Opinion
CIV-22-789-R
12-22-2022
RAHEEM LA'MONZE PLATER Plaintiff, v. DAVID BOWERS, et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, MAGISTRATE JUDGE
Raheem La'Monze Plater, a state prisoner proceeding pro se, brings this action under 42 U.S.C. § 1983. Doc. 1. United States District Judge David L. Russell referred this matter to the undersigned Magistrate Judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B), (C). Docs. 5, 13.Plaintiff alleges he was sanctioned for four months without due process. The undersigned recommends the Court dismiss the complaint in its entirety for failure to state a claim upon which relief can be granted.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
I. Screening.
Federal law requires the Court to screen complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss the complaint, or any portion of the complaint, if it is “frivolous, malicious, or fails to state a claim upon which relief may be granted” or seeks monetary relief from a defendant who is immune from such relief. Id. §§ 1915A(b), 1915(e)(2)(B).
“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). The complaint must contain sufficient factual matter, accepted as true, to “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. (citing Twombly, 550 U.S. at 556); see also Gee v. Pacheco, 627 F.3d 1178, 1184 (10th Cir. 2010).
This Court construes “[a] pro se litigant's pleadings . . . liberally,” holding them “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). The Court, however, may not serve as Plaintiff's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
II. Plaintiff's claims.
Plaintiff's claims arise from Plaintiff's discovery of a “sharpened instrument.” Doc. 1, Att. 1, at 5. Plaintiff says he intended to “concede possession” of the sharpened instrument “to assist with prison security.” Id. Plaintiff was found not guilty of possession of a sharpened instrument during his initial disciplinary hearing. Id. Att. 7. “[T]he facility head ordered a rehearing” the next day, and Plaintiff was then found guilty. Id. Upon review of that guilty finding, the facility director's designee determined Plaintiff had not been provided due process, as “the facility head . . . may order a rehearing of a find of not guilty . . . only if approved in writing by” an appropriate director. Id. The director's designee's findings also explained that “[r]ehearings must be conducted within 15 days from the date of the order.” Id.
Plaintiff alleges “Defendant Bowers undermined Due Process d[e]liberately and recklessly refusing to [] obtain approval (in writing) from the director . . . prior to ordering a rehearing.” Doc. 1, Att. 1, at 5. He also alleges “Bowers then undermined the” directive to “conduct the rehearing in 15 days in order to extend the effect of the guilty sanctions for two months longer than normally possible.” Id. Plaintiff alleges he was thus “denied priv[i]l[e]ges he should not have been due to Bowers['] abuse of authority” from May 14, 2021, through September 24, 2021. Id.
Plaintiff first claims Defendant Bowers violated his procedural and substantive due process rights and equal protection rights by declining to conduct a rehearing after his guilty finding was overturned and “wa[iting] two months before dismissing the misconduct.” Doc. 1, at 7. Plaintiff also claims Bowers' alleged abuse of power constituted fraud under Oklahoma law and “common law, actual and constructive.” Id.
III. Discussion.
A. The Court should dismiss Plaintiff's due process claim.
Plaintiff claims Defendant Bowers stripped him of unspecified privileges for four months without due process. 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.
The Due Process Clause encompasses two distinct forms of protection: (i) procedural due process, which requires a state to employ fair procedures when depriving a person of a protected interest; and (ii) substantive due process, which guarantees that a state cannot deprive a person of a protected interest for certain reasons.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). Plaintiff alleges deprivation of both his procedural and substantive due process rights. Doc. 1, at 6.
“The threshold inquiry in a due process analysis is to identify whether a protected liberty interest is at stake.” Marshall v. Ormand, 572 Fed.Appx. 659, 661 (10th Cir. 2014) (citing Wilkinson v. Austin, 545 U.S. 209, 221 (2005)). In other words, “[w]hen a plaintiff claims denial of due process, the court inquires into the nature of the individual's claimed interest ‘to determine whether due process requirements apply in the first place.'” Jenner v. McDaniel, 123 Fed.Appx. 900, 905 (10th Cir. 2005) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 570-71 (1972)); Parker v. Sirmons, 152 Fed.Appx. 705, 708 (10th Cir. 2005) (“[T]he majority of other circuits to address the question have found that the requirement of a state-created liberty interest is the threshold requirement for any due process claim-whether substantive or procedural.”) (collecting cases).
Although “[i]t is well settled that due process protections extend to prisoners, [] the extent of that protection is significantly less than that guaranteed to free persons.” Est. of DiMarco v. Wyo. Dep't of Corr., Div. Of Prisons, 473 F.3d 1334, 1339 (10th Cir. 2007) (citing Wolff v. McDonnell, 418 U.S. 539, 555-57 (1974)). “The Due Process Clause standing alone offers prisoners only a ‘narrow range of protected liberty interests.'” Abbott v. McCotter, 13 F.3d 1439, 1442 (10th Cir. 1994) (quoting Hewitt v. Helms, 459 U.S. 460, 467 (1983)).
Plaintiff does not state what privileges he was denied during his four-month sanction period, so the Court cannot perform this threshold inquiry to determine whether Plaintiff has a liberty interest in the privileges Defendants allegedly deprived him of.The undersigned therefore concludes that Plaintiff's due process claim is not “plausible on its face,” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570), and must be dismissed under § 1915A(b).
