Opinion
CIV-20-655-G
07-30-2021
STEVEN L. COLE, Plaintiff, v. SCOTT CROW, et. al., Defendants.
REPORT AND RECOMMENDATION
GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner appearing pro se, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Before the Court is Defendants' Motion to Dismiss, Doc. No. 43, to which Plaintiff has filed a Response. Doc. No. 46. Also before the Court is Plaintiff's Motion Requesting Certification of Class, Doc. No. 35, to which Defendants have filed a Response. Doc. No. 35. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Motion to Dismiss be granted as to Plaintiff's second claim and Plaintiff's Motion Requesting Certification of Class be denied.
I. Background Information and Plaintiff's Claims
Plaintiff is confined at the William S. Key Correctional Center located in Fort Supply, Oklahoma. Doc. No. 34 (“Am. Comp.”) at 3. In 2013, he was convicted of, inter alia, Robbery with a Firearm. Doc. No. 23-2 at 2; see also Oklahoma State Courts Network, State v. Cole, Tulsa County District Court, Case No. CF-2012-5756. On that conviction, the state court sentenced Plaintiff to 20 years imprisonment with eight years probation. Id.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=tulsa&number=CF-2012-5756
Pursuant to Okla. Stat. tit. 21, § 13.1, Oklahoma law prohibits the application of earned credits to reduce sentences imposed for certain violent crimes, including robbery with a dangerous weapon, until the convicted individual has served 85% of his sentence. Okla. Stat. tit. 21, § 13.1(8) (“Persons convicted of these offenses[, including robbery with a dangerous weapon, ] 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.”). Based on Plaintiff's conviction for Robbery with a Firearm, he is not eligible for credits that reduce his sentence lower than 85%.
Construing Plaintiff's Amended Complaint liberally, Plaintiff raises several claims related to good time credits. In his first and third claims, Plaintiff explains that in order to participate in Re-Entry/Stepdown and Reintegration Programs, which are designed to prepare inmates for acclimating to life outside of prison, the inmate has to be within 760 days from his discharge date. Am. Comp. at 10-12, 17-19. As noted, 85% inmates cannot have their credits applied to their sentence until they have formally served 85% of the same. Id. Plaintiff contends this usually results in the inmates being released upon meeting their 85% date because the sudden application of their credits fulfills their 100% sentence, sometimes with extra credits remaining. Id. However, eligibility calculations for the Re-Entry/Stepdown and Reintegration Programs use the 100% sentence discharge date. Id. This means that unlike the non-85% inmates, the 85% inmates can never participate in these programs prior to their release.
Plaintiff also points out that the Career Tech Programs, which require inmates to be within a year of their release in order to participate, use the 85% discharge date to determine eligibility. Id.
Plaintiff contends this disparate treatment between the 85% and non-85% inmates does not have a rational basis and is a violation of his equal protection rights. Id. at 5, 10-12. Relying on his Consolidated Record Card, Doc. No. 23-2 at 2, Plaintiff notes that he is accruing credits, though they cannot be applied until he reaches his 85% date, and that he can lose them before he reaches that date. Based on this, Plaintiff asserts both substantive and procedural due process claims, arguing that since he can lose the credits that could otherwise be applied in the future, he has a state created liberty interest in the same. Id. at 17-19.
In his second claim, Plaintiff asserts that the prohibition against his ability to apply good time credits to his sentence is a violation of his due process rights. Id. at 15-17. He contends it is a violation of due process and equal protection to not permit 85% inmates to receive the benefits of the credits they are allowed to earn. Id. at 15-17. Additionally, he asserts Okla. Stat. tit. 21, § 13.1 does not place any limits on the number of good time credits the 85% inmates can earn before they reach their 85% discharge date, meaning that some inmates earn more credits than necessary to take their sentence to completion once they reach 85% and their credits are applied. Id. at 15-16. When that occurs, Plaintiff argues that he should receive monetary compensation for the extra credits earned. Id.
