Staats v. Cobb et al

Filing 51

ORDER granting 45 Motion to Dismiss. Signed by Honorable Timothy D. DeGiusti on 3/6/2014. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

SHAWN NELSON STAATS,
Plaintiff,
vs.
ROBIN COBB, et al.,

)
)
)
)
)
)
)
)

NO. CIV-11-417-D

ORDER
Before the Court is Defendants’ Motion to Dismiss and Brief in Support [Doc. No. 45].
Defendants seek dismissal of Plaintiff’s Second Amended Complaint as barred by Heck v.
Humphrey, 512 U.S. 477 (1994). Plaintiff, appearing pro se, has filed a response [Doc. No. 47] and
the matter is fully briefed and at issue.1
Factual Allegations of the Second Amended Complaint
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his federal
constitutional rights. In the Second Amended Complaint, Plaintiff alleges that on July 10, 2008 he
was convicted and sentenced in Case No. CF-07-285, District Court of McClain County, State of
Oklahoma to a term of six year’s imprisonment, with all but five years suspended. See Second
Amended Complaint at p. 3, footnote 1. Plaintiff alleges the sentence was ordered to run concurrent
with two convictions in the District Court of Oklahoma County, State of Oklahoma and, according
1

Plaintiff filed an Amended Complaint on January 23, 2012 [Doc. No. 15]. Defendants filed a Motion to
Dismiss [Doc. No. 36] and sought dismissal on the following grounds: (1) Eleventh Amendment immunity barred
Plaintiff’s official capacity claims; (2) Plaintiff’s allegations of personal participation were deficient as to individual
capacity claims; and (3) even if allegations of personal participation were sufficient, Defendants were entitled to qualified
immunity. The Court entered its Order [Doc. No. 41] and dismissed the official capacity claims without further leave
to amend. The Court further dismissed the individual capacity claims finding Plaintiff’s allegations of personal
participation deficient, but granted Plaintiff leave to amend to cure the deficiencies in the allegations. Based on that
finding, the Court declined to address the issue of qualified immunity. Plaintiff filed a Second Amended Complaint on
April 30, 2013 [Doc. No. 42].

to Plaintiff, he was to be given credit for time served on the Oklahoma County convictions,
retroactive to December 16, 2007. Id.
During his period of incarceration, Plaintiff alleges that he discovered the Oklahoma
Department of Corrections (ODOC) was administrating the McClain County sentence as consecutive
to the Oklahoma County sentences. Id. Plaintiff contends Defendants ignored the terms of an
Amended Judgment and Sentence entered in the McClain County Case on March 26, 2009 which
ordered his sentence to run concurrent with the Oklahoma County sentences, with credit retroactive
to December 16, 2007. Id. See also Second Amended Complaint at p. 4 (“[F]rom the courts
submitted Amended Judgment, it was clear Plaintiff had a clearly established right to be released
as so ordered per the courts [sic] Amended Judgment.”). As a result, Plaintiff contends the ODOC
erroneously calculated that he had approximately 301 additional days (ten additional months) to
serve on the McClain county sentence after discharge of the Oklahoma County sentences. Id.
According to Plaintiff’s allegations, he initiated the prison grievance process on June 18, 2010. Id.
at p. 5.2 Plaintiff alleges that he obtained no relief and contends that he served a period of wrongful
incarceration for approximately ten months past the expiration of his McClain County sentence.
Second Amended Complaint at pp. 7-8.

2

Plaintiff references the grievance as “Attachment #2"; however, no attachments were included with the Second
Amended Complaint. The grievance is included as Exhibit B, Attachment 5 to the Special Report previously submitted
by Defendants [Doc. No. 33-7]. Plaintiff also attached the grievance to the Amended Complaint [Doc. No. 16] at pp.
3-6. Because Plaintiff makes reference to the grievance and clearly intended to include it as an attachment to the Second
Amended Complaint, the Court considers it without converting Defendants’ motion to dismiss into a motion for summary
judgment. See, e.g.,Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (when ruling on 12(b)(6)
motion, courts must consider complaint in its entirety, including “documents incorporated into the complaint by
reference”); see also Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (“[I]n deciding a motion to dismiss
pursuant to Rule 12(b)(6), a court may look both to the complaint itself and to any documents attached as exhibits to the
complaint.”). The grievance establishes Plaintiff submitted a request to staff on June 18, 2010, followed by the formal
grievance on July 7, 2010. The grievance was returned unanswered on grounds it was untimely on July 19, 2010.

2

Based on his alleged wrongful incarceration, Plaintiff claims a violation of his federal
constitutional rights pursuant to the Fourth, Eighth and Fourteenth Amendments. Plaintiff seeks
declaratory and injunctive relief, compensatory damages and punitive damages.
In moving for dismissal of the Second Amended Complaint pursuant to Heck, Defendants
contend Plaintiff has not successfully challenged the ODOC’s alleged unlawful administration of
his sentence during the period of his incarceration. Defendants further allege Plaintiff was not
diligent in pursuing such relief. Therefore, Defendants contend Plaintiff is barred from pursuing a
claim for relief under 42 U.S.C. § 1983.
Although Plaintiff filed a response to Defendants’ motion to dismiss, the response wholly
fails to address the Heck issue raised by Defendants. See Response, “Reply One” – addressing
Eleventh Amendment immunity; and “Reply Two” – addressing personal participation and qualified
immunity [Doc. No. 47].
Standard Governing Dismissal
Defendants move for dismissal of the Second Amended Complaint pursuant to Fed.R.Civ.P.
12(b)(6). A motion to dismiss should be granted where a Plaintiff has failed to plead “enough facts
to state a claim to relief that is plausible on its face.” Bell Atlantic 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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). In applying this standard, the Court
must assume the truth of all well-pleaded factual allegations in the complaint and construe them in
the light most favorable to the plaintiff. See Bryson v. Edmond, 905 F.2d 1386, 1390 (10th
Cir.1990). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that

3

the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally
sufficient to state a claim for which relief may be granted.” Miller v. Glanz, 948 F.2d 1562, 1565
(10th Cir.1991). To survive a motion to dismiss, the allegations contained in the complaint “must
be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for
relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008) (footnote omitted).
Because Plaintiff is not represented by an attorney, the allegations of the Second Amended
Complaint must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Plaintiff’s
pro se status, however, does not relieve him of the burden of alleging facts sufficient to permit the
Court to conclude he could arguably prevail on a legal theory; the Court will not supply additional
facts, nor construct a legal theory for a plaintiff that assumes facts that have not been pleaded. Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Discussion
In Heck v. Humphrey, the United States Supreme Court held that if a judgment for damages
favorable to a prisoner in a 42 U.S.C. § 1983 action necessarily would imply the invalidity of his
criminal conviction or sentence, the § 1983 action does not arise until the conviction or sentence has
been reversed on direct appeal, expunged by executive order, declared invalid by an authorized state
tribunal, or called into question by the issuance of a federal habeas writ. See id., 512 U.S. at 486–87.
The rule in Heck has been extended to claims challenging the results of administrative decisions that
relate to the execution of a prisoner’s sentence. See Edwards v. Balisok, 520 U.S. 641 (1997)
(applying Heck to prison inmate’s claims challenging procedures used to deprive him of good time
credits); Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir.1996) (per curiam) (stating that Heck applies
to proceedings related to parole and probation); Trafny v. United States, 311 Fed. Appx. 92, 96 (10th

4

Cir.2009) (citing Heck for the proposition that the district court properly rejected a claim attacking
the execution of a sentence because the sentence had not been invalidated). In short, a civil rights
action filed by a state prisoner “is barred (absent prior invalidation) – no matter the relief sought
(damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to
conviction or internal prison proceedings) – if success in that action would necessarily demonstrate
the invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005).
Following Heck, the reach of the favorable-termination requirement remains an unsettled
issue. Where a § 1983 plaintiff can no longer seek habeas relief, the “circuits have split on the
question of whether the Heck favorable-termination requirement applies.” Cohen v. Longshore, 621
F.3d 1311, 1315 (10th Cir. 2010). In Cohen, an inmate “sought to invalidate his imprisonment
through a 28 U.S.C. § 2254 petition but was prevented by his transfer out of Immigrations and
Customs Enforcement custody, which mooted his habeas claim.” Id. Weighing in on the circuit split,
the Tenth Circuit held that “[i]f a petitioner is unable to obtain habeas relief – at least where this
inability is not due to the petitioner’s own lack of diligence – it would be unjust to place his claim
for relief beyond the scope of § 1983 where ‘exactly the same claim could be redressed if brought
by a former prisoner who had succeeded in cutting his custody short through habeas.’” Id. (quoting
Spencer v. Kemna, 523 U.S. 1, 21 (1998) (Souter, J., concurring)).
In the present case, Plaintiff’s claims clearly challenge the validity of the execution of his
McClain County sentence. Plaintiff does not allege, nor is there any indication that he has
previously invalidated the ODOC’s administration of that sentence. On this ground, Defendants
seek dismissal of Plaintiff’s claims pursuant to Heck.

5

Further, it is not clear whether Plaintiff may still challenge the execution of the McClain
County sentence. Plaintiff discharged his sentence and presumably, therefore, cannot satisfy the “in
custody” requirement for federal habeas relief. See 28 U.S.C. § 2241(c).3
Assuming, however, that Plaintiff cannot still challenge the execution of his sentence,
Defendants contend that the exception to Heck’s favorable termination requirement addressed by
the Tenth Circuit in Cohen is not available to Plaintiff. Defendants contend that during the period
of his continued incarceration, Plaintiff did not exercise diligence in pursuing relief. See Carbajal
v. Hotsenpiller, 524 Fed. Appx. 425, 428 (10th Cir. 2013) (“A plaintiff's inability to obtain habeas
relief lifts the Heck bar only if that ‘inability is not due to the petitioner's own lack of diligence.’”)
(quoting Cohen, 621 F.3d at 1317); see also Taylor v. City of Bixby, Oklahoma, 2012 WL 6115051
at *8 (N.D. Okla. Dec. 10, 2012) (finding § 1983 claims barred by Heck where plaintiff was not
diligent in pursuing state court remedies).
As set forth above, the allegations of the Second Amended Complaint demonstrate, at best,
limited efforts by Plaintiff to obtain relief through the prison grievance system. Wholly absent from
Plaintiff’s Second Amended Complaint, however, is any allegation that he sought redress through
the state or federal courts to challenge the execution of the McClain County sentence while he was
still in custody. And Plaintiff makes no such allegations in response to Defendants’ motion to
dismiss. See Plaintiff’s response at 2 (stating that Plaintiff “made every attempt to resolve the issue
[a]dministratively” but making no allegation that any relief was sought through the courts).
The Court further takes judicial notice of a docket entry in the McClain County Case. See
State of Oklahoma v. Staats, Case No. CF-07-285, District Court of McClain County, State of

3

It is also not clear whether Plaintiff may still obtain redress through the state courts.

6

Oklahoma.4 On April 29, 2009, the court entered an Order Denying Credit for Time Served and
denied Petitioner retroactive credit for time served on the Oklahoma County sentences. Plaintiff,
therefore, did not successfully invalidate the execution of the McClain County sentence.
Additionally, Plaintiff did not act with diligence. Although the court entered the order on April 29,
2009 (more than one year before Plaintiff filed the prison grievance), Plaintiff made no efforts
(whether by direct appeal or through habeas corpus) to obtain further relief through the courts
thereafter, including the ten-month period of his alleged wrongful incarceration. Compare Griffin
v. Hickenlooper, 2012 WL 3962703 at *3 (D. Colo. Sept. 10, 2012) (where complaint contained no
allegations to indicate that petitioner was unable to challenge his illegal parole hold during fourteenmonth period he alleged he was subject to such hold, petitioner was not diligent and claim was
dismissed without prejudice as barred by Heck). Based on the foregoing, the Court finds that
Plaintiff’s claims are barred by Heck and dismisses those claims without prejudice to refiling. See
Bryner v. Utah, 429 Fed. Appx. 739, 744 (10th Cir. 2011) (“[C]laims dismissed on Heck v. Humphrey
grounds should be dismissed without prejudice.”) (citing Fottler v. United States, 73 F.3d 1064,
1065 (10th Cir. 1996)).
Plaintiff did not request leave to further amend his pleading. See Garman v. Campbell
County School Dist. No. 1, 630 F.3d 977, 986 (10th Cir. 2010) (court is not required to consider leave
to amend where plaintiff did not file a written motion requesting such relief); see also Calderon v.

4

The Court can take judicial notice of the McClain County docket entry without converting the motion to
dismiss into a motion for summary judgment. See, e.g., Pace v. Swerdlow, 519 F.3d 1067, 1072-73 (10th Cir. 2008)
(district court correctly considered documents in state court file in granting dismissal pursuant to Fed. R. Civ. P.
12(b)(6)). See also Rose v. Utah State Bar, 471 Fed. Appx. 818, 820 (10th Cir. 2012) (district court properly took
judicial notice of filings in state-court disciplinary proceedings and two prior actions without converting motion to
dismiss into motion for summary judgment); Stone v. Whitman, 324 Fed. Appx. 726, 728 (10th Cir. 2009) (district court
properly took judicial notice of records from proceedings in small claims court in dismissing section 1983 action as
untimely).

7

Kansas Dept. of Social & Rehab. Servs., 181 F.3d 1180, 1187 (10th Cir. 1999) (district courts are not
required “to engage in independent research or read the minds of litigants to determine if
information justifying an amendment exists”) (quotation omitted); Curtis Ambulance of Fla. v.
Board of County Comm'rs, 811 F.2d 1371, 1386 n. 15 (10th Cir.1987) (a court is not obligated to
conduct a plaintiff's case for him when he fails to seek to amend a pleading). If Plaintiff were to
request leave to further amend the complaint, such request could be denied on grounds of futility.
See Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1018 (10th Cir. 2013) (“[A] district court
may refuse to allow amendment if it would be futile.”).
Plaintiff has now twice amended the complaint but has made no allegations that he
successfully challenged the execution of his McClain County sentence. Although Plaintiff’s prior
amendments were not directed at a dismissal pursuant to Heck, it is doubtful that Plaintiff, under the
circumstances here, could cure the present deficiencies through amendment in this action. Plaintiff
has confessed the issues raised by Defendant’s motion to dismiss because he wholly failed to address
those issues – including his lack of diligence in pursuing relief through the courts during the period
of his continued incarceration.
Moreover, the filing of a motion to dismiss gives a plaintiff notice that his complaint is
potentially deficient and the opportunity to amend his complaint to cure the deficiencies. Hall v.
Bellmon, 935 F.2d 1106, 1109-10 (10th Cir. 1991). Plaintiff has not requested such opportunity.
Therefore, the dismissal is without leave to amend in this action. See Higgins v. City of Tulsa,
Oklahoma, 103 Fed. Appx. 648, 652 (10th Cir. 2004) (dismissing plaintiffs’ § 1983 claim without
prejudice as barred by Heck and finding that allowing plaintiffs’ leave to amend would be futile).

8

Accordingly, Defendants’ Motion to Dismiss Second Amended Complaint [Doc. No. 45] is
GRANTED and Plaintiff’s Second Amended Complaint is dismissed without prejudice. 5
IT IS SO ORDERED this 6th day of March, 2014.

5

Defendants also seek dismissal of Plaintiff’s official capacity claims in the Second Amended Complaint. The
Court previously dismissed those claims as raised in the amended complaint, see Order [Doc. No. 41], without further
leave to amend.

9