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Xiong v. McCormick

United States District Court, W.D. Oklahoma

December 17, 2019

PAO XIONG, Plaintiff,
WILLIAM McCORMICK et al., Defendants.



         Plaintiff, 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.

         Plaintiff has filed an Objection (Doc. No. 141) to the R. & R. The Moving Defendants[1] 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.

         I. Background

         Plaintiffs 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.

         The 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).

         Similarly, 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).

         II. The Report and Recommendation

         After 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.

         Judge 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.

         III. Plaintiff's Objection to the Report and Recommendation

         The 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 ...

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