Peeples v. Doe

Filing 12

ORDER adopting Report and Recommendations re 10 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 10/28/2013. (mb)

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

JOE WALLACE PEEPLES, III,
Plaintiff,
v.
U.S. SKY MARSHAL #1,
Defendant.

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Case No. CIV-13-860-D

ORDER
This matter is before the Court for review of the Report and Recommendation issued by
United States Magistrate Judge Gary M. Purcell pursuant to 28 U.S.C. § 636(b)(1)(B). Upon initial
screening, Judge Purcell recommends dismissal of the action pursuant to 28 U.S.C. § 1915(e)(2)(B)
and § 1915A(b) for failure to state a claim upon which relief can be granted. Plaintiff has filed a
timely written objection. Thus, the Court must make a de novo determination of the portions of the
Report to which 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 federal prisoner appearing pro se and in forma pauperis, seeks damages for the
alleged destruction of his personal and legal papers by a member of the United States Marshals
Service assigned to the Federal Transfer Center; the destruction allegedly occurred at the Pittsburgh
airport during Plaintiff’s transfer between correctional institutions.1 Judge Purcell concludes that
Plaintiff is attempting to bring a civil rights action against a federal official pursuant to Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971), related to an allegedly unconstitutional denial of

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Plaintiff is confined in a correctional center in Youngstown, Ohio.

access to the courts or deprivation of property. Judge Purcell finds insufficient factual allegations
to state a plausible constitutional claim.
Plaintiff objects generally to Judge Purcell’s findings, and he presents an exhibit regarding
service of process in a federal civil action in Colorado. This allegation is presented to overcome
Judge Purcell’s finding that “[n]owhre in Plaintiff’s pleadings or attached documentary evidence
does Plaintiff allege that he had attempted to file or had filed an action in court concerning the
alleged sexual assault upon him by an ‘FCI Englewood’ staff member.” See Report at 6. Also,
Plaintiff alleges for the first time that the destroyed papers “are the only thing that can provide
adequate proof of violations of law.” See Objection at 1. This allegation may be presented to
overcome Judge Purcell’s finding that Plaintiff has not alleged he “was unable to either file the
action or complaint or continue to litigate a previously-filed action or complaint because of the
removal of his ‘legal papers.’” See Report at 6.
Upon de novo consideration of the specific issues raised by Plaintiff’s objection, the Court
concurs in Judge Purcell’s analysis and findings.2 First, Plaintiff’s objection does not draw into
question Judge Purcell’s finding that the Complaint fails to state a plausible constitutional claim
regarding deprivation of property. Second, Plaintiff’s factual allegations, including new ones made
in his objection, are insufficient to state a plausible constitutional claim of denial of access to the
courts. Plaintiff has not alleged any facts – as opposed to conclusory statements – from which to
conclude that his loss of legal or personal papers will impede or hinder his efforts to pursue a

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The court of appeals has adopted a firm waiver rule, under which “a party’s objections to the
magistrate judge’s report and recommendation must be both timely and specific to preserve an issue for de
novo review by the district court.” See United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir.
1996). The consequence of Plaintiff’s failure to address a specific issue is a waiver of further review with
respect to that issue. See id.; see also Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).

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nonfrivolous legal claim, or that he has suffered an actual injury for which a remedy can be awarded
in this case.
According to the Supreme Court, the constitutional right of access to the courts “is ancillary
to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of
court.” See Christopher v. Harbury, 536 U.S. 403, 415 (2002). Thus, “the underlying cause of
action, whether anticipated or lost, is an element that must be described in the complaint, just as
much as allegations must describe the official acts frustrating the litigation.” Id. Further, “the
complaint must identify a remedy that may be awarded as recompense but not otherwise available
in some suit that may yet be brought.” Id.
From the objection, it appears Plaintiff has filed a civil rights suit in Colorado, presumably
related to the alleged sexual assault. It is unclear, however, how the allegedly destroyed papers
relate to a claim asserted in that case, or how the loss of papers will impair Plaintiff’s ability to
pursue the claim. Also, Plaintiff has not identified any remedy that is not available in that case. The
Complaint in this case requests an award of damages or an “investigation if this was a conspiracy
to cover up . . . Plaintiff’s sexual assault claim.” See Compl. [Doc No. 1] at 7. Any damages that
Plaintiff suffered would presumably be related to his loss of a nonfrivolous claim, which has not yet
occurred. See Jennings v. City of Stillwater, 383 F.3d 1199, 1209 (10th Cir. 2004). Any intentional
destruction of evidence, if that is what Plaintiff alleges, may be litigated and remedied in the
underlying lawsuit better than in a separate action. “There is, after all, no point in spending time and
money to establish the facts constituting denial of access when a plaintiff would end up just as well
off after litigating a simpler case without the denial-of-access element.” Christopher, 536 U.S. at
415.

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For these reasons, the Court concurs in Judge Purcell’s finding that the Complaint should
be dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1).
Further, when final, this dismissal will count as a “prior occasion” for purposes of 28 U.S.C.
§ 1915(g).
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No. 10] is
ADOPTED. This action is DISMISSED without prejudice to refiling. Judgment shall be entered
accordingly.
IT IS SO ORDERED this 28th day of October, 2013.

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