Simpson v. Addison
Filing
13
ORDER denying 7 Motion to Intervene; adopting Report and Recommendations re 9 Report and Recommendation.; denying 11 Motion for Declaratory Judgment. Signed by Honorable Timothy D. DeGiusti on 5/5/2016. (mb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
GARY L. SIMPSON,
Petitioner,
vs.
WARDEN MICHAEL ADDISON,
Respondent.
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Case No. CIV-15-537-D
ORDER
Gary Simpson, a state prisoner appearing pro se, objects to the Magistrate
Judge’s Supplemental Report and Recommendation (“R&R”) [Doc. No. 10], which
recommended dismissal of his action, without prejudice, for failure to exhaust state
court remedies [Doc. No. 9]. Robert Cotner, who is also a state prisoner appearing pro
se, objects to that portion of the R&R denying his Motion to Intervene [Doc. No. 7].1
Exercising de novo review,2 the Court finds the R&R should be adopted as modified
below.
1
Although styled as a “Supplement to Motion to Intervene,” the Court liberally
construes Cotner’s pleading as an objection since he is a pro se litigant. Davis v.
McCollum, 798 F.3d 1317, 1319 n. 2 (10th Cir. 2015) (citing Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir.1991)).
2
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(3), where the
district court refers prisoner petitions to a magistrate judge for a report and
recommendation, the district court “must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to.” Id.
BACKGROUND
Simpson is currently incarcerated at the Joseph Harp Correctional Center
(JHCC) in Lexington, Oklahoma. A review of his objection, the accompanying
exhibits, and the related state court proceedings,3 shows that Simpson was convicted
of child sexual abuse and sentenced to life in prison. On January 21, 2015, he filed a
petition for writ of habeas corpus in Cleveland County District Court, alleging his
administrative transfer to a private correctional facility constituted a commutation of
his sentence and entitled him to immediate release from incarceration.4 The district
court denied Simpson’s request on the grounds he had failed to exhaust his
administrative remedies before seeking judicial relief. The district court noted there
was no evidence indicating Simpson had either filed a grievance or grievance appeal
as provided by the Oklahoma Department of Corrections (ODOC) concerning
unlawful incarceration or his transfer to a private prison, and Simpson submitted no
evidence to refute such finding. The court also noted Simpson’s petition lacked
3
The Court is permitted to take judicial notice of such matters, which are of
public record. See United States v. Bagby, 696 F.3d 1074, 1083 n. 7 (10th Cir. 2012);
see, e.g., Coughlin v. Bear, No. CIV-15-536-R, 2016 WL 447345, at *4 n. 6 (W.D.
Okla. Jan. 1, 2016) (“The undersigned takes judicial notice of the dockets and filings
for Petitioner’s state-court habeas efforts, which are publicly available through
http://www.oscn.net.”).
4
The record is unclear on when this alleged transfer took place, since Simpson’s
current place of incarceration, JHCC, is a state correctional facility.
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substantive merit because, inter alia, ODOC acted within its discretion in transferring
him to a private facility and an inmate generally has no liberty interest in his place of
confinement. The Oklahoma Court of Criminal Appeals affirmed and held Simpson’s
appeal was devoid of any facts sufficient to show his incarceration was unlawful and
that he was entitled to immediate release. This action followed.
As in the state proceedings, Simpson contended his sentence was discharged
or commuted and he was being unlawfully detained. Simpson set forth four causes of
action: (1) suspension of habeas corpus and due process; (2) unlawful detention; (3)
disability discrimination; and (4) declaratory relief. Subsequent to Simpson’s action,
Cotner sought leave to intervene. Pursuant to 28 U.S.C. § 636(b)(1)(B), the matter was
referred to Magistrate Judge Purcell, who, upon preliminarily reviewing the petition,
found Simpson failed to demonstrate he had exhausted his state court remedies. R&R
at 4. Judge Purcell also denied Cotner’s motion on the grounds his action was not
based on common questions of law or fact. Id.
The Court finds the R&R should be adopted, but for different reasons. Although
Judge Purcell recommended denying Simpson’s petition for failure to exhaust state
court remedies, the denial of Simpson’s state court relief was due to his failure to
exhaust his state administrative remedies. Simpson’s petition in this Court only
attached his state court petition for habeas relief and did not include either of the
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dispositions by the state district court or the Court of Criminal Appeals. Exhaustion
of administrative remedies is a prerequisite to federal habeas corpus relief pursuant
to 28 U.S.C. § 2241. See Hamm v. Saffle, 300 F.3d 1213, 1216 (10th Cir. 2002) (“A
habeas petitioner is ‘generally required to exhaust state remedies whether his action
is brought under § 2241 or § 2254.’”) (quoting Montez v. McKinna, 208 F.3d 862, 866
(10th Cir. 2000)). “The exhaustion of state remedies includes both administrative and
state court remedies.” Id. (citing Clonce v. Presley, 640 F.2d 271, 273-74 (10th
Cir.1981)). Simpson has provided no evidence of exhausting the administrative
remedies provided by ODOC, thereby requiring dismissal of his petition. The Court
notes that even assuming exhaustion was achieved, it agrees with the state district
court’s conclusion that Simpson has made no rational argument on the law or facts
that would entitle him to relief. Prisoners have no liberty interest in a particular place
of confinement, Olim v. Wakinekona, 461 U.S. 238, 245-246 (1983), and Simpson has
presented no persuasive authority to support his assertion that a transfer to a private
facility operated as a commutation of his life sentence. Simpson has also provided no
evidence of discrimination based on disability. Accordingly, his objection is
overruled.
Although the Court’s disposition of Simpson’s petition renders Cotner’s motion
to intervene moot, the Court finds it also lacks merit. As noted by Judge Purcell,
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Cotner seeks permissive intervention under Fed. R. Civ. P. 24(b); under permissive
intervention, the Court has the discretion to permit anyone to intervene who has been
granted such right by a federal statute or has a claim that shares a common question
of law or fact with the main action. Id. Upon a review of his motion and objection, the
Court finds Cotner’s motion does not reveal any common question of law or fact with
Simpson’s action. Cotner’s alleged grievances in no way resemble those raised in
Simpson’s petition. Notably, the incident upon which Cotner bases his claim occurred
in 1980, rendering it effectively time-barred. Accordingly, his objection is overruled
as well.
CONCLUSION
The Court has conducted the de novo review required by 28 U.S.C. § 636(b) of
“those portions of the report or specified findings or recommendations to which
objection is made.” Upon review, the recommendation of the Magistrate Judge to
dismiss this action without prejudice will be followed.
IT IS THEREFORE ORDERED that the Supplemental Report and
Recommendation [Doc. No. 9] is hereby ADOPTED as modified herein. Petitioner’s
Petition for Writ of Habeas Corpus [Doc. No. 1] is hereby DISMISSED WITHOUT
PREJUDICE. Consequently, his Motion for Declaratory Judgment [Doc. No. 11] is
DENIED. Movant Robert Cotner’s Motion to Intervene [Doc. No. 7] is DENIED. A
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judgment shall be issued accordingly.
IT IS SO ORDERED this 5th day of May, 2016.
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