Parker v. Allbaugh
| Decision Date | 23 October 2019 |
| Docket Number | CIV-19-398-D |
| Parties | ALVIN PARKER, Plaintiff, v. JOE ALLBAUGH, Defendant. |
| Court | U.S. District Court — Western District of Oklahoma |
Plaintiff, a state prisoner appearing pro se and in forma pauperis, brings this action under 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). Before the Court is a Motion to Dismiss filed by Defendant Joe Allbaugh. Doc. No. 23. For the following reasons, it is recommended Defendant Allbaugh's Motion to Dismiss be granted.
Plaintiff is incarcerated at Dick Conner Correctional Center ("DCCC") located in Hominy, Oklahoma. Doc. No. 1 ("Comp.") at 3. Plaintiff's Complaint asserts a First Amendment right of access to the courts claim against Joe Allbaugh, Director of the Oklahoma Department of Corrections ("ODOC"). Id. at 5-10. Defendant Allbaugh has filed a Motion to Dismiss arguing Plaintiff failed to sufficiently allege personal participation in violation of Plaintiff's First Amendment rights and that his allegations do not rise to the level of a First Amendment violation. See generally Doc. No. 23.
A motion to dismiss may be granted when the plaintiff has "failed to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In applying this standard the court must assume the truth of all well-pleaded factual allegations in the complaint and construe them in the light most favorable to the plaintiff. See Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011); Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005). To survive a motion to dismiss, a complaint must present factual allegations that "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). This review contemplates the assertion of "enough facts to state a claim to relief that is plausible on its face." Id. at 570. Thus, "when the allegations in a complaint, however true, could not raise a [plausible] claim of entitlement to relief," the cause of action should be dismissed. Id. at 558.
A pro se plaintiff's complaint must be broadly construed under this standard. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the generous construction to be given the pro se litigant's allegations "does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based." Hall v. Bellmon, 935 F.2d 1106,1110 (10th Cir. 1991). See Whitney v. New Mexico, 113 F.3d 1170, 1173-1174 (10th Cir. 1997) ().
A court evaluating a Rule 12(b)(6) motion to dismiss may consider the complaint as well as any documents attached to it as exhibits. Bellmon, 935 F.2d at 1112. Additionally, "[a] district court may consider documents (1) referenced in a complaint that are (2) central to a plaintiff's claims, and (3) indisputably authentic when resolving a motion to dismiss without converting the motion to one for summary judgment." Thomas v. Kaven, 765 F.3d 1183, 1197 (10th Cir. 2014).
In order to place the factual allegations underlying Plaintiff's claim in proper context, the Court must review Plaintiff's history of filing with the United States Supreme Court. On November 3, 2003, the United States Supreme Court issued an Order in a case filed by Plaintiff in which the Supreme Court denied his request for leave to proceed in forma pauperis. Doc. No. 22-2; Parker v. Oklahoma, 540 U.S. 978 (2003). The Supreme Court also stated, "As petitioner has repeatedly abused this Court's process, the Clerk is directed not to accept any further petitions in noncriminal matters from petitioner unless the docketing fee required by Rule 38(a) is paid and petition submitted in compliance with Rule 33.1." Id. Supreme Court Rules 33.1 provides, in relevant part, "[E]very document filed with the Courtshall be prepared in a 6 ? - by 9 ¼ -inch booklet format using a standard typesetting process . . . to produce text printed in typographic (as opposed to typewriter) characters."
In 2018, Plaintiff filed a habeas action in the Northern District of Oklahoma. Petition, Parker v. Allbaugh, No. 18-cv-232-JED-FHM (N.D. Okla. April 25, 2018), Doc. No. 1. Ultimately, the Northern District of Oklahoma denied Plaintiff's request for habeas corpus relief. Opinion and Order, Judgment, Parker v. Allbaugh, No. 18-cv-232-JED-FHM (N.D. Okla. Oct. 22, 2018), Doc. Nos. 16, 17. Petitioner requested a Certificate of Appealability with the Tenth Circuit United States Court of Appeals. Application for Certificate of Appealability, Parker v. Allbaugh, No. 18-5115 (10th Cir. December 17, 2018). The Tenth Circuit denied the same on January 16, 2019. Order Denying Certificate of Appealability, Parker v. Allbaugh, No. 18-5115 (10th Cir. Jan. 16, 2019). Plaintiff intended to file a Petition for Certiorari Review with the United States Supreme Court. Comp. at 5-6.
