir. 1983)).
"The plaintiff is not required to show [] that the very act in question previously was held unlawful in order to establish an absence of qualified immunity." Weigel v. Broad, 544 F.3d 1143, 1153 (10th Cir. 2008) (quotations omitted). The degree of specificity required depends on the egregiousness of the challenged conduct; "[t]he more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation." Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004).
It is exceedingly unlikely that when the United States Supreme Court determines that a litigant, who is also an inmate, has so abused the filing process that he must comply with Rule 33.1, the Court intends to create a constitutional duty on the part of prison facilities to advance that inmate funds to do so. In any event, Plaintiff has not presented, nor has the undersigned discovered, any case law establishing that a prison facility's refusal to advance an inmate funds under these circumstances is considered a First Amendment violation.
Indeed, though not directly on point, at least one court has refused to recognize such an obligation in similar circumstances. In Smith v. Conner, No. 8:12-CV-52-T-30AEP, 2012 WL 760623 (M.D. Fla. 2012), the plaintiff, an inmate, had received a similar order to that received by Plaintiff in the present case indicating that due to his abusive filing practices, he was required to pay the docketing fee required by Supreme Court Rule 38(a) and comply with Rule 33.1. Id. at *1. In order to comply with Rule 33.1, the plaintiff requested word processing and copying services. Id. When the prison facility denied the plaintiff's request, he sought injunctive relief asserting the defendants were violating his First Amendment right of access to the courts. Id. The court denied the plaintiff's request explaining, inter alia:
. . . Plaintiff has not identified any law which holds that prison officials are required to provide prisoners with word-processing and copy services to allow prisoners to file their legal documents in the United
States Supreme Court in the format required by Supreme Court Rule 33.1. . . . Generally, the United States Supreme Court's rules mandate leniency for pro se litigants (many of whom are indigent prisoners). See Supreme Court Rule 39.3 (directing the Clerk to "mak[e] due allowance for any case presented under this Rule by a person appearing pro se [.]"). But for Plaintiff's repeated abuse of the Supreme Court's process, he too would be afforded the leniency enjoyed by other pro se litigants.Id. at *2-3. See also Pellegrino v. Loen, 743 N.W. 2d 140, 143-45 (S.D. 2007) (holding that the defendants did not violate a plaintiff-inmate's right of access to the courts where the plaintiff was under order of the Supreme Court to pay his filing fee and comply with Rule 33.1 due to abusive filing practices and the defendants denied his request for free photocopies).
Plaintiff's own actions, not Defendants', have restricted his access to the Supreme Court. This Court will not direct prison officials to make special accommodations for Plaintiff in order to allow Plaintiff to comply with the filing requirements imposed on him by the Supreme Court, where Plaintiff's own abusive litigation caused the Supreme Court to take the extraordinary step of restricting his access to the Supreme Court for repeatedly abusing its process.
The undersigned finds Defendant Allbaugh is entitled to qualified immunity against Plaintiff's First Amendment claim as it was not clearly established that a prison's refusal to fund an inmate's legal proceedings is a violation of his First Amendment right of access to the courts. Accordingly, Defendant Allbaugh's Motion to Dismiss should be granted.
RECOMMENDATION
Based on the foregoing findings, it is recommended Defendant Allbaugh's Motion to Dismiss (Doc. No. 23) be GRANTED. Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by November 12th , 2019, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motions not specifically addressed herein are denied.
Dated this 23rd day of October, 2019.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE