Tabb v. LNU et al

Filing 38

ORDER that the Report and Recommendation 36 is ADOPTED, as set forth herein. Defendants Motion to Dismiss 23 , construed as a motion for summary judgment, is GRANTED. A separate judgment shall be entered accordingly. Signed by Honorable Timothy D. DeGiusti on 2/3/17. (ml)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DOMINIQUE TABB,
Plaintiff,
v.
ELSA CARRION,
Defendant.

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Case No. CIV-16-215-D

ORDER
This matter is before the Court for review of the Report and Recommendation
[Doc. No. 36] issued by United States Magistrate Judge Bernard M. Jones pursuant to
28 U.S.C. § 636(b)(1)(B) and (C). Judge Jones recommends that Defendant’s Motion to
Dismiss [Doc. No. 23] be construed as a motion for summary judgment and granted.
Although Plaintiff’s Objection [Doc. No. 37] was not filed within the deadline set by
Judge Jones, the Court elects to consider it. Thus, the Court must make a de novo
determination of the portions of the Report to which a 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 state prisoner appearing pro se, brings suit under 42 U.S.C. § 1983 to
recover damages allegedly caused by unconstitutional conditions of confinement at the
Oklahoma County Detention Center (“OCDC”), where he was detained from October
2014 to October 2015. Defendant Elsa Carrion was the law library supervisor at OCDC
during this time period. Plaintiff claims his constitutional right of access to the courts

was violated by OCDC’s deficient law library or legal assistance program, and
Defendant’s refusal to assist him with a civil case in the United States District Court for
the Eastern District of Oklahoma. Specifically, Plaintiff alleges Defendant intentionally
interfered with his pursuit of a civil rights case that he had filed in the Eastern District in
December 2011, and caused him to lose the right to appeal a dismissal of that case in
January 2015. Plaintiff claims he was denied meaningful access to the courts guaranteed
by Bounds v. Smith, 430 U.S. 817 (1977).
Following service of process and the filing of a special report pursuant to Martinez
v. Aaron, 570 F.2d 317 (10th Cir. 1978), Defendant moved to dismiss the action on
numerous grounds, including failure to satisfy the administrative exhaustion requirement
of 42 U.S.C. § 1997e, failure to state a plausible § 1983 claim, and qualified immunity.
After Plaintiff responded and Defendant filed a supplemental report as directed, Judge
Jones issued the 27-page Report and Recommendation, which contains a careful review
and analysis of the issues. Judge Jones properly notes that consideration of materials
outside the Amended Complaint requires that Defendant’s Motion be treated as one for
summary judgment under Fed. R. Civ. P. 56. Applying the Rule 56 standard of decision,
Judge Jones first finds that Defendant has not met her burden to show “Plaintiff failed to
satisfy § 1997e(a)’s exhaustion requirement.” See R&R, p.8. Defendant has not filed a
written objection and, therefore, has waived further review of this finding.1
1

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 St., 73 F.3d 1057, 1060 (10th Cir. 1996). The
consequence of a party’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).

2

Turning to the merits of Plaintiff’s claim, Judge Jones sets forth undisputed facts
established by judicial notice of public records, Plaintiff’s verified factual allegations, and
the court-ordered Special Report. Id. pp.9-18. Viewing those facts in the light most
favorable to Plaintiff, Judge Jones finds for reasons ably explained in the R&R that
Plaintiff has not established a violation of his constitutional right of access to the courts.
Id. pp.18-24.
Although Plaintiff has objected to the R&R, he makes no specific objection to
most of Judge Jones’ analysis. Plaintiff does not dispute, for example, the statement of
undisputed facts regarding the merits of his § 1983 claim. Plaintiff also does not disagree
with Judge Jones’ conclusion that Plaintiff has not shown Defendant’s alleged
interference directly caused the dismissal of his Eastern District case.2 Instead, Plaintiff
focuses on Defendant’s alleged interference with his right to appeal the dismissal. The
Court finds that Plaintiff has waived further review of all other issues. See supra note 1.
In his objection, Plaintiff disputes Judge Jones’ finding that the facts do not
establish a constitutional violation based on Defendant’s alleged interference with
Plaintiff’s right to file a civil appeal. Plaintiff argues, without factual support in the
record, that he requested information about how to take an appeal and where to file it.
See Pl.’s Obj. [Doc. No. 37], pp.1-2. The undisputed facts show that Plaintiff did not
express to Defendant an intent to appeal a dismissal of the Eastern District case. Instead,

2

While the 2011 case was pending, Plaintiff was released from prison and ceased contact with the court and
opposing counsel, causing him not to receive notice of dispositive motions and a show-cause order issued by
the district judge, and resulting in the dismissal of the case months before Plaintiff asked Defendant for any
assistance with it.

3

Plaintiff first mentioned the Eastern District case in May 2015, and informed Defendant
in June 2015 that the court clerk had stated the case was closed but not dismissed;
Plaintiff said he wanted to get the case reopened but did not know how. See R&R, p.15.
It is also undisputed, however, that Defendant did not provide any forms or legal
materials to Plaintiff for reopening his case, and denied a subsequent request for a civil
procedure manual or handbook.
Plaintiff argues in his Objection that Defendant’s conduct constitutes interference
because he was entitled to “assistance in the preparation and filing of meaningful legal
papers;” he was “not required to provide the exact name of some legal form or case
citation or statute in order to receive legal assistance.” See Pl.’s Obj. [Doc. No. 37], p.2
(ECF page numbering). Plaintiff also contends he was entitled to access to a law library
to conduct his own research if Defendant could not (or would not) provide legal research
assistance. Id. p.3
Upon de novo consideration of the issues under the undisputed facts shown by the
case record, the Court finds that Plaintiff has failed to establish a constitutional claim
based on Defendant’s interference with an appeal. As correctly stated by Judge Jones,
Plaintiff must demonstrate that Defendant’s alleged interference was intentional and that
it was causally connected to the alleged injury to Plaintiff. See Simkins v. Bruce, 406
F.3d 1239, 1242, 1244 (10th Cir. 2005); see also Clark v. Oakley, 560 F. App’x 804, 807
(10th Cir. 2014) (unpublished).3 In this case, Plaintiff did not advise Defendant that he
wanted to appeal a dismissal of the Eastern District case, nor did Defendant’s conduct
3

Unpublished opinion cited pursuant to Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1.

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cause Plaintiff to lose a right to appeal. It was Plaintiff’s own failure to maintain contact
with the district court in the Eastern District that caused the dismissal of his case and the
expiration of the time period for filing an appeal. See supra note 2. Even viewed as a
lost opportunity for Plaintiff to file a motion for relief from the dismissal pursuant to Fed.
R. Civ. P. 60(b), the undisputed facts do not provide a basis for such relief, as explained
by Judge Jones. See R&R, pp.23-24 & nn.15-16.
For these reasons, the Court fully concurs in Judge Jones’ finding that Plaintiff has
failed to demonstrate a right to relief under § 1983 on the claim asserted and, therefore,
concurs in Judge Jones’ conclusion that Defendant is entitled to summary judgment in
this action.
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc.
No. 36] is ADOPTED, as set forth herein. Defendant’s Motion to Dismiss [Doc. No. 23],
construed as a motion for summary judgment, is GRANTED. A separate judgment shall
be entered accordingly.
IT IS SO ORDERED this 3rd day of February, 2017.

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