Defendants have filed a Motion to Dismiss in which they only address Plaintiff's second claim. Doc. No. 43. They contend that he failed to exhaust his administrative remedies prior to filing this lawsuit, Plaintiff's due process claim fails on its merits, Defendants are entitled to qualified immunity and Eleventh Amendment immunity, Plaintiff is not entitled to injunctive relief invalidating his sentence, and Defendants did not personally participate in a constitutional violation. Id. at 3-11.
II. Standard of Review
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. Claim Two
The Due Process Clause of the Fourteenth Amendment guarantees certain procedural safeguards before a State may deprive an individual of his or her “life, liberty, or property.” U.S. Const. amend. XIV; Wolff v. McDonnell, 418 U.S. 539, 558 (1974). “We examine procedural due process questions in two steps: the first asks whether there exists a liberty or property interest which has been interfered with by the State, the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient[.]” Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (citations omitted). Therefore, with respect to Plaintiff's claims of due process deprivation, Plaintiff must first establish that he had a constitutionally protected interest.
Protected liberty interests may be derived from the Due Process Clause itself or from state law. Wilkinson v. Austin, 545 U.S. 209, 221 (2005); Hewitt v. Helms, 459 U.S. 460, 466 (1983), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472, 484 (1995); see also White v. Kelly, 82 F.Supp.2d 1184, 1189 (D. Colo. 2000) (“[S]tates may create constitutionally protected liberty interests by enacting state statutes that place substantive limitations on the exercise of official discretion.” (citing Hewitt, 459 U.S. at 469-71; Olim v. Wakinekona, 461 U.S. 238, 248-51 (1983); Greenholtz v. Inmates of the Nebraska Penal and Corr. Complex, 442 U.S. 1, 8-11 (1979)).
Oklahoma has created a liberty interest in earned sentence credits. Okla. Stat. tit. 57, § 138(A); Waldon v. Evans, 861 P.2d 311, 313 (Okla. Crim. App. 1993). Thus, Oklahoma inmates are generally entitled to minimum due process protections prior to the revocation of their earned credits. However, Oklahoma law prohibits the application of earned credits to reduce sentences imposed for certain crimes, including robbery with a dangerous weapon, until the convicted individual has served 85% of his sentence. Okla. Stat. tit. 21, § 13.1(8) (“Persons convicted of these offenses[, including robbery with a dangerous weapon, ] 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.” (emphasis provided)). Although Plaintiff argues that he is already earning credits, as evidenced by his Consolidated Record Card, and that those credits will be applied when he reaches his 85% date, it is clear from the language of Okla. Stat. tit. 21, § 13.1, Oklahoma law has not created a liberty interest in the earning of such credits and has not guaranteed any right or entitlement to the same.
As established above, Plaintiff was convicted in 2013 of, inter alia, Robbery with a Firearm. Supra. Plaintiff will have served 85% of his sentence as of February 22, 2023. Doc. No. 23-2 at 3. Because Plaintiff is not entitled to the application of earned sentence credits to reduce his sentence, he has no state-created liberty interest in said credits. The Due Process Clause “confers no liberty interest in freedom from state action taken within the sentence imposed.” Sandin, 515 U.S at 480 (quotations omitted). Accordingly, Plaintiff cannot establish a due process violation and Respondent's Motion to Dismiss Plaintiff's second claim should be granted.
In light of this recommendation, it is unnecessary to address Respondent's additional bases for dismissal of Plaintiff's second claim.
