Opinion
CIV-23-774-G
11-03-2023
ANTHONY RAYMONE CLARK, Plaintiff, v. COLE, ET AL., Defendants.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, JUDGE.
Plaintiff, a state prisoner appearing pro se,has filed this action pursuant to 42 U.S.C. § 1983. (Doc. 1). United States District Judge Charles B. Goodwin referred this matter to the undersigned Magistrate Judge for initial proceedings under 28 U.S.C. § 636(b)(1)(B). (Doc. 4). As set forth fully below, the undersigned recommends that the Court DISMISS the Plaintiff's Complaint.
A pro se litigant's pleadings are liberally construed “and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). But the court cannot serve as Petitioner's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
Citations to the parties' filings and attached exhibits will refer to this Court's CM/ECF pagination.
I. Screening
Federal law mandates the screening of each complaint in a civil action filed by a prisoner seeking redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. §§ 1915A(a). The court must dismiss a complaint or any portion of it 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. Id.
In reviewing the complaint, the court must accept Plaintiff'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). The court must 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) (internal quotation marks 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). 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.” Id.; see also Gee v. Pacheco, 627 F.3d 1178, 1184-85 (10th Cir. 2010) (discussing Iqbal).
Where a complaint shows on its face that the applicable statute of limitations has expired, dismissal for failure to state a claim is appropriate. Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 & 1042 (10th Cir. 1980); see also Billinger v. Weinhold, 531 Fed.Appx. 928, 929 (10th Cir. 2013) (“Although the statute of limitations is an affirmative defense, it may be resolved on a Rule 12(b)(6) motion to dismiss ‘when the dates given in the complaint make clear that the right sued upon has been extinguished.'”) (quoting Aldrich, 627 F.2d at 1041 n.4); Jones v. Bock, 549 U.S. 199, 215 (2007) (“A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief. If the allegations, for example, show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim ....”).
II. Factual and Procedural Background
Plaintiff is a state inmate currently confined at the Lawton Correctional Facility in Lawton, Oklahoma. (Doc. 1, at 1); see also OK DOC# 487516, Oklahoma Department of Corrections OK Offender, https://okoffender.doc.ok.gov/ (last visited Nov. 2, 2023). On March 16, 2011, following a jury trial in Oklahoma County, Plaintiff was convicted of one count of Murder in the First Degree and sentenced to life without parole. Oklahoma County District Court, Case No. CF-2010-2243.Plaintiff filed a direct appeal, and the Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his conviction and sentence. OCCA, Case No. F-2011-176. Subsequently, the district court denied Plaintiff's Application for PostConviction Relief, and the OCCA declined jurisdiction over Plaintiff's post-conviction appeal. See Oklahoma County District Court, Case No. CF-2010-2243, supra note 3.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-2010-2243&cmid=2589986 (Docket Sheet) (last visited Nov. 2, 2023). The undersigned takes judicial notice of the docket sheets and related documents in Plaintiff's state criminal proceedings. See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising discretion “to take judicial notice of publicly-filed records in [this] court and certain other courts concerning matters that bear directly upon the disposition of the case at hand”) (citation omitted).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=F-2011-176 (Docket Sheet) (last visited Nov. 2, 2023).
On August 24, 2023, Plaintiff filed with this Court the instant Pro Se Prisoner Civil Rights Complaint. (Doc. 1, at 15). Despite Plaintiff's two subheadings reading “CLAIM 1” and “CLAIM II,” liberally construed, Plaintiff appears to allege five claims interspersed throughout the Complaint.
First, much of the Complaint invokes McGirt v. Oklahoma, 140 S.Ct. 2452 (2020), to challenge the state trial court's jurisdiction to hear Plaintiff's criminal case. Plaintiff disputes the existence of the Oklahoma state government, stating,
McGirt has invalidated and rectified many unlawful convictions in this territory of Oklahoma. My case as an original descendant having returned to our homelands reveals that a false government has been established in my stead and I challenge this unauthorized establishment because the treaty explains in plain language that I am to self govern in this territory.(Doc. 1, at 2). Plaintiff alleges that his conviction and imprisonment violate the Fifth, Eighth, and Thirteenth Amendments. (Id. at 3).
