Opinion
CIV-22-789-R
04-28-2023
RAHEEM LA'MONZE PLATER Plaintiff, v. DAVID BOWERS et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE.
Raheem La'Monze Plater, a state prisoner proceeding pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983. Doc. 17. United States District Judge David L. Russell referred this matter to the undersigned Magistrate Judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B), (C). Docs. 5, 13, 18. Plaintiff asserts due process and equal protection claims under the United States Constitution as well as a fraud claim under Oklahoma law. Doc. 17. The undersigned recommends the Court dismiss Plaintiff's due process and equal protection claims for failure to state a claim upon which relief can be granted and decline to exercise supplemental jurisdiction over Plaintiff's fraud claim.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
I. Screening.
Federal law requires the Court to dismiss a case at any time if the Court determines that the action “is frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). The complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
This Court construes “pro se plaintiffs' pleadings liberally.” Johnson v. Reyna, 57 F.4th 769, 775 (10th Cir. 2023). If the Court “‘can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail,' [it] should do so.” Id. (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). The Court “will often excuse pro se plaintiffs' failure to cite proper legal authority, confusion of various legal theories, poor syntax and sentence construction, and unfamiliarity with the pleading requirements.” Id. (internal quotation marks omitted). The Court, may not, however, serve as Plaintiff's advocate by creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
II. Plaintiff's claims in his Amended Complaint.
The amended complaint supersedes the original complaint and renders it without legal effect. See e.g., Davis v. TXO Prod. Corp., 929 F.2d 1515, 1517 (10th Cir. 1991) (“[A]n amended complaint ordinarily supersedes the original and renders it of no legal effect.”). So “any claims or allegations not included in the Amended Complaint are no longer before the court . . . and the Amended Complaint must contain all allegations and claims that Plaintiff intends to pursue in this action, including those to be retained from the original complaint.” McKnight v. Douglas Cnty. Corr. Facility, 2021 WL 2634431, at *3 n.1 (D. Kan. June 25, 2021).
Plaintiff's claims arise from a misconduct charge Plaintiff received after prison officials alleged he had a sharpened instrument. Doc. 17, Att. 4. Plaintiff was found not guilty of the misconduct. Id. The next day, Defendant David Bowers ordered a rehearing. Id.; Doc. 17, at 2. The rehearing took place on May 14, 2021, and Plaintiff was found guilty. Doc. 17, Att. 4. In response to Plaintiffs appeal, the Director's Designee determined “due process was not provided” at the facility and ordered a second rehearing. Id. Specifically, he found that provisions of OP-060125 in the “Inmate/Offender Disciplinary Procedures” were not followed. Id. The Director's Designee stated:
A rehearing is requested upon receipt of this directive and all related paperwork by the facility where the inmate is presently housed. At least twenty-four (24) hours prior to the rehearing, the inmate will receive written notification of the scheduled date and approximate time of the rehearing.
***
Inmate/Offender Disciplinary Procedures, OP-060125 VIII.A.4 states in part, “Rehearings must be conducted within 15 days from the date of the order, unless circumstances dictate otherwise.” Once conducted, documentation of the rehearing or order of dismissal will be maintained at the facility.Id. Plaintiff alleges he never received a hearing, and the misconduct charge was not dismissed until September 24, 2021. Doc. 17, at 2.
Plaintiff asserts Defendants Bowers and GEO Group, Inc. (“GEO Group”), violated his substantive and procedural due process rights as well as his right to equal protection. Id. at 2-3. He also alleges Defendant Bowers committed actual and constructive fraud under Oklahoma law. Id. at 4. For each of these claims, Plaintiff seeks compensatory and punitive damages. Id. at 3-4. Additionally, Plaintiff notes he can recover nominal damages on his due process claim. Id. at 7.
III. Discussion.
A. Plaintiff alleges Defendants Bowers and GEO Group violated his right to due process when they failed to follow prison regulations governing his misconduct proceeding.
The Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1.
The Due Process Clause encompasses two distinct forms of protection: (i) procedural due process, which requires a state to employ fair procedures when depriving a person of a protected interest; and (ii) substantive due process, which guarantees that a state cannot deprive a person of a protected interest for certain reasons.Benshoof v. Hall, No. CIV-22-527-R, 2022 WL 4287936, at *3 (W.D. Okla. July 29, 2022), adopted, 2022 WL 3586215 (W.D. Okla. Aug. 22, 2022); see also Lindsey v. Hyler, 918 F.3d 1109, 1115 (10th Cir. 2019) (“Claims for ‘substantive due process' find their basis in the Fourteenth Amendment's protections against arbitrary government power.”). Plaintiff alleges deprivation of both his procedural and substantive due process rights. Doc. 17, at 2.
“The threshold inquiry in a due process analysis is to identify whether a protected liberty interest is at stake.” Marshall v. Ormand, 572 Fed.Appx. 659, 661 (10th Cir. 2014) (citing Wilkinson v. Austin, 545 U.S. 209, 221 (2005)). “A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word ‘liberty[ ]' or it may arise from an expectation or interest created by state laws or policies.” Wilkinson, 545 U.S. at 221 (internal citations omitted). Plaintiff alleges a due process violation because Defendants' actions violated the right to marry his fiancee and the right to a “familial relationship” with his children, while also resulting in the “denial of due process itself' by disregarding prison regulations governing his misconduct. Doc. 17, at 2. For the reasons stated below, Plaintiff fails to state a claim on which relief can be granted.
1. Plaintiff's familial-relationship claim should be dismissed for failure to state a claim.
Plaintiff contends he was not able to have his daughters visit on their birthdays on June 8, 2021, and July 17, 2021. Id. at 3. He asserts this resulted in a violation of his constitutional right to familial relationship. Id. at 2. “The right to familial association is grounded in the Fourteenth Amendment's Due Process Clause.” Cordova v. City of Albuquerque, 816 F.3d 645, 654 (10th Cir. 2016) (internal quotation marks and alteration omitted), abrogated on other grounds by Thompson v. Clark, 142 S.Ct. 1332 (2022). “To prevail on a familial-association claim, a plaintiff must make two showings: (1) that the defendants intended to deprive [him] of [his] protected relationship, and (2) that balancing the individual's interest in the protected familial relationship against the state's interests in its actions, defendants either unduly burdened plaintiff's protected relationship, or effected an unwarranted intrusion into that relationship.” Id. (internal quotation marks and alteration omitted). Plaintiff does not plead facts sufficient to establish the first showing, so he fails to state a claim.
Plaintiff broadly asserts that Defendant Bowers “directed his conduct at the . . . right to familial relationship . . . with knowledge that his conduct w[ould] adversely affect” the relationship between he and his daughters and that he “fraudulently deprived Plaintiff of . . . intimate association with his children.” Doc. 17, at 2, 14. “These bare assertions . . . amount to nothing more than a ‘formulaic recitation of the elements.'” Iqbal, 556 U.S. at 681 (quoting Twombly, 550 U.S. at 555). Plaintiff fares no better on his more specific allegations. Plaintiff notes he “intended to obtain approval for visitation on the birthdates,” but does not claim he actually made a request. Doc. 17, at 10. Without knowledge that Plaintiff intended to visit with his family, Defendants could not have intentionally deprived him of this right. Additionally, by asserting that Defendant Bowers “arbitrarily” overturned the finding of not guilty and imposed “arbitrary sanctions,” Id. at 2, Plaintiff demonstrates a lack of intent on the part of Defendant Bowers. See Muniz-Savage v. Addison, 647 Fed.Appx. 899, 906 (10th Cir. 2016) (“The complaint contains no allegations that defendants intended or directed their conduct at the familial relationship with the knowledge that such conduct would adversely affect that relationship. Indeed, the lack of such intent is demonstrated by plaintiffs' allegations that the decision was ‘arbitrary.'”).
In conjunction with this statement, Plaintiff references his daughters' 2022 birthdays. Doc. 17, at 10. It is unclear whether Plaintiff contends he was also unable to visit with his daughters in 2022, well after his misconduct was dismissed.
Plaintiff also lacks a liberty interest in visitation with his daughters outside the context of a familial relationship. See Coleman v. Long, 772 Fed.Appx. 647, 649-50 (10th Cir. 2019) (“Plaintiff does not derive a liberty interest in visitation . . . from the Constitution.”); Wood v. Okla. Dep't of Corr., No. CIV-16-986-R, 2017 WL 377946, at *2 (W.D. Okla. Jan. 26, 2017) (finding “[t]here is no fundamental right to prison visitation for either the inmate or the visitor” and that “access to a particular visitor” is not “independently protected by the Due Process Clause”). So Plaintiff does not state a claim regarding this allegation.
2. Plaintiff's right-to-marry claim should be dismissed for failure to state a claim.
The Supreme Court “has long held the right to marry is protected by the Constitution” under the Due Process Clause of the Fourteenth Amendment. Obergefell v. Hodges, 576 U.S. 644, 664 (2015). This “constitutionally protected marital relationship [extends to] the prison context.” Turner v. Safley, 482 U.S. 78, 96 (1987). However, a prisoner's right to marriage may be restricted where it is reasonably related to a legitimate penological interest. See Id. at 96-97.
Plaintiff claims he intended to marry his fiancee, Stephanie Strodes, in March 2022, but Defendant Bowers's actions prevented him from doing so. Doc. 17, at 9. Plaintiff contends prison regulations required that his fiancee “be on [his] visitation list as approved for a minimum of six months in order for [him] to be eligible to marry” and only allowed marriages to occur in March and September. Id. at 9 (citing OP-09128(II)(B)(3)). Because Defendant Bowers delayed dismissal of Plaintiffs misconduct, Plaintiff alleges he could not get married in March 2022 because he could not fulfill the six-month visitation period by that date. Id. at 3. Thus, Plaintiff asserts the delay made it so that he could not get married until September 2022. Id. Plaintiff and Ms. Strodes did not get married in September 2022, however, because they decided to postpone their marriage until after Plaintiff leaves Oklahoma. Id. at 10.
To determine whether Defendants violated Plaintiffs right to marry, “the focus of [the Court's] inquiry must be whether any of the named defendants denied [his] request to marry Ms. [Strodes].” Post v. Mohr, 2012 WL 76894, at *10 (N.D. Ohio Jan. 10, 2012); cf. Daniels v. Williams, 474 U.S. 327, 328, 331 (1986) (holding “the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property” and noting that due process guarantees historically only apply to the “deliberate decisions” of a government official). Plaintiff does not allege that he made a request to marry Ms. Strodes, let alone that such a request was denied. Under such circumstances, courts have dismissed right-to-marry claims filed by prisoners. See Post, 2012 WL 76894, at *10 (dismissing claim where the complaint did “not suggest that any of the named defendants explicitly denied” a request to marry); Dixon v. Cain, 2015 WL 13309343, at *3 (M.D. La. Sept. 2, 2015) (dismissing a right-to-marry claim as premature where “there is no evidence in the record that the plaintiff and [his fiancee] have in fact formally requested authorization from prison officials to marry and that prison officials have refused that request”), adopted, 2015 WL 13439759 (M.D. La. Sept. 21, 2015). Therefore, Plaintiff has not stated a claim for the alleged denial of his right to marry.
3. Plaintiff does not state a claim for a procedural due process violation.
Plaintiff contends Defendants violated his right to procedural due process when Defendant Bowers “recklessly disregarded OP-060125 VII.E.2 by failing to obtain approval (in writing) from Director of Community Corrections in order to overturn the misconduct finding of not guilty.” Doc. 17, at 2. He contends Defendant Bowers “further exacerbated the deprivations when he extended the [proceedings] for two months even more - totaling 4 months -then failing to hold a rehearing in order to unconstitutionally subject Plaintiff to injury.” Id.
Plaintiff, however, has not identified a liberty interest which Defendants deprived him of. Plaintiff does not state a claim regarding his asserted liberty interests in familial association and marriage, and he does not have a liberty interest in the proper application of prison regulations. See, e.g., Sandin v. Conner, 515 U.S. 472, 481-82 (1995) (noting that prison regulations are “primarily designed to guide correctional officials in the administration of a prison,” not “to confer rights on inmates”).
“As far as prison regulations go, state-created liberty interests protected by the Fourteenth Amendment ‘are limited to freedom from restraint' that ‘imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'” Henderson v. Fisher, 767 Fed.Appx. 670, 675 (10th Cir. 2019) (quoting Sandin, 515 U.S. at 484). Plaintiff contends he was subject to “arbitrary sanctions” for four months after the guilty finding. Doc. 17, at 2. But other than the previously addressed claims that he was not able to visit with his daughters and marry his fiancee, he does not provide any examples of arbitrary restraints. He therefore does not state a cognizable due process claim. Henderson, 767 Fed.Appx. at 675; see also Gaines v. Stenseng, 292 F.3d 1222, 1225 (10th Cir. 2002); (“To the extent Gaines seeks relief for alleged violations of state statutes and prison regulations, however, he has stated no cognizable claim under § 1983.”); Heidel v. Mazzola, 851 Fed.Appx. 837, 840 (10th Cir. 2021) (“[T]he officers' failure to follow jail procedures does not equate with a constitutional violation.”). The Court should dismiss Plaintiff's procedural due process claim.
B. Plaintiff's equal protection claim should be dismissed because he has not identified similarly situated individuals who have been treated differently than him.
“The Equal Protection clause is ‘essentially a direction that all persons similarly situated should be treated alike.'” Lucas v. Turn Key Health Clinics, LLC, 58 F.4th 1127, 1146 (10th Cir. 2023) (quoting A.M. ex rel. F.M. v. Holmes, 830 F.3d 1123, 1166 (10th Cir. 2016)). “To state a claim for relief under the Equal Protection clause, a plaintiff must allege the existence of purposeful discrimination against [him]self, as a class of one or with respect to a group, causing an adverse effect.” Id. “Conclusory allegations without facts that refer to a particular person or persons treated differently are insufficient to state a claim.” Id. This “pleading requirement of an allegation that a similarly situated person was treated differently applies both when the plaintiff challenges a government action that discriminates based on membership in a non-protected class or membership in a ‘class of one.'” Brown v. Montoya, 662 F.3d 1152, 1173 (10th Cir. 2011) (internal citation omitted).
Plaintiff contends Defendant Bowers “did not employ fair procedures when depriving Plaintiff the right to intimate association” and “treated Plaintiff different to similarly situated inmates [in] misconduct hearings.” Doc. 17, at 3. He specifically contends Defendant Bowers refused to enforce and “systematic[ally] maladminist[ered]” portions of OP-060125 governing his misconduct proceeding. Id. at 11. In support of his claim, Plaintiff asserts that “at least one misconduct rehearing has been properly overturned or held within the fifteen (15) days ordered.” Id. at 12.
Plaintiff makes only vague allegations, contending he has been treated differently than at least one other unidentified individual whose identity is unknown to Plaintiff. Doc. 17, at 12. This allegation falls short in that it does not allege any facts about any particular person who has been treated differently than him. See Brown, 662 F.3d at 1173 (reversing district court's denial of a defendant's motion to dismiss an equal protections claim because the plaintiff did “not allege facts about any particular person or person who were treated differently from him”); see also Straley v. Utah Bd. of Pardons, 582 F.3d 1208, 1215 (10th Cir. 2009) (dismissing equal protection claim where the plaintiff “fail[ed] to identify any similarly-situated individual that ha[d] been given any different or more beneficial treatment”).
Plaintiff contends the identification of “similarly situated inmates [is] not readily available to [him] . . . without an order from the Court.” Doc. 17, at 12. He contends he needs discovery “in order to obtain admissible evidence of similarly situated inmates” and that “Defendants refuse to provide the same.” Id. But Fed.R.Civ.P. 8 “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-79; see also Shelton v. Sha Ent., LLC, No. CIV-20-644-D, 2020 WL 6389858, at *2 (W.D. Okla. Oct. 30, 2020) (“Plaintiffs' argument that dismissal is premature because discovery is necessary does not advance their cause. ‘Discovery is authorized solely for parties to develop the facts in a lawsuit in which a plaintiff has stated a legally cognizable claim, not in order to permit a plaintiff to find out whether he has such a claim.'” (quoting Podany v. Robertson Stephens, Inc., 350 F.Supp.2d 375, 378 (S.D.N.Y. 2004))). Thus, Plaintiffs pleading shortcomings are not excused by the need for discovery. His equal protection claim should be dismissed for failure to state a claim.
C. Alternatively, the due process and equal protection claims against GEO Group can be dismissed because Plaintiff did not sufficiently allege a policy or custom caused his injury.
Plaintiff sues GEO Group on a theory of municipal liability. Doc. 17, at 2-3. Although GEO Group is a private corporation, municipal liability “has been extended to ‘private entities acting under color of state law.'” Lucas, 58 F.4th at 1144 (quoting Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003)). To state a § 1983 claim based on municipal liability, a plaintiff must identify “‘a government's policy or custom' that caused [him] injury.” See Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769 (10th Cir. 2013) (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691-92 (1978)). “[P]olicies meeting this standard [are] those arising from ‘a formal regulation or policy statement, an informal custom that amounts to a widespread practice, decisions of municipal employees with final policymaking authority, ratification by final policymakers of the decisions of subordinates to whom authority was delegated, and the deliberately indifferent failure to adequately train or supervise employees.'” Hinkle v. Beckham Cnty. Bd. of Cnty. Comm'rs, 962 F.3d 1204, 1239 (10th Cir. 2020) (quoting Pyle v. Woods, 874 F.3d 1257, 1266 (10th Cir. 2017)).
Here, Plaintiff alleges “the official policy of OP-060125, direct progeny of title 57 of Oklahoma Statutes, is the moving force behind deprivations of Federal rights and privileges.” Doc. 17, at 2; see also id. at 3 (“Their official policy OP-060125 is the moving force behind deprivation of Plaintiffs Federal rights and the maladministration of OP-060125 VII.E.2. denied Plaintiff a fair procedure”). But the crux of Plaintiffs allegations is that Defendant Bowers “recklessly disregarded” and “maladminist[ered]” OP-060125 VII.E.2. Id. at 2-3. This is insufficient to prove municipal liability. “[When] [employees] act inconsistently with official policy or custom, though perhaps even still within the scope of employment, that will not suffice” to establish liability against a municipality. Simmons v. Uintah Health Care Special Dist., 506 F.3d 1281, 1284 (10th Cir. 2007). Because Plaintiff alleges his injury stems from Defendant Bowers's failure to follow an official policy, he does not state a claim against Defendant GEO Group on a municipal liability theory.
D. The Court should decline to exercise supplemental jurisdiction over Plaintiff's fraud claim.
Plaintiff contends Defendant Bowers committed fraud in violation of Oklahoma law. Doc. 17, at 4, 13-14. Having determined the Court should dismiss Plaintiff's federal claims, the undersigned recommends the Court decline to exercise supplemental jurisdiction over his fraud claim. See 28 U.S.C. § 1367(c)(3) (permitting district courts to decline to exercise supplemental jurisdiction where it “has dismissed all claims over which it has original jurisdiction”); Smith v. City of Enid ex rel. Enid City Comm'n, 149 F.3d 1151, 1156 (10th Cir. 1998) (“When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims.”).
IV. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court dismiss Plaintiff's due process and equal protection claims for failure to state a claim upon which relief can be granted and decline to exercise supplemental jurisdiction over Plaintiff's fraud claim.
The undersigned advises Plaintiff of his right to file an objection to this report and recommendation with the Clerk of this Court on or before May 19, 2023, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to make a timely objection to this report and recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This report and recommendation disposes of all issues referred to the undersigned Magistrate Judge in this matter.