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. 12) issued by United States
Magistrate Judge Suzanne Mitchell pursuant to 28 U.S.C.
§ 636(b)(1)(B) and (C). Plaintiff, a state prisoner
appearing pro se, brought this action under 42 U.S.C. §
1983, alleging civil rights violations and violations of
December 27, 2018, Defendants Joe Allbaugh and David Cincotta
filed a Motion to Dismiss for Failure to State a Claim (Doc.
No. 5). Plaintiff filed a response (Doc. No. 10), and
Defendants filed a reply (Doc. No. 11). After considering the
briefs, Judge Mitchell entered a Report and Recommendation
concluding that motion should be granted. See R.
& R. (Doc. No. 12) at 1. Specifically, Judge Mitchell
held that: (1) Defendant Allbaugh is entitled to Eleventh
Amendment immunity on Plaintiff's official-capacity
claims against him; (2) Defendants Allbaugh and Cincotta are
entitled to qualified immunity on Plaintiff's
individual-capacity claims against them; and (3)
Plaintiff's claims under the Oklahoma Government Tort
Claims Act (“GTCA”) are statutorily time barred.
Id. at 6-18.
has objected to the Report and Recommendation. See
Pl.'s Obj. to R. & R. (Doc. No. 19.) Plaintiff's
objection triggers de novo review by this Court of those
portions of the Report and Recommendation to which objection
is made. See, e.g., 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, however, are waived. Marshall
v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996).
Official-Capacity Claims Against Defendant Allbaugh
Mitchell determined that Defendant Allbaugh is entitled to
Eleventh Amendment immunity on Plaintiff's
official-capacity claims against him. See R. &
R. at 6-9. Judge Mitchell correctly concluded that the claims
are “construed as claims against the State” and,
as such, are “barred by the Eleventh Amendment.”
Id. at 6. She further concluded that the claims did
not fit within any exception to the Eleventh Amendment
immunity bar, noting that: (1) “Oklahoma has not
consented to be sued in federal court”; (2) Congress
has not “abrogate[d] state sovereign immunity by
creating a private right of action under § 1983”;
and (3) Plaintiff does not seek prospective relief for
“an ongoing violation of federal law” insofar as
he alleges past injuries and seeks retrospective declaratory
relief. Id. at 6-9.
Objection, Plaintiff argues that he is entitled to
“declaratory relief as set out in the complaint,
declaring the complained of acts to be deprivations
prohibited by the United State[s] Constitution, in order to
prevent future violation of the same.” Pl.'s Obj.
to R. & R. at 6. Plaintiff's attempt to characterize
his requested relief as prospective in nature is misguided. A
plaintiff's request for declaratory relief is treated as
retrospective where, as here, it “‘relate[s]
solely to past violations of federal law.'”
McCrary v. Jones, No. CIV-13-573-M, 2015 WL 873641,
at *4 (W.D. Okla. Feb. 27, 2015) (citing Green v.
Mansour, 474 U.S. 64, 67 (1985)); Meiners v. Univ.
of Kan., 359 F.3d 1222, 1232 (10th Cir. 2004); see
also Winsness v. Yocom, 433 F.3d 727, 735 (10th Cir.
2006) (“[W]e treat declaratory relief as retrospective
. . . to the extent that it is intertwined with a claim for
monetary damages that requires us to declare whether a past
constitutional violation occurred.” (internal quotation
marks omitted)). That Plaintiff's requested relief may be
intended “to prevent future violation[s]” does
not render it prospective. Pl.'s Obj. to R. & R. at
6. At any rate, Judge Mitchell correctly concluded that
Plaintiff has not alleged an ongoing violation of
law-a conclusion that Plaintiff does not challenge.
the Court adopts Judge Mitchell's recommendation to
dismiss Plaintiff's official-capacity claims.
Individual-Capacity Claims Against Defendants Allbaugh and
Mitchell determined that Defendants Allbaugh and Cincotta are
entitled to qualified immunity on Plaintiff's claims
against them. See R. & R. at 9-17. To defeat a
defense of qualified immunity, a plaintiff must show that:
(1) the defendant violated a statutory or constitutional
right; and (2) the right was “clearly
established” at the time of the challenged conduct.
Cummings v. Dean, 913 F.3d 1227, 1239 (10th Cir.
2019). Judge Mitchell concluded that, with respect to
Defendant Allbaugh, Plaintiff failed to satisfy the first
prong of the analysis and, with respect to Defendant
Cincotta, Plaintiff failed to satisfy the second prong of the
Mitchell determined that Plaintiff has not, as he must,
“allege[d] facts showing that [Defendant Allbaugh],
either through his personal participation in
[Plaintiff's] treatment or the promulgation of a
policy” violated a federal statutory or constitutional
right. R. & R. at 10 (citing Brown v. Montoya,
662 F.3d 1152, 1164 (10th Cir. 2011) (internal quotation
Objection, Plaintiff asserts that Defendant Allbaugh failed
to “strictly adhere to his own policies” and
“ensure strict compliance” with those policies by
his subordinates. Pl.'s Obj. to R. & R. at 4. Section
1983, however, only governs alleged violations of
“federally-conferred rights.” Jones v.
Norton, 809 F.3d 564, 577 (10th Cir. 2015). Defendant
Allbaugh's alleged violation of ODOC policies cannot
sustain a claim for relief under § 1983. See Walker
v. Wilkerson, 310 Fed. App'x 284, 285 n.1 (10th Cir.
2009); Koch v. Carlisle, No. CIV-15-811-HE, 2017 WL
7175960, at *4 (W.D. Okla. Dec. 4, 2017), report and
recommendation adopted, No. CIV-15-811-HE, 2018 WL
632033 (W.D. Okla. Jan. 30, 2018).