United States District Court, W.D. Oklahoma
SUPPLEMENTAL REPORT AND RECOMMENDATION
M. PURCELL, UNITED STATES MAGISTRATE JUDGE.
a state prisoner appearing pro se and in forma
pauperis, brings this action purportedly pursuant to 42
U.S.C. § 1983. The matter has been referred to the
undersigned Magistrate Judge for initial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B). Having
reviewed the sufficiency of the Complaint pursuant to 28
U.S.C. § 1915A and 1915(e)(2)(B), the undersigned
recommends Plaintiff's action be dismissed.
1988, Plaintiff was convicted of murder in the first degree.
Doc. No. 1 (“Comp.”) at 11; see also
Oklahoma State Courts Network, District Court of Oklahoma
County, No. CF-1988-3965. Plaintiff was sentenced to life
imprisonment. Comp. at 14; see also Oklahoma State
Courts Network, District Court of Oklahoma County, No.
CF-1988-3965. Plaintiff's claims herein arise
primarily from Oklahoma's parole procedures, as amended
since Plaintiff's underlying criminal conviction.
time of Plaintiff's conviction and for several years
thereafter, Oklahoma's Forgotten Man Act required the
Oklahoma Pardon and Parole Board (“PPB”) consider
“every inmate . . . for parole on or before the
expiration of one-third of his maximum sentence.”
Shirley v. Chestnut, 603 F.2d 805, 806 (10th Cir.
1979). Additionally, once denied, the statute required the
inmate be reconsidered for parole annually in the form of an
in person hearing before the PPB. Id.
1997, the Oklahoma legislature repealed that statute and
replaced it with the Truth in Sentencing Act. As applied to
offenders whose crimes were committed before July 1, 1998,
the Truth in Sentencing Act sets initial docket dates for
parole consideration at either a percentage of the mid-point
of a sentencing matrix for the crime, discussed in more
detail below, or at one-third of the actual sentence,
whichever is earlier. Okla. Stat. tit. 57, § 332.7(A).
Once denied parole, inmates, such as Plaintiff, convicted of
a violent crime are not eligible for reconsideration for
three years. Okla. Stat. tit. 57, § 332.7(E)(1);
see Traylor v. Jenks, 223 Fed.Appx. 789, 790 (10th
Cir. 2007) (“Under the Truth in Sentencing Act, a
person who committed a violent crime before July 1, 1998, and
has been denied parole, is eligible for reconsideration at
least once every three years.”). Additionally, because
Plaintiff is a violent offender, when the PPB considers his
application for parole, it first considers only “a
completed report conducted by the staff of the [PPB], ”
informally known as a “jacket review, ” rather
than holding an in-person hearing. Okla. Stat. tit. 57,
§ 332.7(D)(1); Taylor v. Hargett, No. 99-6102,
2000 WL 135172, at *1 (10th Cir. 2000); see also, cf.,
Maynard v. Fallin, 564 Fed.Appx. 943, 945 (10th Cir.
2014) (detailing the change in parole consideration brought
by the Truth in Sentencing Act).
action, Plaintiff sues Oklahoma PPB members Delynn Fudge, Tom
Gillert, Robert Macy, C. Allen McCall, Michael Kris Steele,
and Roberta Fullerton for alleged constitutional violations
involving his parole considerations since 2003. Comp. at 3-6.
Although Plaintiff's Complaint is lengthy and repetitive,
the undersigned construes his arguments as raising four
claims for relief. Plaintiff argues he has a liberty interest
in parole and alleges Defendants denied him that interest
without due process of law. Id. at 6-13, 29-33.
Plaintiff also alleges that Oklahoma's Truth in
Sentencing Act created both Equal Protection and Ex Post
Facto Clause violations. Id. at 13-33. Finally,
Plaintiff asserts vague allegations that the Truth in
Sentencing Act or the PPB's application of the same also
violates the Oklahoma Constitution. Id. at 29, 33.
addition, Plaintiff has filed a Second Amended Complaint.
Doc. No. 15 (“Am. Comp.”). Therein, Plaintiff
asserts that the PPB's failure to promulgate rules
regarding the application of sentencing matrices violates due
process as well as constituting a breach of contract related
to monetary grants received by the State of Oklahoma from the
federal government. Am. Comp. at 4-7.
Plaintiff filed this action under 42 U.S.C. § 1983, it
is not clear whether his asserted claims should proceed
thereunder or be construed as an application for writ of
habeas corpus, pursuant to 28 U.S.C. § 2241. To the
extent Plaintiff is challenging his individual parole
considerations and seeks new parole review, his cause of
action would be more properly construed as a habeas corpus
action. Herrera v. Harkins, 949 F.2d 1096, 1097
(10th Cir. 1991). To the extent Plaintiff seeks injunctive or
declaratory relief for alleged constitutional deficiencies in
parole procedures, his cause of action properly seeks relief
under 42 U.S.C. § 1983. See Greenholtz v. Inmates of
the Neb. Penal & Corr. Complex, 442 U.S. 1, 3 (1979)
(involving § 1983 due process challenge to parole
procedures); Herrera, 949 F.2d at 1097 (“[A
prisoner] may use [§] 1983 to attack parole
procedures.”); Richards v. Bellmon, 941 F.2d
1015, 1018 n.3 (10th Cir. 1991) (“A single complaint
may seek relief partly under [28 U.S.C.] § 2254 and
partly under [42 U.S.C.] § 1983.”). It is
unnecessary to determine definitively the nature of
Plaintiff's action because, as set forth below, he has
failed to assert a viable constitutional challenge to
Oklahoma's parole procedures.
Screening of Prisoner Complaints
42 U.S.C. § 1983 Screening
federal district court must review complaints filed by
prisoners seeking relief against a governmental entity or an
officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). After conducting an initial review, the
court must dismiss a complaint or any portion of it
presenting claims that are frivolous, malicious, fail to
state a claim upon which relief may be granted, or seek
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915A(b).
conducting this review, the reviewing court must accept the
plaintiff's allegations as true and construe them, and
any reasonable inferences to be drawn from the allegations,
in the light most favorable to the plaintiff. Kay v.
Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Although a
pro se litigant's pleadings are liberally construed,
see Haines v. Kerner, 404 U.S. 519, 520 (1972),
“[t]he burden is on the plaintiff to frame a
‘complaint with enough factual matter (taken as true)
to suggest' that he or she is entitled to relief.”
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556 (2007)). The allegations in a complaint must present
“enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. Further, a claim is frivolous “where it lacks an
arguable basis either in law or in fact” or is
“based on an indisputably meritless legal
theory.” Neitzke v. Williams, 490 U.S. 319,
325, 327 (1989).
Rule 4 of the Rules Governing Section 2254 Cases, the Court
is required to promptly examine a habeas petition and to
summarily dismiss it “[i]f it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief . . . .” Rule 4, Rules Governing
§ 2254 Cases. “[B]efore acting on its own
initiative, a court must accord the parties fair notice and
an opportunity to present their positions.” Day v.
McDonough, 547 U.S. 198, 210 (2006). Petitioner has such
notice by this Supplemental Report and Recommendation, and he
has an opportunity to present his position by filing an
objection to the Supplemental Report and Recommendation.
Further, when raising a dispositive issue sua
sponte, the district court must “assure itself
that the petitioner is not significantly prejudiced . . . and
determine whether the interests of justice would be better
served by addressing the merits . . . .” Id.
(quotations omitted); Thomas v. Ulibarri, 214
Fed.Appx. 860, 861 n.1 (10th Cir. 2007); Smith v.
Dorsey, No. 93-2229, 1994 WL 396069, at *3 (10th Cir.
July 29, 1994) (noting no due process concerns with the
magistrate judge raising an issue sua sponte where
the petitioner could “address the matter by
objecting” to the report and recommendation).
initial matter, the undersigned notes that currently before
the Court is Plaintiff's initial Complaint as well as his
Second Amended Complaint. As previously noted, in his initial
Complaint, Plaintiff claims that Oklahoma's parole
procedures violate principles of due process, equal
protection, and the prohibition against ex post facto laws.
See generally Comp. Upon first attempting to amend
his pleading, Plaintiff filed an Amended Complaint in which
he did not formally name any party as a defendant and set
forth only claims that he intended to add to his initial
Complaint. Doc. No. 13. The Court issued an Order explaining
to Plaintiff that an amended complaint supersedes an original
complaint and therefore, should be sufficient, standing
alone, to support his asserted claims. Doc. No. 14. The Court
provided Plaintiff an additional opportunity to file an
amended pleading. Id.
subsequently filed the Second Amended Complaint currently
before the Court. See generally Am. Comp. While
presented on the proper form, Plaintiff did not include his
original claims and instead, again attempted to merely add
claims to those he had previously asserted. See generally
Id. Pursuant to Fed.R.Civ.P. 15(a)(2), a party should be
allowed to amend his pleading when justice so requires.
However, “a district court may refuse to allow
amendment if it would be futile. A proposed amendment is
futile if the complaint, as amended, would be subject to
dismissal.” Full Life Hospice, LLC v.
Sebelius, 709 F.3d 1012, 1018 (10th Cir. 2013)
(quotations and citation omitted). Here, upon reviewing the
claims asserted in both Plaintiff's Complaint and his
Second Amended Complaint, the undersigned finds that allowing
Plaintiff an additional opportunity to amend would be futile
as he ...