Harper v. Rudek et al

Filing 107

ORDER ADOPTING REPORT AND RECOMMENDATION 70 of Magistrate Judge Suzanne Mitchell...plaintiff's claims against defendants Nina Nagel-Silva and Tracy McCollum are dismissed unless within 14 days plaintiff demonstrates to the court that the disciplinary conviction on which plaintiff bases his retaliation claims has been invalidated. Signed by Honorable Joe Heaton on 11/06/2013. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DALE E. HARPER,
Plaintiff,
vs.
JAMES RUDEK, ET AL.,
Defendants.

)
)
)
)
)
)
)
)

Case No. CIV-12-0449-HE

ORDER
Plaintiff Dale Harper, a state prisoner appearing pro se, filed this civil rights action
under 42 U.S.C. § 1983, asserting claims against employees of the Department of Corrections
(“DOC”) and the Lawton Correctional Facility (“LCF”). The court has resolved all claims
except for plaintiff’s First Amendment claims against defendants Nina Nagel-Silva and Tracy
McCollum. Plaintiff alleges that defendants Nagel-Silva and McCollum violated his First
Amendment rights by filing a false misconduct report (for menacing) in retaliation for “the
filing of grievances which led to the filing of civ-11-995-HE.”1 Doc. #1, p. 4. Consistent
with 28 U.S.C. §636(b)(1)(B),(C) the matter was referred for initial proceedings to U. S.
Magistrate Judge Suzanne Mitchell who, having conducted a 28 U.S.C. § 1915A review, has
recommended that plaintiff’s claims against defendants Nagel-Silva and McCollum be
dismissed with prejudice. Plaintiff has filed an objection to the Report and Recommendation.

1

In his objection plaintiff states that the asserted retaliation was due to plaintiff’s
“exposing/attempting to expose the widespread drug/tobacco/cellphone sales at OSR . . . .”
Doc. #106, p. 3. Plaintiff cannot, in an objection to a Report and Recommendation, change the
basis of his claims to avoid their dismissal.

Relying on O'Bryant v. Finch, 637 F.3d 1207 (11th Cir. 2011), cert. denied, 133 S.
Ct. 445 (2012) and Moots v. Lombardi, 453 F.3d 1020 (8th Cir. 2006), the magistrate judge
concluded plaintiff could not prevail on his retaliation claims because he was convicted of
the violation underlying the asserted false disciplinary report and the court previously found
that there was “some evidence” to support defendant’s commission of that infraction. As that
defect could not be cured through amendment of the complaint, the magistrate judge
recommended that plaintiff’s First Amendment claims be dismissed with prejudice.2 The
magistrate judge also noted that plaintiff’s First Amendment claim might be premature under
Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641 (1997).
Plaintiff responds to the Report and Recommendation, essentially challenging his
disciplinary conviction.
The court agrees with the magistrate judge that plaintiff’s claims against Nagel-Silva
and McCollum should be dismissed, but concludes it should be on the basis of Heck and
Edwards.3 The claims will therefore dismissed unless he shows, within 14 days, that the

2

In her Report and Recommendation the magistrate judge addressed a conspiracy claim,
presumably based on plaintiff’s allegation in his complaint that defendants Nagel-Silva and
McCollum “worked together as a cohesive force in a common enterprise, and filed a false
misconduct report . . . .” Doc. #1, p. 4. In his objection plaintiff states that he is not alleging a
conspiracy . Doc. #106, p. 2. The court therefore only addresses plaintiff’s retaliation claim.
3

When deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court cannot
consider evidence or allegations outside the complaint. It is reluctant, therefore, to dismiss
plaintiff’s claims against defendants Nagel-Silva and McCollum on the basis of a conclusion
reached in an earlier ruling on a summary judgment motion filed by another defendant (the
conclusion being that there was some evidence to support defendant’s disciplinary conviction for
menacing).

disciplinary conviction has been invalidated.4 As the Tenth Circuit stated in Brown v. Cline,
319 Fed. Appx.704 (10th Cir. March 26, 2009): “Plaintiff's claims that the disciplinary
reports against him were false and retaliatory . . . are claims that necessarily implicate the
validity of the disciplinary charge[] and the sanctions imposed, including the loss of
good-time credits.5 Heck and Edwards make clear that Plaintiff does not have a cognizable
§ 1983 claim under these circumstances unless he can show that the disciplinary conviction[]
[has] been invalidated.” Id. at 705-06.
Accordingly, having conducted a de novo review of plaintiff’s claims against
defendants Nina Nagel-Silva and Tracy McCollum, those claims are dismissed unless, within
fourteen days, plaintiff demonstrates to the court that the disciplinary conviction on which
he bases his retaliation claims has been invalidated.
IT IS SO ORDERED.
Dated this 6th day of November, 2013.

4

In light of the different ground for dismissal, the dismissal is without prejudice.

5

Plaintiff alleged in his complaint that sanctions imposed for the disciplinary conviction
involved the loss of earned credits. Doc. #1, p. 8.