United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN UNITED STATES DISTRICT JUDGE
a federal prisoner appearing pro se, filed this action
asserting the violation of his federal constitutional rights.
The matter was referred to United States Magistrate Judge
Bernard M. Jones for initial proceedings in accordance with
28 U.S.C. § 636(b) and Federal Rule of Civil Procedure
72(b). On July 24, 2019, Judge Jones issued a Report and
Recommendation ("R. & R.") (Doc. No. 136), in
which he recommended that Defendants' Motion to Dismiss
(Doc. No. 91) be granted.
has filed an Objection (Doc. No. 141) to the R. & R. The
Moving Defendants did not object or respond to Plaintiffs
Objection. Pursuant to 28 U.S.C. § 636(b)(1)(B), the
Court reviews de novo the portions of the R. & R. to
which specific objections have been made. Having conducted
this de novo review, the Court finds as follows.
Complaint (Doc. No. 1) raises five First Amendment claims
(Claims One, Two, Four, Five, and Seven) and two
equal-protection claims (Claims Three and Six). See
Compl. at 1-51; Suppl. (Doc. No. 109). The basic factual
premise is provided in the R. & R.:
According to an incident report, Plaintiff received
discipline on August 12, 2015, for arriving late to a program
review (IR 2748929) [or IR 2748929]. Defs.' Mot. Ex. 1,
at 16. Plaintiff, however, argues he received discipline for
his "expressive activity and speech." Compl. 16. In
an effort to seek relief from his disciplinary proceedings
related to IR 2748929, Plaintiff initiated an administrative
remedy on September 8, 2015. On the same date, Plaintiff
received additional discipline for "possession of
anything not authorized for retention or receipt by the
inmate, and not issued to him through regular
channels"-six cooked beef patties wrapped in plastic (IR
2758590). Id. at 16; Defs.' Mot. Ex. 1, at 18.
Plaintiff contends he was permitted to bring the food back to
his living quarters. Compl. 16. Following the prison
proceedings related to this discipline, Plaintiff was placed
in the SHU. Id. at 17, 24-25. Plaintiff was
subsequently transferred to the Federal Transfer Center and
then to FCI-Forrest City Low. Id. at 17.
R. & R. at 3 (footnotes omitted). The R. & R. noted
that Plaintiffs pleading includes an incomplete signed
declaration. Id. at 4; see Compl. at 25-51;
Suppl. at 1-4. Judge Jones found that, "The declaration
is a narrative describing various conversations and actions
in which Plaintiff participated or witnessed, and it also
contains extraneous details that are either unrelated or
tangentially related to Plaintiffs legal claims." R.
& R. at 4.
moving Defendants seek dismissal under Federal Rule of Civil
Procedure 12(b)(6) for "failure to state a claim upon
which relief can be granted." See Fed. R. Civ.
P. 12(b)(6). In analyzing a motion to dismiss under Rule
12(b)(6), the Court "accept[s] as true all well-pleaded
factual allegations in the complaint and view[s] them in the
light most favorable to the plaintiff." Burnett v.
Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231,
1235 (10th Cir. 2013). A complaint fails to state a claim on
which relief may be granted when it lacks factual allegations
sufficient "to raise a right to relief above the
speculative level on the assumption that all the allegations
in the complaint are true (even if doubtful in fact)."
BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted). Bare legal conclusions in a complaint are
not entitled to the assumption of truth; "they must be
supported by factual allegations" to state a claim for
relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
the Court must screen Plaintiffs Complaint and dismiss the
pleading if it fails to state a claim upon which relief may
be granted. See 28 U.S.C. §§
1915(e)(2)(B)(ii), 1915A(b)(1); 42 U.S.C. § 1997e(c)(1).
While the Court construes a pro se litigant's pleadings
liberally, all parties must adhere to applicable procedural
rules. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th
Cir. 2007). The Court reviewing the sufficiency of a
complaint "will not supply additional factual
allegations to round out a plaintiffs complaint or construct
a legal theory on a plaintiffs behalf." Whitney v.
New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997).
The Report and Recommendation
the Moving Defendants filed their Motion to Dismiss,
Plaintiff filed an 84-page response (Doc. No. 97) that was
stricken by the undersigned for failure to comply with this
Court's Local Civil Rules (Doc. No. 108). Although
Plaintiff was granted leave to file a new response, he did
not do so.
Jones recommended that the Motion to Dismiss be granted as to
the moving Defendants and that Plaintiffs claims be dismissed
on screening as to the Unserved Defendants. Specifically, he
recommended that: (1) Plaintiffs First Amendment claims be
dismissed with prejudice; (2) Plaintiffs equal-protection
claims be dismissed without prejudice; and (3) Plaintiffs
pending motions be denied.
Plaintiff's Objection to the Report and
bulk of Plaintiff s Objection does not extend to the findings
and conclusions underpinning Judge Jones' recommendation.
Plaintiffs primary argument-addressed below-is that he should
be permitted to amend his pleading and thereby avoid
dismissal. Plaintiff also argues that he did effectively
respond to the Motion to Dismiss by filing (four months
later) a Motion to Amend (Doc. No. 122) his Complaint and
that Judge Jones erred by not construing that Motion to Amend
as a response. See PL's Obj. at 1-3. Judge Jones
specifically explained, however, that notwithstanding
Plaintiffs lack of response the Court was required to review
the legal sufficiency of the pleading. See R. &
R. at 1 n.l. The R. & R. makes clear that the Motion to
Dismiss was ...