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Markham v. Rios

United States District Court, W.D. Oklahoma

August 27, 2019

FLOYD MARKHAM, JR., Plaintiff,
v.
HECTOR RIOS, JR., 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. 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 state law.

         On 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.

         Plaintiff 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).

         I. Official-Capacity Claims Against Defendant Allbaugh

         Judge 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.

         In his 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.

         Accordingly, the Court adopts Judge Mitchell's recommendation to dismiss Plaintiff's official-capacity claims.

         II. Individual-Capacity Claims Against Defendants Allbaugh and Cincotta

         Judge 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 analysis.

         A. Defendant Allbaugh

         Judge 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 marks omitted)).

         In his 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).

         B. Defen ...


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