United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court for review of the Report and
Recommendation [Doc. No. 29] issued by United States
Magistrate Judge Gary M. Purcell pursuant to 28 U.S.C. §
636(b)(1)(B) and (C). Judge Purcell recommends granting
Defendant's Motion to Dismiss [Doc. No. 23] because the
Complaint fails to state a claim under 42 U.S.C. § 1983
on which relief can be granted. Specifically, Judge Purcell
finds that the Eleventh Amendment bars Plaintiff's §
1983 claim against Defendant Joe Allbaugh in his official
capacity; that the Complaint fails to a § 1983 claim
against Defendant Allbaugh in his individual capacity because
no factual allegations show his personal participation in any
constitutional violation or any basis for supervisory
liability; and that Defendant Allbaugh in entitled to
a state prisoner appearing pro se and in forma
pauperis, has filed a timely Objection [Doc. No. 30].
Thus, the Court must “make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made” and
“may accept, reject or modify, in whole or in part, the
findings and recommendations made by the magistrate
judge.” See 28 U.S.C. § 636(b)(1);
see also Fed.R.Civ.P. 72(b)(3).
brings this civil rights action to recover damages for an
alleged violation of his First Amendment right of access to
the courts during his incarceration by the Oklahoma
Department of Corrections (DOC). Plaintiff claims the
director of DOC at the time, Defendant Joe Allbaugh, acting
in his individual and official capacities, prevented
Plaintiff from petitioning the United States Supreme Court
for a writ of certiorari in an earlier § 2241 habeas
action regarding Plaintiff's 199-year prison sentence.
See Parker v. Allbaugh, No. 18-cv-0232-JED-FHM (N.D.
Okla. Oct. 22, 2018), appeal dismissed, No. 18-5115
(10th Cir. Jan. 16, 2019). Plaintiff was subject to filing
restrictions imposed by the Supreme Court due to past abusive
filings, and as a result, he was required file his petition
in booklet format pursuant to Sup. Ct. R. 33.1. Plaintiff
claims that DOC was required to accommodate his request for
assistance in complying with that rule - either by providing
an “adequate” law library equipped with a
printing or copying machine that could prepare a booklet, or
by paying a third-party vendor to provide the service - and
that the failure to do so caused him to lose a nonfrivolous
habeas case, in violation of his clearly established right of
meaningful access to the courts.
de novo consideration of the issues raised by
Plaintiff's Objection, the Court finds itself in complete
agreement with Judge Purcell's findings and conclusions.
For the reasons fully explained in the Report, the Court
finds that the Complaint fails to state a plausible §
1983 claim against Defendant Allbaugh. In fact, Plaintiff
“admits that his complaint never expressly alleged that
the defendant personally participated in any of the actions
and events underlying his claim.” See Obj. at
5. Plaintiff argues, however, that he should be allowed to
amend his pleading to cure this defect, apparently on the
theory that a grievance appeal provided Defendant Allbaugh
notice of the problem and he “was the only person with
authority to change or [make] an exception to the ODOC's
access to the courts policy” regarding booklet
printing. Id. The Court finds these conclusory
allegations are insufficient to state a § 1983 claim
against Defendant Allbaugh and to overcome his qualified
THEREFORE ORDERED that the Report and Recommendation [Doc.
No. 29] is ADOPTED in its entirety and Defendant's Motion
to Dismiss [Doc. No. 23] is GRANTED. Plaintiff's
official-capacity action is dismissed without prejudice;
Plaintiff's individual-capacity action against Defendant
Allbaugh is dismissed with prejudice. A separate judgment
shall be entered accordingly.
IS SO ORDERED.
 To the extent Plaintiff sues Joe
Allbaugh in his official capacity as Director of the Oklahoma
Department of Corrections, the Court takes judicial notice of
his replacement by Scott Crow and automatically substitutes
the current director pursuant to Fed.R.Civ.P. 25(d).
 Plaintiff has waived further review of
all issues addressed by Judge Purcell that are not mentioned
in the Objection, including the official-capacity suit.
See Moore v. United States, 950 F.2d 656, 659 (10th
Cir. 1991); see also United States v. ...