Opinion
CIV-19-890-JD
03-12-2020
MARQUISE LELAND WHITE, Plaintiff, v. SCOTT CROW, DIRECTOR, et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Plaintiff, an Oklahoma inmate appearing pro se, filed a complaint under 42 U.S.C. § 1983. Doc. 11. Plaintiff names as Defendants Scott Crow “Interim Director of Department of Corrections, ” Mark Knutson “Administrative Review Authority, ” R.C. Smith “Facility Warden at Lawton Correctional Facility, ” and “T” Ginn “Correctional Officer at Lawton Correctional Facility.” Id. at 1-2. Plaintiff states he is suing each Defendant in their individual and official capacities. Id. at 2.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
Plaintiff's original complaint was unsigned. See Doc. 1. The undersigned ordered Plaintiff to cure this deficiency by submitting a signed and verified complaint. See Doc. 10. The undersigned has considered only Plaintiff's signed and verified complaint for screening purposes. See Doc. 11.
United States District Judge Joe Heaton referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). See Doc. 5. Upon initial review, the undersigned recommends the dismissal of the complaint.
United States District Judge Jodi W. Dishman was reassigned the case after the initial referral. See Doc. 12.
I. Screening.
Federal law requires the court to screen complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss any frivolous or malicious claim, any claim asking for monetary relief from a defendant who is immune from such relief, or any claim on which the court cannot grant relief. Id. §§ 1915A(b), 1915(e)(2)(B).
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). The complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556); see also Gee v. Pacheco, 627 F.3d 1178, 1184 (10th Cir. 2010). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
“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 v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). 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. Plaintiff's claims.
Plaintiff is incarcerated at Lawton Correctional Facility (LCF). Doc. 11, at 1. Plaintiff states he was “hired” as a “main support hallway orderly” on February 21, 2019. Id. at 2. His job was to “keep[]” the hallway free and clear of dirt/trash and debris.” Id. On May 16, 2019, Plaintiff claims he picked up a piece of “trash” off the floor and was taking it to a trash bag for disposal when he was stopped by Defendant T. Ginn. Id. at 3. Defendant Ginn asked Plaintiff to show him what was in his hand and Plaintiff complied. Id. at 3. The “trash” in Plaintiff's hand, described by Plaintiff as a “very flat wadded up sticky piece of paper, similar to the kind of paper used to display nutritional facts on various products, ” “contained a white crystal substance which subsequently tested positive for an un weighable amount of methamphetamine.” Id.
LCF is “a private prison owned and operated by GEO Group, Inc. pursuant to a contract with the Oklahoma Department of Corrections ....” See Peters v. Okla. Dep't of Corrs., No. 18-144-G, 2019 WL 1338416, at *2, (W.D. Okla. Mar. 25, 2019). See also https://www.geogroup.com/FacilityDetail/FacilityID/61 (last visited March 4, 2020).
Plaintiff states that although he “told [Defendant] ‘T' Ginn [and] everyone involved investigating this incident” that he “picked the paper which concealed the drugs up off the floor” and gave them the “exact location” in the hallway where he picked up the paper, “prison officials in charge refused to investigate those facts.” Id. On June 7, 2019, after a hearing, Plaintiff states he was “found guilty of ‘possession of drugs.'” Id. As punishment he lost ninety day of phone and commissary privileges, he was segregated for thirty days and, on July 1, 2019, he was “demoted to level 1 resulting in work restrictions and ability to participate and educational programs that Plaintiff [] had been participating and excelled in for several years.” Id.
Plaintiff states he made requests, through the prison's grievance and appeal process, that the judgment imposed be reversed based on “cruel and unusual punishment for picking up debris in the hallway that turned out to contain an amount of drugs, when the Plaintiff was employed to keep the hallway free of debris.” Id. at 3-4. These requests, according to Plaintiff, were all denied. Id. His attempted appeal to the “Administrative Review Authority” was then denied by Defendant Mark Knutson as untimely, as was his request to Defendant Scott Crow to submit an appeal out of time. Id. at 4.
