United States District Court, W.D. Oklahoma
L. PALK UNITED STATES DISTRICT JUDGE.
the Court is the Supplemental Report and Recommendation
(R&R) [Doc. No. 16] issued by United States Magistrate
Judge Gary M. Purcell upon referral of this matter.
See 28 U.S.C. § 636(b)(1)(B) and (C). Judge
Purcell conducted an initial screening pursuant to 28 U.S.C.
§ 1915A and recommends dismissal of Plaintiff's
claims. Plaintiff has filed an Objection [Doc. No.
17]. The Court must now make a de novo determination of the
portions of the R&R to which objection is made, and may
accept, reject or modify the recommended decision in whole or
in part. See 28 U.S.C. § 636(b)(1); see
also Fed. R. Civ. P. 72(b)(3).
an Oklahoma inmate appearing pro se, brings this action under
42 U.S.C. § 1983 for alleged constitutional violations
related to his Oklahoma parole. Plaintiff is serving a life
sentence for a 1988 first-degree-murder conviction entered in
Case No. CF-1988-3965, District Court of Oklahoma County,
State of Oklahoma.
Judge Purcell references review of the “sufficiency of
the Complaint” and further references Plaintiff's
claims asserted in his Second Amended Complaint. See
R&R at 1, 4; see also id. at 8 (“[I]n the
interest of judicial efficiency, the undersigned addresses
the claims asserted in both the Complaint and the Second
Amended Complaint.”). Judge Purcell construed
Plaintiff's filings to raise due process and equal
protection challenges to his parole consideration and to also
challenge the frequency of Plaintiff's parole
consideration on ex post facto grounds. He recommended
dismissal of the claims for failure to state a violation of
Plaintiff's constitutional rights. Alternatively, he
recommended the claims be dismissed as untimely.
Objection, Plaintiff states the Second Amended Complaint
filed August 30, 2019 supersedes his Original Complaint and
that he brings a “sole [due process] claim” in
this action. See Obj. at 3. Moreover, Plaintiff
objects only to the findings in the R&R related to the
“sole” due process claim raised in his Second
support of his due process challenge, Plaintiff argues
Defendants have violated state law requirements governing
parole and, in particular, Oklahoma's Truth in Sentencing
Act, Okla. Stat. tit. 57, § 332.7. Plaintiff argues
the Act includes sentencing matrices and requires the
Oklahoma Pardon and Parole Board (Board) to determine what
sentence a prisoner would have received under the matrices.
Plaintiff further argues the Act includes language
demonstrating that certain parole hearing procedures are not
discretionary, but mandatory, giving rise to a liberty
interest. For the reasons set forth, Plaintiff's
arguments lack merit and his attempt to establish a liberty
interest subject to due process protections is to no
Oklahoma statutes governing parole create no liberty interest
as the decision whether to grant parole to an inmate
“lies firmly within the discretion of the Board, the
Department of Corrections, and/or the governor. Koch v.
Daniels, 296 Fed.Appx. 621, 627 (10th Cir. 2008) (citing
Boutwell v. Keating, 399 F.3d 1203, 1213-15 (10th
Cir. 2005)); see also Clark v. Fallin, 654 Fed.Appx.
385, 388 (10th Cir. 2016) (the Tenth Circuit has
“repeatedly concluded” that Oklahoma's parole
system does not create “a liberty interest that would
be protected by the Constitution's guarantee of due
Plaintiff argues that the Act requires the Oklahoma Pardon
and Parole Board (Board) to implement a procedure to
determine what sentence Plaintiff would have received under
the applicable matrices of the Act. As the Tenth Circuit has
explained the Act “originally included matrices of
sentencing ranges for various crimes.” Seegars v.
Ward, 124 Fed.Appx. 637, 638 (10th Cir. 2005).
“Although the Oklahoma legislature soon repealed the
sentencing matrices, the matrices are still used in
calculating parole eligibility dates.” Id.
(citing Okla. Stat. tit. 57, § 332.7(A)(3)).
does not argue his parole eligibility date has been
improperly determined and “it is clear that the sole
purpose of any recalculation [of Plaintiff's sentence
under the Act] is to determine the date upon which the inmate
becomes eligible for parole consideration.”
Campbell v. Province, No. CIV-06-382-RAW, 2008 WL
268186 at *3 (E.D. Okla. Jan. 29, 2008) (unpublished op.);
see also Seegars, 124 Fed.Appx. at 638-39 (rejecting
argument that the Act's language requiring procedures for
determining “what sentence the person would have
received under the applicable matrix” gave prisoner the
right to have his life sentence modified to a determinable
number of years; the statute's language “focus[es]
exclusively on the calculation of parole eligibility
extent Plaintiff further argues that he has a due process
right to certain procedures being followed during his parole
consideration, that claim also fails. The Tenth Circuit has
rejected similar arguments. See Clark, 654 Fed.Appx.
at 388 (rejecting Oklahoma prisoner's challenge to the
denial of parole “as well as the process by
which” he was denied parole on grounds no liberty
interest in parole exists under Oklahoma law); Jackson v.
Standifird, 503 Fed.Appx. 623, 625 (10th Cir. 2012)
(because Oklahoma prisoner had no liberty interest in parole,
he could not make a claim for a denial of procedural or
substantive due process); Koch, 296 Fed.Appx. at 628
(explaining that where a prisoner has no
constitutionally-protected liberty interest in parole, there
are no “constitutionally-protected interests in the
process at issue”); Hunter v. Beck, 244
Fed.Appx. 848, 852 (10th Cir. 2007) (rejecting argument that
statutory language mandating processes that might give a
prisoner legitimate expectations in receiving a parole
hearing did not create a constitutionally-protected liberty
stated, Plaintiff does not challenge any other findings set
forth in the R&R. The Court has addressed the specific
issues raised by the Objection as to his “sole due
process claim” and finds review of all other issues