United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN, UNITED STATES DISTRICT JUDGE
matter comes before the Court for review of the Supplemental
Report and Recommendation (“R. & R.”) (Doc.
No. 16) issued by United States Magistrate Judge Gary M.
Purcell pursuant to 28 U.S.C. § 636(b)(1)(B) and (C).
Plaintiff, a state prisoner appearing pro se, brings this
federal civil rights action under 42 U.S.C. § 1983 for
violation of the United States Constitution and under the
Religious Land Use and Institutionalized Persons Act of 2000
screening, Judge Purcell has recommended dismissal of
Plaintiff's claims pursuant to 28 U.S.C. § 1915A.
See R. & R. at 1-12; 28 U.S.C. § 1915A(b).
Plaintiff has filed a timely written objection to the R.
& R., see Pl.'s Obj. (Doc. No. 19),
thus triggering the Court's obligation to make a de novo
determination of those portions of the R. & R. to which
specific objection is made. See 28 U.S.C. §
636(b)(1); United States v. 2121 E. 30th
St., 73 F.3d 1057, 1059 (10th Cir. 1996);
Fed.R.Civ.P. 72(b)(3). Issues or claims raised for the first
time in such an objection, however, are deemed waived.
Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir.
claims arise from events alleged to have occurred at North
Fork Correctional Center (“NFCC”), where he is
currently housed. See Compl. (Doc. No. 1) at 2, 9,
16, 20. In his four-count Complaint, Plaintiff brings claims
against three defendants, each in his or her individual and
official capacities: Joe M. Allbaugh,  the former
Director of the Oklahoma Department of Corrections
(“ODOC”); Shirley May, the Correctional Health
Service Administrator at NFCC; and Dionne Blackmon, the Food
Service Supervisor at NFCC. See Id. at 1. Plaintiff
seeks punitive damages and declaratory and injunctive relief.
See Id. at 8-9, 14-15, 18-19, 23-24.
Court takes judicial notice of the fact that Plaintiff was
convicted in Oklahoma state court in 1991 under the name
“James T. Shockey Jr.” See Special R.
Ex. 1, publicly filed in AlAmiin v. Crow, No.
CIV-13-1001-G (W.D. Okla.) (Doc. No. 59-1); see also
R. & R. at 3 & n.1. Plaintiff alleges that in 1999 he
legally changed his name to Wahiid Mujaheed AlAmiin.
See Compl. at 4. In Count One of his Complaint,
Plaintiff asserts that Defendants Allbaugh and May have
deprived him of his liberty interest in his personal identity
in violation of the Fourteenth Amendment by requiring him to
use his former name on internal prison communications.
See Id. at 1-9. In Count Two, Plaintiff contends
that Defendants Allbaugh and May have violated his Eighth
Amendment right to access to adequate medical care by
requiring him to use his former name on requests for medical
treatment pursuant to ODOC policy. See Id. at 9-15.
In Count Three, Plaintiff seeks relief under RLUIPA, again
alleging that Defendants Allbaugh and May “have
required [him] to engage in the activity of denying [his]
sincerely held religious practice in order to receive access
to [medical] treatment” by requiring him to use his
former name. Id. at 15-19. In Count Four, Plaintiff
asserts that Defendants Allbaugh and Blackmon are not
providing him with an adequate Halal diet, thereby imposing a
substantial burden on his sincerely held religious beliefs in
violation of RLUIPA. See Id. at 19-23.
Purcell recommends that Counts One, Two, and Three be
dismissed as frivolous pursuant to 28 U.S.C. §
1915A(b)(1) because they are duplicative of claims Plaintiff
asserted in another action currently pending before this
Court. See R. & R. at 5-6, 11 (citing
AlAmiin, No. CIV-13-1001-G (W.D. Okla.)). Judge
Purcell further recommends that Count Two alternatively be
dismissed for failure to state a claim upon which relief may
be granted and that Court Four be dismissed as untimely.
See Id. at 6-9; 28 U.S.C. § 1915A(b)(1). Judge
Purcell also recommends that all official-capacity claims for
monetary relief be dismissed as barred by the Eleventh
Amendment. See R. & R. at 10-11; 28 U.S.C.
§ 1915A(b)(2). The sole issue to which Plaintiff makes
specific objection is whether Counts One, Two, and Three are
duplicative of claims alleged in No. CIV-13-1001-G. The Court
therefore finds that Plaintiff has waived further review of
all other issues addressed in the R. & R. and adopts the
recommendation as to those issues. See 28 U.S.C.
§ 1915A; Fed.R.Civ.P. 72(b)(3); 2121 E. 30th
St., 73 F.3d at 1060.
novo consideration of the remaining issue, the Court finds
that-while the allegations in Claims One, Two, and Three
repeat many of the same criticisms raised in No.
CIV-13-1001-G-distinctions in time, location, and
participants preclude dismissal. See Compl.,
AlAmiin, No. CIV-13-1001-G (W.D. Okla.) (Doc. No.
1). The Tenth Circuit has directed that “[r]epetitious
litigation of virtually identical causes of action may be
dismissed under § 1915 as frivolous or malicious.”
McWilliams v. Colorado, 121 F.3d 573, 574 (10th Cir.
1997) (internal quotation marks omitted). “Generally, a
suit is duplicative if the claims, parties, and available
relief do not significantly differ between the two
actions.” Ford v. Mischeviz, 68 Fed.Appx. 877,
878 (10th Cir. 2003) (alteration and internal quotation marks
omitted). Though the issues Plaintiff raises in both lawsuits
are substantially similar, the constitutional and RLUIPA
violations alleged in the earlier action arose at Lawton
Correctional Facility prior to Plaintiff's transfer to
NFCC, while the instant action involves alleged violations
occurring at NFCC. The two actions share only one defendant:
ODOC Interim Director Crow in his official capacity.
See Fed. R. Civ. P. 25(d). Based upon these
distinctions, the Court does not find that the two actions
are virtually identical for purposes of dismissal under 28
U.S.C. § 1915A(b)(1).
the Supplemental Report and Recommendation (Doc. No. 16) is
ADOPTED IN PART. The Court declines to adopt the portion of
the R. & R. recommending dismissal of Counts One, Two,
and Three as duplicative. The Court adopts the R. & R. in
all other respects, including the alternative recommendation
that Claim Two be dismissed for failure to state a claim.
Therefore, the following claims are dismissed without
1. Plaintiffs Eighth Amendment claim against Defendants
Allbaugh, Crow, and May for denial of adequate medical care
2. Plaintiffs RLUIPA claim against Defendants Allbaugh, Crow,
and Blackmon for failure to provide an adequate Halal diet
(Count 4); and
3. All claims seeking money damages against Defendants in
their official capacities.
matter is re-referred to Magistrate Judge Purcell for further