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Tabb v. Hilligoss

United States District Court, W.D. Oklahoma

March 30, 2018

JOHN HILLIGOSS, et al., Defendants.



         This matter is before the Court for review of the Supplemental Report and Recommendation [Doc. No. 38] issued by United States Magistrate Judge Gary M. Purcell pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). Judge Purcell recommends granting the Motion for Summary Judgment of Defendants John Hilligoss and Nicky Gillespie [Doc. No. 32], denying Plaintiff's Motion for Disposition [Doc. No. 31], and dismissing without prejudice the action against Defendant A. Martin pursuant to 28 U.S.C. § 1915(e)(2)(B).

         Plaintiff Dominque Tabb, a state prisoner appearing pro se and in forma pauperis, has filed a timely written objection to the Supplemental Report. Thus, the Court must “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see Fed. R. Civ. P. 72(b)(3). The Court “may accept, reject or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3); see 28 U.S.C. § 636(b)(1).

         This civil rights action under 42 U.S.C. § 1983 involves claims that Plaintiff's constitutional rights were violated by Defendants Hilligoss, Gillespie, and Martin during his confinement at Cimarron Correctional Center (“CCF”). Specifically, Claim 1 of the Complaint alleges that Defendants denied Plaintiff equal protection and engaged in racial discrimination against him (an African American) with regard to housing assignments. Claim 2 alleges that Defendants Hilligoss and Gillespie denied Plaintiff due process by placing him in segregation and “protective measures” status without following proper procedures. See Compl. [Doc. No. 1] at 12. Claim 3 alleges that Defendants acted with deliberate indifference to Plaintiff's safety when he refused certain housing assignments due to his criminal convictions (lewd or indecent proposals or acts to a child). Judge Purcell finds no merit in these claims based on the undisputed facts shown by the record, and finds as to Defendant Martin that the well-pleaded factual allegations of the Complaint do not state a plausible claim against her.[1]

         In his Objection, Plaintiff challenges statements made by Judge Purcell on almost every page of the 28-page Supplemental Report except ones stating legal standards and principles. For ease of discussion, the Court will address Plaintiff's arguments according to subheadings of the Supplemental Report.[2]

         Liberally construing Plaintiff's Objection, he asserts as a preliminary matter that Judge Purcell's Report should be rejected due to “an obvious bias toward Defendants.” See Pl.'s Obj. [Doc. No. 39] at 1. Judge Purcell allegedly presents policies of the Oklahoma Department of Corrections (“ODOC”) in a manner favorable to Defendants, and accepts their affidavits as true while disregarding contrary evidence. Upon consideration, the Court finds that Plaintiff simply disagrees with Judge Purcell's findings and conclusions, as discussed infra. Plaintiff presents no factual basis for a claim of judicial bias. See United States v. Nicki, 427 F.3d 1286, 1298 (10th Cir. 2005) (claim of bias requires “sufficient factual grounds . . . to cause a reasonable, objective person, knowing all the relevant facts, to question the judge's impartiality;” ordinarily, a judge's words in the context of judicial proceedings “are insulated from charges of bias” and “adverse rulings cannot in themselves form the appropriate grounds for disqualification”). Therefore, the Court overrules this part of Plaintiff's Objection.

         Judge Purcell summarizes in a “Background” section of the Supplemental Report the pertinent ODOC policy, “Inmate Housing, ” OP-030102. Although Plaintiff disagrees with some wording of the summary, his only substantive objection concerns the portion of the policy applicable to his housing assignment. Plaintiff states, correctly, that his assignment at CCF was generally governed by part III(A), which states: “Unrestricted (UR) inmates requiring a housing/cell assignment will be given the first available and appropriate assignment.” See Special Report, Ex. 1 [Doc. No. 21-1] at 5. The remainder of Plaintiff's Objection concerning this section of the Supplemental Report consists of argument regarding an appropriate housing assignment for him. This argument is based on factual assertions that are unsupported by any citation to the record, and therefore, it is disregarded.[3]

