Opinion
CIV-20-875-R 1 at 9-
02-09-2021
RAHEEM LA'MONZE PLATER, Plaintiff, v. DAVID BOWERS, et. al., Defendants.
REPORT AND RECOMMENDATION
GARY M. PURCELL, UNITED STATE MAGISTRATE JUDGE
In this 42 U.S.C. § 1983 action, Plaintiff, a state prisoner currently incarcerated at Lawton Correctional Facility (“LCF”), brought suit against multiple defendants raising a variety of issues including, but not limited to, a lack of access to the law library. Plaintiff has filed a Motion for Injunctive Relief. Doc. No. 14. The Motion has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, the undersigned recommends Plaintiff's Motion be denied.
I. Background Information
In his Complaint, Plaintiff asserts First, Sixth, and Fourteenth Amendment claims related to policy OP-030115 governing inmate access to the law library. Doc. No. 1 at 9-13; Doc. No. 13 at 2, 6-7, 11-16. The subject policy provides, inter alia, “No inmate who has an attorney representing them is entitled to access the law library to obtain research materials for said case, as it is the responsibility of the inmate's attorney.” Doc. No. 14-1, Policy OP-030115(V)(A)(3).
In support of his request for injunctive relief, Plaintiff cites to Oklahoma Court of Criminal Appeals (“OCCA”) Rule 3.4(E), which provides that a party represented by counsel may submit “pro se” arguments through incorporation into a filing submitted by their attorney. The attorney must certify that they have examined the pro se arguments and that the arguments and authority submitted comply with OCCA Rules. Id. Plaintiff argues that OP-030115(V)(A)(3) hinders his ability to submit such arguments in his own criminal appeal. Doc. No. 14. He further contends the subject policy “appears to be intended for” inmates who are represented by private attorneys rather than court-appointed attorneys from the Oklahoma Indigent Defense System (“OIDS”). Id. at 2. Plaintiff asserts that OIDS attorneys are far more overburdened than privately retained counsel. Plaintiff seeks a preliminary injunction preventing the LCF from enforcing OP-030115 against those inmates represented by court appointed counsel from OIDS rather than privately retained counsel.
The undersigned notes Plaintiff currently has an appeal pending before the OCCA in which it appears he is represented by attorneys from OIDS. Doc. No. 14-2; see also Oklahoma State Courts Network, Oklahoma Court of Criminal Appeals, Plater v. State, No. F-2019-772, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellateνmber=F-2019-772&cmid=127135.
In his Complaint, Plaintiff also asserts claims based on the enforcement of OP-030115 against inmates who are on lockdown and/or assigned to segregated units. However, his request for injunctive relief appears to focus solely on the application of subsection (3) upon inmates who have attorneys appointed from OIDS.
II. Analysis
To obtain a preliminary injunction, Plaintiff must establish that four factors weigh in his favor: “(1) [he] is substantially likely to succeed on the merits; (2) [he] will suffer irreparable injury if the injunction is denied; (3) [his] threatened injury outweighs the injury the opposing party will suffer under the injunction; and (4) the injunction would not be adverse to the public interest.” Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir. 2009); see also Fed. R. Civ. P. 65; Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). Among those elements, “a showing of probable irreparable harm is the single most important prerequisite.” Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1260 (10th Cir. 2004) (quotations omitted). “Because a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal.” Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003).
Moreover, the purpose of a preliminary injunction is to “preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). Therefore, “injunctions that disrupt the status quo are disfavored and must be more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course.” Beltronics, 562 F.3d at 1070 (quotations omitted).
A. First and Sixth Amendment Claims
Inmates have a First Amendment right to “petition the Government for a redress of grievances.” U.S Const. amend. I. This right, which is more informally referred to as a “right of access to the courts, ” requires States “to give prisoners a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights.” Bounds v. Smith, 430 U.S. 817, 825 (1977), abrogated on other grounds, Lewis v. Casey, 518 U.S. 343, 350 (1996). To prevail in a challenge based on denial of access to the courts, a plaintiff must assert non-conclusory allegations demonstrating both (1) that the defendant acted deliberately, and (2) that the plaintiff suffered an actual injury. Lewis, 518 U.S. at 353. “In general, an actual injury occurs if a [nonfrivolous] and arguable claim was lost because of the denial of access to the courts.” Alford v. Buchholz, No. 20-3196-SAC, 2021 WL 168761, at *4 (D. Kan. Jan. 19, 2021) (citing Christopher v. Harbury, 536 U.S. 403, 415 (2002)).
