Stewart v. Stitt

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

ANTHONY STEWART, )

)

Plaintiff, )

)

v. ) No. CIV-23-832-R

)

KEVIN STITT, et al., )

)

Defendants. )

ORDER

Plaintiff Anthony Stewart, a state prisoner proceeding pro se,1 brought this civil

rights action under 42 U.S.C. § 1983 against Governor Kevin Stitt and members of the

Oklahoma Pardon and Parole Board. The matter was referred to United States Magistrate

Judge Shon T. Erwin for initial proceedings in accordance with 28 U.S.C. § 636(b)(1)(B)

and (C). Judge Erwin issued a Report and Recommendation [Doc. No. 8] recommending

that Plaintiff’s Complaint be dismissed upon screening because it asserts claims that are

not properly brought under § 1983. Plaintiff filed a timely Objection [Doc. No. 9] and the

Court must therefore make a de novo determination of those portions of the Report to which

a specific objection is made. 28 U.S.C. § 636(b)(1); Fed R. Civ. P. 72(b)(3).

Plaintiff’s Complaint asserts two claims. First, Plaintiff alleges that Governor Stitt

violated Plaintiff’s constitutional rights by rejecting legislation that would “bring about

sentencing reform” and “do away with indeterminate sentencing.” Doc. No. 1 at 2. Second,

1 Because Petitioner is proceeding pro se, the Court affords his materials a liberal

construction but does not act as his advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th

Cir. 1991).

Plaintiff alleges that the lack of uniform criteria or specific rules governing Oklahoma’s

pardon and parole proceedings violates his right to due process. Id. at 3. The Complaint

then requests a court order compelling Governor Stitt “to sign a sentencing reform (matrix)

that will ensure uniform sentencing and do away with indeterminate unjust sentences” and

to adopt certain rules governing parole proceedings or, alternatively, to pay damages to

Plaintiff. Id. at 2-3. The Complaint also states that Plaintiff “is seeking to have his sentence

modified to reflect the amount of time he has to serve to satisfy a Life or Life w/o Parole

sentence[,]” requests that “his sentence be set at a minimum of 18-60 years[,]” and

complains that Oklahoma’s parole process denies him “a meaningful avenue in which to

obtain relief from his unjust sentence[.]” Doc. No. 1 at 6-8.

Judge Erwin construed these claims as challenging the legality or execution of

Plaintiff’s sentence. And, as Judge Erwin correctly noted, claims challenging the legality

or execution of a sentence must be brought in a petition seeking habeas relief. See

Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (“[A] prisoner in state custody cannot use a

§ 1983 action to challenge ‘the fact or duration of his confinement.’”); Davis v. Roberts,

425 F.3d 830, 833 (10th Cir. 2005) (“[A] challenge to the execution of a sentence should

be brought under 28 U.S.C. § 2241.”). In his Objection, Plaintiff takes issue with this

characterization and argues that he is asserting claims for violation of his Fourteenth

Amendment Due Process rights.2 Upon de novo review, the Court agrees that the

2 Plaintiff’s Amended Complaint also references the Equal Protection Clause of the

Fourteenth Amendment and asserts that other state prisoners have achieved post-conviction

relief. The mere fact that other prisoners have been awarded post-conviction relief is not

sufficient to state a plausible equal protection claim. See Daniels v. Dowling, 731 F. App'x

allegations in the Amended Complaint challenge the legality and execution of Plaintiff’s

sentence. Plaintiff specifically requests “sentencing reform” or additional parole

procedures that would either modify the duration of his sentence or result in a speedier

release via parole. Section 1983 is not the proper vehicle for these types of claims.

However, liberally construed, Plaintiff’s second claim could also be read as raising

a challenge to Oklahoma’s parole process that would not necessarily undermine the fact or

duration of Plaintiff’s sentence. In that case, § 1983 would be the proper vehicle for the

claim. Wilkinson, 544 U.S. at 81-82 (holding that Ҥ 1983 remains available for procedural

challenges where success in the action would not necessarily spell immediate or speedier

release for the prisoner”). But construing Plaintiff’s challenge to Oklahoma’s parole

procedures as properly brought pursuant to § 1983 is ultimately of little help to Plaintiff

because there is “no constitutionally protected due process liberty interest” in Oklahoma’s

discretionary parole system. Griffith v. Bryant, 625 F. App'x 914, 917 (10th Cir. 2015).

Because there is no protected liberty interest, any alleged deficiencies in Oklahoma’s

parole procedures do not violate Plaintiff’s due process rights.

Accordingly, upon de novo review, the Court finds that Plaintiff’s Amended

Complaint fails to state plausible claims under 42 U.S.C. § 1983. The Report and

Recommendation is therefore ADOPTED and this action is dismissed without prejudice.

756, 759 (10th Cir. 2018) (petitioner failed to state plausible equal protection claim where

he alleged that another prisoner submitted the same post-conviction application but failed

to show that they were similarly situated).

IT IS SO ORDERED this 7 day of November 2023.

DAVID L. RUSSELL

UNITED STATES DISTRICT JUDGE