         Turning to Judge Purcell's statement of “Uncontroverted Facts, ” Plaintiff challenges only certain parts of paragraphs 2-5, 7, 9, 13 and 14. The Court adopts all other facts stated by Judge Purcell as though fully set forth herein. See R&R at 8-13. Many disputed factual matters are not material to a resolution of Plaintiff's claims. For example, Plaintiff asserts that paragraph 2 erroneously states he was initially placed in Golf Unit (a general population, arrival pod) but he actually spent the first two days at CCF in Delta South before being moved to Golf Unit. This assertion, although correct, is immaterial to any legal issue.[4] The Court finds no need to resolve disputes that are immaterial to a disposition of the pending Motions.

         Plaintiff objects to paragraph 3, which is relevant to his claims. Plaintiff agrees with Judge Purcell's statement that the housing unit where Plaintiff refused to be placed in May 2016, Echo Delta, was a general housing pod. Plaintiff objects to Judge Purcell's omission of the fact that Echo Delta was also a “security threat group” or STG pod that housed members of certain gangs. Plaintiff was not a member of a gang, and does not contend he had been threatened by any inmate in Echo Delta. According to Plaintiff, however, his criminal convictions would present a safety risk among STG inmates (if disclosed to them), thus making an STG pod an inappropriate placement.[5]

         Regarding paragraph 4, Plaintiff does not dispute he was placed in administrative segregation after he refused the May 2016 housing assignment. He objects only to Judge Purcell's statement that the placement was consistent with ODOC housing policy. Plaintiff observes, correctly, that OP-030102 states an inmate's refusal of a housing or cell assignment for no documented reason may be grounds for discipline. Although Plaintiff viewed the segregation placement as punitive, he was not charged with misconduct for the refusal nor placed in disciplinary segregation. By his own account, Plaintiff was placed in “protective measures/administrative segregation.” See Tabb Aff., ¶ 5; Obj. at 4 (“Plaintiff was placed onto Alpha South (protective measures) [on] . . . May 12, 2016.”).

         1. Equal Protection Claim

         The crux of Claim 1 is an allegation that Plaintiff was treated more harshly than a Caucasian inmate who engaged in the same conduct. Plaintiff alleges that when a white inmate refused a reassignment to Echo Delta on May 11, 2016, he was allowed to return to Golf unit, but when Plaintiff was directed to take the assignment to Echo Delta and refused, he was sent to administrative segregation.[6]

         To establish an equal protection violation, Plaintiff must “show the defendants treated him differently than other similarly situated prisoners.” Brewer v. Gilroy, 625 Fed.Appx. 827, 838 (10th Cir. 2015) (unpublished) (citing Fogle v. Pierson, 435 F.3d 1252, 1261 (10th Cir. 2006)).[7] The facts on which Plaintiff relies to support his equal protection claim do not show different treatment of similarly situated inmates. Accepting the facts shown by Plaintiff, he refused to go to Echo Delta due to concern about being a sex offender in an STG pod, and he was placed into administrative or “protective measures” segregation after he raised this safety concern about his cell assignment. There is no allegation the white inmate expressed a similar concern or refused for a similar reason, assuming he refused at all. Plaintiff presents no facts to show that the white inmate, who remains unidentified, was comparable to Plaintiff with regard to inmate characteristics that are pertinent to housing or cell assignments. See Pl.'s Obj., Ex. A [Doc. No. 39-1] at 3, § 4 (ODOC cell assessment form, listing “compatibility characteristics” to be considered in making appropriate cell assignment for unrestricted inmates).

         Further, to establish racial discrimination, Plaintiff must show Defendants “were motivated by racial animus.” See Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1269 (10th Cir. 1989) (citing Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265 (1977)). Plaintiff does not contend Defendants acted with discriminatory intent or purpose in making the May 2016 cell assignment, and he presents no facts from which to infer that Defendants' decision to place him in administrative segregation was racially motivated. See, e.g., Mallard v. Tomlinson, 206 Fed.Appx. 732, 735-36 (10th Cir. 2006) (unpublished) ...

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