Cotner v. Knight
| Decision Date | 29 November 1993 |
| Citation | 61 F.3d 915,1995 WL 441408 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before ANDERSON, BALDOCK and BRORBY, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
Mr. Cotner, a state inmate and pro se litigant, appeals the adverse grant of summary judgment. We exercise jurisdiction under 28 U.S.C. Sec. 1291 and affirm the judgment of the district court.
Mr. Cotner filed a civil rights suit under Sec. 1983 against the warden, the attorney for the Department of Corrections and other prison officials. The allegations of the complaint are lengthy, rambling, vague, and conclusory, but the gravamen of the complaint appears to be that Mr. Cotner wished to prevent retaliation against him for exercising his rights to access the courts and for his helping of other prisoners with their legal work. The suit requested "DECLA[RA]TORY judgment of ALL issues raised in the index" and "Temporary injunction TO PREVENT transfer of petitioner to a higher security prison OR to one of same medium security that would restrict any access to programs or law library that would be less than what he now enjoys."
Defendants filed a motion for summary judgment with supporting evidentiary material. Mr. Cotner proceeded to file hundreds of pages of motions, objections and assorted pleadings. The matter was referred to a Magistrate Judge who issued a thirty page Report discussing and analyzing all of the issues. The Report concluded by recommending the district court grant Defendants' motion for summary judgment. Mr. Cotner filed voluminous objections to this report and the district court granted Defendants' motion for summary judgment and denied the request for a temporary restraining order.
Mr. Cotner appeals from this judgment asserting, inter alia, "Defendants - continue - to - threaten - AND carry - out - their MANY - threats" and he raises numerous other complaints against prison officials which were not raised before the district court. This court will not consider issues that have not been raised before the trial court. See, e.g., In re Walker, 959 F.2d 894, 896 (10th Cir. 1992).
Mr. Cotner has failed to persuade this court of any error in the Report recommending granting summary judgment with respect to the claims raised before the district court. We attach hereto a copy of the Magistrate Judge's Report and Recommendation as filed in the District court on February 13, 1995. We AFFIRM the judgment of the district court for substantially the same reasons set forth by the Magistrate Judge in his accurate and thorough Report.
The mandate shall issue forthwith.
VINCENT KNIGHT, et al., Defendants CIV-94-848-T
REPORT AND RECOMMENDATION
Plaintiff, a state prisoner appearing pro se and in forma pauperis, brings this action alleging certain violations of his constitutionally protected rights and seeking a declaratory judgment with regard to those rights. The court-ordered special report has been filed pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978), and on September 15, 1994, the Defendants filed a motion to dismiss/motion for summary judgment. Plaintiff has responded to the motion and thus it is at issue. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. Sec.636(b)(1)(B), and for the reasons stated herein, it is recommended that the motion be granted.
The Court's responsibility to liberally construe Plaintiff's pro se pleadings has been made extremely difficult due to the fact that he appears to raise certain causes of action in his form complaint and then attempts to add other issues in his "affidavit" and brief attached to the complaint. Additionally, he has filed numerous motions in which he complains about various matters, many of which were not raised in the initial complaint or amended complaint and Plaintiff has not sought leave of Court to amend the complaint to add those issues. Too, the Court's job has been made more difficult by Plaintiff phrasing his allegations in general terms without a supporting factual basis and without showing whether the claimed wrongs occurred to him, to other prisoners or if he simply believes that the wrongs may occur in the future. Lastly, interpreting Plaintiff's pleadings has been made difficult as he has changed his theme as his lawsuit progressed. Initially, Plaintiff very clearly filed this action under 42 U.S.C. Sec.1983 claiming a violation of his constitutional rights as well as seeking a declaratory judgment as to certain issues. When the Defendants responded with certain defenses to the Sec.1983 action, Plaintiff claimed that the Defendants falsely characterized his complaint as an action under 42 U.S.C. Sec.1983, when in fact it is only a declaratory judgment action. See pleading filed September 23, 1994 [Docket No. 59]. Despite these difficulties, the undersigned has attempted to ascertain all of the issues about which the Plaintiff complains and to examine those issues under the applicable law. The issues raised by the Plaintiff as gleaned by the undersigned are as follows:
1) the Oklahoma Department of Corrections (DOC) is required to pay all costs of a prisoner's habeas corpus action under 22 Okla. Stat. Sec.1277(c);
2) the Defendants have restricted his mailing privileges;
3) the Defendants have restricted his freedom of speech and freedom of religion rights;
4) there have been multiple violations of the orders entered in Battle v. Anderson, Case No. 72-95 (E.D. Okla.);
5) the Defendants have a history of threatening retaliatory action against persons for exercising their rights of access to the court, including threatening the prisoner with transfer to another prison facility;
6) the conditions of confinement to which he is subjected violate his Eighth Amendment right;
7) he is being denied access to the courts as the size of the prison law library has been reduced as well as the amount of time to which he has access to it; and
8) he is entitled to have his life sentences treated as a 45-year sentence with appropriate credits applied thereto, thus reducing it even more and thus allowing him a new parole consideration date. 1
In presenting this matter, Plaintiff argues that he has an absolute right to maintain a declaratory judgment action on these issues. However, he seriously misinterprets or misunderstands his rights under the declaratory judgment statute. That statute is simply an enabling act which confers discretion on courts to declare rights, but it does not impose a duty on the Court to do so or empower a litigant with an absolute right. Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237 (1952); Twin City Federal Sav. and Loan Ass'n. v. Gelhar, 525 F.Supp. 802 (D. Minn. 1981), aff'd, 681 F.2d 528 (8th Cir. 1982). The decision whether to exercise jurisdiction in a declaratory judgment action is within the sound discretion of the trial court. Aetna Cas. and Sur. Co. v. Jefferson Trust and Sav. Bank of Peoria, 993 F.2d 1364 (8th Cir. 1993). A declaratory procedure is used to remove uncertainty from legal relations and clarify and stabilize them before irreversible actions have been taken. In other words, the purpose is to have courts render declaratory judgments to guide the parties in their dealings with each other, thus relieving them from the risk of taking undirected action which could jeopardize their position or cause serious difficulties. Declaratory judgment is used to expeditiously resolve issues on which a complexity of rights may depend. Delaney v. Carter Oil Co., 174 F.2d 314 (10th Cir. 1949), cert. denied, 338 U.S. 824 (1949). It appears that the Plaintiff is simply seeking legal advice on whether the Defendants have violated his constitutional rights and this of course is not a proper function of a declaratory judgment action. Courts do not give advisory opinions even under the guise of declaratory judgment. Like any other action, "actual controversy" is a jurisdictional prerequisite to a declaratory judgment action. Miller v. Udall, 368 F.2d 548 (10th Cir. 1966); Grafon Corp. v. Hausermann, 602 F.2d 781 (7th Cir. 1979). Thus, to the extent that the Plaintiff seeks declaratory judgment, it is recommended that the Court exercise its discretion and refuse to entertain that action.
To the extent that the Plaintiff intends to pursue an action under 42 U.S.C. Sec.1983 for alleged violations of his constitutional rights, the Defendants seek summary judgment. Summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court views the evidence and the inferences to be drawn therefrom in the light most favorable to the non-moving party. Manders v. State of Oklahoma ex rel....
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