The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ALVIN PARKER, )
)
Plaintiff, )
)
v. ) Case No. CIV-19-398-D
)
JOE ALLBAUGH, individually, )
and SCOTT CROW, Director, )
Oklahoma Department of Corrections,1 )
)
Defendant. )
O R D E R
This 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 qualified immunity.
1 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, 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).2
Plaintiff 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, Case 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
2 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. 2121 E. 30th St., 73 F.3d 1057, 1060
(10th Cir. 1996).
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.
Upon 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 immunity defense.
IT IS 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.
IT IS SO ORDERED this 14" day of November 2019.
\ i 0 Ot
TIMOTHY D. DeGIUSTI
Chief United States District Judge