Plaintiff does not elaborate on the precise nature of his Sixth Amendment claim in his Complaint. However, the Court notes the general proposition that the Sixth Amendment “guarantees criminal defendants [] a fair trial and a competent attorney.” U.S. v. Harms, 371 F.3d 1208, 1212 (W.D. Okla. 2004). With the Sixth Amendment's guarantee of competent counsel and the First Amendment's requirement that Plaintiff establish actual injury, the inherent argument underlying each of these claims is that his attorney cannot be successful and/or effective without Plaintiff's assistance and that Plaintiff cannot provide this assistance due to the enforcement of OP-030115.
In reviewing Plaintiff's OCCA docket, the undersigned notes that his OIDS attorney filed a Petition in Error, Opening Brief, and a Reply Brief in support of the direct appeal of his state court convictions. See Oklahoma State Courts Network, Oklahoma Court of Criminal Appeals, No. F-2019-772. Thus, his OIDS counsel has met his professional obligations of timely filing the proper briefs to preserve and prosecute Plaintiff's appeal.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellateνmber=F-2019-772&cmid=127135
In order to show actual injury resulting from OP-030115 then, Plaintiff must establish that he will inevitably lose his appeal unless he is permitted to conduct legal research and supplement his attorney's appellate arguments. Plaintiff has failed to provide any reasonable basis for such a conclusion. Likewise, Plaintiff has not provided a reasonable basis to conclude that an attorney can only provide competent representation, as guaranteed by the Sixth Amendment, if the attorney's arguments are supplemented by those of his criminal defendant's.
Thus, Plaintiff has not established a likelihood of success on the merits of his First or Sixth Amendment claims, nor that he is likely to suffer irreparable injury due to the enforcement of OP-030115. Because Plaintiff has failed to meet the first two elements of his request for injunctive relief, his request should be denied. See Schrier v. Univ. of Colo., 427 F.3d 1253, 1262 (10th Cir. 2005) (noting that when a court determines a movant has failed to establish irreparable injury or a substantial likelihood of success on the merits, it is unnecessary to address the preliminary injunction test's remaining prongs (citing Dominion Video Satellite, Inc., 356 F.3d at 1266 n.8)).
B. Fourteenth Amendment
Plaintiff also asserts a Fourteenth Amendment due process claim related to application of the subject policy. “To set forth a procedural due process violation, a plaintiff must first show ‘the deprivation of an interest in life, liberty, or property.'” Lewis v. Clark, 663 Fed.Appx. 697, 700 (10th Cir. 2016) (quoting Elliott v. Martinez, 675 F.3d 1241, 1244 (10th Cir. 2012)). Additionally, the plaintiff must prove the procedures followed by the defendant did not comport with due process of law. Lewis, 663 Fed.Appx. at 700.
The Tenth Circuit has explained that “[l]iberty interests can either arise from the Constitution or be created by state law.” Id. (quoting Cordova v. City of Albuquerque, 816 F.3d 645, 656-57 (10th Cir. 2016)). “There is no right in the Constitution to unfettered use of a prison law library . . . .” Lewis, 663 Fed.Appx. at 700 (citing Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir. 1996)). Further, Plaintiff does not cite to any state law giving him such an interest. Thus, unless Plaintiff ultimately relies on state law creating a liberty interest in an inmate's unfettered use of the law library, including when the same inmate is represented by counsel, he is also unlikely to succeed on the merits of his Fourteenth Amendment claim. Accordingly, his request for injunctive relief should be denied. See Schrier, supra.
RECOMMENDATION
Based on the foregoing findings, it is recommended the Motion for Injunctive Relief (Doc. No. 14) be DENIED. Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by March 1 st, 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 of America, 950 F.2d 656 (10th Cir. 1991); see, 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 does not dispose of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein.