Opinion
CIV-22-1087-JD
06-28-2023
CHARLES EDWARD WEIMER, Plaintiff, v. FRED COLSON SMITH JR., et al., Defendants.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner proceeding pro se, has filed this action pursuant to 42 U.S.C. § 1983. (Doc. 1). The matter was referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Docs. 4, 9). The undersigned has reviewed the Complaint (Doc. 1) pursuant to 28 U.S.C. § 1915A(a) and 28 U.S.C. § 1915(e)(2)(B). As explained fully below, it is recommended that the Court DISMISS the Complaint as barred by the statute of limitations.
I. The Court's Duty to Screen Prisoner Complaints
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. A court may “consider affirmative defenses sua sponte” for the purpose of dismissal under 28 U.S.C. § 1915 “when the defense is obvious from the face of the complaint and no further factual record is required to be developed.” Fratus v. Deland, 49 F.3d 673, 674-675 (10th Cir. 1995) (quotations and alterations omitted).
II. Standard of Review
The court's review of a complaint under § 1915A(b)(1) mirrors that required for reviewing a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. 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 “review[s] the complaint for plausibility; that is, to 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). A complaint fails to state such a claim when it lacks factual allegations sufficient “to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (footnote and citation omitted). Bare legal conclusions in a complaint, however, 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).
“[A] pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (noting that although courts construe pro se pleadings liberally, courts “will not supply additional factual allegations to round out a plaintiff's complaint”). 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.” Iqbal, 556 U.S. at 679; see also Gee v. Pacheco, 627 F.3d 1178, 1184-85 (10th Cir. 2010) (discussing Iqbal). “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall, 935 F.2d at 1110. 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).
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. App'x 928, 929 (10th Cir. 2013) (unpublished) (“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); 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 ....”).
III. Overview of Complaint
Plaintiff was charged in Comanche County District Court on January 30, 2012, with Murder in the First Degree-Child Abuse. See Oklahoma State Courts Network, Case No. CF-2012-39, District Court of Comanche County.On June 3, 2014, Plaintiff was convicted by a jury and sentenced to life imprisonment. Id. Plaintiff is currently incarcerated at the Great Plains Correctional Center in Hinton, Oklahoma. See Oklahoma Department of Corrections OK Offender, https://okoffender.doc.ok.gov/ (OK DOC# 702804).
https://www.oscn.net/dockets/GetCaseInformation.aspx?ct=Comanche&number=CF-2012-39 (Docket Sheet) (last visited June 28, 2023). The undersigned takes judicial notice of the docket sheet 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).
In his Complaint, Plaintiff provides a brief overview of the facts involved in his criminal case. Plaintiff and J.P.G. (a minor) resided on the military base in Fort Sill, Oklahoma, when J.P.G. died. (Doc. 1, at 12). Plaintiff alleges that J.P.G. fell down the stairs at their apartment complex, resulting in his death. (Id. at 12-13). An autopsy concluded that J.P.G. died from blunt force trauma to the abdomen. (Id. at 13).
Liberally construing his Complaint, Plaintiff claims that he was subjected to violations of his Fourth, Sixth, and Fourteenth Amendment rights, along with various state law violations that led to his criminal charges and conviction. (Doc. 1). Plaintiff appears to bring multiple causes of action against nine defendants:
While the court construes pro se filings liberally, Plaintiff's Complaint is difficult to follow. Plaintiff has a “Cause of Action” section in his Complaint, but it is unclear exactly what grounds for relief are brought. The court interprets the 61 numbered paragraphs in the Complaint to bring 13 grounds for relief. (Doc. 1, at 12-31).
(1) Defendant Chuck Miller's probable cause affidavit was a “bare bones” affidavit. (Id. at 13).
(2) Plaintiff's detention was improper as there was no reasonable ground to believe Plaintiff had committed the offense. (Id.)
(3) Defendant Irma Newburn improperly swore to the probable cause affidavit that lacked reasonably trustworthy information to believe the offense had occurred. (Id. at 14).
(4) Defendant Charles Whittington improperly acquired the medical records of J.P.G., an individual who died on a military base, without a court order or subpoena. (Id. at 15-16).
(5) Defendants Whittington and Miller violated the Posse Comitatus Act to gather J.P.G.'s medical records, which were used to obtain Plaintiff's conviction. (Id. at 16).
(6) Defendant Eric Pfeifer, acting as the Chief Medical Examiner, improperly acquired J.P.G.'s medical records without a court order or subpoena. (Id. at 16-17). Defendant Pfeifer failed to take steps to rectify the jurisdictional issues relating to the investigation into J.P.G.'s death. (Id. at 18).
(7) Defendant Yacoub improperly accessed medical records without a court order or subpoena. (Id. at 17). Defendant Yacoub conducted a forensic pathological investigation of J.P.G., an individual who died at a military base, in an area under the exclusive jurisdiction of the United States. (Id. at 17-18). Defendant Yacoub lacked jurisdiction to investigate the death of J.P.G., and her unlawful investigation caused the unreasonable seizure of Plaintiff, violating his Fourth Amendment rights. (Id. at 19). Yacoub's investigation was incomplete as she failed to review the emergency room notes on J.P.G.'s admittance to the hospital. (Id.)
(8) Defendant Fred Colson Smith prosecuted Plaintiff for a charge he knew lacked probable cause. (Id. at 17). Defendant Smith failed to disclose that the pathologist lacked jurisdiction to conduct investigations on military bases, including the investigation into J.P.G.'s death. (Id. at 18-19).
(9) No grand jury was impaneled in the case against Plaintiff, violating his Fourth Amendment rights. (Id. at 19).
(10) Defendant Newburn filed a “duplicitous-disjunctive Amended Information,” violating Plaintiff's Fourteenth Amendment rights. (Id. at 20-21). The Amended Information charged “three distinct underlying felonies in a single [count] of first degree murder,” violating Plaintiff's Fourteenth Amendment right to due process. (Id.)
(11) 21 O.S. § 701.7(C), the first-degree murder statute Petitioner was convicted under, is inconsistent in that it requires both general and specific intent. (Id. at 22). The murder statute as written is unconstitutional when the death penalty is a possible punishment, as the intent required under the statute does not match the intent determined by the U.S. Supreme Court in Enmund v. Florida. (Id. at 23).
(12) Plaintiff was denied the right to have state forensic pathologist Defendant Yacoub at a hearing prior to trial to determine the procedures used in the autopsy of J.P.G., violating Plaintiff's due process rights. (Id. at 23-25). Plaintiff was denied the state law right to have a pretrial reliability determination on Dr. Yacoub's expert testimony. (Id. at 25).
(13) Improper introduction of photographs confused and misled the jury. (Id. at 29-31).For relief, Plaintiff seeks:
(1) compensatory damages against Defendants Whittington, Miller, Newburn, Smith, and Yacoub for violating the United States Constitution, federal law, and state law;
(2) the Court Clerk to notify the Professional Responsibility Commission of the Oklahoma Bar Association and the Attorney General of Oklahoma of the violations alleged by Plaintiff;
(3) declaratory relief stating that Defendant Whittington obtained the medical records of J.P.G. in violation of federal law;
(4) compensatory damages against Defendant Whittington for obtaining the medical records of J.P.G. in violation of HIPAA and Plaintiff's Fourth and Fourteenth Amendment rights;
(5) declaratory relief stating the Oklahoma Office of the Chief Medical Examiner obtained the medical records of J.P.G. contrary to federal law;
(6) injunctive relief enjoining the Oklahoma Office of the Chief Medical Examiner-Central Office from conducting pathological investigations or accessing medical records when a person dies at a military base;
(7) compensatory damages against Defendant Pfeifer for allowin3g the investigation of J.P.G.'s death;
(8) compensatory damages against Defendant Yacoub for violating Plaintiff's Fourth and Fourteenth Amendment rights and violating HIPPA;
(9) declaratory relief stating the Oklahoma Office of the Chief Medical Examiner violated state law during the investigation into the death of J.P.G.;
(10) declaratory relief stating that the Comanche County District Attorney violated the Sixth and Fourteenth Amendments through the practice of charging by a duplicitous-disjunctive information on first-degree murder charges;
(11) compensatory damages against Defendant Smith for supervising the illegal investigation;
(12) compensatory damages against Defendant Newburn in her individual capacity;
(13) declaratory relief “stating to the Office of the Secretary of Defense that: 1.) Under regulations prescribed by the Secretary of Defense, the Armed Forces Medical Examiner may conduct a forensic pathology investigation to determine the cause or manner of death of a deceased person if such an investigation is determined to be justified; 2.)