Plaintiff raises two claims. In his first claim, Plaintiff asserts Defendants Smith and Ginn violated his due process rights and subjected him to cruel and unusual punishment when they refused to investigate Plaintiff's statements about the “trash/debris that contained drugs.” Id. at 5. In his second claim, Plaintiff asserts Defendant Knutson violated his due process rights when he denied Plaintiff “the right to appeal despite documentation that the untimeliness of the Plaintiff's appeal submitted was by no fault of his own.” Id.
Plaintiff seeks a declaration that his due process rights and his right not to be subjected to cruel and unusual punishment were violated. Id. He also seeks a “preliminary and permanent injunction ordering the Defendants to reverse the judgment and “[r]estore the Plaintiff's educational classes, his Level 4, and State monthly pay forfeited due to a demotion in the Plaintiff's class level.” Id. at 5-6. Finally, Plaintiff seeks $1,000.00 in compensatory damages and $9,500,000.00 in punitive damages against each Defendant. Id. at 6.
The undersigned takes judicial notice of the electronic records of the Oklahoma Department of Corrections and the District Court in and for Tulsa County, Oklahoma. See Fed.R.Evid. 201; see also United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007) (noting court's “discretion to take judicial notice of publicly-filed records in our court and certain other courts concerning matters that bear directly upon the disposition of the case at hand”). Those records show Plaintiff is serving a life sentence for First Degree Murder which is an “85%” crime under Oklahoma law. See Okla. Stat. tit. 21 § 13.1.
See https://okoffender.doc.ok.gov/ (last visited February 27, 2020); http://www.oscn.net/dockets/GetCaseInformation.aspx?db=tulsa&number=cf-2006-240 (last visited on March 4, 2020).
III. Discussion.
A. Official-capacity claims.
1. Defendants Crow and Knutson.
Plaintiff sues Defendants Crow and Knutson in their official capacities seeking a declaratory judgment and injunction and monetary damages. See Doc. 11, at 5-6. The undersigned recommends the Court dismiss the officialcapacity claims against these Defendants.
“The Eleventh Amendment is a jurisdictional bar that precludes unconsented suits in federal court against a state and arms of the state.” Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013) (internal quotation marks omitted). Claims for damages against a state official in his official capacity are construed as claims against the State and, so, are barred by the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159, 169 (1985) (holding that a suit against an individual acting in an official capacity is properly treated as a suit against the State itself and “the Eleventh Amendment bars a damages action against a State in federal court”); see also White v. Colorado, 82 F.3d 364, 366 (10th Cir. 1996) (Eleventh Amendment sovereign immunity barred §1983 claims “for money damages” against prison officials in their official capacities.).
Exceptions to this rule exist where a state consents to suit in federal court or where Congress has abrogated a state's sovereign immunity. Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012) (citations omitted). But Oklahoma has not consented to be sued in federal court, nor did Congress abrogate state sovereign immunity by creating a private right of action under § 1983. Berry v. Oklahoma, 495 Fed.Appx. 920, 92122 (10th Cir. 2012) (citing Okla. Stat. tit. 51, § 152.1; Will v. Mich. Dep't. of State Police, 491 U.S. 58, 66 (1989)).
The State of Oklahoma's Eleventh Amendment immunity from suits seeking money damages in federal court remains intact. The court must therefore dismiss, without prejudice, Plaintiff's request for monetary relief against Defendants Crow and Knutson in their official capacities.
Having barred Plaintiff's monetary damages claim against Defendants Crow and Knutson, his official-capacity claims against them are limited to prospective relief for an ongoing violation of federal law. See Muscogee (Creek) Nation, 669 F.3d at 1166 (holding that “under Ex parte Young, 209 U.S. 123 [] (1908), a plaintiff may bring suit against individual state officers acting in their official capacities if the complaint alleges an ongoing violation of federal law and the plaintiff seeks prospective relief”). Plaintiff, however, does not allege an ongoing violation of federal law. Rather, Plaintiff seeks only a reversal of a misconduct appeal denied in 2019. This is insufficient to support an official-capacity claim. See, e.g., Burnett v. Allbaugh, 715 Fed.Appx. 848, 851 (10th Cir. 2017) (holding that neither the “denial of prior grievances” nor the defendants' “past use of the prison grievance policy, even if repeated, ” established a “credible allegation of an ongoing violation of federal law”).