Next, Plaintiff alleges an Eighth Amendment violation against Defendant “Dr. Cole, the current warden at LCRF, for this pain [he is] suffering [] at the hands of his abusive discretion.” (Id. at 5). Plaintiff alleges cruel and unusual punishment, stating Defendant Cole has “found and created methods to delay relief for a birth defect and military ailment” and “will not allow me to wear the support material . . . that relieves me of the terrible pain I feel when walking because of my handicap and relief has already been authorized by the BOP.” (Id.); (See id. at 9, claiming the warden has denied Plaintiff the “medical support shoes purchased by my family”). Plaintiff also alleges that his jaw line has “eroded” because of a “botched dental surgery” and that a nurse at the prison inadequately handled tuberculosis prevention, allowing an inmate who had been treated for tuberculosis two months prior to remain in Plaintiff's pod. (Id. at 6).
Third, Plaintiff alleges a violation of his Fourth Amendment right against illegal search and seizure. (Id. at 9). Plaintiff states, “[t]he Friday prior to my voir dire . . . I was brutally attacked by county detention officials placed in restraints and by way of instrumentation forcefully raped of my left thumb print by OCPD and its forensic team.” (Id.) Plaintiff alleges that ten detention officers tackled him, wrestled him into handcuffs, and applied an “unusual technique” that caused “permanent nerve and tissue damage and scars to [his] wrists.” (Id.)
Fourth, Plaintiff seemingly alleges a violation of his Fourteenth Amendment right to procedural due process,claiming that the Oklahoma County Detention Center (“OCDC”) obstructed access to “the footage of the [thumbprint] rape that occurred in January of 2011” by briefly transferring him from OCDC to a facility in Lawton. (Id. at 10). He alleges that “the detention center has a policy authorizing the destruction of all requests to staff if a detainee is removed from its facility.” (Id.) Thus, he believes he was briefly transferred out of OCDC so that prison officials could destroy footage of the thumb print incident according to official policy. (Id.)
See Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 459-60 (1989) (“The Fourteenth Amendment reads in part: ‘nor shall any State deprive any person of life, liberty, or property, without due process of law,' and protects the individual against arbitrary action of government. We examine procedural due process questions in two steps: the first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.”) (internal quotation marks and citations omitted).
Plaintiff's final claim in the Complaint challenges the legality of his prosecution and trial. (Id. at 8-11). He alleges he was “unlawfully prosecuted after an egregious accusation of murder” and declares innocence. (Id. at 8, 11). Plaintiff claims that the investigation and his conviction were improper because they were based on false evidence, including statements misunderstood by a 9-1-1 operator and unverified thumbprints. (Id. at 7, 1011). Plaintiff also alleges that the trial judge “silenced” him and interrupted Plaintiff's attempts to impeach a witness. (Id. at 10-11).
For relief, Plaintiff requests release from confinement and the “unveiling of [his] mind.” (Id. at 12). He states that he “brought this suit to bar to enter [his] thoughts, business aspirations and initiatives into this society that has organized itself on lands left to [him] by [his] ancestors.” (Id. at 14). Plaintiff attached to the Complaint numerous pages detailing his business aspirations. (Doc. 1, at Ex. 1).
Lastly, Plaintiff filed a Motion to Supplement the Record to Include Additional Defendant and to Submit this Question of Law (“Motion to Supplement”) on October 19, 2023. (Doc. 11). In the Motion to Supplement, Plaintiff seeks to add as a defendant Steven Harpe, Director of the Oklahoma Department of Corrections (“ODOC”). (Id. at 2). Liberally construed, Plaintiff moves to add one or more claims challenging the validity of the actions of any Oklahoma state official, including Mr. Harpe, and a particular policy implemented by Mr. Harpe. (Id. at 3-4).
III. Plaintiff's Claims Attacking the Fact of His Confinement Are Barred by Heck v. Humphrey.
Plaintiff alleges that he is innocent and that his conviction is invalid because the trial court had no jurisdiction in light of McGirt, (Doc. 1, at 2-3), the prosecution offered false evidence, (id. at 7, 10-11), and the judge silenced Plaintiff and prohibited his impeachment of a witness, (id. at 10-11).
When a state prisoner seeks damages or declaratory relief in a § 1983 action, “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.” Heck v. Humphrey, 512 U.S. 477, 487 (1994) (damages); see also Edwards v. Balisok, 520 U.S. 641, 648 (1997) (declaratory relief). A challenge to the validity of a prisoner's conviction or sentence must be brought through a petition for habeas corpus-not a § 1983 action. See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (“This Court has held that a prisoner in state custody cannot use a § 1983 action to challenge the fact or duration of his confinement. He must seek federal habeas corpus relief (or appropriate state relief) instead.”) (internal quotation marks and citations omitted).
Plaintiff's McGirt claim must be dismissed because it challenges the validity of a conviction that has not been previously invalidated. Stated differently, a challenge to a trial court's jurisdiction “directly ‘challenge[s] the fact or duration of [Plaintiff's] confinement,' so [Plaintiff] cannot bring it under § 1983.” Hooper v. Stitt, No. 23-6049, 2023 WL 5923920, at *2 (10th Cir. Sept. 12, 2023) (quoting Wilkinson, 544 U.S. at 78).
With regard to Plaintiff's claims of innocence, the presentation of false evidence, and judicial misconduct, a judgment in favor of Plaintiff on these issues would imply the invalidity of his conviction. See, e.g., Johnson v. Pottawatomie Tribal Police Dept., 411 Fed.Appx. 195, 199 (10th Cir. 2011) (holding that Heck bars a claim regarding false testimony at a suppression hearing); Baldwin v. O'Connor, 466 Fed.Appx. 717, 717-18 (10th Cir. 2012) (holding that Heck bars a claim of prosecutorial misconduct). Since Plaintiff's conviction has not been overturned, Heck and Wilkinson bar any § 1983 claims attacking the validity of Plaintiff's conviction. Any claim challenging Plaintiff's confinement- whether on grounds of innocence, jurisdiction, false evidence, or judicial misconduct- must be brought through a petition for habeas corpus.
IV. Plaintiff Fails to State a Claim for Deliberate Indifference to Serious Medical Needs.
Liberally construed, Plaintiff alleges that prison officials have been deliberately indifferent to his serious medical needs by not allowing him to wear his requested shoes, conducting a “botched” dental surgery, and mishandling tuberculosis treatment and prevention. (Doc. 1, at 5-6).
The Eighth Amendment, applied to the states by the Fourteenth Amendment, proscribes cruel and unusual punishment, including “deliberate indifference to serious medical needs of prisoners.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). “This is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Id. at 104-05. For a prisoner to state a cognizable claim for inadequate medical attention under the Eighth Amendment, the prisoner must satisfy both an objective and subjective prong.
A. The Objective Prong
The objective prong of the deliberate indifference standard looks to the nature and severity of the medical condition. See Strain v. Regalado, 977 F.3d 984, 989-90 (10th Cir. 2020).
To establish the objective component, the alleged deprivation must be sufficiently serious to constitute a deprivation of constitutional dimension. A medical need is [objectively] serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.Id. (internal citations and quotation marks omitted). A delay in care rises to an Eighth Amendment violation if the delay causes “substantial harm,” which may be evidenced by “lifelong handicap, permanent loss, or considerable pain.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001)).
In the instant Complaint, Plaintiff alleges that he suffers from a “birth defect” and a “military ailment;” that Defendant Cole has “found and created methods to delay relief” and does not allow Plaintiff to wear “support material” or shoes that alleviate pain while walking; that a nurse allowed an inmate treated for tuberculosis to stay in Plaintiff's pod; and that his jaw line has eroded due to a “botched dental surgery.” (Doc. 1, at 5-6). Plaintiff has not alleged a physician's diagnosis related to any of these allegations nor indicated that the “medical support shoes” purchased by his family were recommended by a doctor. (Id. at 9). Regarding the tuberculosis allegation, Plaintiff does not claim that he has contracted tuberculosis. Furthermore, Plaintiff's vague allegations of pain do not establish that his mobility or jaw conditions so obviously call for medical treatment that a lay person would be on notice. See, e.g., Floyd v. Turn Key Health Provider, No. CIV-20- 842-HE, 2021 WL 2371895, at *3 (W.D. Okla. May 4, 2021), report and recommendation adopted, 2021 WL 2371350 (W.D. Okla. June 8, 2021) (“Plaintiff describes his dental condition only in vague terms. His description is not sufficient for the Court to determine that his condition is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.”).
Pain caused by a delay in treatment may constitute a serious medical need, but “not every twinge of pain suffered as the result of delay in medical care is actionable.” Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000). Though Plaintiff alleges that he feels “terrible pain” when walking, he alleges no particular facts regarding Defendant Cole's “methods to delay relief” or how they have caused considerable pain. (Doc. 1, at 5). With nothing more than broad allegations about painful walking, another inmate receiving tuberculosis treatment, and an eroded jaw, the Court cannot find that Plaintiff has alleged sufficient facts to plausibly state the objective component of the deliberate indifference standard.
B. The Subjective Prong
To satisfy the subjective component of the deliberate indifference standard, the Plaintiff must demonstrate that a prison official “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [s]he must also draw the inference.” Strain, 977 F.3d at 989-90 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). A plaintiff may use circumstantial evidence to show that the obviousness of a risk would have put a prison official on notice. Lance v. Morris, 985 F.3d 787, 794 (10th Cir. 2021) (citing Farmer, 511 U.S. at 842-43).
Plaintiff's allegations regarding Defendant Cole-that he delayed treatment and prohibited Plaintiff from wearing medical support shoes-do not demonstrate that Defendant Cole knew of and disregarded a substantial risk of harm to Plaintiff. Plaintiff has not described for the Court the exact nature of his conditions, nor has Plaintiff alleged that he has provided Defendant Cole with a more detailed description. Furthermore, Plaintiff has not alleged any circumstantial evidence that would make an excessive health risk obvious to Defendant Cole. Though Plaintiff states that “relief has already been authorized by the BOP,” he alleges nothing regarding Defendant Cole's awareness of a serious health problem or indifference to one. (Doc. 1, at 5). Plaintiff's allegation that Defendant Cole has exercised “abusive discretion” is a conclusory allegation unsupported by facts. (Id.)
Similarly, Plaintiff alleges nothing regarding any official's awareness of his eroded jaw line. Also, though Plaintiff alleges that a man who had received tuberculosis treatment remained in his pod, Plaintiff alleges no injury from this nor any facts about a prison official's mental state in allowing the man to remain in Plaintiff's pod. (Id. at 6). Because Plaintiff has made no factual allegations regarding Defendant Cole's or any other prison official's mental state, he fails to plausibly establish the subjective component of the deliberate indifference standard.
Since Plaintiff's allegations have failed to satisfy the pleading standards for both the objective and subjective prongs of the deliberate indifference standard, his Eighth Amendment claims must be dismissed for failure to state claim.
V. Plaintiff's Illegal Search and Seizure and Procedural Due Process Claims Are Time-Barred.
Plaintiff alleges that detention officers “brutally attacked” him, restrained him, and “forcefully raped [him] of [his] left thumb print” on “[t]he Friday prior to [his] voir dire.” (Doc. 1, at 9). He also alleges that in 2016, Oklahoma County detention officers improperly destroyed video evidence of the incident. (Id. at 10).
The statute of limitations for § 1983 claims is derived from the applicable state law for private tort actions. Gilyard v. Gibson, 612 Fed.Appx. 486, 487 (10th Cir. 2015); Robbin v. City of Santa Fe, 583 Fed.Appx. 858, 863 (10th Cir. 2014). Oklahoma law establishes a two-year statute of limitations period for tort actions. Okla. Stat. tit. 12, § 95. Thus, “the statute of limitations in a § 1983 action filed in Oklahoma is two years from the time the cause of action accrued.” Bedford v. Rivers, 176 F.3d 488 (10th Cir. 1999). According to federal law, the statute of limitations in a § 1983 action begins to run at the time “‘facts that would support a cause of action are or should be apparent.'” Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995) (quoting Blumberg v. HCA Mgmt. Co., 848 F.2d 642, 645 (5th Cir. 1988)); Baker v. Bd. of Regents, 991 F.2d 628, 632 (10th Cir. 1993). In other words, time accrues from the moment Plaintiff “knows or has reason to know of the injury which is the basis of the action.” Baker, 991 F.2d at 632.
The thumb print incident-the basis of Plaintiff's unreasonable search and seizure claim-would have occurred on January 7, 2011. See Oklahoma County District Court, Case No. CF-2010-2243, supra note 3 (showing that voir dire occurred on January 10, 2011). Since the statute of limitations began to run on January 7, 2011, it expired two years later, on January 7, 2013. The alleged destruction of video footage-the basis of Plaintiff's procedural due process claim-occurred in 2016, meaning the statute of limitations expired in 2018. Plaintiff knew or had reason to know of the alleged violations as they arose but did not file this Complaint until August 24, 2023. Unless tolling principles operate to extend the statute of limitations, Plaintiff's Fourth Amendment and Fourteenth Amendment claims are time-barred.
