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Routt v. Howry

United States District Court, W.D. Oklahoma

September 12, 2019

JOHN STEPHEN ROUTT, Plaintiff,
v.
ANDY HOWRY, et al., Defendants.

          REPORT AND RECOMMENDATION

          SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE

         I. Plaintiff's original complaint, responsive filings, and relevant rulings.

         John Routt (Plaintiff), a state prisoner proceeding in forma pauperis and appearing pro se, [1] initiated this 42 U.S.C. § 1983 action in February 2018, claiming Defendants Andy Howry and Brian Thornbough violated his Eighth and Fourteenth Amendment rights by incarcerating him beyond the expiration of his sentence.[2] See Doc. 1.[3] Defendants filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6) and/or motion for summary judgment under Fed.R.Civ.P. 56 in response. See Doc. 38. Plaintiff addressed the merits of that motion, see Doc. 45, and contemporaneously sought leave to amend his complaint “to correct any issues that are raised by the Defendant's in their combined Motion to Dismiss.” Doc. 47, at 1.[4] As required by this Court's Local Civil Rule (LCvR) 15.1, Plaintiff attached a proposed amended complaint as an exhibit to his motion. See Doc. 47, Att. 1. Plaintiff also filed a supported Fed.R.Civ.P. 56(d) “request that the Defendant's [m]otion ] be denied, or in the alternative, be deferred pending the filing of An Amended Pleading and Discovery.” Doc. 43, at 2.

         Defendants did not object to either application, and when their time to do so expired, see LCvR7.1(g), the undersigned granted-as unopposed- Plaintiff's request for leave to file his amended complaint and his motion requesting the denial of Defendants' Rule 56 motion so that he could conduct discovery. See Doc. 48, at 2.[5] Consistent with LCvR15.1, the undersigned ordered Plaintiff to file and serve his amended complaint, see id., and he timely complied. See Doc. 52.

         II. Plaintiff's amended complaint and related filings.

         A. Amended allegations.

         In what is now the operative complaint in this matter, [6] Plaintiff again names Andy Howry, “prior record officer” and Brian Thornbough, “previouse administrator” at Clara Waters Community Corrections Center (CWCCC) as Defendants and sues them in their individual and official capacities. Id. at 5. He claims he was “[u]nlawfully imprisoned in violation of the 8th and 14thAmendments, id. at 6, and, as relief, seeks “$2, 000 a day held past discharge date (times 53)” as well as punitive damages and costs. Id. at 7.

         As “supporting facts, ” id., Plaintiff declares under penalty of perjury, id. at 11, that in late March 2015, he “went on a Writ” to the District Court in and for Tulsa County, Oklahoma, where he pleaded to a charge and “was sentenced to four (4) years in the custody of the Department of Corrections with credit for time served from April 13, 2014 to April 2, 2015 and to run concurrent with No.'s CF-2014-1727 and CF-2013-95, which [he] was already serving time for.” Id. at 8. He claims that on his return to CWCCC in September 2015, “he noticed on his time sheet that he was not credited for the time served” and “[a]t the end of September 2015, [he] then talk to his case manager Mrs. Hutchinson and explained that he ha[d] not been credited for the time from April 13, 2014, to April 2, 2015, as was negotiated in the plea agreement.” Id. He alleges he returned, as instructed, on the following day “to Mrs. Hutchinson's office where she explained why Defendant Howry would not apply the credit for time served.” Id. He states he then met with Defendant Howry and “explained that he was to be granted time served from April 13, 2014 to April 2, 2015” but “Defendant Howry stated ‘that if the court intended to give you that amount of time, then it would be put in the Judgment and Sentence.'” Id. He contends he “explained to Defendant Howry that was part of the plea agreement that was made with the District Attorney in court” but “Defendant Howry stated ‘she not would apply those days to [his] sentence.'” Id.