Plaintiff seeks retrospective declaratory relief rather than prospective. Plaintiff seeks a declaratory judgment that the “the acts and omissions described herein violated Plaintiff's rights under the Constitution and laws of the United States, not to be subject to cruel and unusual punishment [] and right to due process.” Doc. 11, at 5. In other words, Plaintiff seeks a declaration that the Defendants' past conduct was unconstitutional. “The Eleventh Amendment ‘does not permit judgments against state officers declaring that they violated federal law in the past.'” Johns v. Stewart, 57 F.3d 1544, 1553 (10th Cir. 1995) (quoting P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993)); see also Catanach v. Thomson, 718 Fed.Appx. 595, 598 (10th Cir. 2017). So no exception applies for Plaintiff to avoid Defendant Crow's and Defendant Knutson's Eleventh Amendment immunity in their official capacities and these claims should be dismissed.
2. Defendants Smith and Ginn.
Plaintiff sues LCF Defendants Smith and Ginn in their official capacities. Doc. 11, at 2. But private prison employees are not state actors and do not have an “official capacity” under § 1983. See, e.g., Jones v. Barry, 33 Fed.Appx. 967, 971 n.5 (10th Cir. 2002) (explaining that employees of a privately run prison were not state actors and “[did] not have an ‘official capacity' as that term is used under the Eleventh Amendment”); see also James v. Sherrod, No. CIV-14-146-HE, 2018 WL 466242, at *1, n.1 (W.D. Okla. Jan. 18, 2018) (holding that “because [defendant] is the employee of a private corporation, [he] is not a state official and can only be sued in his individual capacity”), aff'd, 743 Fed.Appx. 198 (10th Cir. 2018); Alamiin v. Patton, No. CIV-13-1001-F, 2016 WL 7217857, at *6, n.6 (W.D. Okla. Dec. 13, 2016) (“As employees of a private prison, they are not state officials, and official capacity claims cannot be asserted against them.”). Thus, the Court should dismiss the official-capacity claims against Defendants Smith and Ginn with prejudice.
B. Individual-capacity claims.
1. Defendants Crow and Knutson.
“[Section] 1983 imposes liability for a defendant's own actions-personal participation in the specific constitutional violation complained of is essential.” Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011). Plaintiff asserts Defendant Crow denied his “request to submit an appeal out of time.” Doc. 11, at 4. He claims Defendant Knutson violated his due process rights by denying Plaintiff “the right to appeal despite documentation that the untimeliness of the Plaintiff's appeal submitted was by no fault of his own.” Id. at 5. Plaintiff's allegations do not establish these Defendants' personal participation in the alleged violation of Plaintiff's constitutional rights.
“Denial of a grievance or failure to properly investigate or process grievances, without any connection to the violation of constitutional rights alleged by the plaintiff, is not sufficient to establish personal participation for purposes of a Section 1983 claim.” Sherratt v. Utah Dep't of Corr., 545 Fed.Appx. 744, 747 (10th Cir. 2013); see also Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (holding that 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”); cf. Boyd v. Werholtz, 443 Fed.Appx. 331, 332 (10th Cir. 2011) (holding “there is no independent constitutional right to state administrative grievance procedures” and no “liberty interest” in the grievance process). Plaintiff's claims against Defendants Crow and Knutson do not establish their personal participation in either charging Plaintiff with an alleged baseless misconduct or punishing him for that misconduct. As a result, these claims should be dismissed.
2. Defendants Smith and Ginn.
a. Heck bar.
In Heck v. Humphrey, 512 U.S. 477, 487 (1994), the United States Supreme Court held that a prisoner's claim for damages is not cognizable in a § 1983 lawsuit if a judgment in the prisoner's favor would necessarily imply the invalidity of the prisoner's conviction and sentence. The Heck bar requires dismissal unless the prisoner can demonstrate that the conviction or sentence has been overturned or otherwise invalidated. Id. Since Heck, the Supreme Court has extended the bar to claims involving prison-disciplinary convictions and to claims seeking declaratory relief. See Edwards v. Balisok, 520 U.S. 641, 645, 648 (1997); see also Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (“[A] state prisoner's § 1983 action is barred (absent prior invalidation)-no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings)-if success in that action would necessarily demonstrate the invalidity of confinement or its duration.”); cf. Butler v. Compton, 482 F.3d 1277, 1280 (10th Cir. 2007) (holding that the conviction that matters under Heck is the one tied “to the conduct alleged in the § 1983 action”).
