Opinion
CIV-21-65-SLP
04-06-2021
MICHAEL FARLEY, Plaintiff, v. RON WILLIAMS et al., Defendants.
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Michael Farley, a convicted state prisoner, appearing pro se, and in forma pauperis, has filed an Amended Complaint and Supplement under 42 U.S.C. § 1983. (ECF Nos. 11 & 12). 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). A review of the Amended Complaint has been conducted pursuant to 28 U.S.C. § 1915A(a) and 28 U.S.C. § 1915(e)(2)(B). Based on that review, it is recommended that the Court DISMISS the Amended Complaint and Supplement without prejudice.
I. SCREENING REQUIREMENT
The Court must review each complaint in which a prisoner seeks redress against a governmental entity, officer, or employee and each case in which a plaintiff proceeds in forma pauperis. 28 U.S.C. § 1915A(a). The Court is required to dismiss the complaint or any portion of the complaint that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b); see also Kay v. Bemis, 500 F.3d 1214, 121718 (10th Cir. 2007) (indicating that court uses same analysis for complaint's sufficiency whether performed sua sponte or pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)).
II. STANDARD OF REVIEW
The Court must accept Mr. Farley'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). Since Mr. Farley is proceeding pro se, his complaint must be construed liberally. See id. at 1218. The Court “review[s] the complaint for plausibility; that is, to determine whether the complaint includes enough facts to state a claim to relief that is plausible on its face.” Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009) (quotations and citation omitted). “Plausible” in this context does not mean “likely to be true,” but rather refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct,” then the plaintiff has not “nudged (his) claims across the line from conceivable to plausible.” Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). The plausibility requirement “serves not only to weed out claims that do not (in the absence of additional allegations) have a reasonable prospect of success, but also to inform the defendants of the actual grounds of the claim against them.” Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008).
A complaint fails to state such a claim when it lacks factual allegations sufficient “to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555 (footnote and citation omitted). Bare legal conclusions in a complaint are not assumed to be true; legal conclusions “must be supported by factual allegations” to state a claim upon which relief may be granted. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Whether a complaint contains sufficient facts to avoid dismissal is context-specific and is determined through a court's application of “judicial experience and common sense.” Iqbal, 556 U.S. at 679; see also Gee v. Pacheco, 627 F.3d 1178, 1184-85 (10th Cir. 2010) (discussing Iqbal).
III. BACKGROUND AND PLAINTIFF'S AMENDED COMPLAINT
On April 12, 2018, in Stephens County District Court Case No. CF-2017-171, Mr. Farley pled guilty to the crime of larceny, in violation of 21 O.S. § 1708. Motion to Revoke Suspended Sentence, State of Oklahoma v. Farley, Case No. CF-2017-171 (Stephens Co. Dist. Ct. May 21, 2018). The Court sentenced Mr. Farley to eight years incarceration, with all the time suspended, subject to Plaintiff's compliance with the rules and conditions of probation entered by the Court. Id. On May 21, 2018, the Stephens County District Attorney filed a Motion to Revoke Plaintiff's suspended sentence due to a probation violation; that being the crime of possessing a firearm after a felony conviction, as charged in Case No. CF-2018-125. Id. On August 16, 2018, a hearing on the Motion to Revoke was held, wherein the Court: (1) found that the Plaintiff violated the terms of his probation, and (2) revoked the suspended sentence entered in Case No. CF-2017-171. Judgment and Sentence on Motion to Revoke Suspended Sentence, State of Oklahoma v. Farley, Case No. CF-2017-171 (Stephens Co. Dist. Ct. Sept. 18, 2018). At that time, Plaintiff also pled guilty in Case No. CF-2018-125 and was sentenced to 15 years imprisonment, to run concurrently with the eight years imposed in Case No. CF-2017-171, with the balance of the sentences suspended on successful completion of a residential substance abuse treatment program. Id.; Judgment and Sentence, State of Oklahoma v. Farley, Case No. CF-2018-125 (Stephens Co. Dist. Ct. Aug. 30, 2018).
The Court may take judicial notice of Plaintiff's state court case. See St. Louis Baptist Temple, Inc. v. Federal Deposit Insurance Corporation, 605 F.2d 1169 (10th Cir. 1979) (“federal courts, in appropriate circumstances, may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.”).
