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Phillips v. Board of County Commissioners of Tulsa County

United States District Court, N.D. Oklahoma

May 1, 2019

JAMES MICHAEL PHILLIPS, Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS OF TULSA COUNTY, VICREGALADO, Sheriff, and DAVID B PARKER, J J Administrator, Defendants.

          OPINION AND ORDER

          JOHN E. DOWDELL CHIEF JUDGE UNITED STATES DISTRICT COURT.

         Before 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.

         I. Background[1]

         In 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 According to Plaintiff, the available hardcopy materials, such as codes, statutes, and rules, were mostly outdated by more than a decade.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).

         On 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.[2] (Id.).

         Plaintiff 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 paranoia.

         Plaintiff 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).

         II. In Forma Pauperis Motion

         As an 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.

         III. Motion to Appoint Counsel

         Plaintiff 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.

         IV. Initial Review of the Complaint

         A. Screening Standards

         Under 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 ...


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