Opinion
CIV-24-188-G
05-09-2024
JOHN PAUL SMITH, JR., Plaintiff, v. AARON WHITE, et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Plaintiff John Paul Smith, Jr., a state prisoner housed at the Oklahoma State Penitentiary, proceeding pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983 against Defendants Aaron White, Luke Pettigrew, A. Mondon, Crystal Longhorn, and Michael Murphy. See Doc. 1.He alleges due process and equal protection violations during his incarceration at the Joseph Harp Correctional Center. Id.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
Plaintiff originally filed this action in the United States District Court for the Eastern District of Oklahoma. United States District Judge Ronald A. White transferred the matter to this Court on February 21, 2024. Doc. 34. United States District Judge Charles B. Goodwin referred the matter to the undersigned Magistrate Judge for initial proceedings pursuant to 28 U.S.C. 636(b)(1)(B), (C). Doc. 37.
Defendants White, Longhorn, and Murphy (“Moving Defendants”) move to dismiss Plaintiff's claims because: (1) Plaintiff did not exhaust his administrative remedies; (2) Plaintiff failed to state a claim for which relief can be granted; (3) Defendants are entitled to qualified immunity; and (4) Plaintiff's claim should be dismissed because venue was improper in the United States District Court for the Eastern District of Oklahoma. Doc. 30. Plaintiff opposes the motion. Doc. 33.
The undersigned recommends the Court:
(1) deny the motion to dismiss for lack of venue;
(2) deny the motion to dismiss for failure to exhaust administrative remedies;
(3) grant the motion to dismiss for failure to state a claim and dismiss Plaintiff's claims against the Moving Defendants without prejudice;
(4) dismiss the action on screening without prejudice against Defendants Mondon and Pettigrew for failure to state a claim on which relief may be granted; and decline supplemental jurisdiction to the extent that Plaintiff makes any statelaw claims.
I. Plaintiff's claims.
Plaintiff names as Defendants five employees of Joseph Harp Correctional Center: (1) Captain Aaron White; (2) Warden Luke Pettigrew; (3) Captain Crystal Longhorn; (4) Sergeant Michael Murphy; and (5) Unit Manager A. Mondon. Doc. 1, at 3-4. He brings four claims, all alleging violation of his rights to due process and equal protection. Id. at 5-6. Because “[n]one of the [Defendants] will suffer any prejudice from Plaintiff's failure to specifically indicate in his complaint” whether he sued Defendants in their individual or official capacities, the undersigned liberally construes the complaint as proceeding against Defendants in both their individual and official capacities. See Trapp v. U.S.M.S., 139 Fed.Appx. 12, 14 (10th Cir. 2005).
In Claim One, Plaintiff asserts a knife was found in his cell but his cellmate did not receive a write-up despite his cellmate having better access to the weapon. Doc. 1, at 5. Plaintiff contends that, as a result, he could not defend himself for having possession of a weapon. Id.
In Claim Two, Plaintiff asserts Defendant White gave him an “X-20” for unauthorized video equipment. Id. He asserts Defendant White “knowingly falsified documents and arbitrarily abused his power and fabricated evidence as well as extorted [Plaintiff's] canteen and personal T.V. having left and gave personal property of mine away.” Id.
In Claim Three, Plaintiff asserts his “transfer packet” was fabricated and that he was “shipped for bullying and extortion no misconducts and absurd allegations.” Id. at 6. He claims the transfer caused “significant hardships” and “slander[ed] [his] name with false allegations.” Id.
In Claim Four, Plaintiff contends again that the “X-20” for unauthorized video equipment was falsified. Id. Plaintiff asserts he did not receive a copy of his misconduct charges and was “arbitrarily threatened with retaliation.” Id. For relief, Plaintiff seeks “any monetary damages for property or money spent on this complaint.” Id. at 7. He also seeks to have Defendants fired “for knowingly falsifying documents and acting in concert with one another while fabricating allegations and leaving [his] life in grave medical danger knowingly.” Id. Finally, Plaintiff requests that information related to any unsubstantiated allegations be “removed from his DOC case files.” Id.