On February 28, 2020, Mr. Farley was released from custody, with the remainder of his sentence in CF-2017-171 suspended, once again, subject to conditions of the aforementioned probation. Motion to Revoke Suspended Sentence, State of Oklahoma v. Farley, Case No. CF-2017-171 (Stephens Co. Dist. Ct. Aug. 28, 2020). On August 28, 2020, the Stephens County District Attorney filed a Motion to Revoke Plaintiff's suspended sentence due to probation violations; those being: (1) driving under the influence of alcohol, as charged in Stephens County Case No. CM-2020-978; (2) driving under suspension, as charged in Stephens County Case No. CM-2020-979; and (3) failure to report an accident by driver, as charged in Stephens County Case No. CM-2020-980. Id. Plaintiff failed to appear at the revocation hearing and a bench warrant was issued for his arrest. Court Order, State of Oklahoma v. Farley, Case No. CF-2017-171 (Stephens Co. Dist. Ct. Nov. 19, 2020). On January 21, 2021, Plaintiff appeared before the Court on the Motion to Revoke, and the remainder of the suspended sentence was revoked at that time. (ECF No. 11:5). Judgment and Sentence reflecting the revocation was entered on March 2, 2021, file-stamped on March 8, 2021. Judgment and Sentence, State of Oklahoma v. Farley, Case No. CF-2017-171 (Stephens Co. Dist. Ct. Mar. 8, 2021).
On March 12, 2021, Plaintiff filed an Amended Complaint in this Court under 42 U.S.C. § 1983 alleging “Claims 1-2”, and on March 18, 2021, Plaintiff filed a Supplement to the Amended Complaint, adding “Claims 3-5.” (ECF Nos. 11 & 12). As Defendants, Mr. Farley names: (1) Bobby Lewis, the Stephens County District Attorney; (2) Ron Williams, his public defender; and (3) Stephens County, Oklahoma. See ECF No. 11:1, 4, 5, 6. In Claim One, Plaintiff challenges the revocation in Case No. CF-2017-171, alleging that: “Bobby Lewis revoked me on misdemeanors with no recorder in courtroom 1/21/21 and lawyer acting with D.A.” (ECF No. 11:5). In Claim Two, Plaintiff alleges that excessive sentences were imposed in Case Nos. CF-2017-171 and CF-2018-125. (ECF No. 11:7). In Claim Three, Plaintiff alleges: “On the 21st of January 2021 I went to my revoksion [sic] hearing and there was no court recorder along with the D.A. Bobby Lewis and my lawyer teaming up against me with Judge Graham.” (ECF No. 12:1). In Claim Four, Plaintiff states: “Bond was sat at $25,000 when It was sat $3,000 the time before.” (ECF No. 12:1). In Claim Five, Mr. Farley states: “Ron Williams was lieing [sic] to me on Case CF-18-125 and saying I was getting 7 years CC with Case CF-17-171 when they give me 15 years for CF 18-125.” (ECF No. 12:2). Plaintiff sues each Defendant in both individual and official capacities and for Claims One-Four, Plaintiff seeks monetary damages only and for Claim Five, Plaintiff requests Case No. CF-18-125 to be “Droped” [sic] and Case No. CF-17-171 to be “Droped to a Misdemeanor.” (ECF No. 11:4, 6, 7; 12:1-2).
IV. CLAIMS ONE-THREE
In Claims One-Three, Mr. Farley seeks monetary damages based on his prosecution and convictions in Case Nos. CF-2017-171 and CF-2018-125. In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that a plaintiff may not recover damages under § 1983 “for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid,” unless he proves “that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus....” 512 U.S. at 486-87; see also Wilkinson v. Dotson, 544 U.S. 74, 8182 (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 the confinement or its duration.”). The Tenth Circuit Court of Appeals has held that Heck applies to challenges to probation revocation proceedings. See Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir. 1996) ("The civil claim for damages amounts to a collateral attack on his parole revocation and subsequent incarceration. Heck does not permit this.”).
