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Wiggins v. Fudge

United States District Court, W.D. Oklahoma

September 16, 2019

DARRELL LAMAR WIGGINS, Plaintiff,
v.
DELYNN FUDGE, et. al., Defendants.

          SUPPLEMENTAL REPORT AND RECOMMENDATION

          GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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.

         I. Background

         In 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.[1] Plaintiff was sentenced to life imprisonment. Comp. at 14; see also Oklahoma State Courts Network, District Court of Oklahoma County, No. CF-1988-3965.[2] Plaintiff's claims herein arise primarily from Oklahoma's parole procedures, as amended since Plaintiff's underlying criminal conviction.

         At the 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.

         In 1997, the Oklahoma legislature repealed that statute and replaced it with the Truth in Sentencing Act.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.[3] 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).

         By this 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.

         In 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.

         Although 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.

         II. Screening of Prisoner Complaints

         A. 42 U.S.C. § 1983 Screening

         A 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).

         In 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).

         B. Habeas Screening

         Under 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).

         III. Pleadings Considered

         As an 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.

         Plaintiff 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 ...


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