II. The request to dismiss for lack of venue should be denied as moot.
The Moving Defendants-having originally filed this motion in the United States District Court for the Eastern District of Oklahoma-argue the complaint should be dismissed for improper venue because a substantial part of the events giving rise to Plaintiff's claims occurred in Cleveland County, Oklahoma, which is located in the jurisdiction of this Court. Doc. 30, at 14. Without ruling on the motion, the United States District Court for the Eastern District of Oklahoma transferred the case to this Court. Doc. 34. Thus, the motion seeking dismissal for improper venue under Fed.R.Civ.P. 12(b)(3) should be denied as moot.
III. The Moving Defendants did not meet their burden of showing Plaintiff failed to exhaust his administrative remedies.
The Moving Defendants argue Plaintiff failed to exhaust his administrative remedies. Doc. 30, at 3-7. In support, the Moving Defendants rely on documents outside the pleadings-the Special Report and its exhibits- to show Plaintiff did not submit any grievances from January 2022 through April 11, 2023, and that he made multiple procedural errors in his attempts to appeal misconducts. Doc. 30, at 5 (citing Doc. 28, at 5-6; Doc. 28, Atts. 8-10). The Moving Defendants should know the Court cannot and will not consider these documents at this time.
Courts can ordinarily examine a limited scope of documents when ruling on Rule 12(b)(6) motions to dismiss, including: “(1) documents that the complaint incorporates by reference; (2) documents referred to in the complaint if the documents are central to the plaintiff's claims and the parties do not dispute the documents' authenticity; [] (3) matters of which a court may take judicial notice”; and (4) in limited circumstances, documents within a special report filed under Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978). Gee v. Pacheco, 627 F.3d at 1186 (internal citations and quotation marks omitted). “Martinez reports are not within the exception unless ‘the plaintiff challenges a prison's policies or established procedures and the Martinez report's description of the policies or procedures remains undisputed after plaintiff has an opportunity to respond.'” Id. (quoting Hall, 935 F.2d at 1112).
The Moving Defendants also assert the Court may take judicial notice of the Special Report. Id. (citing United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007); then citing Tal v. Hogan, 453 F.3d 1244 n.24 (10th Cir. 2006)). Neither case recognizes a Special Report to fall within the category of documents of which a court may take judicial notice.The Court should deny this portion of Moving Defendants' Motion.
The court can consider matters outside the pleadings, but it must then treat the motion “as one for summary judgment under Rule 56” and give the parties “a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d). The record does not reflect the parties have been given notice that the motion may be converted to one for summary judgment. And the Moving Defendants moved to dismiss only under Rule 12. Under these circumstances, the undersigned does not recommend the motion be converted to one for summary judgment.
IV. Standard of review.
The Moving Defendants assert Plaintiff failed to state a claim on which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). Doc. 30, at 7-12. To survive a motion to dismiss, a complaint must contain enough allegations of fact which, when taken as true, “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. at 678 (citing Twombly, 550 U.S. at 556); see also Gee v. Pacheco, 627 F.3d 1178, 1184 (10th Cir. 2010). The Court “should assume the[] veracity” of “well-pleaded factual allegations,” but it need not accept a plaintiff's legal assertions. Iqbal, 556 U.S. at 678-79. To that end, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678.
This Court construes “pro se plaintiffs' pleadings liberally.” Johnson v. Reyna, 57 F.4th 769, 775 (10th Cir. 2023). The Court, may not, however, serve as Plaintiff's advocate by creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
“[I]n deciding a Rule 12(b)(6) motion, a federal court may only consider facts alleged within the complaint.” Cnty. of Santa Fe, N.M. v. Pub. Serv. Co. of N.M., 311 F.3d 1031, 1035 (10th Cir. 2002). So, the undersigned does not consider new facts or legal theories asserted in Plaintiff's response brief to the extent they are inconsistent with those in his complaint. See Hayes v. Whitman, 264 F.3d 1017, 1025 (10th Cir. 2001) (“While it might be appropriate for a court to consider additional facts or legal theories asserted in a response brief to a motion to dismiss if they were consistent with the facts and theories advanced in the complaint, a court may not consider allegations or theories that are inconsistent with those pleaded in the complaint.” (internal quotations omitted)).
