Opinion
CIV-24-220-SLP
05-30-2024
CHARLES R. BOWLDS, Plaintiff, v. OKLAHOMA INDIGENT DEFENSE SYSTEM et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Plaintiff, an Oklahoma prisoner appearing pro se and proceeding in forma pauperis, seeks relief under 42 U.S.C. § 1983. Doc. 1. He names as Defendants the Oklahoma Indigent Defense System (OIDS); the State of Oklahoma ex rel. OIDS; Tim Laughlin, Executive Director of OIDS; the Board of Directors of OIDS; Cindy Danner, Chief Defense Counsel; Stephen Babcock, OIDS Appellate Defense Counsel; and Christopher Capraro, OIDS Appellate Defense Counsel. Id. at 4-6. He sues Defendants Laughlin, Danner, Babcock, and Capraro in their individual capacities. Id. at 5-6. United States District Judge Scott L. Palk referred this case to the undersigned Magistrate Judge under 28 U.S.C. § 636(b)(1)(B), (C). Doc. 5. For the following reasons, the undersigned recommends dismissal of the action without prejudice based on Plaintiff's failure to state a claim upon which relief can be granted.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
I. Screening.
This Court must screen complaints filed by prisoners seeking relief against a governmental entity or its officer or employee. 28 U.S.C. §§ 1915(e), 1915A(a). The Court must dismiss the complaint, or any portion of the complaint, if it 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. Id. § 1915A(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).
This Court construes “[a] pro se litigant's pleadings . . . liberally,” holding them “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. Background and Plaintiff's claims.
A Logan County jury convicted Plaintiff of kidnapping, assault and battery with a dangerous weapon, and domestic assault and battery. State v. Bowlds, No. CF-2019-45, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=logan&number= CF-2019-45&cmid=118829 (last visited May 23, 2024). Plaintiff received consecutive twenty-year sentences for the kidnapping and assault and battery convictions and a one-year sentence for the domestic assault and battery conviction, also to be served consecutively. Id. (Docket Entry dated Dec. 18, 2020). His appeal is pending before the Oklahoma Court of Criminal Appeals (OCCA). Bowlds v. State, No. F-2021-1155, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=f-2021-1155 (last visited May 23, 2024).
Plaintiff filed this civil rights action alleging he has been denied effective assistance of counsel due to an OIDS policy or custom of structuring its contracts to delay “the final ten percent (10%) of the annual contractual payment until the end of the year, and upon verification that all of the contract attorney's cases are closed.” Doc. 1, Att. 1, at 2-4 (citing OKLA. STAT. tit. 22, § 1355). He claims this contractual structure causes a “pervasive conflict of interest” because it “creates a powerful financial incentive for attorneys to take on Brobdingnagian case loads and ultimately close out cases quickly by constructing and submitting cut and paste boilerplate briefs.” Id. at 9-10. As a result, Plaintiff is “immersed in the abyss of the [Oklahoma] Court of Criminal Appeals (OCCA) Rules and appellate jurisprudence, in an attempt to perfect his direct appeal.” Id.
The trial court appointed OIDS to represent Plaintiff during his direct appeal of his convictions to the OCCA. See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=logan&number=c f-2019-45 (order dated Dec. 17, 2021) (last visited May 23, 2024); see also Okla. Stat. tit. 22, § 1356(A) (“The System shall perfect all direct appeals and capital post-conviction proceedings for all cases to which the System is appointed by Oklahoma district courts at the time the appeal is initiated ”). But Plaintiff explains that he is now representing himself in his direct appeal. Doc. 1, at 78.
Plaintiff seeks compensatory, punitive, and nominal damages. Id. at 14.
He also seeks “declaratory relief” in the form of “an injunction against future application of the Oklahoma Indigent Defense Act in a manner that infringes on the constitutional right to conflict-free counsel.” Id.
III. Plaintiff fails to state a claim.
A. Plaintiff cannot proceed against the individual Defendants.
1. Defendants Babcock and Capraro.
Section 1983 only authorizes relief against those who violate a person's civil rights while acting under color of state law. West, 487 U.S. at 48.
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State, Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law ....42 U.S.C. § 1983.