Because the applicable statute of limitations for a § 1983 claim is derived from Oklahoma law, “state law [also] governs the application of tolling in a civil rights action.” Alexander v. Oklahoma, 382 F.3d 1206, 1217 (10th Cir. 2004); see also Fratus, 49 F.3d at 675 (applying state law tolling rules in § 1983 context). In Alexander, the Tenth Circuit stated:
In general, Oklahoma permits the tolling of a statute of limitations in two circumstances. First, the existence of a “legal disability” provides proper grounds for equitable tolling. See Okla. Stat. tit. 12 § 96 (West 2000). Although the exact definition of this term remains unclear, Oklahoma courts have applied this provision only for plaintiffs whose competency is impaired or who have not reached the age of majority. See e.g., Lovelace v. Keohane, 831 P.2d 624, 629 (Okla. 1992) (finding that those who could conduct their own business affairs over time are sufficiently competent to render them ineligible for “legal disability” tolling).
Second, the Oklahoma discovery rule tolls the statute of limitations “until an injured party knows of, or in the exercise of reasonable diligence, should have known of or discovered the injury, and resulting cause of action.” Id.
Therefore, if defendants engage in “false, fraudulent or misleading conduct” calculated to lull plaintiffs into sitting on their rights, the limitations period may not be triggered. Jarvis v. City of Stillwater, 732 P.2d 470, 473 (Okla. 1987); see also Hurt v. Garrison, 133 P.2d 547, 550 (1942) (holding a statute of limitations tolled during a period of fraudulent concealment).Alexander, 382 F.3d at 1217 (emphasis in original). Plaintiff does not suggest any basis under Oklahoma law for the tolling of the statute of limitations. See Miller v. Ford, 697 Fed.Appx. 611, 612 (10th Cir. 2017). Thus, Plaintiff's claims are barred by Oklahoma's two-year statute of limitations, and they should be dismissed with prejudice. See Rodriguez v. Colorado, 521 Fed.Appx. 670, 671 (10th Cir. 2013) (“[W]e treat a dismissal without prejudice as a dismissal with prejudice when the statute of limitations has run on the claims.”) (citing Gocolay v. N.M. Fed. Sav. & Loan Ass'n, 968 F.2d 1017, 1021 (10th Cir. 1992)).
VI. Plaintiff's Motion to Supplement Is Granted, but His Additional Claim Should Be Dismissed for Failure to State a Claim.
In Plaintiff's Motion to Supplement, he seeks to add ODOC Director Steven Harpe as a defendant, as well as to challenge the validity of the authority of ODOC officials and ODOC policies. (See Doc. 11). The court GRANTS Plaintiff's Motion to Supplement, but any claim alleged within the Motion to Supplement should be dismissed upon screening for failure to state a claim.
Plaintiff alleges that Defendant Harpe's “policy and its mandatory sanctions upon finding of guilt takes away an inmate's right to be from cruel and unusual punishments specifically the right to rehabilitate in which the 13th and 14 Amendment gives protection to since this is the cause for establishing reformatories and rights of Equality.” (Id. at 4).
Also, Plaintiff alleges that “unauthorized officials” operate the ODOC. (Id.) Plaintiff's articulation of his claims is too vague, confusing, and conclusory to plausibly state a claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 686 (2009) (“the Federal Rules do not require courts to credit a complaint's conclusory statements without reference to its factual context”); Garret v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (“the court cannot take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record”). Thus, Plaintiff's additional claims should be dismissed.
VII. Recommendation and Notice of Right to Object.
For these reasons, it is recommended that the Court DISMISS without prejudice Plaintiff's McGirt claim, the claims challenging the validity of his conviction, the claims of deliberate indifference to serious medical needs, and the claims challenging the validity of ODOC's policies and officials. It is also recommended that the court DISMISS with prejudice Plaintiff's illegal search and seizure and procedural due process claims. Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of Court by November 27, 2023, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Plaintiff is further advised that failure to timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. 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 and terminates the referral unless and until the matter is re-referred.