Bliss v. Hamilton et al
OPINION AND ORDER by Chief Judge Gregory K Frizzell ; dismissing/terminating case ; denying 11 Motion for Appointment of Counsel; finding as moot 13 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (kjp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
JOE ALLBAUGH, and
Case No. 17-CV-439-GKF-JFJ
OPINION AND ORDER
On July 28, 2017, Plaintiff, a pro se prisoner presently in custody at William S. Key
Correctional Center in Fort Supply, Oklahoma, filed a civil rights complaint pursuant to 42 U.S.C.
§ 1983 (Dkt. 1). His amended motion to proceed in forma pauperis (Dkt. 7) was granted on
September 11, 2017, and the initial partial filing fee was paid on October 5, 2017 (Dkt. 12).
Plaintiff brings this action under the authority of 42 U.S.C. § 1983, seeking monetary and
injunctive relief for alleged constitutional violations during his incarceration at Northeast Oklahoma
Correctional Center (NEOCC), a Department of Corrections (“DOC”) facility located in Vinita,
Oklahoma. The three defendants are Casey Hamilton, NEOCC Warden; Joe Allbaugh, DOC
Director; and Joycerie Azarian, NEOCC Law Library Supervisor.
Federal courts must engage in a preliminary screening of cases in which prisoners seek
redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §
1915A(a). The court must identify any cognizable claim and dismiss any claim which is frivolous,
malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2)(B). To
avoid dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a complaint must present
factual allegations, assumed to be true, that “raise a right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must contain “enough facts to state
a claim to relief that is plausible on its face.” Id. at 570. A court must accept all the well-pleaded
allegations of the complaint as true, even if doubtful in fact, and must construe the allegations in the
light most favorable to the plaintiff. Id. at 555. Nonetheless, “when the allegations in a complaint,
however true, could not raise a [plausible] claim of entitlement to relief,” the cause of action should
be dismissed. Id. at 558. Twombly articulated the pleading standard for all civil actions. See
Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). The court applies the same standard of review for
dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii) that is employed for Fed. R. Civ. P. 12(b)(6) motions
to dismiss for failure to state a claim. Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007).
A pro se plaintiff’s complaint must be broadly construed under this standard. Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972). The generous
construction to be given to the pro se litigant’s allegations “does not relieve the plaintiff of the
burden of alleging sufficient facts on which a recognized legal claim could be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Notwithstanding a pro se plaintiff’s various
mistakes or misunderstandings of legal doctrines or procedural requirements, “if a court can
reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do
so . . . .” Id. A reviewing court need not accept “mere conclusions characterizing pleaded facts.”
Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990); see also Twombly, 550 U.S. at 555
(“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” (quotations and citations omitted)). The court “will not supply additional factual allegations
to round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.” Whitney v.
New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
Motion for Appointment of Counsel
On September 14, 2017, Plaintiff filed a motion for appointment of counsel (Dkt. 11). The
Court has discretion to appoint an attorney to represent an indigent plaintiff where, under the totality
of the circumstances, the denial of counsel would result in a fundamentally unfair proceeding.
McCarthy v. Weinberg, 753 F.2d 836, 839-40 (10th Cir. 1985). The Tenth Circuit Court of Appeals
has stated that “if the plaintiff has a colorable claim then the district court should consider the nature
of the factual issues raised in the claim and the ability of the plaintiff to investigate the crucial facts.”
Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (citation and internal quotation marks
omitted). After reviewing the merits of Plaintiff’s case, the nature of the factual issues involved,
Plaintiff’s ability to investigate the crucial facts, the probable type of evidence, Plaintiff’s capability
to present his case, and the complexity of the legal issues, see Rucks, 57 F.3d at 979; McCarthy, 753
F.2d at 838-40; Maclin v. Freake, 650 F.2d 885, 887-89 (7th Cir. 1981), Plaintiff’s request for
appointment of counsel is denied.
Motion for Extension of Time to Pay Initial Partial Filing Fee
On October 6, 2017, Plaintiff submitted a letter requesting an extension of time to pay the
initial partial filing fee for this action, which the Court construed as a motion for extension of time
for this purpose (Dkt. 13). The record shows that the initial partial filing fee was paid on October
5, 2017 (Dkt. 12). Therefore, Plaintiff’s motion for extension of time to pay the initial partial filing
fee is deemed moot.
Plaintiff states the nature of his case as follows:
On July 20, 2017, by virtue of authority vested by Defendant Allbaugh, suspended
Plaintiff’s law library privileges for (30) days. Which encompasses a properly
notified and verifiable court deadline, which pertains to the Okla. Dept. of
Corrections, and is due to expire August 12, 2017, within the (30) days. It is
Plaintiff’s dire beliefs that this is done because of the lawsuit and total disregard to
Plaintiff’s constitutional rights of access to the courts, and not because of a violation
of OP-030117, I.A.4 as claimed.
(Dkt. 1 at 3).
Plaintiff alleges in Count I of his complaint that he was denied access to the courts pursuant
to a letter he received from Defendant Warden Casey Hamilton, dated July 20, 2017 (Dkt. 1 at 3, 6).
The letter was a formal notification of a 30-day law library restriction because of Plaintiff’s violation
of inmate correspondence guidelines (Dkt. 1 at 6). The letter also advised that if Plaintiff required
access to any legal materials during the restriction period, he could complete a Legal Material
Request Form. Id.
In Count II of the complaint, Plaintiff claims he was denied access to an adequate law library
when the law library supervisor was not at work to open the library for three days in June,
presumably of 2017, and for three unspecified additional days. Id. at 3-4. Plaintiff also asserts that
as of July 25, 2017, he would be without a law clerk to assist with his legal matters. Id. at 4.
In Count III, Plaintiff alleges he was subjected to cruel and unusual punishment on June 28,
2017, when Defendant Joycerie Azarian lied in writing a misconduct charging Plaintiff with
Disobedience to Orders. Id. at 4. Azarian’s misconduct report allegedly stated that Plaintiff had
disobeyed her verbal orders and policies by receiving money from another inmate in exchange for
providing legal work. Id. Plaintiff complains that Azarian never named the inmate Plaintiff
allegedly charged for legal work. Id. Plaintiff also asserts that three misconducts written over a
three-day period resulted from his pending litigation against the Department of Corrections and the
fact that Plaintiff had used the grievance process against Azarian. Id.
Eleventh Amendment Immunity
The three defendants named in the complaint are employees of an agency of the State of
Oklahoma. It is well settled that a damages suit against a state official in his official capacity is
merely another way of pleading an action against the State. See Kentucky v. Graham, 473 U.S. 159,
165 (1985). See also Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1988) (holding that
state officials sued in their official capacities are not “persons” for purposes of a § 1983 suit, because
the suit is against the official’s office and not against the official). Therefore, Plaintiff’s claims
against the defendants in their official capacities are barred by the Eleventh Amendment. See
Callahan v. Poppell, 471 F.3d 1155, 1158-59 (10th Cir. 2006) (noting that because “Oklahoma has
not waived sovereign immunity against § 1983 claims in federal district court,” any claims for money
damages against prison staff acting in their official capacities are barred by the Eleventh
Plaintiff alleges in the complaint that Defendant DOC Director Joe Allbaugh acted under
color of state law “by his authority and respondeat superior” (Dkt. 1 at 1). Under the “Nature of
Case” section of the complaint, Plaintiff claims his law library privileges were suspended “by virtue
of authority vested by Defendant Allbaugh.” Id. at 3. In Count III, Plaintiff alleges Defendant
Azarian, the law library supervisor, was “placed into her position by Defendant[s] Hamilton and
Allbaugh.” Id. at 4.
“Personal participation is an essential allegation in a § 1983 claim.” Bennett v. Passic, 545
F.2d 1260, 1262-63 (10th Cir. 1976) (citations omitted). See also Mee v. Ortega, 967 F.2d 423, 43031 (10th Cir. 1992). Plaintiff must show that a defendant personally participated in the alleged civil
rights violation. Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996). Supervisory status is
not sufficient to support liability under § 1983. Id. Further, “[s]ection 1983 will not support a claim
based on a respondeat superior theory of liability.” Polk County v. Dodson, 454 U.S. 312, 325
Here, the Court finds Plaintiff has failed to allege the personal participation of Defendant
Allbaugh in the alleged constitutional violations. Therefore, Plaintiff has failed to state a claim
against Allbaugh in his individual capacity.
Access to the Courts and Denial of Adequate Law Library
Plaintiff alleges he was denied access to the courts when his law library privileges were
suspended. He also claims he was denied access to an adequate law library when the law library was
closed for six days, and by the expected absence of a law clerk.
It is undisputed that access to the courts and the means to effectuate such access are
fundamental constitutional rights. Bounds v. Smith, 430 U.S. 817, 828 (1977). However, “the
constitutional obligation to provide inmates access to courts does not require states to give inmates
unlimited access to a law library, and inmates do not have the right to select the method by which
access will be provided.” Penrod v. Zavaras, 94 F.3d 1399 (10th Cir. 1996) (citations omitted). The
Constitution requires only that reasonable access to the courts be permitted. Johnson v. Avery, 393
U.S. 483, 490 (1969); Ford v. Schmidt, 577 F.2d 408, 410 (7th Cir. 1978), cert. denied, 439 U.S.
870 (1978). In determining whether the access afforded an inmate is reasonable, the test to be
applied is whether the access is “adequate, effective, and meaningful.” Bounds, 430 U.S. at 822.
To have standing to raise a claim of denial of access to the courts, a prisoner must
demonstrate actual injury. Lewis v. Casey, 518 U.S. 343, 350-51 (1996). “To do so, he must show
that any denial or delay of access to the court prejudiced him in pursuing litigation.” Treff v.
Galetka, 74 F.3d 191, 194 (10th Cir. 1996). The injury requirement, however, “is not satisfied by
just any type of frustrated legal claim.” Lewis, 518 U.S. at 354.
According to the July 20, 2017, letter to Plaintiff from Warden Hamilton, a 30-day law
library restriction was imposed upon Plaintiff (Dkt. 1 at 3). Plaintiff, however, was advised that
during the restriction period, he could access legal materials by completing a Legal Material Request
Form. Id. The Court, therefore, concludes Plaintiff had reasonable access to the courts.
Furthermore, Plaintiff has failed to show he suffered an actual injury from the restriction.
Although Plaintiff mentions a “properly notified and verifiable court deadline” pertaining to the
DOC in his statement of the Nature of Case (Dkt. 1 at 3), he has failed to provide any details of the
alleged deadline. He also has not alleged whether or how he was prejudiced by the restriction, or
by the few days when the law library supervisor did not open the library, or by the alleged absence
of a law clerk. The Court, therefore, concludes Plaintiff has not stated a claim for denial of access
to the courts or denial of an adequate law library.
Eighth Amendment Claim
Finally, Plaintiff alleges in Ground III that Defendant Azarian violated the prohibition against
cruel and unusual punishment when she filed a false misconduct charging him with Disobedience
to Orders. He also asserts that Azarian issued him three misconducts in response to Plaintiff’s
litigation against the DOC and because he had used the grievance process against Azarian.
The Court finds these allegations are vague and conclusory, and the allegations do not rise
to the level of an Eighth Amendment violation. The Tenth Circuit Court of Appeals consistently has
held that bald conclusions, unsupported by allegations of fact, are legally insufficient, and pleadings
containing only such conclusory language may be summarily dismissed or stricken without a hearing.
Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989), cert. denied, 493 U.S. 1059 (1990); Lorraine
v. United States, 444 F.2d 1 (10th Cir. 1971). “Constitutional rights allegedly invaded, warranting
an award of damages, must be specifically identified. Conclusory allegations will not suffice.” Wise
v. Bravo, 666 F.2d 1328, 1333 (10th Cir. 1981) (citing Brice v. Day, 604 F.2d 664 (10th Cir. 1979),
cert. denied, 444 U.S. 1086 (1980)).
To the extent Plaintiff’s claims could be construed as alleging a retaliation claim against
Azarian, a plaintiff alleging retaliation for his exercise of constitutional rights “must prove that ‘but
for’ the retaliatory motive, the incidents to which he refers, including the disciplinary action, would
not have taken place.” Smith v. Maschner, 899 F.2d 940, 949-50 (10th Cir. 1990) (quoting
McDonald v. Hall, 641 F.2d 16, 18 (1st Cir. 1979)). “[I]t is imperative that plaintiff’s pleading be
factual and not conclusory. Mere allegations of constitutional retaliation will not suffice; plaintiffs
must rather allege specific facts showing retaliation because of the exercise of the prisoner’s
constitutional rights.” Frazier v. Dubois, 922 F.2d 560, 562 n.1 (10th Cir. 1990). The Court finds
Plaintiff has failed to meet this standard. Ground III of the complaint also fails to state a claim.
ACCORDINGLY, IT IS HEREBY ORDERED that:
Plaintiff’s motion for appointment of counsel (Dkt. 11) is denied.
Plaintiff’s motion for extension of time to pay initial partial filing fee (Dkt. 13)
is deemed moot.
Plaintiff’s complaint (Dkt. 1) is dismissed without prejudice for failure to state
a claim upon which relief may be granted.
Plaintiff remains obligated to pay in monthly installments the balance of the $350
filing fee for this case.
The Clerk is directed to flag this dismissal as a “prior occasion” pursuant to 28
U.S.C. § 1915(g).
This is a final Order terminating this action.
DATED this 13th day of February 2018.
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