Berry v. Oklahoma State of et al
Filing
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ORDER granting 28 Motion for Summary Judgment; adopting Report and Recommendations re 33 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 3/29/2012. (mb, )
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
J.C. BERRY,
Plaintiff,
v.
STATE OF OKLAHOMA,
DEPARTMENT OF CORRECTIONS,
DIRECTOR, JUSTIN JONES, et al.,
Defendants.
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Case No. CIV-11-34-D
ORDER
This matter comes before the Court for review of the Report and Recommendation issued
by United States Magistrate Judge Doyle W. Argo pursuant to 28 U.S.C. § 636(b)(1)(B) and (C).
Judge Argo recommends that summary judgment be granted to Defendants. Plaintiff has filed a
timely written objection. Thus, the Court must make a de novo determination of the portions of the
Report to which a specific objection is made, and may accept, modify, or reject the recommended
decision. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
Plaintiff, a state prisoner appearing pro se, seeks declaratory and injunctive relief and
damages under 42 U.S.C. § 1983 against the State of Oklahoma, Department of Corrections
(“DOC”), Director Justin Jones, Warden Mike Addison, Unit Manager Sam Preston, and Case
Manager Lori Kill1 for alleged violations of his constitutional rights. Liberally construing his
pleading, Plaintiff alleges that Defendants’ application of departmental policies enacted after his
sentence was imposed in 1991 increased the punishment for his offense by collecting court costs that
were not included in the state court judgment. He claims that Defendants violated the Ex Post Facto
Clause and his right of procedural due process. Plaintiff also claims that Defendants engaged in a
1
This defendant’s last name was spelled “Kiel” in Plaintiff’s pleading and initial briefs, but has been
corrected in the Special Report and subsequent filings.
conspiracy to fraudulently “extort” money from him that constituted cruel and unusual punishment
and denied him due process. See Compl. [Doc. No. 1] at 3; Pl.’s Br. [Doc. No. 2] at 9.2 Defendants
filed a Special Report pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978), and moved for
dismissal or summary judgment on numerous grounds.
In the Report, Judge Argo analyzes Defendants’ motion as one for summary judgment,
treating the Special Report as an affidavit, and finds two grounds raised by Defendants to be
dispositive. Judge Argo first concludes that the State of Oklahoma and DOC are entitled to Eleventh
Amendment immunity. Judge Argo then examines Plaintiff’s claims in light of the facts shown by
the record and concludes, for reasons explained in the Report, that Plaintiff cannot establish a
constitutional violation or a conspiracy.
Although Plaintiff begins his Objection with a statement of facts, his statement does not
appear to differ in any material respect from the facts found by Judge Argo. Briefly stated, Plaintiff
was convicted of first-degree murder twenty years ago and sentenced to life imprisonment without
parole. The written judgment entered in March, 1991, included a statement requiring payment of
the costs of prosecution, but the amount of taxed costs was left blank. Plaintiff was received into
DOC custody in April, 1991, and confined at the Joseph Harp Correctional Center (JHCC) at all
relevant times. Pursuant to current DOC policy, each inmate must have a financial responsibility
plan that enables the inmate to meet his financial obligations, including any obligation to pay
criminal court costs. Defendant Lori Kill, a case manager at JHCC, prepared such a plan for
Plaintiff in July, 2010. Because his criminal judgment did not state an amount of costs, Ms. Kill
2
The Complaint also invokes Plaintiff’s right to equal protection, but a violation of this right is not
supported by factual allegations in Plaintiff’s pleading or arguments in his supporting brief. Thus, Judge
Argo has properly disregarded this conclusory allegation.
2
checked electronic court records, available through On Demand Court Records at www.odcr.com,
and learned that Plaintiff’s criminal case file in the District Court of Muskogee County reflected an
assessment of costs in the amount of $3,123.06. Consistent with DOC procedures, Ms. Kill included
this amount in Plaintiff’s financial plan and submitted the plan to the JHCC trust fund office for
mandatory payments to be made to the Muskogee County Court Clerk. Plaintiff was informed of
these facts by a unit manager at JHCC, Defendant Sam Preston, in response to a request to staff.
Plaintiff filed a grievance and completed the administrative process without relief. DOC took the
position that its policies and procedures properly required Plaintiff to satisfy the court costs reflected
in his criminal case record, and that Plaintiff should contact the court clerk if he believed the case
record was incorrect.
Plaintiff did not contact the Muskogee County Court Clerk. Instead, Plaintiff’s position, as
stated in his Objection, is that the court clerk was required to notify him of any assessment of costs
and he received no notice. Apparently, Plaintiff believes any assessment by the clerk was invalid
or the electronic record is incorrect; he characterizes this record as “fraudulent and fabricated.” See
Objection [Doc. No. 36] at 2, 4, 11-14. Plaintiff initiated a civil action against Defendant Mike
Addison, as warden of JHCC, in the District Court of Cleveland County in September, 2010, by
filing a motion for a temporary restraining order and preliminary injunction. Plaintiff also filed a
motion for summary disposition, asking the court to order JHCC officials to stop taking funds from
his account to pay court costs. Plaintiff’s motion was denied for failure to effect service. Plaintiff
has taken no further action in that case, which remains pending.
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A.
Eleventh Amendment Immunity
Plaintiff first objects to Judge Argo’s conclusion that any claim against the State of
Oklahoma or DOC is barred by the Eleventh Amendment. Plaintiff argues that a state agency may
be required to comply with the Constitution under the “Ex Parte Young fiction.” See Objection
[Doc. No. 36] at 7. The Ex parte Young doctrine permits “an action against a state official seeking
only prospective injunctive relief.” See Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1154
(10th Cir. 2011). Neither the state itself nor a state agency is a proper defendant in such an action.
Accordingly, Judge Argo correctly concludes that the State of Oklahoma and DOC are entitled to
summary judgment on this ground. However, because Eleventh Amendment immunity prevents
the Court from exercising jurisdiction over Plaintiff’s action against these defendants, the proper
disposition is a dismissal for lack of jurisdiction. See, e.g., Wagoner County Rural Water Dist. No. 2
v. Grand River Dam Auth., 577 F.3d 1255, 1260 (10th Cir. 2009).
B.
Constitutional Violation
Liberally construing Plaintiff’s Objection, he contends Judge Argo incorrectly finds that the
facts do not support two violations of the Constitution: 1) a violation of the Ex Post Facto Clause;
and 2) a violation of the Due Process Clause.3
1.
Ex Post Facto Violation
Plaintiff asserts that Defendants’ application to him of newly enacted DOC policies has
increased the punishment for his offense and has imposed an additional punishment that was not
3
Judge Argo also finds that Plaintiff has failed to present factual allegations or legal argument in
support of any claim of cruel and unusual punishment under the Eighth Amendment. Plaintiff does not object
to this finding, and thus further review is waived. See Moore v. United States, 950 F.2d 656, 659 (10th Cir.
1991); see also United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996).
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available at the time of his conviction and sentence. Plaintiff argues that taking money from him
to satisfy court costs that were not assessed as part of his criminal judgment is a retroactive
application of after-enacted legislation that violates the Ex Post Facto Clause. Plaintiff contends
his case is similar to Smith v. Scott, 223 F.3d 1191 (10th Cir. 2000), in which the court of appeals
found an ex post facto violation in the retroactive application of a substantive change in DOC
regulations to the disadvantage of an incarcerated inmate. Smith is factually distinguishable,
however, because it involved a retrospective change in regulations regarding earned time credits that
had the effect of lengthening the prisoner’s period of incarceration for his offense.
After careful consideration, the Court finds that Plaintiff’s argument has a faulty premise.
Plaintiff concedes that a statute, Okla. Stat. tit. 28, § 101, authorized the court clerk to assess costs
of prosecution, but he takes the position, based on the 1991 judgment in his case, that no court costs
were imposed as part of his criminal penalty and “there is no evidence of ascribed statement of court
cost assessed, adjudged ordered or decreed . . . .” See Objection [Doc. No. 36] at 10. However, the
cited statute, which predated Plaintiff’s offense, expressly provides for a post-judgment assessment
of fees and court costs, to be entered on the judgment docket and enforced in the same manner as
a judgment. See Okla. Stat. tit. 28, § 101. The costs assessed in his case were entered on the
judgment docket, as shown by the electronic case information available for the District Court of
Muskogee County, which the Oklahoma Supreme Court has authorized to be made public. See In
re Public Access to Electronic Case Information, No. SCAD 2009-92, 2009 WL 3260740 (Okla.
Oct. 8, 2009) (to be published).
Another statute enacted before Plaintiff’s offense, Okla. Stat. tit. 57, § 549, “permits the
prisoner to discharge court costs . . . during incarceration.” See Webb v. Maynard, 907 P.2d 1055,
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1059-60 (Okla. 1995). By this statute, according to the Oklahoma Supreme Court, the legislature
authorized DOC to apply prison earnings to the payment of enumerated expenses, including court
costs, as a condition of permitting inmates to earn wages through prison industry and DOC’s
authorization “under § 549 is clear and unambiguous. While incarcerated, the funds earned by a
prison inmate and deposited in his savings account may be withdrawn by the Department to pay the
costs of prosecution, victim compensation fees, and other specified items as long as at least twenty
percent of the inmate’s earnings are paid to the prisoner upon his discharge from prison or
assignment to a prerelease program.” Webb, 907 P.2d at 1059.4 DOC’s financial responsibility
policies simply implement this statute. Thus, they are not being applied retroactively to Plaintiff,
and do not increase the punishment for his criminal offense.
For these reasons, and those fully stated in Judge Argo’s Report, the Court finds that Plaintiff
has failed to allege facts that would establish a violation of the Ex Post Facto Clause.
2.
Due Process Violation
Plaintiff also asserts that Defendants’ unilateral decision to take money from his trust account
for payment of court costs constituted a deprivation of property without notice and adequate process.
Judge Argo does not address in his Report the issue of whether Plaintiff had a protected
property interest in funds in his trust account because Plaintiff failed to argue this issue in his brief
in opposition to Defendants’ motion. Plaintiff seeks to correct this omission by argument in his
4
Plaintiff argues that Oklahoma law at the time of his offense held that only the county where court
costs were incurred in a criminal case was authorized to collect unpaid costs and a prison warden was not
authorized to enforce the payment of court costs, citing Galcatcher v. Page, 437 P.2d 234 (Okla. Crim. App.
1968). The holding of this case was based on the proposition that § 101 did not apply to a prisoner until his
release, but subsequent legislative enactments, including § 549, introduced the concept of paying court costs
while incarcerated through wages earned from prison labor. See Webb, 907 P.2d at 1059.
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Objection, stating simply that he “has a property interest in his trust account.” See Objection [Doc.
No. 36] at 10 (Gillihan v. Shillinger, 872 F.2d 935 (10th Cir. 1987)). The Court declines to consider
this new matter raised for the first time in objection to Judge Argo’s Report. See Marshall v. Chater,
75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate
judge’s recommendation are deemed waived.”). In any event, the court of appeals has recognized
that the holding of Gillihan, on which Plaintiff relies, “is no longer good law” but has been
abrogated by Sandin v. Conner, 515 U.S. 472 (1995). See Clark v. Wilson, 625 F.3d 686, 691 (10th
Cir. 2010). Other courts considering the issue have concluded that an inmate does not have a
property interest in any amounts subject to mandatory deduction under § 549, such as court costs.
See Newbury v. Ward, No. CIV-05-876-F, 2006 WL 1620300, *7 (W.D. Okla. June 6, 2006);
accord Shaffer v. Workman, No. CIV-07-638-C, 2007 WL 2363294, *6 (W.D. Okla. Aug. 16,
2007), appeal dism., 259 F. App’x 72 (10th Cir. 2007).
Moreover, to establish his claim, in addition to a property interest, “a plaintiff needs to
demonstrate not only the possession of a protected property interest but also a denial of an
appropriate level of process.” Reedy v. Werholtz, 660 F.3d 1270, 1275 (10th Cir. 2011). Plaintiff
presents no argument regarding whether he was denied an appropriate level of process for the
deprivation of any property interest in his trust account. It is well-established that sufficient
procedures for deprivation of a property interest may be provided by an adequate state postdeprivation remedy. See Hudson v. Palmer, 468 U.S. 517, 533 (1984); Durre v. Dempsey, 869 F.2d
543, 547 (10th Cir. 1989); see also Gee v. Pacheco, 627 F.3d 1178, 1194 (10th Cir. 2010). Plaintiff
does not contend that he lacks any state-law remedy to challenge either the assessment of court costs
or, more importantly here, DOC’s mandatory deductions.
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For these reasons, and those fully stated in Judge Argo’s Report, the Court finds that Plaintiff
has failed to allege facts that would establish a violation of the Due Process Clause.
C.
Conspiracy
Plaintiff’s theory of his § 1983 conspiracy claim is that Defendants acted in concert to
deprive him of constitutional rights. Plaintiff contends he has presented sufficient facts to show
concerted action among Defendants, contrary Judge Argo’s findings in the Report. The Court need
not reach this issue because Plaintiff has failed to show the violation of a constitutional right, as
required for a § 1983 claim.5
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No. 33] is
ADOPTED. Defendants’ Motion for Summary Judgment [Doc. No. 28] is GRANTED as set forth
herein. Judgment shall be entered accordingly.
IT IS SO ORDERED this 29th day of March, 2012.
5
Plaintiff also argues in his Objection that Defendants conspired to violate state law. Federal subject
matter jurisdiction in this case is premised on Plaintiff’s § 1983 claims, and in light of the disposition of those
claims, the Court declines pursuant to 28 U.S.C. § 1367(c)(3), to exercise supplemental jurisdiction over any
state law claim that Plaintiff intended to assert.
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