Opinion
Case No. CIV-18-744-D
10-19-2018
RICKY REESE, Plaintiff, v. MARY FALLIN, Governor, ERIKA DENTON, Parole Investigator, and JOHNNIE O'NEAL, Tulsa County Public Defender, Defendants.
REPORT AND RECOMMENDATION
Plaintiff Ricky Reese, appearing pro se and in forma pauperis, brings this Complaint pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. (ECF No. 1). United States District Judge Timothy D. DeGiusti referred this matter for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). The undersigned magistrate judge has reviewed the Complaint 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 Complaint for failure to state a claim upon which relief may be granted.
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); 28 U.S.C. § 1915(e)(2). 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); 1915(e)(2)(B).
II. STANDARD OF REVIEW
The Court must accept Mr. Reese'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. Reese 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).
"[A] pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555. As a result, courts "look to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief." Kay, 500 F.3d at 1218 (quotation marks and citations omitted).
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).
Additionally, vicarious liability is inapplicable to § 1983 suits, and a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676.
III. DEFENDANTS
Mr. Reese has named three defendants: (1) Mary Fallin, Governor of the State of Oklahoma; (2) Erika Denton, identified as an investigator for the Oklahoma Pardon and Parole Board; and (3) Johnnie O'Neal, identified as a Tulsa County Public Defender. (ECF No. 1:1-2). Mr. Reese's claims arise from his 1990 conviction in the District Court in and for Tulsa County, Oklahoma, Case No. F-1990-2221. Mr. Reese pleaded guilty to one count of Murder in the First Degree and two counts of Kidnapping. He was sentenced to life with possibility of parole, but he has been consistently denied parole every time he has appeared before the Oklahoma Pardon and Parole Board.
IV. ISSUES RAISED AND RELIEF SOUGHT
A. Count I: Mr. Reese argues the lack of sentencing guidelines for Oklahoma State convictions violated his right to due process "and the declared policy of the State of Oklahoma." (ECF No. 1:3).
B. Count II: Mr. Reese challenges Defendant O'Neal's decision to fire Mr. O'Carroll, a public defender first appointed to represent him. He claims Defendant O'Neal took over the representation and rendered ineffective assistance of counsel during the criminal proceedings, ultimately duping Mr. Reese into pleading guilty. (ECF No. 1:3).
C. Count III: Mr. Reese argues that the state trial courts have violated "separation of powers and due process by failing to prescribe the standards of rehabilitation that a defendant must meet as part of an indeterminate sentence." Mr. Reese theorizes the judicial branch has impermissibly ceded its authority to prescribe such standards to the executive branch, specifically the Pardon and Parole Board. (ECF No. 1:4).
D. Count IV: Mr. Reese contends that sentences to Life, with or without the possibility of parole, "are the same sentence and thereby unconstitutionally redundant and capricious." He argues the Oklahoma legislature has violated due process by enacting a sentencing scheme with "redundant and capricious" sentences. (ECF No. 1:4-5).
E. Count V: Mr. Reese challenges parole consideration procedures, contending they violate Oklahoma's own "constitutional standards," a violation that results in a violation of the Due Process Clause of the Constitution of the United States." (ECF No. 1:5.
F. Count VI: Mr. Reese challenges decisions of the Pardon and Parole Board as "arbitrary," because the Board has no guidelines for consideration of parole. According to Mr. Reese, the lack of such standards results in "widely divergent results which may result from unconstitutional consideration" of factors such as "race, gender [and] religion. (ECF No. 1:5).
G. Relief Sought
Plaintiff seeks the following relief:
[A] declaration that (a) Oklahoma must consider proportionality of sentencing and/or implement sentencing guidelines, (b) Oklahoma must conduct impartial parole consideration with documentation of reasons for denial/approval, (c) Oklahoma's failure to follow its own rules [is] a violation of federal law, (d) Oklahoma's dismissal of Plaintiff's assigned attorney is a violation of his Sixth Amendment right to counsel if such dismissal occurs without his notice and consent; and such further relief as the Court may deem just and proper.(ECF No. 1:7).