Defense lawyers do not fit this description: “[A] public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding.” Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) (dismissing § 1983 suit against public defender). This is true even if the OIDS attorneys have performed these traditional functions in a defective manner. See, e.g., Armajo v. Wyoming Public Defender, 2024 WL 470547, at *2 (10th Cir. 2024) (“Even if counsel's deficient performance ‘cause[s] the trial process to deprive an accused person of his liberty in an unconstitutional manner, the lawyer who may be responsible for the unconstitutional state action does not himself act under color of state law within the meaning of § 1983.'” (quoting Briscoe v. LaHue, 460 U.S. 325, 329 n.6 (1983))).
Plaintiff states Defendants Babcock and Capraro acted as his attorneys during his appeal until he decided to proceed pro se. Doc. 1, Att. 1, at 4-8. He claims that, as “private attorneys” under contract with OIDS, they could not exercise their “independent professional judgment” in his case because the ten-percent fee provision in the contract delayed payment to them “until the end of the year, and upon verification that all” of their cases were closed. See id. at 9-10 (citing Feenstra v. Sigler, 2019 WL 6064854, at *7 (N.D. Okla. Nov. 14, 2019), which cites Okla. Stat. tit. 22, § 1355.8 ). He submits this caused a “conflict of interest” for his appellate attorneys because they were only interested in quickly closing his case by filling a sub-par brief so they could obtain their full contractual fee. Id. at 3-6, 9-10.
In Feenstra, the court denied in part the OIDS defendants' motion to dismiss. 2019 WL 6064854, at *5-6. The court found the plaintiffs had stated a claim that OIDS's contracts with private attorneys providing trial representation for indigent clients which delayed final payment until the attorneys closed all cases, had denied the plaintiffs representation during a “Rule 8.1 hearing” to determine their ability to pay fines and costs. Id. The court also found that because the plaintiffs challenged a “state administrative function rather than [] an exercise of independent professional judgment,” they “had plausibly alleged the OIDS Defendants were state actors for purposes of a § 1983 claim.” Id. at *7.
Section 1355.8 grants the OIDS Board “the authority to award contracts to provide noncapital trial representation to indigent criminal defendants . . . in cases for which the System must provide representation ....” OKLA. STAT. tit. 22, § 1355.8(A) (emphasis added). These “trial contract[s]” are awarded to private attorneys who submit eligible offers “to provide indigent noncapital trial services” in the county in which they maintain a primary office. Id. § 1355.8(B-D). If OIDS receives no qualified offers to contract for these trial services, then the Board may assign cases to qualified private attorneys on a pre-approved list or provide the required representation through “attorneys employed by the System.” Id. § 1355.8(D)(6-7); see also id. § 1355.6. Attorneys providing services under a trial contract are required to continue providing representation to the client until they are either allowed to withdraw or “the trial court ceases to retain jurisdiction” over the matter. Id. § 1355.8(J). In Oklahoma, a trial court ceases to retain jurisdiction when a criminal defendant appeals to the OCCA. See, e.g., OKLA. STAT. tit. 20, § 44 (“When the court from which an appeal is taken shall be deprived of jurisdiction of the cause pending such appeal, and when such case shall have been determined by the Criminal Court of Appeals, the mandate of the Criminal Court of Appeals shall be returnable to the court of which jurisdiction has been given over said cause.”).
Liberally construing Plaintiff's claim, the Court assumes he is alleging these Defendants should be considered state actors because they were conspiring with state officials, through the OIDS contract, to deprive him of his constitutional rights to adequate counsel. See, e.g., Tower v. Glover, 467 U.S. 914, 920 (1984) (“Glover alleges that [his public defenders] conspired with state officials, and his complaint, therefore, includes an adequate allegation of conduct ‘under color of' state law.”). But these Defendants did not act under contract for “trial representation” as contemplated by § 1355.8. See supra. n.4. Rather, as Plaintiff acknowledges in his complaint, OIDS “employs” them in its “General Appeals Division.” Doc. 1, Att. 1, at 3; see, e.g., OKLA. STAT. tit. 22, § 1356. So, Plaintiff's claim that an OIDS contract impacted their ability to provide him adequate legal representation is baseless.
Plaintiff parrots the court's language in Feenstra as the basis of his claim. Doc. 1, Att. 1, at 1-4, 8-13.
