United States District Court, W.D. Oklahoma
Timothy D. DeGiusti, United States District Judge.
matter is before the Court for review of the Report and
Recommendation issued March 13, 2019, by United States
Magistrate Judge Shon T. Erwin pursuant to 28 U.S.C. §
636(b)(1)(B) and (C). Upon initial screening of the Amended
Complaint, Judge Erwin finds that it should be summarily
dismissed for failure to state a claim upon which relief can
be granted. See 28 U.S.C. § 1915A(b)(1). Judge
Erwin recommends a dismissal without prejudice to a future
filing of a habeas action under 28 U.S.C. § 2254, but a
dismissal with prejudice to refiling a civil rights action
under 42 U.S.C. § 1983. Judge Erwin also recommends that
the dismissal of Plaintiff's § 1983 claims count as
a “prior occasion” or strike under 28 U.S.C.
§ 1915(g). See Coleman v. Tollefson, 135 S.Ct.
1759, 1763 (2015).
who appears pro se, has filed a timely Objection
[Doc. No. 20]. Liberally construed, the Court understands
that Plaintiff challenges only Judge Erwin's findings as
to the sufficiency of the Amended Complaint to state a §
1983 claim. Specifically, Plaintiff challenges Judge
Erwin's conclusions that: 1) Defendant Johnnie
O'Neal, an attorney in the Tulsa County Public
Defender's office, was not acting under color of state
law; and 2) Plaintiff has no liberty interest in parole
protected by the Due Process Clause, and so fails to state a
claim against Defendant Erika Denton (or any potential
defendant from the Oklahoma Pardon and Parole Board) based on
his consideration for parole. The Court must make a de
novo determination of portions of the Report to which a
specific objection is made, and may accept, modify, or reject
the recommended decision. See 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b)(3).
de novo consideration of the issue of whether the
Amended Complaint alleges state action by Defendant
O'Neal, the Court concurs in Judge Erwin's analysis.
Plaintiff claims that Mr. O'Neal fired the attorney
originally assigned to Plaintiff's criminal case,
replaced the attorney by assigning himself (Mr. O'Neal)
and another attorney to represent Plaintiff, and then failed
to properly defend the case. See Am. Compl. [Doc.
No. 18] at 3, Count I. Plaintiff seeks to distinguish his
allegations from those concerning performance of “a
lawyer's traditional functions” - which do not
constitute state action under Polk County v. Dodson,
454 U.S. 312 (1981) - by emphasizing that his claim also
concerns Mr. O'Neal's action, as a supervisor, of
firing Plaintiff's assigned attorney and “us[ing]
his authority to deprive [Plaintiff] of effective
counsel.” See Obj'n at 1.
is correct that “the determination whether a public
defender is a state actor for a particular purpose depends on
the nature and context of the function he is
performing.” See Georgia v. McCollum, 505 U.S.
42, 54 (1992). The Court left open the question in Polk
County of whether a public defender “would act
under color of state law while performing certain
administrative and possibly investigative functions.”
Polk County, 454 U.S. at 325. For example, the Court
later held in a case brought by terminated county employees
“that a public defender, in making personnel decisions
on behalf of the State, is a state actor who must comply with
constitutional requirements.” McCollum, 505
U.S. at 54 (citing Branti v. Finkel, 445 U.S. 507
case, however, the only possible basis for Plaintiff to
assert a § 1983 claim against Mr. O'Neal is his
conduct in Plaintiff's criminal case, not a personnel
matter. “Plaintiffs alleging a violation of § 1983
must demonstrate they have been deprived of a right secured
by the Constitution and the laws of the United States, and
that the defendants deprived them of this right acting under
color of law.” Jenkins v. Currier, 514 F.3d
1030, 1032 (10th Cir. 2008) (footnote omitted). The only
constitutional right of which Mr. O'Neal allegedly
deprived Plaintiff was his right to competent counsel in the
defense of his criminal case. Mr. O'Neal's staffing
and strategy decisions with respect to Plaintiff's
criminal case fall squarely within the traditional functions
of a public defender that do not constitute state action
under the holding of Polk County. See Briscoe v.
LaHue, 460 U.S. 325, 329 n.6 (1983) (“even though
the defective performance of defense counsel may cause the
trial process to deprive an accused person of his liberty in
an unconstitutional manner, the lawyer who may be responsible
for the unconstitutional state action does not himself act
under color of state law within the meaning of §
1983”) (citations omitted). Accordingly, Plaintiff
fails to allege that Mr. O'Neal was a state actor for
purposes of a § 1983 claim against him.
upon de novo consideration of the issue of whether
the Amended Complaint alleges a violation of the Due Process
Clause, the Court fully concurs in Judge Erwin's
analysis. Judge Erwin finds that Oklahoma's statutory
scheme for parole consideration does not create a liberty
interest. See R & R at 6 (quoting Shirley v.
Chestnut, 603 F.2d 805 (10th Cir. 1979)). Plaintiff
attempts to distinguish this authority by asserting that
“the Tenth Circuit did not consider Article VI §
10 of the Oklahoma Constitution in deciding
Shirley.” See Obj'n at 1.
is clear, however, that unless a prisoner has an expectation
of parole under a law that sufficiently limits the parole
board's exercise of discretion, the prisoner has no
liberty interest protected by the Due Process Clause. See
Boutwell v. Keating, 399 F.3d 1203, 1212-13 (10th Cir.
2005); see also Jago v. Van Curen, 454 U.S. 14,
20-21 (1981). “[T]the mere existence of a power to
commute a lawfully imposed sentence, and the granting of
commutations to many petitioners, create no right or
‘entitlement.'” See Conn. Bd. of Pardons
v. Dumschat, 425 U.S. 458, 467 (1981). Plaintiff relies
solely on a provision of the Oklahoma Constitution that does
not limit the Oklahoma Pardon and Parole Board's exercise
of discretion and so does not create a protected liberty
interest.Therefore, Plaintiff's Objection
regarding Counts II and III of the Amended Complaint lacks
these reasons, the Court finds that Judge Erwin's
findings and recommendations should be adopted in their
THEREFORE ORDERED that the Report and Recommendation [Doc.
No. 19] is ADOPTED. The Amended Complaint is DISMISSED
without prejudice to a future habeas action but with
prejudice to refiling a civil rights action against
Defendants. A separate judgment of dismissal shall be
entered. The dismissal shall be counted as a “prior
occasion” or strike pursuant to 28 U.S.C. §
IS SO ORDERED.
The Court adopts the
caption used by the magistrate judge, substituting the
first-named defendant in the Amended Complaint for the
defendant named in the original Complaint, which was