There are “two strands of the substantive due process doctrine. One strand protects an individual's fundamental liberty interests, while the other protects against the exercise of governmental power that shocks the conscience.” Seegmiller v. LaVerkin City, 528 F.3d 762, 767 (10th Cir. 2008). A prisoner's substantive due process “claim is ‘essentially coextensive with Eighth Amendment prohibitions against cruel and unusual punishment, and . . . the Eighth Amendment serves as the primary source of protection for convicted prisoners.'” Brown v. Chandler, 111 Fed.Appx. 972, 976 (10th Cir. 2004) (quoting Lunsford v. Bennett, 17 F.3d 1574, 1583 (7th Cir. 1994)). The Eighth Amendment “proscribes more than physically barbarous punishments.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). Prison conditions that “deprive inmates of the minimal civilized measure of life's necessities” may be cruel and unusual. Rhodes v. Chapman, 452 U.S. 337, 347 (1981). “[T]he ‘core areas' of any Eighth Amendment claim are shelter, sanitation, food, personal safety, medical care, and adequate clothing,” Clemmons v. Bohannon, 956 F.2d 1523, 1527 (10th Cir. 1992), as modified (Feb. 14, 1992), but “the infliction of psychological pain can violate the Eighth Amendment.” Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 810 (10th Cir. 1999). Because Plaintiff identifies no privileges he was deprived of, the Court cannot determine whether the nature of the deprivation falls within the ambit of the Eighth Amendment or the coextensive substantive due process protections.
B. The Court should dismiss Plaintiff's equal protection claim.
Plaintiff also claims that by stripping him of unspecified privileges, Defendants violated his equal protection rights. U.S. CONST. amend. XIV, § 1. “The Equal Protection Clause ‘keeps governmental decision makers from treating differently persons who are in all relevant respects alike.'” Soskin v. Reinertson, 353 F.3d 1242, 1247 (10th Cir. 2004) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)). “This provision creates no substantive rights. Instead, it embodies a general rule that States must treat like cases alike but may treat unlike cases accordingly.” Vacco v. Quill, 521 U.S. 793, 799 (1997). “Plaintiff does not allege Defendant [Bowers] treated him differently than a similarly situated individual or group” and has therefore failed to state an equal protection claim. Benshoof, 2022 WL 4287936, at *3-4. The undersigned concludes that Plaintiffs equal protection claim is not “plausible on its face,” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570), and must also be dismissed under § 1915A(b).
C. The Court should dismiss Plaintiff's fraud claims.
Plaintiff next claims Defendant Bowers' conduct constituted fraud under Oklahoma law and common law, “actual and constructive.” This Court lacks jurisdiction to consider Plaintiffs fraud claims.
“Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). Because Plaintiff has not alleged that the parties are diverse, this Court cannot exercise diversity jurisdiction under 28 U.S.C. § 1332(a). The Court must therefore consider whether Plaintiffs complaint provides any basis for federal question jurisdiction under 28 U.S.C. § 1331. “[F]ederal question jurisdiction depends upon alleging a federal claim ‘arising under the Constitution, laws or treaties of the United States.'” Nahno-Lopez v. Houser, 627 F.Supp.2d 1269, 1277 (W.D. Okla. 2009) (quoting § 1331), aff'd, 625 F.3d 1279 (10th Cir. 2010).
Plaintiffs fraud claim based on Oklahoma law does not establish federal question jurisdiction under § 1331, nor does his claim of common law fraud. See Mehio v. Sonntag, 463 Fed.Appx. 804, 805 (10th Cir. 2012) (“[Plaintiffs] complaint appears to assert a common law fraud claim. Such a claim does not establish federal question jurisdiction because it does not ‘aris[e] under the Constitution, laws, or treaties of the United States.'” (quoting 28 U.S.C. § 1331) (second alteration in original)).
Plaintiff also cannot use § 1983 as a vehicle to invoke this Court's subject matter jurisdiction. “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 . . . .” West v. Atkins, 487 U.S. 42, 48 (1988); see also 42 U.S.C. § 1983 (creating a private cause of action when persons acting under color of State law violate another's “rights, privileges, or immunities secured by the Constitution and laws”). “An action under § 1983 [] cannot be maintained on the basis of alleged violations of state law.” Stanko v. Maher, 419 F.3d 1107, 1117 (10th Cir. 2005). And while “§ 1983 generally supplies a remedy for the vindication of rights secured by federal statutes,” nothing “short of an unambiguously conferred right” will “support a cause of action brought under § 1983.” Gonzaga University v. Doe, 536 U.S. 273, 283-84 (2002). Plaintiff asserts no such right here, so he cannot state a claim under § 1983.
The undersigned therefore recommends dismissal of Plaintiffs fraud claims. F.M. Erikson Revocable Tr. v. Chesapeake Operating, Inc., No. CIV-13-757-D, 2013 WL 5592629, at *3 (W.D. Okla. Oct. 10, 2013) (“A court ‘must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.'”) (quoting Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th Cir. 2013)).
IV. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court dismiss Plaintiff's complaint without prejudice and with leave to amend within twenty days of any order adopting this report and recommendation.
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 January 12, 2023, 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.
ENTERED