Opinion
CIV-23-831-HE
02-27-2024
GEORGE ISBILL, Plaintiff, v. KEVIN STITT GOVERNOR, et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner proceeding pro se, brings this action under 42 U.S.C. § 1983 challenging the State of Oklahoma's life without parole sentencing regime and its lack of uniform criteria for commutation and parole eligibility. Doc. 1.United States District Judge Joe Heaton referred this matter to the undersigned Magistrate Judge for initial proceedings under 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4. For the reasons explained below, the undersigned recommends the Court dismiss Plaintiff's claims.
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. § 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.
Plaintiff was convicted by the Cleveland County District Court of one count of first-degree murder and was sentenced to life without possibility of parole. State v. Isbill, Case No. CF-1996-2037, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=cleveland&numb er=CF-1996-2037&cmid=14457 (last visited Feb. 23, 2024) (Docket Entries dated Nov. 21, 1997 & Nov. 26, 1997). He now challenges the State of Oklahoma's life without parole sentencing regime and lack of uniform parole and commutation criteria.
Plaintiff first claims Governor Kevin Stitt “has rejected [l]egislation passed by the House and Senate to bring about sentencing reform that would do away with indeterminate sentencing” and “[i]n doing so violat[ed] [Plaintiff's] 8th, 9th, and 14th Amendment rights which basically result in [Plaintiff's] being given [d]eath by incarceration sentences without any recourse through the [s]tate [c]ourts or the Parole Board to correct these unjust sentences.” Doc. 1, at 2. Plaintiff names Governor Kevin Stitt in his individual and official capacities as Defendant. Id. For relief, he asks this Court to “order the [D]efendant to sign a sentencing reform (matrix) that will ensure uniform sentencing and do away with indeterminate unjust sentences” or, alternatively, for damages. Id.
Plaintiff next claims “[t]he governor and state have no [u]niform criteria for, who is eligible for commutation and parole.” Id. at 2-3, 6 (citing Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1 (1979)). He asserts this deficiency is in violation of the Fourteenth Amendment Due Process Clause. Id. at 8-11. Plaintiff names Governor Stitt and individual members of the Oklahoma Pardon and Parole Board as Defendants. Id. at 3. For relief, he asks that “[t]he State Governor and its Legislature [] put in place the same rules governing [p]ardons and [p]aroles that are found in Nebraska's state statutes” or, alternatively, that he be paid money damages. Id. at 2-3.
III. The Court should dismiss Plaintiff's life without parole claim because Governor Stitt is immune from suit.
A. Governor Stitt is immune from suit in his individual capacity under the doctrine of legislative immunity.
The core of Plaintiff's claim is that Governor Stitt vetoed sentencing reform legislation that would have done away with life without parole and, in so doing, violated Plaintiffs Eighth, Ninth, and Fourteenth Amendment rights. “[E]xecutive branch officials are entitled to legislative immunity when they perform legislative functions such as making discretionary policy decisions that implicate budgetary priorities and the provision of public services.” Greer v. Fallin, No. CIV-14-1066-M, 2016 WL 11700187, at *4 (W.D. Okla. Sept. 22, 2016), adopted, 2017 WL 11556316 (W.D. Okla. Feb. 9, 2017). And “a number of United States Courts of Appeals have specifically applied the doctrine of legislative immunity to state governors.” Id. (collecting cases). So, Governor Stitt is immune from suit for the legislative action of vetoing sentencing reform legislation in his individual capacity.
B. Governor Stitt is immune from suit in his official capacity under the Eleventh Amendment.
Under the Eleventh Amendment, “States may not be sued in federal court unless they consent to it in unequivocal terms or unless Congress, pursuant to a valid exercise of power, unequivocally expresses its intent to abrogate the immunity.” Muscogee (Creek) Nation v. Okla. Tax Comm'n, 611 F.3d 1222, 1227 (10th Cir. 2010) (quoting Green v. Mansour, 474 U.S. 64, 68 (1985)). “Suits against state officials acting in their official capacities [] fall within the amendment's proscription because ‘a suit against a state official in his or her official capacity . . . is no different than a suit against the State itself.'” Id. (quoting Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989)).An exception applies when the State waives its Eleventh Amendment immunity, see Alden v. Maine, 527 U.S. 706, 755 (1999), or if Congress abrogates it, see Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001). Neither exception applies here. The State of Oklahoma has not waived its Eleventh Amendment immunity. 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.”). Nor did Congress abrogate the states' Eleventh Amendment immunity through the enactment of 42 U.S.C. § 1983. Quern v. Jordan, 440 U.S. 332, 345 (1979). And “Eleventh Amendment immunity applies regardless of whether a plaintiff seeks declaratory or injunctive relief, or money damages.” Steadfast Ins. Co. v. Agric. Ins. Co., 507 F.3d 1250, 1252 (10th Cir. 2007). Governor Stitt is therefore immune from suit in his official capacity.
“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's claim does not fall within this exception.
IV. The Court should dismiss Plaintiff's second claim because has no liberty interest in parole or commutation.
Plaintiff challenges the State of Oklahoma's lack of uniform parole or commutation criteria under the Due Process Clause of the Fourteenth Amendment. However, “[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence” under the federal Constitution. Greenholtz, 442 U.S. at 7. “[B]ecause Oklahoma's parole scheme is discretionary, [Plaintiff] has no constitutionally protected due process liberty interest in parole.” Griffith v. Bryant, 625 Fed.Appx. 914, 917 (10th Cir. 2015) (citing Shabazz v. Keating, 977 P.2d 1089, 1093 (Okla. 1999) (“[T]here is no protectible liberty interest in an Oklahoma parole.”)). The same is true for the prospect of commutation. See Knox v. Bowen, No. CIV-20-1045-F, 2020 WL 8620739, at *2 (W.D. Okla. Nov. 23, 2020) (“Under Oklahoma law, upon favorable recommendation by a majority vote of the Pardon and Parole Board, the power to commute a sentence is in the sole discretion of the Governor. Thus, the prospect of commutation is necessarily a speculative event, one in which the prisoner has no liberty interest protected by the Due Process Clause.” (citations omitted) (quoting Parker v. Dowling, 664 Fed.Appx. 681, 682 (10th Cir. 2016)), adopted, 2021 WL 706769 (W.D. Okla. Feb. 23, 2021).
Plaintiff's claim about the State of Oklahoma's lack of uniform parole or commutation criteria fails to state a claim upon which relief may be granted. V. 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 March 19, 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.