         Next, Plaintiff describes his efforts to obtain administrative relief, asserting “[t]here being a few conversations between [him] and Defendant Howry is stated by her in the request to staff addressed to her that is not in the Special report.” Id. He alleges that sometime after his late September 2015 meeting with Defendant Howry, he sent a request to staff that went unanswered, see id., so at the “end of October or beginning of November 2015” he “filed a grievance to Defendant Thornbough stating that he filed a request to staff to Defendant Howry who ha[d] not responded and it[ had] been more than thirty (30).” Id. at 9. He contends that “[w]hen he received the responses” “from Defendant Thornbough's assistance . . . to the Request to staff to Defendant Howry and the grievance to Defendant Thornbough, ”-allegedly “in November 2015, ” id., -“[he] was told ‘[he] should not have filed a grievance'”; “‘if [he] ha[s] a problem [he] can always come to [Defendant] Thornbough's office'”; and “‘that grievances are not the way to go.'” Id. And, as to “the response to the request to staff, ” Plaintiff further contends that “the answer was something to the effect of: ‘I have talked to inmate Routt on several occasions about this issue and explained it to him. If I was to write everything down it would be to long. His Judgment and Sentence does state that he is to receive credit for time served . . . .'” Id.

         Plaintiff claims to have “then filed a grievance to the Administrator, Defendant Thornbough” and on the following day-November 30, 2015-“was called to Defendant Thornbough's office [where] Defendant Howry, and Defendant Thornbough was present.” Id. He states “Defendant Thornbough had the grievance in front of him and proceeded to explain, ” as had Defendant Howry, that “‘[i]f the court intended for you to have the days you stated, it would have been in the Judgment and Sentence.'” Id. Plaintiff alleges that he “explained . . . it was part of [his] plea agreement to get credited from April 13, 2014 to April 2, 2015”; that “Defendant Thornbough then stated ‘The grievance is handled right?'”; and that he replied, “‘No, I need a response so that I can appeal it and if need be file a writ of Habeas Corpus and a civil suite.'” Id. He claims “Defendant Thornbough got mad and stated ‘restrict him to the center, '” and contends he “then left and was removed from [his] Prisoner Public Works Program job . . . .” Id. He also claims “Defendant Howry told [him] that she could make a phone call but she would not do it.” Id. at 9-10. According to Plaintiff, he received a response to his grievance in Defendant Thornbough's assistant's office at some point during the first week of December 2015 and subsequently “filed an appeal to the Administrative Review Authority, hereinafter ARA, by placing the appeal in the Mail Box at the CWCCC, within ten (10) days of receiving the response to allow ample time for mailing to the ARA for a timely appeal.” Id. at 10.

         Plaintiff states he “then filed a Motion for Specific performance in the Sentencing court on January 8, 2016, and wrote [his] Public defender asking her to represent the motion.” Id. He contends that “[o]n or about March 17, 2016, [he] received a copy of the Order to amend judgment and sentence from his counsel and took it to Defendant Thornbough's assistance where she called the plaintiff's counsel [b]ut still nothing was done to credit [his] sentence the time served.” Id. Finally, Plaintiff alleges that after he “approached [an unnamed] official and explained that he was to be discharged already, ” he was informed on the following day, March 28, 2016, that he “was discharging.” Id.

         B. Defendants' motion to dismiss and/or motion for summary judgment.

         Defendants responded to the amended complaint by moving under Fed.R.Civ.P. 12(b)(6) “to dismiss this action” on grounds that Plaintiff's amended complaint fails to state a claim on which relief can be granted and, “[a]lternatively, ” moving for summary judgment under Fed.R.Civ.P. 56. Doc. 55, at 8. They advise that their supporting “brief relies upon the Court-ordered Special Report previously filed in this action, [Doc. 37], ” id. at 9, and list seventeen facts with references to findings made and conclusions reached in that Special Report. See Id. at 9-12.

         Defendants raise five propositions, two clearly challenging the sufficiency of Plaintiff's amended pleading and implying dismissal or partial dismissal as a matter of law and three pointing to evidence and suggesting summary judgment. See Id. at 15-27. Specifically, they seek dismissal of Plaintiff's official-capacity claims in their first proposition, see Id. at 15-16, and in their fifth, see Id. at 27, dismissal of his claims for punitive damages. Then in their second, third, and fourth propositions, respectively, Defendants assert that Plaintiff failed to exhaust his administrative remedies, see Id. at ...


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