Routt v. Howry

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

JOHN STEPHEN ROUTT, )

)

Plaintiff, )

)

v. ) Case No. CIV-18-127-D

)

ANDY HOWRY et al., )

)

Defendants. )

ORDER

Plaintiff John Routt, a state prisoner appearing pro se and in forma pauperis,

initiated this 42 U.S.C § 1983 action claiming Defendants Andy Howry and Brian

Thornbough violated his Eighth and Fourteenth Amendment rights by incarcerating him

beyond the expiration of his sentence. The matter was referred to United States Magistrate

Judge Suzanne Mitchell for initial proceedings, in accordance with 28 U.S.C. § 636

(b)(1)(B),(C).

On September 12, 2019, the magistrate judge issued a Report and Recommendation

wherein she recommended dismissal of Plaintiff’s official-capacity claims [R&R, Doc. No.

58 at 12], and further, that Defendants’ alternative motion [Doc No. 55] be denied to the

extent it seeks dismissal of Plaintiff’s punitive-damages claims. R&R at 12.

Defendants timely filed an objection on October 3, 2019 [Doc. No. 59].

Specifically, Defendants challenge the magistrate judge’s conclusions as to whether (1)

further discovery on administrative exhaustion is warranted; and, (2) Defendants are

entitled to qualified immunity on Plaintiff’s § 1983 individual-capacity claims. Objection,

[Doc. No. 59] at 12. Plaintiff responded to these objections [Doc. No. 60].

STANDARD OF DECISION

Pursuant to Fed. R. Civ. P. 72, where the district court refers dispositive matters to

a magistrate judge for a report and recommendation, the district court “must determine de

novo any part of the magistrate judge’s disposition” to which a proper objection has been

raised. Fed. R. Civ. P. 72(b)(3); Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1246 (10th

Cir. 2015).

Therefore, pursuant to Defendants’ objections, the Court, will herein conduct a de

novo review.

DISCUSSION

I. The issue of administrative exhaustion remains unresolved.

In her report and recommendation, Judge Mitchell noted that Defendants did not

object to or otherwise challenge Plaintiff’s request to “deny” or “defer considering”

Defendants’ alternative request for summary judgment. R&R at 58. As such, the R&R

concluded, and this Court agrees, that Defendants have waived their right to do so.1 As

was proper, Judge Mitchell therefore went on to analyze Defendants’ motion pursuant to

Fed. R. Civ. P. 12(b)(6) [Doc. No. 55 at 18]. In doing so, Judge Mitchell correctly declines

1 Defendants also do not address this point in their objection [Doc. No. 59]. Further, Rule

12(d) gives the Court discretion in excluding matters presented outside of the pleadings.

Fed. R. Civ. P. 12(d) (“If, on a motion under 12(b)(6) . . . matters outside the pleadings

are presented to and not excluded by the court, the motion must be treated as one for

summary judgment under Rule 56. All parties must be given a reasonable opportunity to

present all the material that is pertinent to the motion.”).

to rely on materials outside of the pleadings, [R&R at 11–12], and this Court on de novo

review will do the same.

The Tenth Circuit has recognized that “[g]enerally, the sufficiency of a complaint

must rest on its contents alone.” Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010)

(quoting Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10th Cir.2010) (“The district court’s

disposition of the complaint was irregular. Although it characterized its action as a

dismissal for failure to state a claim, the court did not restrict itself to looking at the

complaint.”)). Gee identified three limited exceptions to the general rule restricting a

court’s consideration to the pleadings alone when deciding the merits of a motion to

dismiss: “(1) documents the complaint incorporates by reference or attached as exhibits to

the complaint, (2) documents referred to in the complaint if the documents are central to

the plaintiff’s claim, and the parties do not dispute the documents’ authenticity, and (3)

matters of which a court may take judicial notice.” Carrigan v. Goree, No. CIV-13-842-

D, 2015 WL 3948853, at *5 (W.D. Okla. June 26, 2015) (DeGiusti, J.).

The Court, addressing a 12(b)(6) motion in Carrigan v. Goree, agreed to consider

grievance documents attached to a Special Report, to resolve whether the prerequisite of

administrative exhaustion to a § 1983 suit had been met. Id. There were several factors

militating toward allowing Defendant to rely on exhaustion-related materials. Id. The

materials, as they are here, were relevant to determining whether Plaintiff has exhausted

his administrative remedies—a prerequisite for suing in a federal court. Id. But unlike this

case, the additional materials offered “a complete view of Plaintiff’s attempt to exhaust

administrative remedies,” and the plaintiff in Carrigan had not responded to the

defendant’s motion to dismiss, which was thereby deemed admitted. Id.

