Bias v. Stitt et al

Filing 12

ORDER adopting Report and Recommendations re 8 Report and Recommendation and dismissing the Complaint. Granting 10 Motion for Leave to File Supplemental Brief to Objection to Magistrate's Report and Recommendation; and denying as moot 11 Motion to Amend Complaint. Signed by Honorable Scott L. Palk on 7/15/2021. (md)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
THOMAS ANDREW BIAS,

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Plaintiff,
v.
KEVIN STITT, et al.,
Defendants.

Case No. CIV-20-989-SLP

ORDER
Before the Court is the Report and Recommendation of United States Magistrate
Judge Suzanne Mitchell [Doc. No. 8] (“R&R”). As set forth in the R&R, Judge Mitchell
recommends dismissing Plaintiff’s Complaint [Doc. No. 1] for failure to state a claim.
Plaintiff timely filed an objection to the R&R. See Obj. [Doc. No. 9]. The Court, therefore,
conducts a de novo review as to those matters to which Plaintiff objects. See 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72(b)(3).1
I.

Eighth Amendment
Plaintiff

asserts

an

Eighth

Amendment

claim

regarding

an

allegedly

“unconstitutional version of a ‘parole consideration’ hearing for Plaintiff.” Compl. 4.
Plaintiff asserts that, because he was a juvenile when he committed his crime, Defendants’

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Plaintiff also filed a Motion for Leave to File Supplemental Brief to Objection to Magistrate[’]s
Report and Recommendation [Doc. No. 10] in which he asks the Court to consider additional
argument set forth therein. The Court grants that motion and has considered the additional
argument in reviewing the R&R. Additionally, Plaintiff filed a Motion to Amend Complaint [Doc.
No. 11] in which Plaintiff asks that the Court amend his Complaint to remove Defendant Robert
Gilliland because he is deceased. However, because the Court dismisses Plaintiff’s Complaint,
the court denies this request as moot.

parole procedures violate Miller v. Alabama, 567 U.S. 460 (2012) and Montgomery v.
Louisiana, 577 U.S. 190 (2016). Judge Mitchell recommends that this claim should be
dismissed because Miller does not apply to Plaintiff’s sentence, which was not a life
without parole sentence or the equivalent.
The Court agrees with Judge Mitchell that Miller and Montgomery do not apply to
Plaintiff. In his Objection, Plaintiff makes arguments that again presuppose that these cases
apply to him. Miller held that the Eighth Amendment prohibits mandatory sentences of
life without the possibility of parole for juvenile homicide offenders. 567 U.S. at 479. And
Montgomery held that Miller announced a substantive rule of constitutional law that is
retroactive on collateral review in state court. Montgomery, 577 U.S. at 208-09. But
Plaintiff has not been sentenced to life without parole. See Bias v. State, 561 P.2d 523, 537
(Okla. Crim. App. 1977) (modifying Plaintiff’s sentence from death to life imprisonment).
Indeed, that sentencing option was not enacted until 1987. Fontenot v. State, 881 P.2d 69,
74 n.2 (Okla. Crim. App. 1994). And Plaintiff has been considered for parole. See Compl.
4; see also Bias v. Redbird, 86 F.3d 1166 (10th Cir. 1996) (discussing Plaintiff’s eligibility
for parole consideration under certain Pardon and Parole Board policies and noting “the
most recent decision to deny [Plaintiff] parole.”).2

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Plaintiff recently filed a habeas petition in which he argued his sentence was unconstitutional,
citing Miller. See Bias v. Martin, No. 17-CV-607-JHP-FHM, 2018 WL 4690375, at *2, *4 (N.D.
Okla. Sept. 28, 2018). The court dismissed the petition for lack of jurisdiction. Id. at *5. In
considering whether the court should transfer the matter to the Tenth Circuit, the court observed
that Plaintiff’s claim “appears to be without merit because he is serving a life sentence with the
possibility of parole for a homicide he committed as a juvenile.” Id.; see also Bias v. Martin, 779
F. App’x 549, 552 (10th Cir. 2019) (denying application for a certificate of appealability).