Based on the Supreme Court's 2003 Order requiring Plaintiff to comply with Rule 33.1 by filing any noncriminal matters in the specified booklet format, Plaintiff was required to file his Petition for Writ of Certiorari accordingly. See, supra. On February 8, 2019, Plaintiff submitted a Request to Staff to DCCC's law library supervisor, Dianna Collins, informing her that he had 90 days to file a Petition forWrit of Certiorari and that the DCCC law library was not equipped to produce his Petition in the required booklet format. Comp. at 5-6; Doc. No. 22-3 at 8. Plaintiff requested Ms. Collins contact the Supreme Court and advise it of the situation so that he could seek leave of court to file his certiorari petition under Supreme Court Rule 33.2. Id.1
On March 12, 2019, Plaintiff filed a Grievance stating that he had requested the law library contact the Supreme Court regarding his inability to prepare the required booklets in the DCCC law library and that he had not received copies of any correspondence proving this had been done. Doc. No. 22-3 at 6-7. On March 29, 2019, DCCC Warden responded to Plaintiff's grievance explaining that DCCC staff had contacted the Supreme Court Clerk's Office and referred Plaintiff to resources in the law library explaining how a prisoner may file a petition for certiorari review with the Supreme Court that are not in booklet format. Id. at 5.
However, on March 13, 2019, the United States Supreme Court issued a letter to Plaintiff explaining that based on the 2003 Order, Plaintiff was not allowed to proceed in forma pauperis and was also required to comply with Rule 33.1 that sets out the booklet format requirements. Doc. No. 22-4. On March 20, 2019,Plaintiff appealed the Warden's grievance response, complaining that the DCCC staff member who contacted the Supreme Court did not specify that Plaintiff had been previously ordered to comply with Rule 33.1. Doc. No. 22-3 at 3. Plaintiff explained that he must order the booklet format to be prepared by a third party and that because DCCC is not equipped to meet the Supreme Court's requirements, ODOC should advance him the money required for such an order. Id. at 4. On April 4, 2019, the administrative reviewing authority denied Plaintiff's appeal, affirming the DCCC Warden's denial of Plaintiff's grievance. Id. at 2. Plaintiff's deadline to file his petition for certiorari review expired on April 30, 2019. Comp. at 7.
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, 821, 825 (1977), abrogated on other grounds, Lewis v. Casey, 518 U.S. 343, 350 (1996). The Supreme Court noted that "[m]eaningful access . . . is the touchstone" of the inmate right to court access. Bounds, 430 U.S. at 823 (quotation omitted). It held that all states have "affirmative obligations to assure all prisoners meaningful access to thecourts." Id. at 824. Nevertheless, prison regulations that infringe on an inmate's constitutional rights are valid if they are "reasonably related to legitimate penological interests." Gee v. Pacheco, 627 F.3d 1178, 1187 (10th Cir. 2010) (citing Turner v. Safley, 482 U.S. 78, 89 (1987)).
In part, Plaintiff sues Defendant Allbaugh in his official capacity for monetary relief. Comp. at 3, 5. "Official-capacity suits . . . generally represent only another way of pleading an action against an entity of which an officer is an agent." Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quotations omitted). As the ODOC Director, Plaintiff's official capacity suit against Defendant Allbaugh is, in essence, a suit against the State of Oklahoma.
Unless the State unequivocally waives its Eleventh Amendment immunity, it prevents an award of money damages against the State of Oklahoma. See Guttman v. Khalsa, 669 F.3d 1101, 1110 (10th Cir. 2012) (). Oklahoma has not waived sovereign immunity for § 1983 claims. See Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006) (). Thus, the Eleventh Amendment bars any claim for monetary relief against Defendant Allbaugh in his official capacity and the Courtshould dismiss this claim without prejudice. See Wauford v. Richardson, 450 F. App'x 698, 699 (10th Cir. 2011) (...
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