In this case, Plaintiff has specifically responded with a request to engage in

discovery focused “on his challenged administrative-exhaustion efforts as well as his

interactions with prison officials.” R&R at 13. The Court cannot say, at this stage of the

proceedings, that the single affidavit referenced by Defendants offers a complete view of

Plaintiff’s attempts at exhaustion. This is particularly so considering Plaintiff’s specific

request to engage in further discovery, and Plaintiff’s contentions that his exhaustion

efforts were obstructed. R&R at 5–6.2 Little v. Jones, 607 F.3d 1245, 1250 (10th Cir.

2010) (“Where prison officials prevent, thwart, or hinder a prisoner’s efforts to avail

himself of an administrative remedy,” exhaustion is not required).

Defendants’ objections to the R&R, asserting further discovery on administrative

exhaustion would be futile, are overruled.

II. Defendants are entitled to qualified immunity, as Plaintiff does not allege

the violation of a clearly established constitutional right.

Next, Defendants object to the magistrate’s conclusions as to whether they are

entitled to qualified immunity [Doc. No. 12].

“Qualified immunity protects government officials performing discretionary

functions from individual liability in federal claims unless their conduct violates ‘clearly

established statutory or constitutional rights of which a reasonable person would have

2 The Court will construe pro se Plaintiff’s pleadings liberally. Green v. Dorrell, 969 F.2d

915, 917 (10th Cir. 1992).

known.’” Nielander v. Bd. of Cty. Comm’rs, 582 F.3d 1155, 1166 (10th Cir. 2009) (quoting

Shero v. City of Grove, 510 F.3d 1196, 1204 (10th Cir. 2007)).

Where, as in this case, qualified immunity is asserted in a motion to dismiss, the

correct standard for review is the same as for dismissals based on failure to state a claim

for relief. Archuleta v. Wagner 523 F.3d 1278, 1281 (10th Cir. 2008). Thus, the Court is

“limited to assessing the legal sufficiency of the allegations contained within the four

corners of the complaint.” Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir.1995). The Court

must accept as true all “well-pleaded facts, as distinguished from conclusory allegations,

and view those facts in the light most favorable to the nonmoving party.” Archuleta, 523

F.3d at 1283; accord Burgess v. City of Okla., No. CIV-07-269-D, 2009 WL 2922942, at

*5 (W.D. Okla. Sept. 8, 2009).

The qualified immunity analysis requires the Court to determine both (1) whether

the complaint alleges conduct that amounts to a constitutional violation; and, (2) whether

the right violated was clearly established at the time of the conduct at issue. Saucier v.

Katz, 533 U.S. 194, 201 (2001). The Court may address each of the two prongs of the

analysis in any order. Burgess, 2009 WL 2922942, at *5–6 (citing Pearson v. Callahan,

555 U.S. 223, 231 (2009)).

Defendants argue that the conduct alleged does not amount to a constitutional

violation. They contend that they had no constitutional obligation to “undertake an

investigation that includes searching court records, reviewing court transcripts, and

questioning judges and criminal defense attorneys regarding the terms of the plea

agreement, when a prisoner claims [his sentence is being incorrectly administered].”

Objection at 4.

Plaintiff’s Amended Complaint [Doc. No. 52] alleges that he noticed on his time

sheet that he was not being credited for time served. He then alerted Defendant Howry,

and Howry refused to correct the error. Amended Complaint at 5. Defendant Howry

refused to do so because the credit for time served Plaintiff claimed was not reflected in

the pertinent judgment and sentence. Id. at 9. Plaintiff alleges to have then engaged the

grievance process but does not allege he produced proper documentation or credible

evidence in support of his assertions. Id. Plaintiff then alleges that once the judgment and

sentence were corrected, he received a copy of the documents on or about March 17, 2016.

Id. at 10. On March 28, Plaintiff was awarded credits for time served and immediately

discharged. Id.

Accepting these allegations as true and viewing them in the light most favorable to

Plaintiff, the Court cannot say that Defendants violated a clearly established constitutional

right. The Court can locate no binding precedent that would have put Defendants on notice

that their conduct was unconstitutional, and Plaintiff points to none. See Hainey v.