Determination of justification shall be made by the Armed Forces Medical Examiner; 3.) A commander may make the determination that a circumstance exists under paragraph (2) of subsection (b) and require a forensic pathology investigation under section 1471 without regard to a determination made by the Armed Forces Medical Examiner; and 4.) The authority of the Armed Forces Medical Examiner to conduct a forensic pathology investigation of a decedent who died at an installation garrisoned by units of the armed forces that is under the exclusive jurisdiction of the United States;” and
(14) injunctive relief requiring the Secretary of Defense to direct the Armed Forces Medical Examiner to conduct the forensic pathology investigation when a death occurs on a military base.(Id. at 3-9). Plaintiff also
(15) “seeks declaratory relief calling the procedure used by [the trial judge] to determine the reliability of Dr. Yacoub's testimony - used to deny the appropriate § 2702 inquiry i.e. Daubert hearing - unconstitutional. [Plaintiff] seeks injunctive relief that will render invalid the state court's procedure used to allow Yacoub's testimony to be admitted - which by the same token denied the appropriate § 2702 inquiry i.e. Daubert hearing.” (Id. at 27). Similarly, Plaintiff seeks “injunctive relief ordering the state district court, i.e. trial court, to conduct an evidentiary hearing to determine whether state forensic pathologist Dr. Yacoub's testimony was ‘the product of reliable principles and methods' pursuant to 12 O.S. § 2702; and/or in the alternative, an order to the state criminal appellate court to ‘review de novo the question of whether the district court applied the proper standard and actually performed its gatekeeper role in the first instance.'” (Id. at 29).
IV. Analysis
A. Certain of Plaintiff's Claims Are Barred by Heck v. Humphrey.
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 Edwards v. Balisok, 520 U.S. 641, 648 (1997) (declaratory relief). See also Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (“[A] state prisoner's § 1983 action is barred (absent prior invalidation) - no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings) -if success in that action would necessarily demonstrate the invalidity of the confinement or its duration.”).
Many of Plaintiff's alleged violations attack the procedures used to investigate and charge him, the evidence used to convict him, as well as the constitutionality of the first-degree murder statute under which he was convicted. Success on some of these claims would necessarily imply the invalidity of Plaintiff's conviction. Because the conviction has not been invalidated, these claims are barred by Heck and should be dismissed without prejudice. See e.g., Goodwin v. Weiser, No. 20-1448, 2021 WL 5231962 at *1 (10th Cir. Nov. 10, 2021) (agreeing Plaintiff's claims were barred by Heck as “Plaintiff's attack on the constitutionality of the marijuana statute necessarily attacks the constitutionality of his conviction [violating the same marijuana statute] and thus the validity of the state court conviction for which he is confined”). The court need not determine with precision which claims are barred by Heck because it finds below that all of Plaintiff's claims are barred by the statute of limitations.
To the extent that Plaintiff's claims challenge the validity of his conviction, Plaintiff's sole remedy is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Wilkinson, 544 U.S. at 78 (reiterating prior holdings 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 citations omitted). The undersigned declines to construe the Complaint to assert any claim for habeas relief because such a construction could effectively prevent Plaintiff from raising other claims challenging his conviction and sentence. Moreover, there is nothing in the record of this action showing that Plaintiff has satisfied other statutory requirements to invoke the Court's federal habeas jurisdiction, including exhaustion of state court remedies and timeliness requirements.
B. Plaintiff's Claims Are Barred By the Statute of Limitations.
Regardless of whether Plaintiff's claims are barred by Heck, all of Plaintiff's claims are barred by the statute of limitations. The statute of limitations for § 1983 claims is derived from the applicable state law for private tort actions. Gilyard v. Gibson, 612 Fed. App'x. 486, 487 (10th Cir. 2015); Robbin v. City of Santa Fe, 583 Fed. App'x. 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.
Plaintiff lists some specific dates in his Complaint for some of his claims, but it is clear on its face that all of the claims relate to events occurring between January 2012, when J.P.G. died and the investigation began, through June 2014, when Plaintiff was convicted of his murder. Plaintiff knew or had reason to know of the alleged violations as they arose. At the latest, Plaintiff's statute of limitations began to run on June 3, 2014, the date he was convicted. See Marshall v. Dix, 2022 WL 16924019 (D. Colo. Nov. 14, 2022) (Plaintiff sued over the alleged fabrication of evidence in a criminal case; held that the cause of action accrued at the outcome of plaintiff's criminal case when the complaint “identifies easily identifiable, discrete acts of wrongdoing that are individually actionable”). Thus, the statute of limitations expired two years later, on June 3, 2016. However, Plaintiff did not file this Complaint until December 22, 2022. Therefore, unless tolling principles operate to extend the statute of limitations, Plaintiff's § 1983 causes of action are 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. App'x. 611, 612 (10th Cir. 2017). Thus, Plaintiff's Complaint fails to state a claim pursuant to 28 U.S.C. § 1915A(b) because it is barred by Oklahoma's two-year statute of limitations; thus the Complaint should be dismissed with prejudice. See Rodriguez v. Colorado, 521 Fed. App'x 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)).
V. Recommendation and Notice of Right to Object.
In accordance with the foregoing analysis, the undersigned recommends that the Court DISMISS Plaintiff's Complaint (Doc. 1) with prejudice as it is barred by the statute of limitations.
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before July 19, 2023, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to file a timely objection to this Report and Recommendation waives his 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.