United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL CHIEF JUDGE UNITED STATES DISTRICT COURT.
the Court is James Michael Phillips' pro se
civil rights complaint (Doc. 1). He contends Defendants
cancelled the Tulsa County Jail's Westlaw subscription
and placed him in solitary confinement. Also before the Court
are Plaintiffs motions for leave to proceed in forma
pauperis (Doc. 2) and to appoint counsel (Doc. 3).
Having reviewed the matter sua sponte under 28
U.S.C. § 1915A, the Court will grant the in forma
pauperis motion; deny the motion to appoint counsel; and
direct Plaintiff to amend his complaint.
2018, Plaintiff was detained at the David L. Moss Criminal
Justice Center (the "Jail") in Tulsa, Oklahoma.
(Doc. 1 at 6). Plaintiff was awaiting trial on Oklahoma
robbery charges and preparing a habeas petition in connection
with an unrelated Kansas murder conviction. (Doc. 1 at 6, 8).
On or about July 23, 2018, Plaintiff visited the law library
and discovered the Jail's Westlaw subscription had been
cancelled. (Doc. 1 at 6). Plaintiff complained that he was
a pro se litigant and needed Westlaw to research
case law in support of his habeas petition. (Id.).
According to Plaintiff, the available hardcopy materials,
such as codes, statutes, and rules, were mostly outdated by
more than a decade. (Id. at 8). An employee assured
Plaintiff the subscription would be renewed in three to four
weeks. (Id. at 7).
August 30, 2018, Administrator David Parker informed
Plaintiff that the Jail would not renew its Westlaw
subscription. (Doc. 1 at 7). In lieu of Westlaw, an employee
of the Tulsa County Sheriffs Office was assigned to perform
legal research for inmates using Google, an internet search
engine. (Id.). Plaintiff rejected this offer as
"wholly inappropriate" and asked to fund his own
legal research subscription. (Id.). Parker allegedly
denied the request. (Id.). By a letter dated October
16, 2018, Plaintiff notified the Tulsa County Board of
Commissioners that the Jail's law library was inadequate.
(Id.). He explained his injuries (i.e., the
inability to perform Westlaw research to support his Kansas
habeas petition) and asked for a resolution. (Id.).
Plaintiff sent similar letters to Tulsa County Sheriff Vic
Regalado, David Parker, and the American Correctional
Association. (Id.). Defendants refused to restore
Westlaw or take additional action. (Id.). Plaintiff
contends the inadequacy of the law library impeded his
ability to prepare the habeas petition and pretrial motions
in his Oklahoma robbery case. (Id.).
further contends he was housed in segregation between March
and December of 2018. (Doc. 1 at 9). He spent 23 hours per
day alone and was only permitted one hour outside of his
cell. (Id.). This arrangement, combined with the
stress of not having Westlaw, allegedly caused Plaintiff to
experience depression, anxiety, weight loss, sleeplessness,
mood swings, difficulty concentrating, excessive crying, and
filed this civil rights complaint (Doc. 1) on December 26,
2018. He names three Defendants: (1) Jail Administrator David
Parker; (2) Tulsa County Sheriff Vic Regalado; and (3) the
Tulsa Count Board of Commissioners. (Id. at 2). The
Court will treat Plaintiffs claims regarding Westlaw access
as "Count 1," and his segregation claims as
"Count II." In the prayer for relief, Plaintiff
seeks $28, 925 in actual damages and $32, 799.60 in punitive
damages. (Id. at 10).
In Forma Pauperis Motion
initial matter, Plaintiff filed a motion to prosecute his
claims without prepaying the $400 fee for this civil action.
(Doc. 2). His financial information reflects that he lacks
sufficient funds to prepay the filing fee. Accordingly, the
Court will grant the motion (Doc. 2), which reduces the fee
to $350, and allow Plaintiff to pay in installments.
See 28 U.S.C. § 1915(b). Ordinarily, inmates
are required to make an initial partial payment which
represents 20 percent of the greater of: (1) the average
monthly deposits, or (2) average monthly balance in
Plaintiffs inmate account(s) for the six-month period
preceding the filing of the complaint. See 28 U.S.C.
§ 1915(b)(1). In this case, however, the Court will
waive the initial partial payment ($5.29) in light of
Plaintiffs representations regarding financial hardship.
Plaintiff is advised that he remains obligated to make
monthly payments equal to 20 percent of his monthly income
until the $350 fee is paid in full. See 28 U.S.C.
§ 1915(b). This obligation remains even after
disposition of the case and regardless of whether relief is
granted or denied.
Motion to Appoint Counsel
also filed a motion seeking counsel in this case. (Doc. 3).
However, "courts are not authorized to appoint counsel
in § 1983 cases; instead, courts can only
'request' an attorney to take the case" on a
pro bono basis. Rachel v. Troutt, 820 F.3d 390,
397 (10th Cir. 2016). The decision to make this request is a
matter of discretion. Toevs v. Reid, 685 F.3d 903,
916 (10th Cir. 2012). Factors guiding the Court's
decision include "the merits of the claims, the nature
of the claims, [the inmate's] ability to present the
claims, and the complexity of the issues."
Rachel, 820 F.3d at 397. The claims here are fairly
straightforward, and the only requested relief is monetary
damages. Further, Plaintiff has not demonstrated an inability
to prosecute the action. His complaint contains more detail
than a typical pro se pleading, and he represented
himself in two criminal trials. For these reasons, the motion
to appoint counsel (Doc. 3) will be denied.
Initial Review of the Complaint
the Prison Litigation Reform Act (PLRA), federal courts must
engage in a preliminary screening of cases in which prisoners
seek redress from a government entity or officer.
See 28 U.S.C. § 1915A(a). The Court must
identify any cognizable claim and dismiss any claim which is
frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. See 28
U.S.C. § 1915A(b). To avoid dismissal for failure to
state a claim, a complaint must present factual allegations,
assumed to be true, that "raise a right to relief about
the speculative level." Bell Atlantic v.
Twombly,550 U.S. 544, 555 (2007). The complaint must
contain "enough facts to state a claim to relief that is
plausible on its face." Id. at 570. A court
must accept all the well-pleaded allegations of the complaint
as true, and must construe the allegations in the light most