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Wooten v. Martin

United States District Court, W.D. Oklahoma

August 6, 2019

RICHARD LESLIE WOOTON II, Petitioner,
v.
JIMMY MARTIN, [1] Respondent.

          REPORT AND RECOMMENDATION

          BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE.

         Petitioner, a state prisoner appearing pro se, filed a Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, [Doc. No. 1], and Chief United States District Judge Timothy D. DeGiusti referred the matter for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B) and (C). At issue is Petitioner's application for leave to proceed in forma pauperis, [Doc. No. 2].

         Petitioner filed his action as one arising under 42 U.S.C. § 1983. In the Complaint, Petitioner asserts his sentence is being calculated pursuant to the 85% rule, where individuals convicted of certain crimes must serve at least 85% of their sentence prior to becoming eligible for consideration for parole. Compl. [Doc. No. 1], at 2; see also Okla. Stat. tit. 21, § 13.1. Petitioner asserts the application of the 85% rule to his sentence is unconstitutional because it violates his due process laws and the application of the rule to his sentence amounts to an ex post facto law. Compl. 2-5. As relief, Petitioner asks the court to “disallow application of 85% from [his] records, and apply all enhanced credits and recalculate [his] time.” Id. at 7.

         An action seeking the type of relief requested by Petitioner can be properly brought as a Section 2241 habeas corpus action. See Bridenstine v. Farris, No. CIV-16-498-R, 2017 WL 4545210, at *3 (W.D. Okla. Sept. 15, 2017), report and recommendation adopted, 2017 WL 4544611 (W.D. Okla. Oct. 11, 2017) (“Petitioner's Ground One-in which he asserts that Respondent is retroactively ‘forcing Petitioner to serve 85% of his sentence' . . . before he is eligible to be considered for parole, in violation of the Due Process Clause and the Ex Post Facto Clause-is cognizable under 28 U.S.C. § 2241(c)(3).”).[2] On the other hand, Plaintiff's action cannot be brought pursuant to Section 1983 because he seeks a reduction in the term of his confinement. See Wilkinson v. Dotson, 544 U.S. 74, 81-82, (2005) (“[A] state prisoner's § 1983 action is barred (absent prior invalidation)-no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings)-if success in that action would necessarily demonstrate the invalidity of confinement or its duration.”). As such, the Court construes Petitioner's claim as a Section 2241 habeas action.

         Petitioner's application and attached financial documents shows he has a balance of $222.62 in his institutional accounts. See Appl. [Doc. No. 2], at 2-3. Thus, the Court finds that Petitioner is financially able to prepay the $5.00 filing fee of this proceeding. Because Petitioner has not shown that he qualifies for authorization to proceed without prepayment of the filing fee, it is recommended that Petitioner's application be denied. See 28 U.S.C. § 1915(a)(1); see also Lister v. Department of the Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005).

         It is further recommended that if Petitioner does not pay the $5.00 filing fee in full to the Clerk of the Court within twenty-one days of any order adopting this Report and Recommendation, that this action be dismissed without prejudice to refiling, pursuant to LCvR 3.3(e).

         NOTICE OF RIGHT TO OBJECT

         Petitioner is advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Any such objection must be filed with the Clerk of the Court on or before August 27, 2019. Petitioner is further advised that failure to make timely objection to this Report and Recommendation waives his right to appellate review of the factual and legal issues addressed herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).

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Notes:

[1] Petitioner named as Joe M. Allbaugh and Mark Knutson defendants. Because this action is construed as one brought under Section 2241, the proper respondent in this action is Jimmy Martin, the current warden of North Fork Correctional Center. Accordingly, Jimmy Martin is hereby substituted as the proper respondent in this action. See Rule 2(a), Rules Governing Section 2254 Cases in the United States District Court; see also Fed. R. Civ. P. 25. The Clerk of Court shall note the substitution on the record.

[2] That Petitioner's claim is cognizable under Section 2241 does not necessarily equate to stating a federal constitutional violation. See Bridenstine, 2017 WL 4545210, at ...


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