The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DENNIS RAY RIGSBY, JR., )
)
Plaintiff, )
)
v. ) No. CIV-21-575-R
)
THE GREAT STATE OF OKLAHOMA, )
et al. )
)
Defendants. )
ORDER
Plaintiff a state pretrial detainee appearing pro se and in forma pauperis filed this
action asserting the violation of his constitutional rights by three Defendants: (1) the state
of Oklahoma; (2) the State of California; and (3) any state using “after former” convictions
to “twice” punish people.1 Pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) the matter was
referred to United States Magistrate Judge Shon T. Erwin for preliminary review. On July
13, 2021, Judge Erwin issued a Report and Recommendation wherein he recommended
that the Complaint be dismissed pursuant to 28 U.S.C. § 1915A(e) and § 1915(e)(2)(B) for
failure to state a claim. The matter is currently before the Court on Plaintiff’s timely
objection to the Report and Recommendation, which gives rise to the Court’s obligation to
undertake a de novo review of those portions of the Report and Recommendation to which
Petitioner makes specific objection. Having conducted this review, the Court finds as
follows.
1 “Because [the plaintiff] appears pro se, we review his pleadings and other papers liberally and hold them to a less
stringent standard than those drafted by attorneys.” See Trackwell v. U.S. Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007).
Certain background that provides context to Plaintiff’s Complaint is necessary, the
Court having gleaned this information from the numerous cases Plaintiff has filed in this
District as well as from reviewing the online court dockets from the District Court of Custer
County, Oklahoma and the District Court of Oklahoma County. Plaintiff is currently
awaiting trial in the District Court of Custer County in Case No. CF-2020-123, where he
stands charged with murder in the first degree, after former conviction of two or more
felonies.2 In this case he requests that the State of Oklahoma, the State of California—by
virtue of its three strikes law—and any other state using prior convictions to increase or
enhance sentences, be forced to forego these systems. He also requests monetary relief
from the states.
In the form Complaint Plaintiff checked the space indicating that the basis for the
Court’s jurisdiction is Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971). The Report and Recommendation correctly notes that Bivens permits a claim
against a federal official in his or her individual capacity, not a claim against the State.
Accordingly, Bivens provides no basis for Plaintiff’s Complaint to proceed.
Furthermore, even if the Court were to construe Plaintiff’s Complaint as having
been filed pursuant to 42 U.S.C. § 1983, none of the named Defendants would be properly
before the Court by virtue of the Eleventh Amendment. The Eleventh Amendment
“accord[s] states the respect owed them as joint sovereigns,” by granting immunity to
2 At page 3 of the Report and Recommendation Judge Erwin cites to CF-2003-2175 as a case involving Defendant
from the District Court of Custer County. Petitioner was convicted in CF-2003-2175 in the District Court of Oklahoma
County. The Court hereby declines to adopt that particular finding, however, the misstatement has no impact on the
outcome of the case.
nonconsenting states from suits in federal court. Steadfast Ins. Co. v. Agric. Ins. Co., 507
F.3d 1250, 1252 (10th Cir. 2007) (citations omitted). “Eleventh Amendment immunity
applies ... whether a plaintiff seeks declaratory or injunctive relief, or money damages.” Id.
(citations omitted). Neither Oklahoma nor California has waived its Eleventh Amendment
immunity and the “third defendant”, which is not an identifiable entity, likely has not either.
See Hensel v. Office of the Chief Admin. Hearing Officer, 38 F.3d 505, 508 (10th Cir. 1994)
(Oklahoma); Brown v. Cal. Dep’t of Corr., 551 F.3d 747, 752 (9th Cir.
2007)(California)(citations omitted). Thus, Plaintiff could not proceed on his claims even
if they were construed as arising under 42 U.S.C. § 1983.
Plaintiff requests that the Court appoint counsel for him pursuant to 28 U.S.C. §
1915. The Court hereby DENIES Plaintiff’s motion. There is no constitutional right to
appointment of counsel in a civil case. Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir.
1989); Carper v. DeLand, 54 F.3d 613, 616 (10th Cir. 1995). The decision whether to
appoint counsel in a civil matter lies in the discretion of the district court. Williams v.
Meese, 926 F.2d 994, 996 (10th Cir. 1991). In deciding whether to appoint counsel, the
Court evaluates the merits of the prisoner's claims, the nature and complexity of the factual
and legal issues, and his ability to investigate the facts and present his claims. Rucks v.
Boergermann, 57 F.3d 978, 979 10th Cir. 1995). Having concluded that the Defendants are
entitled to Eleventh Amendment immunity the appointment of counsel is unwarranted.
The Report and Recommendation is adopted to the extent it is consistent with the
above and this action is hereby DISMISSED.
IT IS SO ORDERED this 21° day of September 2021.
DAVID L. RUSSELL
UNITED STATES DISTRICT JUDGE