Additionally, because Plaintiff is a prisoner proceeding in forma pauperis, the Court has an ongoing duty to consider the sufficiency of his claims and dismiss the case if it determines he fails to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(a). “We apply the same standard of review for dismissals under § 1915(e)(2)(B)(ii) that we employ for Federal Rule of Civil Procedure 12(b)(6) motions to dismiss for failure to state a claim.” Hooks v. Atoki, 983 F.3d 1193, 1200 (10th Cir. 2020) (quoting Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007)).
V. Plaintiff fails to state a claim on which relief can be granted against the Moving Defendants or Defendants Mondon or Pettigrew.
A. Plaintiff fails to state a due process claim.
The Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1. Liberally construed, Plaintiff's allegations suggest violations of his right to procedural due process, “which requires a state to employ fair procedures when depriving a person of a protected interest.” Benshoof v. Hall, No. CIV-22-527-R, 2022 WL 4287936, at *3 (W.D. Okla. July 29, 2022), adopted, 2022 WL 3586215 (W.D. Okla. Aug. 22, 2022).
An alleged procedural due process violation “prompts a two-step inquiry: (1) whether the plaintiff has shown the deprivation of an interest in ‘life, liberty, or property' and (2) whether the procedures followed by the government in depriving the plaintiff of that interest comported with ‘due process of law.'” Elliott v. Martinez, 675 F.3d 1241, 1244 (10th Cir. 2012) (quoting Ingraham v. Wright, 430 U.S. 651, 673 (1977)).
1. Claim One fails to state a claim because Plaintiff's allegation is conclusory, he does not identify a liberty interest at stake, and he does not allege facts suggesting personal participation of any Defendant.
In Claim One, Plaintiff contends he “was allowed no way to defend [him]self on possession of a weapon” and that his “cell[mate] was not wrote up leaving [him] no way to defend [him] self.” Doc. 1, at 5. Liberally construed, Plaintiff claims a violation of procedural due process because he could not defend himself in a disciplinary action. Plaintiff fails to state a claim for at least three reasons.
First, his statement that he could not defend himself is conclusory, as he does not state how he could not defend himself. Conclusory allegations do not suffice to state a claim. See Iqbal, 556 U.S. at 678 .
Second, Plaintiff does not identify a liberty interest he was allegedly deprived of. “[A]n expectation of receiving process is not, without more, a liberty interest protected by the Due Process Clause.” Elliott, 675 F.3d at 1244 (quoting Olim v. Wakinekona, 461 U.S. 238, 250 n.12 (1983)). So, “an entitlement to nothing but procedure cannot be the basis for a liberty or property interest.” Id. (quoting Stein v. Disciplinary Bd. of Sup. Ct. of N.M., 520 F.3d 1183, 1192 (10th Cir. 2008)).
Third, the Complaint lacks any allegation of personal participation or involvement by any defendant. See Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011) (“[I]t is ‘particularly important' that ‘the complaint make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her, as distinguished from collective allegations against the state.'” (quoting Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)); Pahls v. Thomas, 718 F.3d 1210, 1226 (10th Cir. 2013) (“[I]t is incumbent upon a plaintiff to ‘identify specific actions taken by particular defendants' in order to make out a viable § 1983 . . . claim.” (quoting Tonkovich v. Kan. Bd. Of Regents, 159 F.3d 504, 532 (10th Cir. 2011))).
In his response brief, Plaintiff cites Wolff v. McDonnell, 418 U.S. 539, 586 (1974) (Marshall, J., concurring in part), arguing that there was an “abuse of the disciplinary process by persons motivated by malice, vindictiv[e]ness, intolerance[,] prejudice or jealousy.” Doc. 33, at 3. This portion of Justice Marshall's opinion addresses whether prisoners have a right to confront and cross-examine witnesses in a prison disciplinary context, deviating from the majority's decision. Wolff, 418 U.S. at 584 (“With respect to the rights of confrontation and cross-examination, the gulf between the majority opinion and my views is much wider.”).