V. ANALYSIS
For any one of numerous reasons, Mr. Reese's Complaint should be dismissed upon filing. Some of his claims are subject to dismissal because they are barred under federal case law. Some of his claims involve matters of state law and do not rise to the level of constitutional violations. Most of his claims accrued at the time of his conviction and, even if they were not otherwise barred by federal law, they would be barred by the applicable two-year statute of limitations governing claims for civil rights violations. Additionally, Mr. Reese has failed to demonstrate the named defendants personally participated in the alleged violations of his constitutional rights, and two of the defendants are either immune from suit or were not acting under color of state law, a necessary element of a civil rights action.
A. Counts I, III and IV: Challenges to the Sentence
In Counts I, III and IV, Mr. Reese challenges as unconstitutional either the validity of the Life sentence imposed after his guilty plea or the manner in which his sentence is being executed.
In Count I, Mr. Reese contends that Oklahoma's sentencing scheme is unconstitutional because there are no sentencing guidelines. (ECF No. 1:3). In Count IV, Mr. Reese contends that having a sentencing scheme including both sentences for life and life without possibility of parole violates the constitution because, he contends, "'[l]ife, in Oklahoma, means life[.]" He further contends that Oklahoma's law governing the "executive clemency process" violates due process because the process is the same for both sentences. (ECF No. 1:4-5). The claims in Counts I and IV are challenges to the validity of Mr. Reese's sentence. Such challenges sound in habeas and are properly raised in a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. See Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000) (a challenge to the validity of a sentence is properly brought under § 2254).
In Count III, Mr. Reese contends that Oklahoma courts should prescribe the standards of rehabilitation that a defendant must meet as part of an indeterminate sentence. This claim is liberally construed as a challenge to the execution of his sentence. This claim, too, sounds in habeas, but this claim would properly be brought in a habeas petition pursuant to 28 U.S.C. § 2241. See Davis v. Roberts, 425 F.3d 830, 833 (10th Cir. 2005) (challenge to execution of sentence should be brought under Section 2241).
Initially, the Court notes the issues Mr. Reese raises regarding his sentences and the execution of his sentences do not rise to the level of constitutional claims. See Harris v. Dep't of Corr., 426 F. Supp. 350, 352 (W.D. Okla. 1977) (matters relating to sentencing and service of sentence are governed by state law and do not raise federal constitutional questions). Thus, failure to state a claim upon which relief may be granted is one basis for dismissing the claims presented in Counts I, III, and IV.
1. Application of Heck v. Humphrey
Another basis for dismissing Counts I and IV—direct challenges to the validity of the sentence Mr. Reese received—is Supreme Court precedent. Even if Mr. Reese's claims regarding his sentences could be construed as rising to the level of constitutional claims, those claims, raised as they are in this civil rights action, would be barred by Supreme Court precedent set forth in Heck v. Humphrey, 512 U.S. 477 (1994).
When a state prisoner seeks damages in a § 1983 suit, the 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.Id. at 487. Mr. Reese's sentence has not been invalidated, and he is still serving his sentence in prison.
Although Mr. Reese is seeking declaratory and injunctive relief in this action rather than monetary damages, the Tenth Circuit Court of Appeals has held that the principle in Heck should apply "when the concerns underlying Heck exist," which include claims that would necessarily imply the invalidity of the conviction or sentence. See Beck v. Muskogee Police Dep't, 195 F.3d 553, 557 (10th Cir. 1999); see also Edwards v. Balisok, 520 U.S. 641, 648 (1997) (applying Heck to claims for declaratory relief). Because of the nature of Mr. Reese's allegations in Counts I and IV—that the Oklahoma sentencing scheme violated his constitutional right to due process—success in this action for declaratory and injunctive relief would necessarily imply the invalidity of his sentence. Accordingly, these claims should be dismissed as barred by Heck.
