United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN, UNITED STATES DISTRICT JUDGE.
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).
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
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). See R. & R. at 7.
Official-Capacity Claims for Monetary Damages
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).
Claim for Denial of Access to Courts
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)).
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).
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
Claims Against Defendant Ballard for Incarceration in
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.
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.
Claims Against Defendant Braggs for Incarceration ...