For the reasons stated above, the due process claim in Claim one should be dismissed.
2. Claim Two fails to state a claim because Plaintiff does not allege he lacked an adequate post-deprivation remedy, he makes a conclusory allegation against Defendant White, and he does not allege personal participation of any other Defendants.
In Claim Two, Plaintiff asserts Defendant White gave him an “X-20” offense for unauthorized video equipment. Doc. 1, at 5. He asserts Defendant White “knowingly falsified documents and arbitrarily abused his power and fabricated evidence as well as extorted [Plaintiff's] canteen and personal T.V. having left and gave personal property of mine away.” Id.
First, Plaintiff's allegation that Defendant White took his property does not amount to a due process violation because he does not assert he lacked an adequate post-deprivation remedy. “[A]n unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). Plaintiff fails to state a claim because he does not plead the inadequacy or unavailability of a post-deprivation remedy. See Durre v. Dempsey, 869 F.2d 543, 548 (10th Cir. 1989) (explaining that the complaint “must allege facts sufficient to show deprivation, in this case the lack of an adequate state remedy”).
Second, Plaintiff's bald allegation that Defendant White falsified documents, fabricated evidence, and abused his power is conclusory and therefore insufficient to state a claim. See Shields v. Cline, 829 Fed.Appx. 321, 324 (10th Cir. 2020) (“[Plaintiff] claims that [Defendant] wrote a false disciplinary report that caused him to be placed on pre-hearing detention and long-term segregation. This conclusory assertion is insufficient to provide fair notice of a claim.”); Escobar v. Mora, 496 Fed.Appx. 806, 816 (10th Cir. 2012) (“[A]bsent deficiencies in the due process afforded with respect to prison disciplinary charges, ‘mere allegations of falsified evidence or misconduct reports,' without more, do not state a claim.” (quoting Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002))).
Finally, Plaintiff does not make any factual allegations against Defendants Pettigrew, Mondon, Longhorn, or Murphy, which itself justifies dismissal of Claim Two against these defendants. See Brown, 662 F.3d at 1163.
Thus, Plaintiff's due process claim in Claim Two should be dismissed for failure to state a claim.
3. Claim Three fails to state a claim because Plaintiff's allegations are conclusory, he does not identify a liberty interest at stake, and he does not allege any facts suggesting the personal participation of any Defendant.
Plaintiff asserts in Claim Three that his transfer packet was fabricated. Doc. 1, at 6. Like Claim Two, this claim fails because it is a conclusory allegation of falsified documents. See Shields, 829 Fed.Appx. at 324; Escobar, 496 Fed.Appx. at 816.
Nor did Plaintiff have a liberty interest in his continued placement at Joseph Harp Correctional Center. “[T]he Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). And “the Due Process Clause in and of itself [does not] protect a duly convicted prisoner against transfer from one institution to another within the state prison system.” Meachum v. Fano, 427 U.S. 215, 225 (1976). Because liberty interests are “generally limited to freedom from restraint,” a prisoner asserting a due process claim must show that he has suffered an “atypical and significant hardship . . . in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995).
And while Plaintiff contends the transfer caused him “significant hardship,” he offers no factual support. So, Plaintiff's allegation that he was transferred in violation of due process is conclusory and fails to state a claim. See Clayton v. Ward, 232 Fed.Appx. 827, 832 (10th Cir. 2007) (“[T]he district court did not err in dismissing [the plaintiff's] suit” where “he fail[ed] to assert any facts in support of his conclusory allegation that confinement . . . was an atypical and significant hardship”).