What remains, then, is Plaintiff's allegation that Defendants Babcock and Capraro inadequately represented him on appeal by requesting extensions of time or filing an “[in]sufficient” and “[in]effective brief.” Doc. 1, Att. 1, at 4 6. But because these Defendants were performing these traditional functions while acting as Plaintiff's appellate attorneys, “they were not state actors for § 1983 purposes.” Armajo, 2024 WL 470547, at *2. And the fact that they are employed by OIDS-a state agency-does not bring their actions “under color of state law.” Id. at *3 (“Those arguments are squarely foreclosed by Polk County, in which the Court recognized that although public defenders are paid with state funds, they act independent of the state's authority, and exercise independent judgment in representing a criminal defendant.” (citing Polk Ctny., 454 U.S. at 317-19)).
Plaintiff has failed to adequately allege state action by these individual Defendants. The Court should therefore dismiss them.
2. Defendants Laughlin and Danner.
The Court should also dismiss Defendants Laughlin and Danner. Plaintiff sues them individually and claims they acted in a supervisory capacity as the Executive Director of OIDS (Defendant Laughlin) and as a direct supervisor who assigned his case to Defendants Babcock and Capraro (Defendant Danner). Doc. 1, at 5-6 & Att. 1, at 4-6, 11-12.
“Individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation.” Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997). “Supervisory status alone does not create § 1983 liability.” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009). Instead, a supervisor may only be held liable if he or she is affirmatively linked to the constitutional violation. See Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”). “Section 1983 does not authorize liability under a theory of respondeat superior.” Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011).
To impose supervisory liability, “a plaintiff must first establish that a subordinate violated a constitutional right.” Wise v. Caffey, 72 F.4th 1199, 1210 (10th Cir. 2023). A plaintiff must then “establish three elements to hold a supervisor liable personally: (1) personal involvement; (2) causation; and (3) state of mind.” Id.; see also Serna v. Colo. Dep't of Corrs., 455 F.3d 1146, 1151 (10th Cir. 2006) (holding a supervisor is liable only if he or she was “personally involved in the constitutional violation, and a sufficient causal connection [] exist[s] between the supervisor and the constitutional violation” (internal quotation marks omitted)); Schneider v. City of 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). A plaintiff must base supervisory liability “upon active unconstitutional behavior and more than a mere right to control employees.” Serna, 455 F.3d at 1153 (internal quotation marks omitted).
In this case, Plaintiff alleges these Defendants violated his constitutional rights by “implementing a system that denies Plaintiff conflict-free counsel.” Doc. 1, Att. 1, at 13. But, as explained above, the contract provision about which Plaintiff complains does not apply to Defendants Babcock and Capraro's conduct in representing him on appeal. So, Plaintiff's allegations against these supervisory Defendants are insufficient to state a supervisory claim for relief and the Court should dismiss them.
IV. Eleventh Amendment immunity bars Plaintiff's remaining official capacity claims.
Plaintiff names the “State of Oklahoma ex rel. [OIDS]” as a Defendant, as well as OIDS and its Board of Directors in an official capacity. Doc. 1, at 1, 4-5. The Court should dismiss these Defendants because Eleventh Amendment immunity bars Plaintiff's claims.
A Court may, in its discretion raise the issue of Eleventh Amendment immunity sua sponte. See Nelson v. Geringer, 295 F.3d 1082, 1098 n.16 (10th Cir. 2002) (“[T]he Court has stated that judicial consideration of Eleventh Amendment issues sua sponte is discretionary, not mandatory.”).
“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). Claims against a state official in his or her 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”). When Eleventh Amendment immunity applies, the party asserting jurisdiction bears the burden of proving that sovereign immunity has been waived. See Impact Energy Res., LLC v. Salazar, 693 F.3d 1239, 1244 (10th Cir. 2012).
Section 1983 is a “remedial vehicle for raising claims based on the violation of constitutional rights.” Brown v. Buhman, 822 F.3d 1151, 1161 n.9 (10th Cir. 2016). Congress, in creating a private right of action under § 1983, did not, however, abrogate state sovereign immunity. See Will v. Dep't of State Police, 491 U.S. 58, 71 (1989). And Oklahoma has not waived its Eleventh Amendment immunity by consenting to suit in federal court. See OKLA. STAT. tit. 51, § 152.1(B) (“[I]t is not the intent of the state to waive any rights under the Eleventh Amendment to the United States Constitution.”).