Additionally, Plaintiff relies on his Consolidated Record Card, which displays accumulated credits, to argue that he has a liberty interest in earned credits because the “lost” column on the card indicates he can lose them. Am. Comp. at 18-19; Doc. No. 23-2 at 3. Similarly, he contends that he is entitled to monetary compensation for “extra” credits he accumulates beyond that necessary to complete his sentence after reaching his 85% date. Am. Comp. at 15-16. However, as Plaintiff has not actually lost any credits nor reached his 85% date, he does not have standing to assert claims based upon these arguments. Walker v. Kingfisher Wind, LLC, No. CIV-14-914-D, 2016 WL 5947307, at *4 (W.D. Okla. Oct. 13, 2016) (explaining that standing requires, inter alia, that the plaintiff show that he has suffered an “injury in fact” that is concrete and particularized and actual or imminent, not conjectural or hypothetical (citing Friends of the Earth, Inc. v. Laidlaw Env't. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)).
IV. Remaining Claims
Although not formally identified as a partial motion to dismiss, Defendants' Motion is limited in its scope. Aside from the general due process claim addressed above, Defendants interpret Plaintiff's claims as being centered around housing and classification. However, as previously explained herein, Plaintiff's remaining due process and equal protection claims are focused on the ability of non-85% inmates to participate in the Re-Entry/Stepdown and Reintegration Programs and do not pertain to housing or classification. While Defendants may have been initially confused by Plaintiff's Amended Complaint, Plaintiff addressed this apparent confusion in his Response to Defendant's Motion, explicitly explaining that his claims do not pertain to housing or classification and further elaborating on the basis for each. As Defendants have not set forth a basis for dismissal with regard to Plaintiff's first and third claims, those claims remain pending and should proceed.
While not specifically raised in Defendant's Motion to Dismiss with regard to Plaintiff's first and third claims, it appears likely Plaintiff has exhausted his administrative remedies with regard to these claims. Doc. No. 23-10; Doc. No. 23-11 at 2; Doc. No. 23-12.
V. Request for Class Certification
Plaintiff has requested this Court certify this case as a class action made up of “all 85% inmates.” Doc. No. 35. A court may not certify a class unless it determines “the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). “When the court reviews the quality of the representation under Rule 23(a)(4), it will inquire not only into the character and quality of the named representative party, but also it will consider the quality and experience of the attorneys for the class.” 7A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure: Civil § 1769.1 (3d ed. 2005) (footnote omitted). In Fymbo v. State Farm Fire and Casualty Co., 213 F.3d 1320 (10th Cir. 2000), the Tenth Circuit concluded that a “litigant may bring his own claims to federal court without counsel, but not the claims of others” because “the competence of a layman is ‘clearly too limited to allow him to risk the rights of others.'” Id. at 1321 (quoting Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975)); see also 7A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure: Civil § 1769.1 n.13 (3d ed. 2005) (citing cases for rule that “class representatives cannot appear pro se”).
In the present matter, because Plaintiff is proceeding pro se, the undersigned concludes he cannot adequately represent the interests of a class. Therefore, Plaintiff's request for class certification should be denied. See also Cotner v. Knight, No. 95-6105, 1995 WL 441408, at *1, 15 (10th Cir. July 21, 1995) (affirming a lower court decision in which the district court denied a pro se plaintiff's request for class certification based on the conclusion that a pro se litigant could not adequately represent the interests of a class); Speer v. Beardsley, No. 20-3075-SAC, 2020 WL 4785426, at *3 (D. Kan. Aug. 18, 2020) (denying request for class certification explaining, “Usually, class certification is denied when it is sought by pro se litigants because a layperson lacks legal training and expertise.” (citing Amaro v. Att'y Gen. for New Mexico, 781 Fed.Appx. 693, 695 (10th Cir. 2019); Cunningham v. Fed. Bureau of Prisons, 709 Fed.Appx. 886, 888 n.1 (10th Cir. 2017)).
RECOMMENDATION
Based on the foregoing findings, it is recommended Defendants' Motion to Dismiss (Doc. No. 43) be GRANTED as to Plaintiff's second claim. Plaintiff's first and third claims should proceed. It is further recommended that Plaintiff's Motion Requesting Certification of Class (Doc. No. 35) be DENIED.
The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by August 19 th, 2021, 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 partially disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter. Dated this 30 th day of July, 2021.