RANDALL EDWARD FLETCHER v. RICK WHITTEN, et al.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

RANDALL EDWARD FLETCHER, )

)

Plaintiff, )

)

v. ) Case No. CIV-24-692-SLP

)

RICK WHITTEN, et al., )

)

Defendants. )

O R D E R

Before the Court is the Report and Recommendation [Doc. No. 9] issued by United

States Magistrate Judge Amanda Maxfield pursuant to 28 U.S.C. § 636(b)(1)(B) and (C).

Plaintiff Randall Edward Fletcher, a state prisoner appearing pro se and in forma pauperis,

seeks civil rights relief, alleging violations of his federal constitutional rights under 42

U.S.C. § 1983. The Magistrate Judge screened the Complaint in accordance with 28 U.S.C.

§§ 1915A(a) and 1915(e)(2), and recommends the action be dismissed without prejudice.

Plaintiff has filed an Objection [Doc. No. 10] to the R&R.1 Accordingly, the Court

must make a de novo determination of those issues specifically raised by the Objection,

and may accept, modify, or reject the recommended decision. See 28 U.S.C. § 636(b)(1);

Fed. R. Civ. P. 72(b)(3). The Plaintiff is deemed to have waived any objection to any

aspect of the R&R to which he has not raised a specific objection to the findings and

conclusions of the Magistrate Judge. See Hooper v. Stitt, No. CIV-22-988-D, 2023 WL

1 Plaintiff’s Objection to the R&R was timely submitted by function of the prison mailbox rule.

See Order [Doc. No. 12] at 1.

2432038, at *1 (W.D. Okla. Mar. 9, 2023) (“In his objection, Plaintiff generally ignores

Judge Erwin’s analysis and repeats, verbatim, many of the arguments previously presented

in his complaint. . . . Plaintiff’s failure to identify any specific error in Judge Erwin’s

analysis prevents further review.”), aff’d, No. 23-6049, 2023 WL 5923920 (10th Cir. Sept.

12, 2023); Mathews v. Elhabte, No. 22-6031, 2022 WL 3592550, at *2 (10th Cir. Aug. 23,

2022) (objection must be “sufficiently specific to focus the district court's attention on the

factual and legal issues that are truly in dispute”); United States v. One Parcel of Real

Prop., 73 F.3d 1057, 1060 (10th Cir. 1996) (Any “objection[] to the magistrate judge’s

report and recommendation must be both timely and specific to preserve an issue for de

novo review by the district court.”); Moore v. United States, 950 F.2d 656, 659 (10th Cir.

1991). For the following reasons, the R&R is ADOPTED, and the Complaint is dismissed

without prejudice.

I. Background2

Plaintiff is a state inmate who is currently incarcerated at Great Plains Correctional

Center.3 At the relevant time of the facts alleged in the Complaint, Plaintiff was

incarcerated at North Fork Correctional Center (NFCC). He alleges that NFCC officials

and an Oklahoma Department of Corrections (ODOC) contractor violated his

constitutional rights by limiting his access to evidence at a disciplinary hearing and

2 The Court “presumes all of plaintiff’s factual allegations are true and construes them in the light

most favorable to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).

3 See [Doc. No. 1] at 1; Oklahoma Department of Corrections OK Offender,

https://okoffender.doc.ok.gov

subsequently punishing him. Plaintiff filed this action, pursuant to 42 U.S.C. § 1983,

naming six defendants: Rick Whitten, the Warden of NFCC4, in his individual and official

capacities; David Rogers, the Deputy Warden of NFCC, in his individual and official

capacities; Chris Mattingly, Correctional Sergeant and Disciplinary Coordinator at NFCC,

in his individual and official capacities; Chrystal Bryant, Correctional Case Manager at

NFCC, in her individual and official capacities; Mark Knutson, Director Designee and

Supervisor of Administrative Review of the Oklahoma Department of Corrections, in his

individual and official capacities, and; Securus Technologies, a private company who

provided phone services to NFCC [Doc. No. 1] at 1-2. His Complaint includes claims of

violations of his rights to Due Process and Equal Protection under the Fourteenth

Amendment, freedom of speech under the First Amendment, and freedom from cruel and

unusual punishment under the Eighth Amendment. Plaintiff also raises state law claims

and violations of the rules of evidence.5

II. Plaintiff’s Objections

a. Due Process

In the R&R, the Magistrate Judge found that Plaintiff failed to state a Fourteenth

Amendment Due Process Claim as no protected liberty interest was identified. [Doc. No.

