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Ishman v. Ballard

United States District Court, W.D. Oklahoma

July 24, 2019

MICHAEL EMMANUEL ISHMAN, Plaintiff,
v.
DEENA BALLARD, et al., Defendants.

          ORDER

          CHARLES B. GOODWIN, UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court for review of the Report and Recommendation (Doc. No. 30) issued by United States Magistrate Judge Shon T. Erwin pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). Plaintiff, a state prisoner appearing pro se and proceeding in forma pauperis, has brought this action under 42 U.S.C. § 1983, alleging violations of his constitutional rights by two Defendants. See Am. Compl. (Doc. No. 26).

         On screening, Judge Erwin has recommended partial dismissal of Plaintiff's claims for failure to state a claim upon which relief can be granted. See R. & R. at 19; 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). On February 27, 2019, Plaintiff filed a timely objection to the Report and Recommendation. See Pl.'s Obj. (Doc. No. 31). Plaintiff's objection triggers de novo review by this Court of those portions of the Report and Recommendation to which objection is made. See United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). Issues or claims raised for the first time in an objection, however, are waived. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996).

         Judge Erwin liberally construed Plaintiff's allegations as asserting claims under the Eighth and Fourteenth Amendments based on: (1) denial of access to courts; and (2) incarceration in restrictive housing (i.e., segregated confinement).[1] See R. & R. at 7.

         I. Official-Capacity Claims for Monetary Damages

         Judge Erwin concluded that Defendants-both of whom are state employees- enjoy Eleventh Amendment immunity insofar as Plaintiff seeks monetary damages against them in their official capacities. See R. & R. at 8-9 (collecting authorities). Plaintiff does not challenge this conclusion. The Court adopts Judge Erwin's recommendation to dismiss Plaintiff's official-capacity claims to the extent monetary damages are sought. See 28 U.S.C. §§ 1915(e)(2)(B)(iii), 1915A(b)(2).

         II. Claim for Denial of Access to Courts

         Plaintiff alleges that he was deprived of his constitutional right to access the courts when he was denied permission to use the prison's law library in order to assist his attorney with Plaintiff's criminal jury trial. Judge Erwin identified two bases for dismissing this claim for denial of Plaintiff's right of access to the courts. First, Judge Erwin noted that “a criminal defense is not the type [of] case which is afforded constitutional protection in the form of access to a law library.” R. & R. at 11. Second, Judge Erwin concluded that Plaintiff's representation by counsel “provides a ‘constitutionally acceptable alternative to a prisoner's demand to access a law library.'” Id. (quoting United States v. Taylor, 183 F.3d 1199, 1204 (10th Cir. 1999)).

         As Judge Erwin explained, an inmate's right to access the courts is not unlimited. The Court agrees that Plaintiff has not plausibly alleged a violation of a constitutional right to access the courts. See Taylor, 183 F.3d at 1204; Carrier v. Lundstedt, No. 13-cv-02933-PAB-CBS, 2014 WL 8103198, at *9 (D. Colo. Dec. 22, 2014) (R. & R.) (“[A]ny claim that [the prisoner-plaintiff] was denied access to the courts is defeated by his representation by counsel in his criminal cases.”), adopted, 2015 WL 1041835 (D. Colo. Mar. 4, 2015); Johns v. Coosa Cty. Jail, No. 2:11-CV-615-WHA (WO), 2011 WL 4005320, at *2 (M.D. Ala. Aug. 18, 2011) (R. & R.) (“While Plaintiff may desire to take a more active role in his pending criminal proceedings, such is insufficient to demonstrate a lack of access to the courts.”), adopted, 2011 WL 4005318 (M.D. Ala. Sept. 8, 2011).

         In his Objection, Plaintiff now contends that access to a law library would have enabled him “to assist his appeal attorney with his appeal.” Pl.'s Obj. at 3, 6. This contention, raised for the first time in Plaintiff's Objection, has been waived. See Marshall, 75 F.3d at 1426.

         III. Claims Against Defendant Ballard for Incarceration in Restrictive Housing

         In his Amended Complaint, Plaintiff alleges that Defendant Deena Ballard ordered prison official Sgt. Hamilton “not to give Plaintiff a Request to Staff form.” Am. Compl. at 4. However, the “Request to Staff” form sought by Plaintiff was “for access to [the] prison law library.” Id. Plaintiff does not allege that Defendant Ballard took any action that prevented him from challenging his placement in restrictive housing.

         Judge Erwin recommends that any restrictive-housing claim against Defendant Ballard should be dismissed because Plaintiff does not allege that this Defendant “was in any way responsible for placing him in restrictive housing.” R. & R. at 12. The Court agrees.[2]

         IV. Claims Against Defendant Braggs for Incarceration ...


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