Miskovsky v. Department of Corrections et al

Filing 36

ORDER ACCEPTING REPORT AND RECOMMENDATION 15 of U.S. Magistrate Judge Bernard Jones insofar as it concluded the removal to this court was proper and denied the motion to remand on the basis then asserted...as the absence of any viable federal claim is not clear and the court declines to exercise supplemental jurisdiction over the state law claims this case is REMANDED to the District Court of Oklahoma County. Signed by Honorable Joe Heaton on 03/09/2016. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
GROVER MISKOVSKY,
Plaintiff,
vs.
JUSTIN JONES, ET AL.,
Defendants.

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NO. CIV-15-0787-HE

ORDER
Plaintiff Grover Miskovsky (“Miskovsky”), a prisoner in state custody, commenced
this case in Oklahoma state court. He asserted claims against the Oklahoma Department of
Corrections (“DOC”), Justin Jones, the previous director of the DOC, and various other past
or current DOC employees. The state court petition asserted claims based on both the United
States and Oklahoma Constitutions. Defendants removed the case to this court, based on 28
U.S.C. § 1331 (federal question jurisdiction). Miskovsky then moved to remand the case to
state court, arguing that he intended only to assert claims arising under state law.1
Consistent with 28 U.S.C. § 636(b)(1)(B), the matter was referred to Magistrate Judge
Bernard M. Jones, who has issued a Report and Recommendation recommending that
Miskovsky’s motion to remand be denied. Miskovsky has filed an objection to the Report
and Recommendation.

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At the time of the filing of the case and its removal, plaintiff was proceeding pro se. He has
since appeared in this case by counsel.

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Background
The present dispute is not new to this court. In 2008, Miskovsky filed suit in this
court against the DOC, Justin Jones, Judge Twyla Mason Gray, and others, asserting claims
based on substantially the same claims as he now asserts here. He asserted state and federal
claims based on allegations that the defendants violated his constitutional rights by illegally
seizing the money in his prison draw account and that his resulting inability to obtain an eye
exam and eyeglasses was due to the defendants’ deliberate indifference to his medical needs.
After various proceedings in this court, the court either dismissed or granted summary
judgment as to each of Mr. Miskovsky’s federal claims. It also declined to exercise
supplemental jurisdiction over his claims arising under state law, dismissing those claims
without prejudice. The court’s disposition of the case was affirmed by the Tenth Circuit
Court of Appeals. Miskovsky v. Jones, 559 F. App’x 673 (10th Cir. 2014) (Mem.); see 28
U.S.C. § 1367(c)(3).
Mr. Miskovsky then filed the present case, raising essentially the same claims as were
involved in the prior suit. The claims are based on the seizure of money from his prison draw
account with, in some cases, new parties now involved. His state court petition explicitly
relied on both the federal and state constitutions as the bases for his claims. After removal
based on the purported federal claims, Mr. Miskovsky sought to amend his petition in state
court for the apparent purpose of clarifying that the reference to federal claims was in error
and that he sought only to pursue the state claims which had been dismissed by this court
without prejudice. He also eventually filed an amended complaint in this court (after the
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Report and Recommendation was filed, and by then represented by counsel) which omits any
reference to the federal constitution as the basis for his claims. By his objection, he
continues to seek remand to state court.
Discussion
For the reasons stated in the Report and Recommendation, federal subject matter
jurisdiction existed at the time of removal and the removal was proper. See Pfeiffer v.
Hartford Fire Ins. Co., 929 F.2d 1484, 1488 (10th Cir. 1991) (“[T]he propriety of removal
is judged on the complaint as it stands at the time of the removal.”) (internal citation
omitted). The petition as filed in state court plainly asserted claims based on the U. S.
Constitution.2
That the removal was proper does not, however, mean the case gets to stay here.
Miskovsky has now made clear that he does not seek to pursue federal constitutional claims
in this case. Indeed, he explicitly acknowledges that the federal claims arising out of this
dispute have been previously resolved by this court.3 The factors underlying this court’s
prior decision to decline to exercise supplemental jurisdiction have not changed, nor has its

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Contrary to Mr. Miskovsky’s suggestion, the removal was not in “bad faith” on the basis
that defendants’ lawyer knew, from the case history, what he really intended by his petition. In the
face of explicit reliance on the federal constitution, defendants and their lawyers were entitled to
take the petition at face value.
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For example, his motion to supplement his motion to remand [Doc. No. 10, at 4]
acknowledges “the fact that all federal issues were previously resolved, in case No. CIV-08-123HE.” Defendants’ suggestion that Mr. Miskovsky is attempting some sort of end-run around the
court’s prior order is inconsistent with plaintiff’s concession. Further, even if plaintiff’s intentions
were otherwise, any attempted end-run would prove unsuccessful based on the application of claim
preclusion (res judicata) principles.

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conclusion. Accordingly, whether viewed as a matter of loss of federal subject matter
jurisdiction by reason of no federal claims being asserted, or as a matter of the federal claims
having been previously resolved against plaintiff in this court, the result is the same. There
are no federal claims remaining for resolution in this court and the court declines, again, to
resolve the claims based on state law.
For the reasons stated, the Report and Recommendation [Doc. No. 15] is
ACCEPTED insofar as it concluded the removal to this court was proper and denied the
motion to remand on the basis then asserted. However, as the absence of any viable federal
claim is now clear and the court declines to exercise supplemental jurisdiction over the state
law claims, the case is REMANDED to the District Court of Oklahoma County.4
IT IS SO ORDERED.
Dated this 9th day of March, 2016.

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The court could presumably either remand the case to state court or, once again, dismiss
the state claims without prejudice. As plaintiff indicates an intention to pursue the state claims, it
appears more efficient to remand the case to state court.

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