Plaintiff alleges Defendants Smith and Ginn violated his due process rights by refusing to investigate his offense despite his claim of innocence and subjected him to cruel and unusual punishment by convicting him of drug possession after a disciplinary hearing. Doc. 11, at 3, 5. Plaintiff's claims attacking the legitimacy of his disciplinary proceedings necessarily imply the invalidity of his disciplinary conviction. Yet Plaintiff has not shown that his disciplinary conviction has been invalidated.
Generally, Heck and Edwards would “forclose[]” Plaintiff's claims. See Cardoso v. Calbone, 490 F.3d 1194, 1199 (10th Cir. 2007); see also Hinds v. Knighton, No. CIV-16-1468-HE, 2017 WL 4236312, at *2 (W.D. Okla. Sept. 25, 2017) (holding plaintiff could not “attack the legitimacy of the misconduct in an action under § 1983 unless the misconduct ha[d] been reversed or vacated” (citing Heck and Edwards)). But Plaintiff's punishment for his disciplinary conviction did not impact the fact or duration of his confinement. As Plaintiff likely would not be able to file a habeas corpus petition challenging his disciplinary conviction, the Heck bar may not apply. That said, it is unnecessary to decide whether the Heck bar applies because Plaintiff “has not suggested a basis for concluding he was entitled to due process protections in the prison disciplinary proceedings involved in this case.” Marshall v. Ormand, No. CIV-13-865-HE, 2014 WL 931434, at *2 (W.D. Okla. Mar. 10, 2014), aff'd, 572 Fed.Appx. 659 (10th Cir. 2014).
Plaintiff does not assert he lost any earned credits and, in fact, because he is serving an 85% life sentence, he had no earned credits to lose. See Okla. Stat. tit. 21 § 13.1 (“Persons convicted of [first degree murder] shall not be eligible for earned credits or any other type of credits which have the effect of reducing the length of the sentence to less than eighty-five percent (85%) of the sentence imposed.”).
In Harrison v. Morton, 490 Fed.Appx. 988, 992 (10th Cir. 2012), the Tenth Circuit observed that the Supreme Court, in Muhammad v. Close, 540 U.S. 749, 752 n.2 (2004), had “left open the possibility that Heck might not apply when a habeas remedy is unavailable.” Further, a 28 U.S.C. § 2241 petition “is available to challenge prison disciplinary proceedings only when those proceedings affect the fact or duration of the petitioner's custody, such as when a prisoner is deprived of earned credits.” Harrison, 490 Fed.Appx. at 992. Because Mr. Harrison was serving an 85% sentence and had lost no earned credits as punishment, his challenged disciplinary conviction, which had “no bearing on the fact or duration of his confinement, d[i]d not qualify” for a habeas corpus challenge. Id.
b. No protected liberty interest.
“A liberty interest may arise from the Constitution itself, by reasons of guarantees implicit in the word ‘liberty[]' or it may arise from an expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). “The Fourteenth Amendment prohibits states from depriving citizens of liberty without due process of law.” Wilson v. Jones, 430 F.3d 1113, 1117 (10th Cir. 2005). But “[l]awful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, a ‘retraction justified by the considerations underlying our penal system.'” Wolff v. McDonnell, 418 U.S. 539, 555 (1974) (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)).
In the prison-disciplinary setting, protected liberty interests are only at issue when an inmate “is subjected to (1) conditions that ‘impose[] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life' or (2) disciplinary actions that ‘inevitably affect the duration of his sentence.'” Harrison, 490 Fed.Appx. at 992 (quoting Sandin v. Conner, 515 U.S 472, 484, 487 (1995)). If a protected liberty interest is implicated then procedural due process requires a prisoner facing a disciplinary hearing to be given advance written notice of the charges, an opportunity to call witnesses and present evidence if safety permits, and a written statement of the evidence relied on and the reasons for the disciplinary action. See Marshall v. Morton, 421 Fed.Appx. 832, 837 (10th Cir. 2011) (citing Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985)).