Mr. Farley does not allege that he has invalidated his revocation in CF-2017-171 or the conviction in CF-2018-125 through a writ of habeas corpus. “[T]he district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Heck, 512 U.S. at 487. Here, a favorable judgment on Plaintiff's claims of malicious prosecution and excessive sentence would necessarily imply the invalidity of his revocation in Case No. CF-2017-171 and his conviction in Case No. CF-2018-125. See Beck v. City of Muskogee Police Dept., 195 F.3d 553, 556 (10th Cir. 1999) (noting malicious prosecution and related Brady claims regarding his probation revocation were premature under Heck); Lawson v. Engleman, 67 Fed.Appx. 524, 525-26 & n.2 (10th Cir. 2003) (holding that plaintiff's allegations of false and malicious arrest and imprisonment necessarily imply the invalidity of his conviction or sentence). Plaintiff does not contend his revocation in Case No. CF-2017-171 or the conviction in Case No. CF-2018-125 have been reversed or invalidated. As a result, the Court should conclude that Heck bars judicial review of Claims One-Three and they should be dismissed without prejudice. See Beck, 195 F.3d at 560 n.5 (dismissals under Heck are without prejudice).
V. CLAIM FOUR
The entirety of Claim Four reads: “Bond was sat at $25,000 when It was sat $3,000 the time before.” (ECF No. 12:1). The Eighth Amendment prohibits the imposition of bail conditions that are excessive in light of the valid interests the government seeks to protect, such as “insur[ing] the appearance of the accused at trial.” Meechaicum v. Fountain, 696 F.2d 790, 791 (10th Cir. 1983); see also United States v. Salerno, 481 U.S. 739, 754 (1987). Liberally construed, Claim Four contends a $25,000 bail requirement violated the Eighth Amendment. However, the Court should dismiss this claim as conclusory as Plaintiff fails to even identify in which case the bail was allegedly excessive and/or other circumstances which would “nudge[] (his) claims across the line from conceivable to plausible.” See Twombly, 550 U.S. at 570. Plaintiff's failure to allege sufficient non-conclusory facts to establish a claim that bail was set at an excessive amount, including by a defendant against whom this claim can be properly be made, is fatal. Thus, the Court should dismiss Claim Four for failure to state a claim.
VI. CLAIM FIVE
In Claim Five, Plaintiff alleges ineffective assistance of his counsel and requests dismissal of one case and reduction of the charges in another case. (ECF No. 12:2). The Court should conclude that a request for dismissal of charges and release from custody is in the nature of habeas corpus and is not cognizable in a civil rights action. In Preiser v. Rodriguez, 411 U.S. 475 (1973), the Supreme Court of the United States held that habeas corpus is the exclusive remedy for a prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release. Id. at 489; see also Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (citing Preiser and reiterating that prisoners cannot use civil rights actions to challenge “the fact or duration of [their] confinement”). Accordingly, the Court should dismiss Claim Five as improper in this action.
VII. NO RECHARACTERIZATION OF THE COMPLAINT
Mindful of its obligation to construe liberally Plaintiff's allegations, the Court must consider whether to recast any of the claims set forth in the Amended Complaint or Supplement as a habeas corpus petition under 28 U.S.C. § 2254. “Even though courts owe a liberal construction to pro se pleadings like [Plaintiff's], that obligation generally doesn't require courts to characterize civil rights claims as habeas claims. In fact, courts possess only limited authority to reinterpret civil rights claims that way.” Crabtree v. Oklahoma, 564 Fed.Appx. 402, 404 (10th Cir. 2014) (citing Davis v. Roberts, 425 F.3d 830, 834-35 (10th Cir. 2005) (acknowledging the possible consequences of recharacterization)). Indeed, generally, the Court should not sua sponte recharacterize a prisoner's complaint as a § 2254 petition. See Davis, 425 F.3d at 834-35 ("We recognize that even if his claim should have been brought under § 2254, he may prefer to have his claim dismissed rather than be recharacterized as a § 2254 claim because of the potential consequences with respect to any § 2254 claim he may file in the future.”). Accordingly, the Court should not recharacterize any of the claims in the Amended Complaint as seeking relief under § 2254.
VIII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
The Court should DISMISS the Amended Complaint (ECF No. 11) and Supplement (ECF No. 12), without prejudice.
Plaintiff is hereby advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by April 23, 2021. See28 U.S.C. § 636(b)(1); and Fed.R.Civ.P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
IX. STATUS OF THE REFERRAL
This Report and Recommendation disposes of all issues referred to the undersigned magistrate judge in the captioned matter.