United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
T. ERWIN, UNITED STATES MAGISTRATE JUDGE.
Daniel Collins Bauder, a state inmate appearing pro
se and in forma pauperis, brings this action
under 42 U.S.C. § 1983, alleging violations of his
constitutional rights. (ECF No. 1). United States District
Judge David L. Russell referred the matter for initial
proceedings consistent with 28 U.S.C. §
636(b)(1)(B)-(C). The undersigned magistrate judge has
reviewed the Complaint as required by 28 U.S.C. §
1915A(a). Based on that review, the Court concludes this
action should be DISMISSED as time-barred.
In the alternative, the case should be dismissed because
Plaintiff has otherwise failed to state a claim upon which
relief may be granted.
BACKGROUND AND CLAIMS ASSERTED
Bauder is in the custody of the Oklahoma Department of
Corrections (DOC), serving a sentence imposed after his
conviction for a violent crime he committed before July 1,
1998. His Complaint boils down to challenges to the
procedures the Oklahoma Pardon and Parole Board (Board) uses
to determine parole and clemency eligibility. Mr. Bauder
bases his claims on his interpretation of the Oklahoma Truth
in Sentencing Act. He theorizes that the Act created a
liberty interest in parole and clemency that was not present
in the former statute governing parole. Based on that
premise, Mr. Bauder contends his rights to due process and
equal protection in the parole process have been violated.
1997, Oklahoma adopted the Truth in Sentencing
which established sentencing matrices for criminal
violations. Had the whole of the Act gone into effect,
Oklahoma state courts would have used the sentencing matrices
to sentence persons convicted of crimes committed on or after
July 1, 1998. But the Oklahoma Legislature repealed the
sentencing matrices section of the Act before its effective
date. Now, the matrices, though not codified in any law, are
used, in part, for determining the initial parole docket
dates for inmates convicted of violent crimes committed
before July 1, 1998. Under the Act, initial parole docket
dates for these inmates are set at the earlier of two dates:
the date on which the inmate will have served one-third of
the time to which he was actually sentenced, or the
date on which the inmate would have served a percentage of
the time he would have served, had the sentencing
matrices gone into effect and been in effect when the inmate
committed the crime for which he was convicted. Okla. Stat. tit.
57, § 332.7(A).
Bauder states he was assigned an initial docket date in July
2012, calculated on his having served one-third of the time
to which he was actually sentenced. (ECF No. 1:7).
Thereafter, Mr. Bauder was considered for parole at
three-year intervals. He was never granted parole, however,
and based upon the Board's two-step procedure applied to
inmates convicted of violent crimes, he was never granted a
parole hearing before he was denied parole.
law requires the Court to screen complaints filed by
prisoners seeking relief against a governmental entity or an
officer or employee of a governmental entity. See 28
U.S.C. § 1915A(a). In fulfilling this obligation, the
court considers, in part, the timeliness of Plaintiff's
claims. This practice is consistent with “the
long-standing rule that ‘[i]f the allegations . . .
show that relief is barred by the applicable statutes of
limitations, the complaint is subject to dismissal for
failure to state a claim.'” Vasquez Arroyo v.
Starks, 589 F.3d 1091, 1096 (10th Cir. 2009)
(quoting Jones v. Bock, 549 U.S. 199, 215 (2007)).
from the untimeliness of his Complaint, the substantive
issues Mr. Bauder raises fail to state a due process or equal
protection claim upon which relief may be granted.
See 28 U.S.C. § 1915A(a); §
1915(e)(2)(B)(ii) (pertaining to actions filed in forma
Untimeliness of Mr. Bauder's Complaint
district court may sua sponte dismiss a § 1983
claim based on an affirmative defense-such as an expired
statute of limitations-“when the defense is obvious
from the face of the complaint and no further factual record
is required to be developed.” Fogle v.
Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006) (internal
quotation marks omitted); see also Jackson v.
Standifird, 463 Fed.Appx. 736, 737 (10th Cir. 2012)
(“Dismissal of a claim as time-barred is treated as a
dismissal for failure to state a claim.”).
statutes of limitations applicable to general personal injury
claims supply the limitations periods for § 1983 claims,
but federal law governs the time of accrual of § 1983
claims.” Beck v. City of Muskogee Police
Dep't, 195 F.3d 553, 557 (10th Cir. 1999) (citations
omitted). Oklahoma's two-year statute of limitations
applies to Plaintiff's claims.
§ 1983 claim accrues, and the applicable limitations
period begins to run, “when the plaintiff knows or
should know that his or her constitutional rights have been
violated.” Smith v. City of Enid ex rel. Enid City
Comm'n, 149 F.3d 1151, 1154 (10th Cir. 1998)
(internal quotation marks and citations omitted). In this
case, Mr. Bauder knew, or should have known, the facts he
thinks support his cause of action-i.e., he was aware of the
procedures the Board used at his initial parole docket-at
least by July 2012. ...