Smith v. Drawbridge et al

Filing 78

ORDER ADOPTING REPORT AND RECOMMENDATION 73 of Magistrate Judge Charles Goodwin...after de novo review defendants' motion for summary judgment 65 is granted and plaintiff's motions 70 , 71 , 72 and 73 are denied. Signed by Honorable Joe Heaton on 06/13/2018. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
FRED SMITH,
Plaintiff,
vs.
JAMES DRAWBRIDGE, et al.,
Defendants.

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NO. CIV-16-1135-HE

ORDER
Plaintiff Fred Smith, a state prisoner appearing pro se, filed this civil rights action
alleging violations of federal law. Pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), the matter
was referred to Magistrate Judge Charles B. Goodwin for initial proceedings. After
ordering defendants to produce a special report, Judge Goodwin issued a Report and
Recommendation recommending that all but two of plaintiff’s claims be dismissed. The
court adopted the report. Defendants subsequently filed a motion for summary judgment
as to the remaining claims.

Judge Goodwin has issued a second Report and

Recommendation (the “Report”), recommending that defendants’ motion be granted.
Plaintiff has objected to the Report, which triggers de novo review of proposed findings or
recommendations to which objection has been made. Casanova v. Ulibarri, 595 F.3d 1120,
1123 (10th Cir. 2010); see also 28 U.S.C. § 636(b)(1)(C).

Plaintiff’s first objection argues that the principles of res judicata and collateral
estoppel “overcome the Magistrates entire report and recommendation.” Doc. #77, p. 1. 1
Plaintiff, however, never identifies what prior holding or ruling would apply to negate the
Report’s recommendations.

Instead, plaintiff seems to argue that he has exhausted

available administrative remedies, despite the Report’s contrary conclusion. He contends
through unsupported statements that prisoners and Oklahoma Department of Corrections
officials would be available to testify at a hearing that grievance procedures are either
disregarded or used to punish prisoners who attempt to utilize such procedures.
The Report presents an exhaustive description of the grievance procedures that were
available to plaintiff, how and why those procedures were applied to plaintiff’s many
grievance filings, and how—with one exception—plaintiff failed to exhaust the
administrative remedies regarding all his remaining claims.

Nothing in plaintiff’s

objection rebuts the Report’s clear explanation and application of the relevant law.
Plaintiff failed to exhaust his Americans with Disabilities claims and all Free Exercise
claims except the claim that defendant Drawbridge purposefully failed to arrange for
plaintiff to receive a hot meal to break the Fast of Tammuz.
Plaintiff next argues that he cannot be held to the legal standards applied by Judge
Goodwin and that counsel should be appointed to assist his case. “Factors to be considered
in deciding whether to appoint counsel include the merits of the claims, the nature of the
factual issues raised in the claims, the litigant’s ability to present the claims, and the

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References to filings with this court are to the CM/ECF document and page number.

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complexity of the legal issues raised by the claims.” Spencer v. City of Cheyenne, 1 Fed.
Appx. 863, 865 (10th Cir. 2001) (citing Rucks v. Boergermann, 57 F.3d 978, 979 (10th
Cir. 1995)). Plaintiff’s complaint, objections to both Reports, and various other motions
and filings with the court demonstrate his ability to present and defend his claims. Further,
plaintiff has properly addressed the factual and legal issues presented. Plaintiff has failed
to demonstrate that appointment of counsel was necessary in this action. Finally, the
Report properly construed plaintiff’s pro se pleadings liberally. While pro se pleadings
must be construed liberally, however, “the court cannot take on the responsibility of serving
as the litigant’s attorney in construing arguments and searching the record.” Garrett v.
Selby Conner Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (citation omitted)).
The Report applied the proper standard when evaluating plaintiff’s filings.
Plaintiff’s final two objections are that defendant Drawbridge is not entitled to
qualified immunity and that plaintiff “must be given an opportunity to present mitigating
evidence to disprove [the] Magistrate’s Report.” Doc. # 77, p. 1. However, plaintiff fails
to support his qualified immunity assertion with any evidentiary support. And plaintiff
appears to ignore that his objection is actually an opportunity to present evidence contrary
to the Report. To the extent that plaintiff is arguing that he must be granted an evidentiary
hearing, the court concludes that an evidentiary hearing is unnecessary based on the filings
in this action. See Anderson v. Att’y Gen. of Kansas, 425 F.3d 853, 859 (10th Cir. 2005)
(“[A]n evidentiary hearing is unnecessary of the claim can be resolved on the record.”).

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Accordingly, after de novo review, the Report and Recommendation [Doc. # 76] is
ADOPTED. Defendants’ Motion for Summary Judgment [Doc. #65] is GRANTED and
plaintiff’s pending motions [Doc. Nos. 70, 71, 72, and 73] are DENIED.
IT IS SO ORDERED.
Dated this 13th day of June, 2018.

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