Plaintiff's bare allegation that the transfer packet “slander[ed] [his] name with false allegations” also does not include a liberty interest. Doc. 1, at 6. “[T]he Supreme Court has explicitly rejected the proposition that ‘reputation alone, apart from some more tangible interests such as employment, is either ‘liberty' or ‘property' by itself sufficient to invoke the procedural protection of the Due Process Clause.'” Al-Turki v. Tomsic, 926 F.3d 610, 617 (10th Cir. 2019) (quoting Paul v. Davis, 424 U.S. 693, 701 (1976)). For Plaintiff to show he possesses a protected liberty interest, he “must meet two sub-elements: ‘(1) the government made a false statement about [Plaintiff] . . . that was sufficiently derogatory to injure his reputation, and that (2) [Plaintiff] experienced a governmentally imposed burden that significantly altered his status as a matter of state law.'” Hinkle v. Beckham Cnty. Bd. of Cnty. Comm'rs, 962 F.3d 1204, 1230 (10th Cir. 2020) (quoting Al-Turki, 925 F.3d at 618). The treatment of prisoners by correctional authorities does not give rise to a governmentally imposed burden in this context:
[W]e observe that allowing a decision by correctional authorities regarding treatment of a prisoner to satisfy the plus factor would be in tension with the Supreme Court's decision in Sandin. To encourage codification of prison policy by prison authorities and to avoid undue judicial interference in correctional matters, the Court in that case, as discussed above, held that constitutional due process would be implicated only if the prison subjected an inmate to restraints that posed an “atypical and significant hardship . . . in relation to the ordinary incidents of prison life.” But we suspect that almost all adverse decisions by prison authorities with respect to an inmate are predicated on information about the inmate from some source. If a constitutional liberty interest were recognized whenever the communication of that information could be characterized as a defamation, courts could well often find themselves back in the business of supervising correctional decisions.Al-Turki, 926 F.3d at 620-21 (emphasis added and internal citations omitted). And, as noted above, Plaintiff does not allege facts sufficient to meet Sandin's standard, so Plaintiff's allegation that the contents of the transfer packet amounted to slander does not establish a liberty interest.
Finally, Plaintiff has not made any factual allegations against any Defendant, so the lack of personal participation serves as an alternate reason to dismiss Claim Three. See Brown, 662 F.3d at 1163; Pahls, 718 F.3d at 1226.
For the reasons stated above, the due process claim in Claim Three should be dismissed for failure to state a claim on which relief may be granted.
4. Claim Four fails to state a claim because Plaintiff's allegation of falsified documents is conclusory, he does not identify a liberty interest of which he has been deprived, and he does not allege the personal participation of any Defendant.
In Claim Four, Plaintiff contends again that the “X-20” for unauthorized video equipment was falsified. Doc. 1, at 6. Like his conclusory allegations of falsified documents in Claims Two and Three, this too fails to state a claim. See Shields, 829 Fed.Appx. at 324; Escobar, 496 Fed.Appx. at 816.
Plaintiff also does not allege he possessed a liberty interest. While Plaintiff contends that he did not receive a copy of his misconduct, Doc. 1, at 6, the entitlement to process is not itself the basis for a liberty or property interest. See Elliott, 675 F.3d at 1244.
Plaintiff also contends that he was “threatened with retaliation.” Doc. 1, at 6. But, at minimum, Plaintiff does not allege he engaged in any protected activity, such as exercising his First Amendment Rights. So this conclusory allegation does not state a claim.
Finally, Plaintiff has not made any factual allegations against any Defendant in Claim Four, so the lack of personal participation serves as an alternate reason to dismiss it. See Brown, 662 F.3d at 1163; Pahls, 718 F.3d at 1226.
For the reasons stated above, Claim Four should be dismissed for failure to state a claim for a due process violation.
B. Plaintiff fails to state a claim for a violation of his equal protection rights.
“The Equal Protection clause is ‘essentially a direction that all persons similarly situated should be treated alike.'” Lucas v. Turn Key Health Clinics, LLC, 58 F.4th 1127, 1146 (10th Cir. 2023) (quoting A.M. ex rel. F.M. v. Holmes, 830 F.3d 1123, 1166 (10th Cir. 2016)). “To state a claim for relief under the Equal Protection clause, a plaintiff must allege the existence of purposeful discrimination against [him]self, as a class of one or with respect to a group, causing an adverse effect.” Id. ‘Conclusory allegations without facts that refer to a particular person or persons treated differently are insufficient to state a claim.” Id. This “pleading requirement of an allegation that a similarly situated person was treated differently applies both when the plaintiff challenges a government action that discriminates based on membership in a non-protected class or membership in a ‘class of one.'” Brown, 662 F.3d at 1173 (internal citation omitted).