2. Statute of Limitations
The statute of limitations applicable to actions brought pursuant to 42 U.S.C. § 1983 bars all claims in Counts I, III and IV.
Because "[t]here is no applicable federal statute of limitations relating to civil rights actions brought under section[ ] 1983," the limitations period for such claims is borrowed from the "state where the cause of action arose." Crosswhite v. Brown, 424 F.2d 495, 496 (10th Cir. 1970) (per curiam). The Tenth Circuit Court of Appeals has determined, as a matter of law, that every § 1983 claim is "in essence an action for injury to personal rights," Garcia v. Wilson, 731 F.2d 640, 651 (10th Cir. 1984). The Tenth Circuit has also determined the most analogous Oklahoma statute provides a two-year limitations period for civil rights actions. See Okla. Stat. tit. 12, § 95(A)(3) ("Civil actions . . . can only be brought within [two years] after the cause of action shall have accrued, and not afterwards . . . for injury to the rights of another."). See also Price v. Philpot, 420 F.3d 1158, 1162 (10th Cir. 2005) (Oklahoma's two-year statute of limitations applies to civil rights actions) (citing Abbitt v. Franklin, 731 F.2d 661, 663 (10th Cir. 1984) (en banc)).
Even though the limitations period for § 1983 claims are borrowed from state law, the question of when a cause of action accrues under § 1983 remains one of federal law. See Smith v. City of Enid, 149 F.3d 1151, 1154 (10th Cir. 1998) ("[F]ederal law . . . dictates when the statute of limitations begins to run for purposes of § 1983."). It is well settled that a "civil rights action accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action." Baker v. Bd. of Regents, 991 F.2d 628, 632 (10th Cir. 1993). The injury in a § 1983 claim is the violation of a constitutional right, and such claims accrue "when the plaintiff knows or should know that his or her constitutional rights have been violated." Smith, 149 F.3d at 1154 (citation omitted). Mr. Reese knew the terms of his sentence at the time it was imposed in May 1991. Thus, this action was filed more than twenty-seven years after the cause of action accrued and must be dismissed as untimely.
According to the docket sheet for State of Oklahoma vs. Ricky Lee Reese, Case No. CF-1990-2221 (District Court for Tulsa County, Oklahoma), Mr. Reese pleaded guilty to the charges against him on May 21, 1991. Formal judgment and sentence were entered on May 22, 1991. The docket sheet may be viewed at www.OSCN.net (last accessed on October 17, 2018). --------
3. Personal Participation
At a more fundamental level, neither the Governor of Oklahoma, nor a parole investigator, nor a public defender could be held responsible for the State's sentencing scheme, even if the sentencing scheme were unconstitutional. "[T]o state a claim in federal court, a complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant did it; how the defendant's action harmed [the plaintiff]; and, what specific legal right the plaintiff believes the defendant violated." Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). The latter two defendants have nothing to do with enactment of a State's sentencing scheme and, therefore, did not "personally participate" in the alleged constitutional violation.
As for Defendant Governor Mary Fallin, even assuming she had signed a bill passed by the legislature enacting an unconstitutional sentencing scheme, she, as well as the the legislators, would be entitled to legislative immunity and could not be held liable under 42 U.S.C. § 1983. See Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719, 731-34 (1980) (the well-settled doctrine of absolute legislative immunity bars actions against legislators on the basis of their roles in enacting or signing legislation and officials outside the legislative branch are entitled to legislative immunity when they perform legislative functions).
Plaintiff's challenges to his sentence or the execution of his sentence raised in Counts I, III and IV should be dismissed for failure to state a 42 U.S.C. § 1983 claim upon which relief may be granted.
