Opinion
CIV-19-38-HE
03-11-2019
DONALD PILSON, JR., Plaintiff, v. GRAND CASINO, et. al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, a state prisoner appearing pro se and in forma pauperis, brings this action purportedly pursuant to 42 U.S.C. § 1983. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Having reviewed the sufficiency of the Complaint pursuant to 28 U.S.C. § 1915A and 1915(e)(2)(B), the undersigned recommends Plaintiff's action be dismissed without prejudice.
I. Background
In Plaintiff's initial Complaint, he asserted that he was wrongfully arrested and subsequently charged with a crime based on an incident that occurred at Grand Casino located in Shawnee, Oklahoma. See generally Doc. No. 1. He asserted that someone at Grand Casino falsified a police report, leading him to be wrongfully imprisoned. Id. at 3. He explained that he was arrested for assaulting a woman, the witness for the District Attorney could not identify him, the assault charge was dropped, but he was bound over for trial. Id. Plaintiff also stated that his attorney refused to go trial, which resulted in Plaintiff being forced into a blind plea agreement. Id. at 4. The state court judge ordered drug treatment with a review but he never received the review, which Plaintiff contends became a breach of the court's agreement. Id. at 5. Rather than stating the relief he was seeking by this action, Plaintiff stated only that he seeks relief because he is "being wrongfully treated." Id. at 7.
This Court issued an Order directing Plaintiff to amend his pleading. Doc. No. 12. The Court explained that it was unclear from Plaintiff's pleading whether he intended to challenge a wrongful conviction, properly brought as an action for writ of habeas corpus, or was seeking monetary damages based on alleged violations of his constitutional rights pursuant to 42 U.S.C. § 1983. Id. The Court directed Plaintiff to file either an Application for Writ of Habeas Corpus or an Amended Complaint for a § 1983 action no later than March 6, 2019. Id. at 7. Instead, Plaintiff filed both an Amended Complaint, see Doc. No. 13, and an Application for Writ of Habeas Corpus. Doc. No. 13-1. As explained below, however, both actions warrant dismissal.
II. Screening of Prisoner Complaints
1. 42 U.S.C. § 1983 Screening
A federal district court must review complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). After conducting an initial review, the court must dismiss a complaint or any portion of it presenting claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
In conducting this review, the reviewing court must accept the plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from the allegations, in the light most favorable to the plaintiff. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Although a pro se litigant's pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 520 (1972), "[t]he burden is on the plaintiff to frame a 'complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The allegations in a complaint must present "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Further, a claim is frivolous "where it lacks an arguable basis either in law or in fact" or is "based on an indisputably meritless legal theory." Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989).
2. Habeas Screening
Under Rule 4 of the Rules Governing Section 2254 Cases, the Court is required to promptly examine a habeas petition and to summarily dismiss it "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief . . . ." Rule 4, Rules Governing § 2254 Cases. "[B]efore acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions." Day v. McDonough, 547 U.S. 198, 210 (2006). Petitioner has such notice by this Report and Recommendation, and he has an opportunity to present his position by filing an objection to the Report and Recommendation. Further, when raising a dispositive issue sua sponte, the district court must "assure itself that the petitioner is not significantly prejudiced . . . and determine whether the interests of justice would be better served by addressing the merits . . . ." Id. (quotations omitted); Thomas v. Ulibarri, 214 F. App'x 860, 861 n.1 (10th Cir. 2007); Smith v. Dorsey, No. 93-2229, 1994 WL 396069, at *3 (10th Cir. July 29, 1994) (noting no due process concerns with the magistrate judge raising an issue sua sponte where the petitioner could "address the matter by objecting" to the report and recommendation).
III. 42 U.S.C. Section 1983 Action
Plaintiff's claims arise from his 2015 arrest and subsequent conviction of attempted robbery by force or fear and possession of a stolen vehicle after former conviction of two or more felonies. See Oklahoma State Courts Network, District Court of Pottawatomie County, Case No. CF-2015-35. Plaintiff did not directly appeal his conviction but did file an Application for Post-Conviction Relief on May 2, 2018. Id. On October 17, 2018, the state district court denied the same. Id.; Doc. No. 13-1 at 10. Plaintiff appealed this denial on November 29, 2018, to the Oklahoma court of Criminal Appeals ("OCCA") and that appeal remains pending. See Oklahoma State Courts Network, OCCA, Case No. PC-2018-1201.
http://www.oscn.net/dockets/GetCaseInformation.aspx?db=pottawatomie&number= CF-2015-35
http://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC 2018-1201&cmid=125343
State records clearly indicate, as does Plaintiff's Amended Complaint and additional filings, that the state criminal proceeding underlying Plaintiff's arrest is ongoing. As a result, under Younger v. Harris, 401 U.S. 37 (1971), the Court should abstain from exercising jurisdiction over Plaintiff's claims as they seek relief related to ongoing criminal proceedings.
In Younger, the United States Supreme Court held that federal courts should not intervene in state criminal prosecutions begun before institution of a federal suit when the state court proceedings are: (1) ongoing, (2) offer an adequate forum for a defendant's federal claims, and (3) implicate important state interests. Id. at 43-44; see Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982). "[T]he district court must abstain once the conditions are met, absent extraordinary circumstances." Weitzel v. Div. of Occupational & Prof'l Licensing of Dep't of Commerce, 240 F.3d 871, 875 (10th Cir. 2001) (quotations omitted). Also, "Younger governs whenever the requested relief would interfere with the state court's ability to conduct proceedings, regardless of whether the relief targets the conduct of a proceeding directly." Joseph A. ex rel. Corrine Wolfe v. Ingram, 275 F.3d 1253, 1272 (10th Cir. 2002).
Exceptions exist for "bad faith or harassment," prosecution under a statute that is "flagrantly and patently" unconstitutional, or other "extraordinary circumstances" involving irreparable injury. Younger, 401 U.S. at 45-55; Amanatullah v. Colo. Bd. of Med. Exam'rs, 187 F.3d 1160, 1165 (10th Cir. 1999). A petitioner has a "heavy burden" of establishing an exception to the Younger abstention doctrine. Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir. 1997) (citation omitted).
Application of the relevant factors to the present case warrants dismissal of Plaintiff's claims. First, as noted, Plaintiff's criminal case is currently ongoing. See, supra. Second, the Oklahoma courts provide an adequate forum to hear Plaintiff's claims. Kugler v. Helfant, 421 U.S. 117, 124 (1975) (noting "ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights"). Third, Oklahoma has an important state interest in the resolution of claims raised by Plaintiff. See In re Troff, 488 F.3d 1237, 1240 (10th Cir. 2007) (recognizing that "state control over criminal justice" is "a lynchpin in the unique balance of interests" of federalism). If the Court found Defendants had acted unlawfully in arresting and convicting Plaintiff, it could likely result in substantial disruption of the ongoing state process. See Buck v. Myers, 244 F. App'x 193, 198 (10th Cir. 2007) ("A finding in this case that the defendants violated [the plaintiff's] constitutional rights would have a preclusive effect in the state-court proceedings.").
Finally, Plaintiff's Amended Complaint and the state record of his criminal proceedings do not suggest bad faith, harassment, or other extraordinary circumstances as outlined in Younger. Thus, Plaintiff's claims should be dismissed for lack of jurisdiction based on the Younger doctrine.
IV. 28 U.S.C. § 2254 Habeas Action
As noted above, Plaintiff also attacks the very fact and duration of his confinement in connection with his conviction. A prisoner who challenges the very fact or duration of his physical confinement and who seeks judgment that would entitle him to release must pursue habeas corpus relief rather than civil rights relief under Section 1983. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).
Before a federal court may grant habeas relief, the petitioner must either exhaust his remedies in state court or demonstrate (1) the absence of available state corrective process, or (2) the existence of circumstances rendering the state process ineffective to protect the petitioner's rights. 28 U.S.C. § 2254(b)(1); Rose v.. Lundy, 455 U.S. 509, 522 (1982); see also O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) ("[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition."). "The exhaustion requirement is satisfied if the issues have been properly presented to the highest state court, either by direct review of the conviction or in a postconviction attack." Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999) (quotations omitted); see also 28 U.S.C. § 2254(c) ("An applicant shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented.").
Although very little is clear from Plaintiff's pleadings, it is readily apparent he has not exhausted his state court remedies. He submitted the first page of the state district court order denying his request for post-conviction relief. Doc. No. 13-1 at 10. State court records show his appeal from the same remains pending. Thus, to the extent Plaintiff intended to initiate a habeas action, said action is premature. Accordingly, this action should be dismissed without prejudice to re-filing following exhaustion of state-court remedies.
RECOMMENDATION
Based on the foregoing findings, it is recommended Plaintiff's action be dismissed without prejudice to refiling. Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by April 1st , 2019, 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 disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
Dated this 11th day of March, 2019.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE