Dopp v. Jones et al

Filing 30

ORDER ADOPTING REPORT AND RECOMMENDATION re Supplemental R&R 22 ; the Second Amended Compl 19 is DISMISSED w/o prej; all pending mtns 28 , 29 , 21 , 27 , 26 are DENIED. Signed by Honorable Timothy D. DeGiusti on 3/20/13. (ap)

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

RICHARD LYNN DOPP,
Plaintiff,
v.
JUSTIN JONES, et al.,
Defendants.

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Case No. CIV-11-1495-D

ORDER
This matter comes before the Court for review of the Supplemental Report and
Recommendation issued by United States Magistrate Judge Gary M. Purcell on May 8, 2012 [Doc.
No. 22]. Plaintiff has timely filed a lengthy objection within the page limitation authorized by the
Court. See Order of June 8, 2012 [Doc. No. 24]. Plaintiff has also filed numerous motions, seeking
to disqualify Judge Purcell and to supplement the Second Amended Complaint and prior motions.
The Court must make a de novo determination of any portion of the Supplemental Report to which
a specific objection is made, and may accept, modify, or reject the recommended decision in whole
or in part. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
Plaintiff, who appears pro se, is an inmate of the Oklahoma Department of Corrections
(DOC) challenging the conditions of his confinement under maximum security at the Oklahoma
State Penitentiary (OSP) in McAlester, Oklahoma, and his placement in that institution. He is
serving a life sentence without the possibility of parole for a drug trafficking crime committed after
previous felony convictions. Plaintiff has been a frequent litigant in this and other federal courts,
and is currently subject to the filing restrictions imposed by 28 U.S.C. § 1915(g). The Court recites
this fact even though Plaintiff has paid the filing fee and is not proceeding in forma pauperis in this

case, because some of Plaintiff’s prior cases are relevant here. Plaintiff relies in part on prior
recommendations and rulings in those cases as a basis for his objection to Judge Purcell’s
Supplemental Report, as discussed below.
The initial pleading in this case was a duplicate of Plaintiff’s complaint in Case No. CIV-11306-D, with additional pages inserted to add claims and defendants based on intervening events.1
Compare Compl. [Doc. No. 1] with Dopp v. Jones, Case No. CIV-11-306-D, Compl. (W.D. Okla.
March 17, 2011).2 A year earlier, Plaintiff had filed an almost identical complaint in Case No. CIV10-1198-D, but he voluntarily dismissed the action after Judge Purcell recommended a denial of in
forma pauperis status due to Plaintiff’s accumulation of three “strikes” under § 1915(g). When
refiling as No. CIV-11-306-D, Plaintiff added allegations designed to satisfy the “imminent danger”
exception of § 1915(g). However, the Court found these allegations to be insufficient and denied
in forma pauperis status; the action was dismissed for nonpayment of the filing fee. Within a month
after the court of appeals issued the mandate in his appeal of the dismissal, Plaintiff filed this action.
Like these prior cases, Plaintiff includes in this case a multitude of claims and defendants
– many unrelated to each other – regarding events that span a time period of three years and concern
Plaintiff’s many grievances during that time period.3 The initial Complaint filed on December 21,
2011, contained 42 enumerated claims against 21 defendants and spanned 83 pages, including the

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Many of the additional allegations were actually made in Case No. CIV-11-306-D as part of
Plaintiff’s effort to gain in forma pauperis status, although they were not included in the original complaint.
2

In addition, Plaintiff submitted with both complaints the same declaration and grievance log, listing
his many administrative grievances. In this case, the declaration bears a new date and the log has been
updated with additional grievances.
3

This case was filed in December, 2011, concerning events beginning in November, 2009, but
Plaintiff has included later events in his amended pleadings, and has sought leave to supplement his Second
Amended Complaint to add claims and defendants as new events occur.

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attached declaration and grievance log; it was accompanied by a separate motion for injunctive
relief, which spanned 90 pages including exhibits, and was incorporated into the Complaint’s request
for relief. Plaintiff complained of problems that began when he was taken back into custody after
he was mistakenly released from the Lawton Correctional Facility (LCF) in October, 2009.4
Plaintiff asserted claims regarding his reassignment to OSP and placement in disciplinary or
administrative segregation, as well as claims alleging unconstitutional conditions with regard to
lighting, showers, exercise, leg restraints, indigent supplies, food, clothing, bedding, shoes, laundry
service, mail service, religious materials, religious services, medical care, and dental care. Plaintiff
invoked various civil rights statutes, the Religious Land Use and Institutionalized Persons Act
(RLUIPA), 42 U.S.C. § 2000cc et seq., and supplemental jurisdiction for state law claims.
Upon initial screening pursuant to 28 U.S.C. § 1915A, Judge Purcell found the Complaint
failed to satisfy Rule 8(a) of the Federal Rules of Civil Procedure, and directed Plaintiff to file an
amended complaint within 30 days.5 See Order of Jan. 5, 2012 [Doc. No. 7]. After unsuccessful
efforts to obtain relief from the January 5 Order, Plaintiff filed his Amended Complaint on
February 14, 2012, accompanied by a supporting brief. Contrary to Judge Purcell’s instructions, the
Amended Complaint did not contain a short and plain statement of Plaintiff’s claims but was,
instead, even more prolix and confusing than his initial pleading, purporting to incorporate by
reference “his entire Complaint Doc#1 and its accompanying Motion for Preliminary Injunction,

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Plaintiff had previously filed many complaints concerning his confinement at LCF. See Dopp v.
Ward, Case No. CIV-02-1559-T, Compl. (W.D. Okla. Nov. 5, 2002); Dopp v. Jones, Case No. CIV-06-842D, Compl. (W.D. Okla. Aug. 10, 2006); Dopp v. Miller, Case No. CIV-09-101-D, Compl. (W.D. Okla.
Jan. 23, 2009); Dopp v. Miller, Case No. CIV-10-663-D, Compl. (W.D. Okla. June 25, 2010).
5

Judge Purcell described the Complaint as a 75-page document because he did not count the attached
grievance log.

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etc.” See Am. Compl. [Doc. No. 14] at 6. The Amended Complaint asserted additional claims (a
total of 50 as numbered by Plaintiff) and added more defendants, including two employees of LCF.
Considered alone, the Amended Complaint and attached declaration spanned 83 pages; it was also
accompanied by a supporting brief with exhibits [Doc. No. 15].
By Order of March 15, 2012, Judge Purcell properly struck the Amended Complaint and
directed Plaintiff to file a second amended complaint. In addition to reminding Plaintiff of the
requirements of Rule 8(a), Judge Purcell advised Plaintiff regarding the limits of proper joinder
under Fed. R. Civ. P. 20(a)(2) and remedies available in a civil rights action, which may not
challenge the validity of a disciplinary conviction. Plaintiff’s request for reconsideration was
denied, but he was granted additional time to prepare an amended pleading.
On May 3, 2012, Plaintiff filed his Second Amended Complaint. In some respects, the
Second Amended Complaint represents a significant improvement over Plaintiff’s prior efforts to
state his claims. Plaintiff has reduced his allegations to 57 pages (including an attached declaration),
and grouped his claims into seven enumerated counts. However, each count represents a broad
category of constitutional or statutory rights, and each is brought against numerous defendants who
allegedly violated the described right in some way. In this pleading, Plaintiff has added even more
defendants, and he has again filed a supporting brief with exhibits [Doc. No. 20]. Plaintiff also filed
an Amended Motion for Preliminary Injunction and/or Temporary Restraining Order [Doc. No. 21],
which totals 77 pages including exhibits. The Amended Motion primarily concerns Plaintiff’s
assignment to OSP and confinement in disciplinary or administrative segregation and three
disciplinary convictions, but it also seeks changes in certain OSP policies as well as other relief.

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Examining only the Second Amended Complaint, Count I appears to claim violations of
Plaintiff’s First Amendment rights of access to religious books or materials, religious services, a law
library, legal materials or resources, incoming and outgoing mail (legal, personal, and religious),
indigent postage and mail supplies, indigent copying services, and prison policies and orders, as well
as rights to submit grievances and grievance appeals and to petition the government, a right of access
to the courts, and retaliation for asserting various rights, including filing lawsuits. Count I seems
to be directed at twelve defendants, ranging from DOC Director Justin Jones and DOC
administrators, to Randall Workman (former OSP warden) and OSP administrators, as well as mail
room employees and individuals involved in some way with processing or reviewing Plaintiff’s
administrative grievances. The allegations offered to support Count I span twelve single-spaced
pages, not counting references to the accompanying declaration.
Count II similarly concerns multiple alleged RLUIPA violations; it incorporates allegations
made in support of Count I and adds another three pages of allegations, not counting references to
the declaration. It appears to involve roughly the same defendants and many of the same claims,
except they are asserted under RLUIPA.
Count III concerns alleged violations of 42 U.S.C. § 1985 and § 1986 due to a conspiracy
among DOC and OSP administrators. The nature and purposes of the alleged conspiracy or
conspiracies are unclear.

This count mentions Plaintiff’s religious rights and incorporates

allegations from Count II, but appears mainly to complain about Plaintiff’s placement at OSP rather
than a medium security facility after his 2009 return to custody.
Count IV concerns alleged violations of the Fourth Amendment related to Plaintiff’s return
to custody, that is, his arrest and seizure from his mother’s house and alleged use of excessive force

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while transporting him back to prison. This count names only three defendants and appears to
concern discrete events, but these events occurred in November, 2009, more than two years before
this case was filed. This raises a question whether any § 1983 claims based on them are time barred.
Count V concerns alleged violations of Fifth and Fourteenth Amendment rights related to
compelled self-incrimination, denial of due process and equal protection, retaliation, and “breach
of contractual agreement/fraud/undue influence.” See Sec. Am. Compl. [Doc. No. 19] at 29. These
claims are based on allegations regarding an internal investigation of Plaintiff’s release from LCF
and a disciplinary charge of escape, and allege a conspiracy to punish Plaintiff and cause him to
incriminate himself based on false promises that he would be released from disciplinary confinement
and restored to a medium security classification. Included under this count, however, are a
confusing array of allegations regarding denial of participation in a food purchase program and a
supplemental food program, denial of special shoes needed for a foot condition, denial of indigent
mail service for grievance appeals, preventing receipt of religious books from outside vendors,
denial of telephone privileges, and assigning Plaintiff to a maximum security prison. Also included
under this count are a list of retaliation claims that incorporate other counts and allege in a
conclusory manner that actions taken by a wide variety of defendants were done to retaliate for
Plaintiff’s exercise of various rights. For example, certain defendants employed at DOC, OSP, and
LCF allegedly retaliated against Plaintiff for filing grievances or lawsuits, through imposing various
punishments or initiating misconduct charges. Count V spans approximately seven single-spaced
pages, not counting references to other counts and Plaintiff’s declaration, and appears to involve
approximately 17 defendants.

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Count VI concerns alleged violations of the Eighth Amendment due to the severe conditions
under which Plaintiff is confined at OSP, both generally and while confined in disciplinary or
administrative segregation. The wide array of complaints is described generally above, and includes
everything from showers, food, bedding, laundry service, exercise, leg restraints, and indigent
hygiene supplies, to medical and dental care. It spans seven single-spaced pages, not counting
numerous references to Plaintiff’s declaration, and appears to involve approximately 15 defendants.
Count VII concerns alleged violations of the Due Process Clause of the Fourteenth
Amendment. It incorporates “every previous hereinabove claim and sub-claim,”see Second Am.
Compl. [Doc. No. 19] at 40; and adds four more single-spaced pages of allegations, plus references
to parts of Count I and Plaintiff’s declaration. This count lists numerous instances in which adverse
actions were taken against Plaintiff, allegedly either without notice and a hearing or without
adequate hearing procedures (such as presentation of witnesses and evidence, sufficient findings,
and an unbiased hearing officer). The actions about which Plaintiff complains include everything
from seizing Plaintiff’s “orthopedic tennis shoes” when he arrived back at the Lexington Assessment
and Reception Center, to seizing funds from Plaintiff’s inmate account in order to satisfy various
unpaid fees and fines. See id. at 40-41. Plaintiff also alleges under this count that various Oklahoma
statutes are unconstitutional; named defendants on this count include a DOC attorney and Attorney
General “Scott Pruitt and/or Drew Edmondson.” Id. at 41. This count also encompasses Plaintiff’s
placement at OSP in disciplinary confinement and his disciplinary conviction of escape, as well as
other disciplinary convictions Plaintiff has received at OSP.
For relief, Plaintiff prays for injunctive relief as set forth in his separate motion,
compensatory and punitive damages against each defendant except the attorneys, a “cease and

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desist” order against legal proceedings to collect fees and fines, and a declaration that certain state
statutes are unconstitutional.
As this summary of the Second Amended Complaint makes clear, Judge Purcell correctly
concludes that Plaintiff’s pleading does not contain a short and plain statement of the claims
showing he is entitled to relief and – with regard to constitutional claims – showing each defendant’s
personal participation in the violation of a specific right. It includes a combination of prolix and
confusing allegations coupled with conclusory legal assertions, covering such a broad array of issues
and claims that a defendant attempting to answer it would have no idea where to start. It fails to
satisfy the purposes of Rule 8 to give the adverse party fair notice of the claim asserted, and it places
an unjustified burden on the court or litigant who must review it and respond. See Mann v.
Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007); see also Carbajal v. City of Denver, 2012 WL
4354677, *1 (10th Cir. Sept. 25, 2012); Whitehead v. Shafer, 295 F. App’x 906, 908 (10th Cir.
2008); Windsor v. Colorado Dep’t of Corrections, 9 F. App’x 967, 969 (10th Cir. 2001). “It [is] not
the district court’s job to stitch together cognizable claims for relief from [a] wholly deficient
pleading.” Id. The fact that Plaintiff may be able to ferret out and articulate some type of claim
against one or more individuals, as he attempts to do in his present Objection, does not cure the
pleading deficiency.
This conclusion is not inconsistent with the Court’s prior rulings in Plaintiff’s earlier cases
in which he made most of the same allegations. Each of these cases was dismissed, either
voluntarily or by the Court, at a preliminary stage prior to the payment of the required filing fee.
The sufficiency of Plaintiff’s pleading in these cases was not considered or determined. Thus, prior

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silence by the Court and the assigned magistrate judges regarding Plaintiff’s similarly prolix
pleadings is irrelevant to the current issues.
The Court disagrees, however, with Judge Purcell’s conclusion that Plaintiff’s deficient
pleading “should be dismissed without prejudice pursuant to 28 U.S.C. § 1915A(b) for failure to
state a claim upon which relief can be granted.” See Suppl. Rep. & Recom. [Doc. No. 22] at 11.
A dismissal for failure to comply with Rule 8 is properly treated as a dismissal under Rule 41(b).
See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th Cir. 2007). A Rule 41(b)
dismissal may be either with or without prejudice; the latter may be ordered by a district court
“without attention to any particular procedures.” Id. at 1162. A dismissal with prejudice, however,
may be made only after considering certain criteria, commonly known in this circuit as the
“Ehrenhaus factors.” See id. (referring to Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir.
1992)).
Specifically, “[t]hese criteria include (1) the degree of actual prejudice to the
defendant, (2) the amount of interference with the judicial process, (3) the culpability
of the litigant, (4) whether the court warned the party in advance that dismissal of the
action would be a likely sanction for noncompliance, and (5) the efficacy of lesser
sanctions.
Id. (quoting Olsen v. Mapes, 333 F.3d 1199, 1204 (10th Cir. 2003) (internal quotation omitted)); see
Cosby v. Meadors, 351 F.3d 1324, 1333 (10th Cir. 2003) (application of Ehrenhaus factors justified
dismissal with prejudice for failure to pay filing fee); see also Ecclesiastes 9:10-11-12, Inc. v. LMC
Holding Co., 497 F.3d 1135, 1143-44 (10th Cir. 2007) (referring to Ehrenhaus factors as a “nonexhaustive list”).
In his Objection, Plaintiff urges the Court to consider a lesser sanction than dismissal, such
as ordering only a partial dismissal or permitting another amendment of his pleading. Requiring the

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Court to search the Second Amended Complaint to find an adequately stated claim to proceed would
defeat the purpose of Rule 8. Further, the Court has no confidence in Plaintiff’s belief that “he can
now improve upon his claims” and satisfy Rule 8 “if given one more opportunity.” See Pl.’s
Objection [Doc. No. 25] at 30. However, even if the Court orders a dismissal without prejudice, as
recommended by Judge Purcell, the Ehrenhaus factors must be considered if the dismissal is
effectively one with prejudice because a statute of limitations would prevent refiling. See Govolay
v. New Mexico Fed. Sav. & Loan Ass’n, 968 F.2d 1017, 1021 (10th Cir. 1992); see also AdvantEdge
Business Group v. Thomas E. Mestmaker & Assoc., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009).
Although Plaintiff does not address the effect of any time bar, the Court addresses the
Ehrenhaus factors in an abundance of caution, and finds all lead to the conclusion that a dismissal
is appropriate under the circumstances. The court of appeals expressly found in Nasious the first
two factors are met in cases where the plaintiff’s pleadings fail to satisfy Rule 8. As to prejudice
to opposing parties: “This court has long recognized that defendants are prejudiced by having to
respond to pleadings as wordy and unwieldy as [the plaintiff’s] pleading remains.” Nasious, 492
F.3d at 1163. As to the judicial process: “[D]istrict judges assigned the task of measuring legal
pleadings against certain criteria . . . have their task made immeasurably more difficult by pleadings
as rambling, and sometimes incomprehensible, as [the plaintiff’s].” Id. Regarding notice to
Plaintiff, the Court finds that he was twice warned by Judge Purcell of the requirements of Rule 8.
On each occasion, but particularly in his Order of March 15, 2012, Judge Purcell identified the
deficiencies in Plaintiff’s prior pleadings and explained what was required. Plaintiff’s culpability
in failing to comply is equally clear. Despite Judge Purcell’s advice and assistance, Plaintiff persists
in including in his pleadings a wide array of claims (many unrelated), in making repetitive and

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conclusory allegations, and in suing supervisory officials with no apparent personal involvement in
his case. Defendant clearly knows how to formulate a sufficient pleading because he has done so
successfully in prior cases. See, e.g., Dopp v. Jones, Case No. CIV-06-842-D, Stipulation (W.D.
Okla. Nov. 13, 2009) (agreed resolution of § 1983 claims against LCF officials through settlement).
Regarding lesser sanctions, the Court finds a partial dismissal or opportunity for amendment
is not warranted, for reasons already stated. Further, the Court finds that a dismissal of the Second
Amended Complaint will not result in the loss of meritorious claims due to a technical violation.
See Nasious, 492 F.3d at 1163. The Court reaches this conclusion because any potentially timebarred claims are those based on events in 2009 that were the subject of prior lawsuits.6 Claims
regarding these events – Plaintiff’s return to prison – do not present substantial civil rights claims.7
As to other claims, namely violations of Plaintiff’s rights under the First, Eighth and Fourteenth
Amendments due to conditions at OSP and conduct of OSP officials, Plaintiff alleges these
violations have been ongoing; he will retain any viable claims that may be stated in a civil rights or
RLUIPA action.
Conclusion
Upon de novo review of the issues, the Court fully concurs in Judge Purcell’s finding that
Plaintiff’s Second Amended Complaint fails to satisfy the pleading requirements of Rule 8(a). The

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Oklahoma’s savings statute, Okla. Stat. tit. 12, § 100 permits a case to be refiled within one year
of a dismissal although the statute of limitations has expired. However, the savings statute allows only one
refiling. See Ashby v. Harris, 918 P.2d 744, 747 (Okla. 1996).
7

In Count IV of his pleading, for example, Plaintiff asserts Fourth Amendment claims regarding his
capture. The standard for issuance of an arrest warrant to return a prison escapee is not “probable cause,” as
alleged by Plaintiff. See United States v. Lucas, 499 F.3d 769, 778-79 (8th Cir. 2007). Nor may Plaintiff
assert his mother’s right of privacy. The asserted claim of excessive force is based solely on Plaintiff’s arms
being handcuffed behind his back during transport. See Second Am. Compl. [Doc. No. 19] at 26.

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Court declines to order a dismissal for failure to state a claim upon which relief can be granted, but
instead finds that dismissal is appropriate under Rule 41(b). The Court further finds that all pending
motions should be denied.
IT IS THEREFORE ORDERED that the Supplemental Report and Recommendation [Doc.
No. 22] is ADOPTED to the extent set forth herein. The Second Amended Complaint [Doc. No. 19]
is DISMISSED without prejudice pursuant to Fed. R. Civ. P. 41(b), for failure to file a pleading that
satisfies Fed. R. Civ. P. 8(a). Judgment shall be entered accordingly. All pending motions [Doc.
Nos. 21, 26, 27, 28 and 29] are DENIED.
IT IS SO ORDERED this 20th day of March, 2013.

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