9] at 8. Plaintiff cites to Harrison v. Morton, 490 F. App’x 988 (10th Cir. 2012) for the

4 All individual defendants were serving in these positions at the time of the Complaint. Between

the facts giving rise to the Complaint and the filing of the Complaint, NFCC ceased operations.

5 Plaintiff does not clarify, when he is referencing the “rules of evidence”, whether he is claiming

violations of state law rules of evidence, the Federal Rules of Evidence, or another ground.

proposition that ODOC failed to provide proper procedure in Plaintiff’s disciplinary

proceeding. [Doc. No. 10] at 4. However, the Court will not consider Plaintiff’s arguments

raised in the objection as to the procedural aspects of the disciplinary proceedings, as

Plaintiff has failed to establish the prerequisite of a liberty interest being implicated. See

Harrison, 490 F. App’x at 993 (“If a protected liberty interest is implicated, the following

procedures must be provided in a disciplinary hearing . . .”) (emphasis added and citations

omitted); Elliot v. Martinez, 675 F.3d 1241, 1244 (10th Cir. 2012) (“An alleged violation

of . . . procedural due process . . . prompts a two-step inquiry: (1) whether the plaintiff has

shown the deprivation of an interest in life, liberty, or property . . .”) (internal quotation

marks and citations omitted). Plaintiff raises additional arguments in his Objection that he

argues give rise to liberty interests: (1) Plaintiff’s change in security classification, thus

affecting earned credits, and; (2) violations of ODOC policies and procedures. See [Doc.

No. 10] at 4-7. This Court finds the Magistrate Judge was correct in not finding a liberty

interest existed, but will address the additional arguments in the Objection as to each

ground.

Plaintiff’s argument as to the change in security classification is similar to the

plaintiff’s arguments raised in Marshall v. Morton, 421 F. App’x 832 (10th Cir. 2011). In

Marshall, the plaintiff brought a § 1983 claim after he lost earned credits and had his inmate

classification level changed as a result of disciplinary proceedings he alleged were

improper. Marshall, 241 F. App’x at 834. Similar to Plaintiff, the plaintiff in Marshall

was a state prisoner who was serving a sentence subject to Okla. Stat. tit. 21, § 13.1 (the

85% rule). Id. On appeal, the Tenth Circuit found:

the possibility that Marshall’s misconduct conviction could have a negative

impact on his parole consideration did not implicate a protected liberty

interest. As the Supreme Court explained in [Sandin v. Conner, 515 U.S.

472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)], “[t]he decision to release a

prisoner rests on a myriad of considerations.” 515 U.S. at 487, 115 S.Ct.

2293. Thus, even though a parole board may consider an inmate’s

misconduct convictions as a relevant consideration when deciding whether

to grant parole, “[t]he chance that [this] finding . . . will alter the balance is

simply too attenuated to invoke the procedural guarantees of the Due Process

Clause.”

Marshall, 241 F. App’x at 838; see also Griffith v. Bryant, 625 F. App’x 914, 917

(10th Cir. 2015) (“[B]ecause Oklahoma’s parole scheme is discretionary, [a prisoner] has

no constitutionally protected due process liberty interest in parole”). Here, Plaintiff argues

that he “has an interest in making sure his record shows no breaks in his [earned] credit

level for the pardon and parole board’s consideration.” [Doc. No. 10] at 4. Plaintiff is

incorrect in stating his “earned credits are recorded so that once you reach 85% sentence

. . . you then discharge that sentence . . . .” Id. at 5. Plaintiff is not eligible for earned credits

because he is serving a sentence subject to the 85% rule. Okla. Stat. tit. 21, § 13.1 (“Persons

convicted of [crimes subject to the 85% rule] shall not be eligible for earned credits or any

other types of credits which have the effect of reducing the length of the sentence to less

than eighty-five percent . . . of the sentence imposed”); Okla. Stat. tit. 57 § 138 (“no

deductions shall be credited to any inmate serving a sentence of life imprisonment”).

Rather, “a complete record of the inmate’s participation in work, school, vocational

training, or other approved program shall be maintained by the Department for

consideration by the paroling authority.” Okla. Stat. tit. 57 § 138(A). Once Plaintiff reaches

85% of his sentence, he may be considered for parole. Akin to the plaintiff in Marshall,

Plaintiff argues that any change in his security classification or participation record would

influence parole considerations. [Doc. No. 10] at 5. While this Court is aware that changes

to Plaintiff’s security classification and participation record may be a consideration for the

parole board at the time of a hearing, the possibility that it could have an effect at such a

time in the future does not give rise to a liberty interest under the Due Process Clause.

In the Objection, Plaintiff also argues that the 92-day restriction on telephone

privileges and the procedures for the disciplinary proceedings violated ODOC policies and

procedures, thus giving rise to a liberty interest. However, the Magistrate Judge correctly

found “[t]he alleged violations of ODOC policy are also not cognizable as standalone

claims under Section 1983.” [Doc. No. 9] at 11, n. 6 (citing Gaines v. Stenseng, 292 F.3d

1222, 1225 (10th Cir. 2002) and Heidel v. Mazzola, 851 F. App’x 837, 840 (10th Cir.

2021)). Plaintiff cites to authority in the Objection that is either inapplicable or where a

liberty interest has been established.6 As such, this Court concurs with the Magistrate

Judge and finds that Plaintiff failed to state a viable Due Process Claim.

b. Equal Protection

The Magistrate Judge found that Plaintiff failed to state an Equal Protection claim

as he did not demonstrate he was discriminated against as a member of a class. [Doc. No.

9] at 11-12. However, Plaintiff does not specifically challenge any of the Magistrate

6 For example, Brady v. Maryland, 373 U.S. 83 (1963) focuses on the suppression of evidence in

a criminal jury trial. Brady, 373 U.S. at 87. Wolff v. McDonnell, 418 U.S. 539 (1974) as well as

the Seventh Circuit and Kentucky authority relied upon by Plaintiff for this proposition also fail in

that a liberty interest was established by the plaintiffs.

Judge’s findings or conclusions. Although Plaintiff purports to object to the Magistrate

Judge’s Equal Protection finding, Plaintiff does not demonstrate he was a member of a

class of individuals that were treated differently. See [Doc. No. 10] at 7. As such, this

Court finds he has waived any objection to the Equal Protection findings in the R&R, and

that the Equal Protection claim is subject to dismissal.

c. First Amendment

In the R&R, the Magistrate Judge found that Plaintiff’s First Amendment claim

relating to restriction of phone privileges is moot. [Doc. No. 9] at 13-15. Liberally

construing his Objection, Plaintiff argues for application of the capable-of-repetition

exception to the mootness doctrine in the Objection.7 [Doc. No. 10] at 7-9. The capable-

of-repetition exception “applies only where the following two circumstances are

simultaneously present: (1) the challenged action is in its duration too short to be fully

litigated prior to the cessation or expiration, and (2) there is a reasonable expectation that

the same complaining party will be subject to the same action again.” McAlpine v.

Thompson, 187 F.3d 1213, 1216 (10th Cir. 1999) (cleaned up and citations omitted).

Plaintiff does not dispute that he has already served the sanctions at issue, but argues that

the ODOC appeal process prevents him from being able to litigate the actions before he

serves the sanctions. [Doc. No. 10] at 8. Even if Plaintiff was able to satisfy the first

element, Plaintiff has not demonstrated a reasonable expectation that he would be subjected

7 Plaintiff also argues in the Objection that his Due Process claims are not moot. [Doc. No. 10] at

8. The Magistrate Judge found that only Plaintiff’s First Amendment claim was moot, and found

that Plaintiff failed to state a Due Process claim on other grounds. [Doc. No. 9] at 13-15.

to the same deprivation of telephone privileges. Plaintiff argues that despite being

transferred from North Fork Correctional Center to Great Plains Correctional Center, the

Defendants can repeat the alleged misconduct at a new facility. [Doc. No. 10] at 9. To

demonstrate there is a reasonable expectation that they could be subjected to the same

actions, a plaintiff “must show a real or immediate threat he will be wronged again—

speculation and conjecture will not suffice.” Burnett v. Fallin, 785 F. App’x. 546, 552

(10th Cir. 2019). Plaintiff argues that “the Defendants still work within the prison system

and carry the same attitudes and reasoning,” thus allowing the conduct to be repeated.

[Doc. No. 10] at 9. Defendant Mattingly is the only Defendant who is present at Plaintiff’s

new facility. Id. Plaintiff did not provide any evidence or specific facts to show that there

is a “real and immediate threat” that he will be subject to a wrongful deprivation of

telephone privileges. Plaintiff has not demonstrated how these Defendants would be

capable of committing the same actions other than through speculation.8 This Court agrees

with the finding of the Magistrate Judge that Plaintiff’s First Amendment claim is moot

and this Court lacks subject-matter jurisdiction as such.

d. Eighth Amendment

The Magistrate Judge also found that the discipline imposed against Plaintiff did

not amount to cruel and unusual punishment under the Eighth Amendment. [Doc. No. 9]

at 16-18. In the Objection, Plaintiff purports to object to the Magistrate Judge’s Eighth

8 Plaintiff’s reliance on Jordan v. Sosa, 654 F.3d 1012 (10th Cir. 2011) is inapplicable to Plaintiff’s

claims. Plaintiff is not “challenging policies that apply in a generally uniform throughout a prison

system. . . .” Jordan, 654 F.3d at 1028. Rather, Plaintiff alleges that certain actors within the

ODOC have misapplied ODOC policies.

Amendment findings. [Doc. No. 10] at 9. However, Plaintiff reasserts arguments relating

to the Due Process Clause and violations of ODOC policy. See [Doc. No. 10] at 9. Similar

to Plaintiff’s Equal Protection arguments, Plaintiff did not specifically challenge any of the

Magistrate Judge’s findings or conclusions as to his Eighth Amendment claim. This Court

finds that he has waived his objection to the Eighth Amendment findings in the R&R, and

that the Eighth Amendment claim is subject to dismissal.

e. Additional Grounds9

Plaintiff raises additional arguments in the Objection that his claims of collective

punishment and violations of the “rules of evidence” were not addressed in the R&R. [Doc.

No. 10] at 12. While Plaintiff posits that such claims are independent of his constitutional

claims, these claims are incorporated and necessarily intertwined with his Due Process and

Eighth Amendment claims. See [Doc. No. 1] at 9-11. Furthermore, Plaintiff did not cite

any law or bring forth any specific arguments that such claims are independent of his

Constitutional claims. Thus, this Court dismisses such claims without prejudice.

III. Conclusion

IT IS THEREFORE ORDERED that the R&R [Doc. No. 9] is ADOPTED.

Plaintiff’s Complaint [Doc. No. 1] is DISMISSED WITHOUT PREJUDICE. A separate

judgment of dismissal shall be entered contemporaneously herewith.

9 Plaintiff raises objections to the Magistrate Judge’s discussion of the factual and procedural

background of the matter in the R&R. See [Doc. No. 10] at 1-3. Plaintiff also purportedly objects

to the Magistrate Judge’s finding of the inapplicability of Heck v. Humphrey, 512 U.S. 477 (1994).

IT IS SO ORDERED this 2"4 day of December, 2025.

LZ bop

SCOTT L. PALK

UNITED STATES DISTRICT JUDGE

Id. at 3-4. These objections do not affect the R&R’s overall conclusions and thus the Court

declines to address them.

10