Sirmons, No. CIV-07-205-C, 2007 WL 2703166, at *7 (W.D. Okla. Sept. 14, 2007) (citing

Anderson v. Blake, 469 F.3d 910, 914 (10th Cir. 2006) (Plaintiff has the burden of

demonstrating the constitutional right is clearly established and may rely on cases from the

Supreme Court, Tenth Circuit, or the weight of authority from other circuits)).3

3 Plaintiff is correct that he need not proffer a case directly on point. Plaintiff must,

however, at minimum point to a case that illustrates by analogy that Defendants had

It would not have been reasonable for Defendants to believe that by following a

facially valid judgment and sentence they were violating Plaintiff’s constitutional rights.

See Alston v. Read, 663 F.3d 1094 (9th Cir. 2011) (“State corrections officials did not have

clearly established duty to seek out original court records in response to state prisoner’s

unsupported assertion that he was being overdetained, and thus, state officials were entitled

to qualified immunity from liability for their failure to do so, in prisoner’s § 1983 claim

alleging overdetention in violation of due process and the Eighth Amendment.”).

To the contrary, at all times relevant to Plaintiff’s claim, the Oklahoma Court of

Criminal Appeals interpreted Oklahoma law as placing the decision whether to award

presentence jail credits within the discretion of the sentencing court. See Holloway v. State,

182 P.3d 845, 847 (Okla. Crim. App. 2008). Plaintiff’s Amended Complaint alleges only

that Defendants complied with the documentation they originally received from the court:

a judgment and sentence that were silent as to the amount of credit for time served.4

Contrary to Plaintiff’s assertions in his Reply, Defendants did act once they were properly

notified of the mistake [Doc. No. 60 at 10].5 Once Defendants received an amended

sufficient notice that by failing to investigate the information they had available, they

violated the Constitution.

4 The judgment available to Defendants at the time said only that Plaintiff “is sentenced to

four (4) years all under the custody and control of the department of corrections with credit

for time served.” Judgment [Doc. No. 37], Ex.5 at 2.

5 Plaintiff asserts that all Defendants had to do was call the District Attorney. Even if

Defendants had called, however, Plaintiff would have had to undergo the exact process that

resulted in the amended judgment and sentence. Defendants would have had no authority

to alter the original judgment based on any information they might have obtained from the

District Attorney [Doc. No. 60 at 9]. See Okla. Stat. Ann. tit. 22, § 978–79 (West) (The

Oklahoma Department of Corrections is required to administer sentences in accordance

judgment and sentence, serving as documentation supporting Plaintiff’s allegations,

Plaintiff was discharged. Complaint at 10.

Therefore, Defendants’ objection as to their claim of qualified immunity is

sustained.

CONCLUSION

The Court, having conducted a de novo review, finds that Defendants’ objection on

administrative exhaustion is overruled. Nevertheless, the Court sustains Defendants’

objection as to their claim of qualified immunity. The Court finds that because Plaintiff

failed to effectively allege that Defendants violated a clearly established constitutional

right, Plaintiff has failed to state a § 1983 claim against Defendants in their individual

capacity.

The Court hererby adopts the Report and Recommendation [Doc. No. 58], in part,

consistent with the Court’s findings more fully set forth in this Order. Accepting

Magistrate Judge Mitchell’s recommendation, and fully adopting the reasoning in the

R&R, Plaintiff’s § 1983 claims against Defendants in their official capacity are dismissed.

As detailed herein, Plaintiff’s § 1983 claims against Defendants in their individual capacity

are dismissed for failure to state a claim.

IT IS THEREFORE ORDERED that Defendants’ Motion [Doc. No. 55] to

dismiss Plaintiff’s Amended Complaint in its entirety is GRANTED. All claims against

with the Judgment and Sentence issued by the District Courts). This bolsters Defendants’

argument that they lacked credible evidence, and hence, no constitutional violation ensued.

Defendants are DIMISSED WITH PREJUDICE to refiling.® A separate judgment will

be entered accordingly.

IT IS SO ORDERED this 19" day of November, 2019.

Nd, O Qu

by Ue uae

i,

TIMOTHY D. DeGIUSTI

Chief United States District Judge

dismissal with prejudice is appropriate where a complaint fails to state a claim under

Rule 12(b)(6) and granting leave to amend would be futile.” Brereton v. Bountiful City

Corp., 434 F.3d 1213, 1219 (10th Cir. 2006); accord Full Life Hospice, LLC v. Sebelius,

709 F.3d 1012, 1018 (10th Cir. 2013) (leave to amend should be freely granted, but

amendment may be denied when it would be futile). Since it appears Plaintiff is unable to

assert a constitutional claim against Defendants, the Court finds that further amendment

would be futile.