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Dopp v. McCoin

United States District Court, W.D. Oklahoma

May 2, 2019

TERESA McCOIN, et al.,[1] Respondents.



         This matter is before the Court for review of the Report and Recommendation [Doc. No. 30] issued by United States Magistrate Judge Bernard M. Jones pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). Addressing the merits of the Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241, Judge Jones recommends granting the Petition on one of three grounds asserted by Petitioner for relief from prison discipline. Petitioner has filed a timely written objection [Doc. No. 31]. Thus, 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 in whole or in part. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3).[2]

         Petitioner Richard L. Dopp, a state prisoner appearing pro se, seeks relief from three disciplinary convictions that occurred during his confinement by the Oklahoma Department of Corrections (“ODOC”).[3] He was found guilty of misconduct charges for escape (2010), possession of contraband (2011), and disruptive behavior (2012). At the time of these convictions, Petitioner was serving a sentence of life imprisonment without the possibility of parole, and penalties of lost earned credits could not be administered. When Petitioner's prison sentence was commuted to a term of 30 years in 2018, however, ODOC officials calculated an amount of time remaining to be served and included lost-credit deductions for past misconduct penalties.

         In Grounds One through Three of the Petition, Petitioner claims he was denied due process with respect to each of the three misconduct charges and was wrongly convicted of the offenses. In Ground Four, he claims that ODOC officials have miscalculated the time remaining on his 30-year sentence because he has not received all earned credits to which he was entitled without the misconduct offenses. Petitioner requests expungement of the misconduct convictions from his prison record, restoration of earned credits, and recalculation of his remaining time to be served. See Pet. at 9.

         Addressing the merits of Petitioner's claims based on the Petition and Response, as well as the parties' supplemental filings and briefs, Judge Jones finds that Petitioner has failed to establish a denial of due process regarding the convictions for escape and disruptive behavior, but that Petitioner is entitled to relief from the discipline he received for possession of contraband. Judge Jones recommends that Respondents be ordered to expunge this disciplinary conviction from Petitioner's prison record, restore the 60 earned credits that were lost due to the conviction, and recalculate Petitioner's time served and projected release date.

         Liberally construing the Objection due to Petitioner's pro se status, he challenges certain unfavorable findings regarding Grounds One and Three of the Petition. First, as to the escape conviction, Petitioner asserts that Judge Jones erred by: a) using the standard established by Sandin v. Connor, 515 U.S. 472, 484 (1995), to find that no due process claim could be based on Petitioner's placement in administrative or disciplinary segregation before he was charged with misconduct; b) finding harmless error in ODOC's refusal to allow Petitioner to call witnesses or present evidence; and c) finding the escape charge was sufficiently proven. Second, Petitioner challenges Judge Jones' finding that his claim regarding the disruptive behavior conviction is moot.

         Upon de novo consideration, the Court finds no merit in Petitioner's arguments and no error in Judge Jones' findings and conclusions. With regard to the escape charge, the Court is familiar with the circumstances of Petitioner's release from custody by private prison officials at Lawton Correctional Facility, which form the basis of the charge and have been the subject of numerous motions, pleadings, and filings in prior cases.[4] Petitioner has also made numerous challenges to his mistaken release and reincarceration in other state and federal courts. The Tenth Circuit summarized the underlying facts ¶ 2012, in a case where Petitioner unsuccessfully sought habeas relief under § 2254 in the Northern District of Oklahoma, as follows:

In 2009, Dopp was released from prison on a Certificate of Release that the state court found was secured through the use of a fraudulent document purporting to be an amended judgment and sentence. Shortly after his release, Department of Correction (DOC) Internal Affairs officials located Dopp at his mother's house and took him back into custody. Dopp contends that the DOC officials violated his constitutional rights because they entered his mother's house without her consent, arrested him without a warrant, and did not provide him a probable cause hearing before returning him to prison to serve the remainder of his LWOP [life without parole] sentence. He also argues that the State should be bound by the Certificate of Release on contract principles.
Dopp does not dispute the state court's finding that his release was secured through the use of a fraudulent document purporting to be an amended judgment and sentence or its finding that his original LWOP sentence was never lawfully altered. Because Dopp does not dispute that he was lawfully subject to imprisonment for the remainder of his life without the possibility of parole, he has no colorable claim that DOC officials violated his constitutional rights by returning him to custody to serve the remainder of that sentence. Nor does his contention that the Certificate of Release constitutes an enforceable contract state a colorable claim for the denial of a constitutional right.

Dopp v. Workman, 502 Fed.Appx. 797, 800-01 (10th Cir. 2012).

         A. Placement in Segregation Without a Misconduct Charge

         The Court first considers Petitioner's argument regarding the legal standard governing the part of his claim in Ground One that he was entitled to due process when he was placed in segregation immediately upon being returned to ODOC custody, before the escape charge was filed. Petitioner is simply incorrect in asserting that Sandin is inapplicable. Judge Jones follows controlling Tenth Circuit caselaw applying Sandin in the context of due-process challenges to prison placements. See R&R at 6 (quoting Grissom v. Roberts, 902 F.3d 1162, 1169 (10th Cir. 2018) (applying factors announced in Estate of DiMarco v. Wyo. Dep't of Corr., 473 F.3d 1134, 1342 (10th Cir. 2007)). Petitioner is also mistaken in arguing that Sandin does not apply in § 2241 habeas corpus cases. See, e.g., Grossman v. Bruce, 447 F.3d 801, 805-06 (10th Cir. 2006); Wilson v. Jones, 430 F.3d 1113, 1117 (10th Cir. 2005).[5]

         Turning to Judge Jones' findings regarding the DiMarco factors, Petitioner appears to challenge only one of them. Petitioner asserts that he was placed in a disciplinary unit of segregated or restricted housing at the Oklahoma State Penitentiary (“OSP”), where the conditions were sufficiently extreme to be considered “atypical” under Sandin. See Obj'n at 1. To support this argument, Petitioner submits an affidavit signed by another prisoner in December 2009. See id. at 1, 4. The Court declines to consider new matter raised in response to a magistrate judge's report. See Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”); see also ClearOne Commc'ns, Inc. v. Biamp Sys., 653 F.3d 1163, 1184-85 (10th Cir. 2011); Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310 (10th Cir. 2010).

         Further, the Court concurs in Judge Jones' ultimate finding that Petitioner has not shown he had a liberty interest in avoiding confinement in extreme conditions under the circumstances surrounding his return to ODOC custody in 2009. See Rezaq v. Nalley, 677 F.3d 1001, 1013 (10th Cir. 2012) (“extreme conditions in administrative segregation do not, on their own, ” create a liberty interest). “[T]he proper approach is a fact-driven assessment that accounts for the totality of conditions presented by a given inmate's sentence and confinement, ” and the DiMarco factors may properly be used to guide the inquiry. Id. at 1012. In this case, Petitioner does not dispute Judge Erwin's findings that his placement served a legitimate penological interest given ODOC's determination that he presented a safety risk, that his placement was regularly reviewed before the escape ...

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