In short, § 1983 “does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties.” Will, 491 U.S. at 66. The Court should thus dismiss Plaintiff's claims against the State of Oklahoma.
Plaintiff's claims against OIDS and its Board are also barred by Eleventh Amendment immunity. OIDS is a state agency, see OKLA. STAT. tit. 22, § 1355, so any claims against OIDS are, in essence, claims against the State of Oklahoma. Will, 491 U.S. at 71; see also Harris v. Champion, 51 F.3d 901, 908 (10th Cir. 1995) (holding that OIDS is a state agency entitled to Eleventh Amendment immunity on damage claims), superseded by statute on other grounds by Knox v. Bland, 632 F.3d 1290, 1292 (10th Cir. 2011). And OIDS board members in their official capacities are not persons within the meaning of § 1983. See Will, 491 U.S. at 71 (“We hold that neither a State nor its officials acting in their official capacities are ‘persons' under § 1983.”). So, the Court should dismiss the claims against OIDS and its Board of Directors.
“Under Ex parte Young, [209 U.S. 123 (1908),] a plaintiff may avoid the Eleventh Amendment's prohibition on suits against states in federal court by seeking to enjoin a state official from enforcing an unconstitutional statute.” Cressman v. Thompson, 719 F.3d 1139, 1146 n.8 (10th Cir. 2013). “[F]or the Ex parte Young exception to apply, plaintiffs must show that they are: (1) suing state officials rather than the state itself, (2) alleging an ongoing violation of federal law, and (3) seeking prospective relief.” Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1167 (10th Cir. 2012). Plaintiff does not allege an ongoing violation, so his claim falls outside this exception.
V. Alternatively, Younger abstention applies.
In addition to the grounds for dismissal identified above, the Court notes that, to the extent Plaintiff's claims and requests for relief involve interference in Plaintiff's ongoing state criminal proceedings, this Court must abstain under Younger. The Younger abstention doctrine provides that absent extraordinary circumstances a federal court is prohibited from interfering with ongoing state criminal proceedings. Younger v. Harris, 401 U.S. 37, 45 (1971). A narrow exception exists if the plaintiff demonstrates irreparable injury and bad faith, harassment or other extraordinary circumstances warranting equitable relief. See id. at 53-54. Plaintiff makes no such showing.
VI. Heck also bars this action.
Finally, in Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court addressed the question of when a prisoner may bring a § 1983 claim relating to his conviction or sentence. Id. at 487. When a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment for the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed. Id. Similarly, to the extent that a request for declaratory or injunctive relief would necessarily invalidate the prisoner's conviction or sentence, declaratory and injunctive relief are also barred by Heck. Wilkinson v. Dotson, 544 U.S. 74, 80-81 (2005); see also Edwards v. Balisok, 520 U.S. 641, 648 (1997).
Plaintiff requests an injunction against future application of the Oklahoma Indigent Defense Act, as well as punitive, compensatory, and nominal damages based on his appellate counsels' ineffective representation on appeal. Doc. 1, Att. 1, at 14. Because Plaintiff's request for relief implies the invalidation of his sentence, his claim serves as an attack on his criminal proceedings underlying his Logan County convictions. So Heck also bars Plaintiff's claims. See Wilkinson, 544 U.S. at 80-82.
VII. Leave to amend would be futile.
Ordinarily, the Court considers whether to allow a pro se plaintiff an opportunity to amend the complaint. The Court should give pro se plaintiffs a reasonable opportunity to remedy defects in their pleadings. Reynoldson v. Shillinger, 907 F.2d 124, 126 (10th Cir. 1990). And the Court should grant an opportunity to amend unless amendment would be futile. Hall, 935 F.2d at 1109-10. An amendment would be futile if the amended claims would also be subject to immediate dismissal for failure to state a claim. See Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004). Amendment would be futile because Plaintiff fails to assert a valid constitutional violation against a state actor, because his remaining claims are barred by sovereign immunity, and because, alternatively, his claims are barred by Heck. The Court should not grant leave to amend.
VIII. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court dismiss Plaintiff's complaint in its entirety.
The undersigned advises Plaintiff of his right to file an objection to this report and recommendation with the Clerk of this Court on or before June 20, 2024, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to make a timely objection to this report and recommendation waives the right to appellate review of both factual and legal questions contained herein. See 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 this matter.