Opinion
CIV-23-747-R
09-26-2023
PHILLIP KELLEY, Plaintiff, v. KEVIN STITT, et al., Defendants.
REPORT AND RECOMMENDAITON
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Phillip Kelley, appearing pro se, has filed an Amended Complaint under 42 U.S.C. § 1983, alleging various civil rights violations. (ECF No. 8). United States District Judge David L. Russell 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). Based on that review, it is recommended that the Court DISMISS the Amended Complaint.
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. Kelley'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. Kelley 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. THE AMENDED COMPLAINT
In the Amended Complaint, Mr. Kelley presents two claims. First, Plaintiff seeks liability against Governor Kevin Stitt for “reject[ing] Legislation passed by the House and Senate to bring about sentencing reform that would do away with indeterminate sentencing.” (ECF No. 8:3). In support of this claim, Plaintiff presents what he considers to be “14th Amendment Abuses” allegedly committed by the State of Oklahoma by means of various legislation related to sentencing. (ECF No. 8-2:1-5). Thereafter, Mr. Kelley makes the following statements:
• “Petitioner is not seeking Parole, he is seeking to have his sentence modified to reflect the amount of time he has to serve to satisfy a Life or Life w/o Parole sentence” and
• “The Fourteenth Amendment Due Process and Equal Protection Clause requires Petitioner be given an opportunity to litigate these claims in a hearing, or have his sentence set at a minimum of 18-60 years[.]”(ECF No. 8-2:3, 4). Mr. Kelley also discusses the fact that he realizes that “the claims in his pleading can and should be raised in this Court in a Post-Conviction Application,” but that the Oklahoma Court of Criminal Appeals chose to dismiss his argument based on the fact that it was apparently submitted untimely. (ECF No. 8-2:5). As relief, Plaintiff requests: (1) the Court order Governor Stitt to “sign a sentencing reform (matrix) that will ensure uniform sentencing and do away with indeterminate unjust sentences” or (2) monetary damages. (ECF No. 8:4).
In Claim Two, Plaintiff seeks liability against Governor Stitt and four members of the Oklahoma Pardon and Parole Board for failing to have “Uniform criteria for, who is eligible for commutation or parole.” (ECF No. 8:4). In support of this claim, Mr. Kelley states that “Oklahoma's Statutes governing Parole and Commutation are grossly inadequate,” which have “denied the Petitioner procedural due process[.]” (ECF No. 82:5). Plaintiff goes on to discuss various statutes and/or regulations implemented by the State of Nebraska related to parole, which Mr. Kelley believes ought to be implemented by the State of Oklahoma. See ECF No. 8-2:6-7. As relief on Claim Two, Plaintiff requests (1) that Governor Stitt and the Oklahoma legislature “put in place the same rules governing Pardons and Paroles that are found in Nebraska's state statutes” or (2) monetary damages. (ECF No. 8:4).
Regarding both claims, Mr. Kelley states:
The Petitioner is in essence being deprived of his Constitutional rights on both fronts; On the one hand he cannot obtain Commutation and or Parole because of the State's lack of Constitutional guarantees to a fair Parole/Commutation process [Claim Two]. And, on the other hand cannot seem to have his indeterminate sentence modified in accordance with other courts rulings to prevent them from serving in essence a Death by incarceration sentence [Claim One].(ECF No. 8-2:7).
IV. DISMISSAL OF THE COMPLAINT
Liberally construing Plaintiff's claims, the Court should conclude that the allegations in the Complaint challenge the legality of Mr. Kelley's sentence (Claim One) and the execution of his sentence (Claim Two). The Court should dismiss these claims as improperly filed in a Complaint under 42 U.S.C. § 1983.
A. Plaintiff's Claims Challenging the Legality of his Sentence
The allegations challenging the legality of Mr. Kelley's sentence (which he believes is “indeterminate” and is, in effect, “Death by incarceration”), cannot be asserted under 42 U.S.C. § 1983. See Wilkinson v. Dotson, 544 U.S. 74, 78, (2005) (citing Preiser v. Rodriguez, 411 U.S. 475, 489 (1973)). Instead, Mr. Kelley must assert them in a habeas petition pursuant to 28 U.S.C. § 2254. See Wilkinson, 544 U.S. at 78; see also Davis v. Roberts, 425 F.3d 830, 835 (10th Cir. 2005). As part of this recommendation, the undersigned takes judicial notice of: (1) the fact that Mr. Kelley has previously filed a habeas petition in this court under Section 2254 and (2) 28 U.S.C. § 2244(b)'s limitations on a second or successive habeas petition filed pursuant to Section 2254. The undersigned, however, expresses no opinion on whether Mr. Kelley would be barred from filing a successive habeas petition.
See ECF No. 8:3.
B. Plaintiff's Claims Challenging the Execution of his Sentence
The allegations challenging the execution of Mr. Kelley's sentence which are based on an underlying issue involving a “lack of . . . procedures governing Parole” must be presented in a petition seeking habeas relief under 28 U.S.C. § 2241. See Davis, 425 F.3d at 833; Dulworth v. Evans, 442 F.3d 1265, 1268 (10th Cir. 2006); see also Wilkinson, 544 U.S. at 78-82. An inmate can properly challenge parole procedures under 42 U.S.C. § 1983 if all he is seeking is to overturn those procedures and if he is not seeking his immediate or a speedier release into the community. See Wilkinson, 544 U.S. at 82. But here, it appears that Mr. Kelley is seeking not only modifications to the regulations governing Oklahoma's parole scheme, but also his own immediate or at least a speedier release. See ECF No. 8-2:7 (Plaintiff's statement that "he cannot obtain Commutation and or Parole because of the State's lack of Constitutional guarantees to a fair Parole/Commutation process.”). Such a claim must be asserted as a claim for habeas relief under 28 U.S.C. § 2241. See Wilkinson, 544 U.S. at 82; Davis, 425 F.3d at 833.
V. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
For the forgoing reasons, the Court should dismiss the Complaint in its entirety. 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 October 13, 2023. See 28 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 (10thCir. 2010).
VI. STATUS OF THE REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.