B. Challenge to Effectiveness of Trial Counsel
In Count II, Mr. Reese contends Defendant O'Neal, identified as a public defender in Tulsa County, rendered ineffective assistance of counsel during the criminal proceedings in the District Court of Tulsa County. According to Mr. Reese, Defendant O'Neal fired the public defender who was initially appointed to handle his defense, personally took over his defense, rendered ineffective assistance and duped him into pleading guilty.
A claim of ineffective assistance of counsel also sounds in habeas and would have to be raised in a petition for writ of habeas corpus under 28 U.S.C. § 2254. Therefore, Plaintiff's claims in Count II are subject to some of the same infirmities as his challenges to the constitutionality of his sentences. The claim is barred both by Heck v. Humphrey and the two-year limitation period.
Additionally, "[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) (citations omitted) (emphasis added). "A public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding." Polk County v. Dodson, 454 U.S. 312, 325 (1981). According to Mr. Reese, it was Defendant O'Neal, himself, along with another unnamed public defender, who provided the ineffective assistance of counsel. (ECF No. 1:3). Because Defendant O'Neal was not acting under color of state law, the claims against him must be dismissed.
C. Claims Challenging Decisions of the Pardon and Parole Board
In Counts V and VI, Mr. Reese contends the Oklahoma parole consideration procedures violate due process because there are no guidelines for determining whether a prisoner should be paroled. Mr. Reese points to the fact that he was recommended for parole by a parole investigator in 2015, but not recommended for parole in 2018. Mr. Reese theorizes that the lack of guidelines allows unconstitutional considerations of such factors as race, gender or religion. (ECF No. 1:5).
The Supreme Court has held "[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979). The Court rejected the claim that a reasonable entitlement to due process is created merely because a state provides for the possibility of parole. Rather, the Court looked to Nebraska law to determine whether a liberty interest protectible by due process had been created and found Nebraska law created a liberty interest to limited due process. The Court then determined Nebraska's provision of a parole hearing and explanation for denial of parole was all the process due prisoners under Nebraska law. Id. at 16 ("The Nebraska procedure affords an opportunity to be heard, and when parole is denied it informs the inmate in what respects he falls short of qualifying for parole; this affords the process that is due under these circumstances. The Constitution does not require more.").
But the Court further stated that "whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis." Id. at 12. The same year Greenholtz was decided, the Tenth Circuit Court of Appeals considered whether Oklahoma Statutes governing pardon and parole procedures create a liberty interest in parole requiring due process protections. See Shirley v. Chestnut, 603 F.2d 805 (10th Cir. 1979) (distinguishing the Oklahoma statutory scheme for parole considerations from that of the Nebraska statutes). The Tenth Circuit held:
[T]he critical distinctions between the Oklahoma statutory scheme and the Nebraska statutes are that the former [does] not declare that parole "shall" be granted unless certain conditions exist, and there are no written and formally established factors to be considered by the Parole Board or the Governor in evaluating parole applicants. The Board's only statutory guidance in the exercise of its discretion is that it act as the public interest requires, and the sole existing statutory criteria dictate only the time of parole consideration.Id. at 805. See also Shabazz v. Keating, 977 P.2d 1089, 1093 (Okla. 1999) ("[T]here is no protectable liberty interest in an Oklahoma parole."). Plaintiff has failed to state a claim upon which relief may be granted based on his contention that he was denied due process during parole proceedings.
We have carefully considered the Oklahoma statutes and other information concerning parole procedures provided in the record. We hold that the Oklahoma statutory scheme outlined above does no more than create a parole system, which in the Supreme Court's view as expressed in Greenholtz does not establish a liberty interest. In the absence of such liberty interest, the specific due process procedures requested by the appellants are not applicable.
VI. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Because Plaintiff has failed to state a claim upon which relief may be granted, the Court should DISMISS his Complaint 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 November 5, 2018. 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 (10th Cir. 2010).
VII. STATUS OF THE REFERRAL
This Report and Recommendation terminates the referral to the undersigned Magistrate Judge in the captioned matter.
ENTERED on October 19, 2018.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE