Dease v. Allbaugh et al

Filing 67

ORDER ADOPTING 64 Report and Recommendation, GRANTING IN PART and DENYING IN PART 61 Motion to Dismiss (converted to a motion for summary judgment) filed by Sam Preston, Allison Gibson, Amanda Webb, Sergeant Page, DENYING 63 Motion to Strike filed by William Henry Dease (ALL AS FULLY SET OUT IN THIS ORDER). Signed by Honorable Stephen P. Friot on 4/29/2019. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
WILLIAM HENRY DEASE,
Plaintiff,
-vsJOE M. ALLBAUGH, et al.,
Defendants.

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Case No. CIV-18-0282-F

ORDER
Plaintiff William Henry Dease, a state prisoner who appears pro se and in
forma pauperis, filed a second amended complaint pursuant to 42 U.S.C. § 1983,
alleging violations of state and federal law.
Before the court is a Report and Recommendation of March 25, 2019 (the
Report, doc. no. 64), submitted by Magistrate Judge Bernard M. Jones. The Report
recommends the court grant defendants’ motion to dismiss (doc. no. 61) in part, then
go on to summarily dismiss several federal claims, and decline supplemental
jurisdiction over plaintiff’s state law claim. The Report also recommends the court
deny plaintiff’s motion to strike (doc. no. 63) the special report filed by the
defendants.
Plaintiff has objected to the Report. Doc. nos. 65, 66. (Plaintiff filed two
objections, both of which have been considered.)1 All objected to matters have been
reviewed de novo. After review of the objections, the court finds and concludes that

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The court notes plaintiff’s request for counsel, included within doc. no. 66. The request is denied.

it agrees with the Magistrate Judge’s recommendations and that there is no need for
any further analysis here.
Accordingly, plaintiff’s objections to the Report are DENIED (doc. nos. 65,
66), and the Report is ACCEPTED, ADOPTED and AFFIRMED. Doc. no. 64.
As recommended by the Magistrate Judge, the court rules as follows.
Defendants’ motion to dismiss (doc. no. 61) is converted to a motion for
summary judgment. The converted motion is GRANTED IN PART and DENIED
IN PART. The motion is GRANTED with respect to plaintiff’s claims involving
(1) a bogus misconduct charge, (2) denial of the right to present (or obtain) evidence,
(3) conspiracy and bias in the disciplinary proceedings, (4) retaliation, and (5)
seizure and/or destruction of legal materials. Otherwise, the motion is DENIED.
This means that the motion is DENIED with respect to plaintiff’s claims involving
(1) improper transfer or (2) credit-level demotion.
Although they survive the summary judgment motion, the improper transfer
and credit-level demotion claims fail upon initial screening by the court conducted
pursuant to 28 U.S.C. § 1915(e)(2)(B). For that reason, plaintiff’s claims involving
(1) improper transfer or (2) credit-level demotion are DISMISSED without
prejudice.
Plaintiff’s Freedom of Information Act (FOIA) claim also fails on initial
screening. This claim is summarily DISMISSED, with prejudice, because FOIA
does not apply to state governments and therefore creates no right of relief against
the defendants.
The above rulings dispose of all federal claims.

The court declines

supplemental jurisdiction over plaintiff’s state-law claim arising under the
Oklahoma Open Records Act, and that claim is DISMISSED without prejudice.
Finally, plaintiff’s motion to strike (doc. no. 63) the special report filed by the
defendants is DENIED. Although plaintiff complains that defendants included
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unnecessary and potentially prejudicial materials in the special report, the Magistrate
Judge, and this court, have considered only evidence in the report that is relevant
and admissible.
IT IS SO ORDERED this 29th day of April, 2019.

18-0282p004.docx

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