Plaintiff's only stated punishment for his infraction was ninety days of phone and commissary restriction, thirty days of segregation, and a demotion to level one which resulted in work and educational restrictions. Doc. 11, at 3. These punishments do not implicate a protected liberty interest. See Setliff v. Memorial Hosp. of Sheridan Cty., 850 F.2d 1384, 1394 (10th Cir. 1988) (“To invoke the protections of procedural due process, a plaintiff must establish the existence of a recognized property or liberty interest.”).
First, Plaintiff's reduction in his inmate-classification level and the privileges lost as a result of that reduction do not implicate a protected liberty interest because they did not impose “atypical and significant hardship[s] on [him] in relation to the ordinary incidents of prison life.'” Marshall, 421 Fed.Appx. at 838 (quoting Sandin, 515 U.S. at 484); see also Harrison, 490 Fed.Appx. at 993 (rejecting claim that inmate's “reduction in security classification, resulting in a reduction in his monthly pay and a loss of many privileges, ” imposed an atypical and significant hardship on the inmate). Second, for that same reason “prisoners do not have a protected liberty interest in prison employment.” Marshall, 421 Fed.Appx. at 838 (citing Penrod v. Zavaras, 94 F.3d 1399, 1407 (10th Cir. 1996)); see also Ingram v. Papalia, 804 F.2d 595, 596 (10th Cir. 1986) (“The Constitution does not create a property or liberty interest in prison employment.”). Third, Plaintiff does not allege that his short time in segregation, while possibly more restrictive than “ordinary prison living, ” was so extreme as to rise to the level of atypical or significant in the context of his continued confinement. See, e.g., Sandin, 515 U.S. at 485 (finding no liberty interest protecting against a thirty-day assignment to segregated confinement because it did not “present a dramatic departure from the basic conditions of [the inmate's] sentence”); Marshall v. Ormand, 572 Fed.Appx. 659, 662 (10th Cir. 2014) (rejecting prisoner's claim that his “‘over 400 days'” stay in maximum security housing had created a protected liberty interest). Finally, prison-disciplinary procedures, on their own, “do not create constitutionally protected liberty interests.” Harrison, 490 Fed.Appx. at 994; see also Boyd, 443 Fed.Appx. at 332 (holding “there is no independent constitutional right to state administrative grievance procedures” or a right to participate in those procedures).
Because Plaintiff was not subject to any atypical and significant hardship or any disciplinary proceeding that would affect the duration of his sentence, he has not established that a protected liberty interest was implicated by his prison disciplinary proceeding. As a result, even if Plaintiff's § 1983 claims for damages and equitable relief were not barred by Heck and Edwards, he fails to state a valid claim for relief against Defendants Smith and Ginn in their individual capacities. Therefore, the undersigned recommends the Court dismiss Plaintiff's claims.
Plaintiff also fails to allege Defendant Smith's personal participation in the alleged violation of his constitutional rights. Plaintiff alleges he submitted a request to staff and a grievance appeal concerning his disciplinary conviction to Defendant Smith who denied them. Doc. 11, at 3-5. But Defendant Smith's involvement in Plaintiff's administrative relief attempts does not establish his personal participation in Defendant Ginn's interrogation of Plaintiff or in Defendant Ginn's alleged wrongful seizure of “trash/debris” from Plaintiff “that contained drugs.” Id. at 5. See Sherratt, 545 Fed.Appx. at 747 (“Denial of a grievance or failure to properly investigate or process grievances, without any connection to the violation of constitutional rights alleged by the plaintiff, is not sufficient to establish personal participation for purposes of a Section 1983 claim.”); see also Gallagher, 587 F.3d at 1069 (holding that 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”).
IV. Recommendation and notice of right to object.
For the reasons discussed above, the undersigned recommends Plaintiff's complaint be dismissed in its entirety. Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before April 2, 2020, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). Plaintiff is further advised that the failure to file a timely objection to this Report and Recommendation waives the right to appellate review of both the 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 in the captioned matter.