In Claim One, Plaintiff asserts he received discipline for possessing a knife found in a common area of his cell while his cellmate did not receive a write-up despite having better access to the weapon. Doc. 1, at 5. The undersigned liberally construes this allegation as an equal protection claim under a class-of-one theory because he was treated differently than his cellmate. But missing from this claim is an allegation that he received different treatment because of purposeful discrimination. While Plaintiff alleges he did not possess the knife-inferring the decision to discipline him for the possession of a weapon was incorrect-he does not allege any facts suggesting the decision to discipline him stemmed from purposeful discrimination rather than, for example, a mistake or incompetence. Plaintiff therefore fails to state an equal protection claim. Thompson v. Lengerich, 2018 WL 10373656, at *6 (D. Colo. Apr. 2, 2018) (finding the plaintiff's assertion of an equal protection violation to be conclusory and insufficient because he did not “demonstrate that he was treated differently than others similarly situated as a result of intentional or purposeful discrimination” where he alleged he was “treated differently, by being double-bunked, compared to those ‘similarly situated' prisoners who are being confined in single-occupancy cells”); see also Kalashnikov v. Herbert, 2020 WL 7408213, at *4 (D. Utah Dec. 2, 2020) (finding that the plaintiff failed to allege facts to support an equal protection claim where “the amended complaint lack[ed] factual allegations that the [] site placement was motivated by intentional or purposeful discrimination on behalf of the Defendants”), adopted, 2020 WL 7401631 (D. Utah Dec. 17, 2020).
Nor did Plaintiff allege any defendant engaged in purposeful discrimination against him by disciplining him-but not his cellmate-for having a knife in their cell. This too, is grounds for dismissal See Pahls, 718 F.3d at 1226.
Plaintiff also asserts the allegations in Claims Two, Three, and Four amount to equal protection violations. Doc. 1, at 5-6. But Plaintiff does not contend he was discriminated against or allege any facts suggesting he was treated differently than any similarly situated individuals in these claims. He therefore fails to state an equal protection claim in Claims Two, Three, and Four as well.
For the reasons stated above, the undersigned recommends Plaintiff's equal protection claims be dismissed as to all Defendants for failure to state a claim.
Because the undersigned recommends dismissal of the claims against the Moving Defendants for failure to state a claim, the undersigned need not consider Defendants' qualified immunity argument at this stage. Doc. 30, at 12-14.
VI. The Court should decline to exercise supplemental jurisdiction over Plaintiff's state-law slander claim.
The Moving Defendants argue that Plaintiff's “vague reference to slander” should be dismissed “to the extent [he] is attempting to bring a claim for slander” under state law for failure to state a claim. Doc. 30, at 10. Instead, to the extent that Plaintiff brings a slander claim, the Court should decline to exercise supplemental jurisdiction over the claim. See 28 U.S.C. § 1367(c)(3) (permitting district courts to decline to exercise supplemental jurisdiction where it “has dismissed all claims over which it has original jurisdiction”); Smith v. City of Enid ex rel. Enid City Commn, 149 F.3d 1151, 1156 (10th Cir. 1998) (“When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims.”).
VII. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court:
(1) deny the motion to dismiss for lack of venue;
(2) deny the motion to dismiss for failure to exhaust administrative remedies;
(3) grant the motion to dismiss for failure to state a claim on which relief can be granted, and dismiss Plaintiff's claims against the Moving Defendants without prejudice;
(4) dismiss the action on screening without prejudice against Defendants Mondon and Pettigrew for failure to state a claim on which relief may be granted; and
(5) decline supplemental jurisdiction to the extent that Plaintiff makes any state-law claims.
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 May 30, 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.