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In

his

Objection,

Plaintiff

asserts—without

attaching

any

supporting

documentation—that he obtained the “functional equivalent of life without parole” in the
1990s when the Pardon and Parole Board allegedly stated that they “would never parole”
Plaintiff. Obj. 1. Plaintiff did not include this allegation in his original Complaint and has
not sought leave to amend to add this allegation. See Chambliss v. Bank of Am., N.A., No.
3:12-0955, 2014 WL 1287467, at *1 (M.D. Tenn. Mar. 31, 2014) (“Plaintiffs may not
amend their Complaint by adding factual allegations as a part of objections to an R & R”).
Even if the Court considers this new factual allegation, it would not save his claim.
Plaintiff’s sentence is still life with the possibility of parole. Oklahoma’s discretionary
parole procedures do not guarantee freedom. See Martinez v. State, 442 P.3d 154, 157
(Okla. Crim. App. 2019) (“A State is not required to guarantee eventual freedom to a
juvenile offender.”); Shirley v. Chestnut, 603 F.2d 805, 806 (10th Cir. 1979) (per curiam)
(describing Oklahoma’s system for parole release). Further, the Tenth Circuit previously
rejected a challenge by Plaintiff regarding the Pardon and Parole Board’s procedures,
holding that the “change in parole policy ‘had no effect on the standards for fixing [Mr.
Bias’] initial date of “eligibility” for parole, or for determining his “suitability” for parole
and setting his release date.’” Redbird, 86 F.3d at 1166 (quoting Cal. Dep’t of Corr. v.
Morales, 514 U.S. 499, 507 (1995)). Additionally, a claim based on this new factual
allegation about a statement made by the Pardon and Parole Board decades ago would be
time-barred. See Schell v. Chief Just. & Justs. of Okla. Supreme Ct., No. 20-6044, 2021
WL 2657106, at *9 (10th Cir. June 29, 2021) (holding that § 1983 claims are subject to the
personal injury limitations period in the state in which the claim arose, which is two years
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in Oklahoma); Cunningham v. City of Waukomis Police Dep’t, 747 F. App’x 704, 706
(10th Cir. 2018) (“Dismissal for failure to state a claim is proper where the allegations in
the complaint, taken as true, show that the statute of limitations bars the requested relief.”).
Thus, leave to amend the Complaint to include this new factual allegation is not warranted.
II.

Due Process and Equal Protection
Plaintiff’s second claim for due process and equal protection violations asserts that

Governor Stitt “has allowed the Pardon and Parole Board to operate in an unconstitutional
. . . and discriminatory manner toward Plaintiff.” Compl. 5. He asserts he “is not being
provided . . . Due Process and Equal Protection” because he has not had a chance to
demonstrate rehabilitation, again citing Miller and Montgomery. Id. at 5-6.
Judge Mitchell recommends dismissal because Plaintiff has no liberty interest in
parole consideration or procedure, Miller and Montgomery are inapplicable, and Plaintiff
fails to assert factual allegations or legal authority in support of an equal protection claim.
In his Objection, Plaintiff admits that “there is no invested [sic] right to a parole[,]” that
“Plaintiff has never had a liberty interest in parole consideration, [and] that Oklahoma’s
parole scheme is discretionary[,]” but nevertheless asserts due process and equal protection
violations. Obj. 2.
The Court agrees with Judge Mitchell’s due process analysis and Plaintiff does not
make any arguments to convince the Court otherwise. With respect to his equal protection
claim, Plaintiff simply objects that the “protected class” at issue is made up of juveniles
(ostensibly, juvenile offenders). Id. at 3. However, he still fails to satisfy “[t]he pleading
requirement of an allegation that a similarly situated person was treated differently” from
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Plaintiff. Brown v. Montoya, 662 F.3d 1152, 1173 (10th Cir. 2011); see also Straley v.
Utah Bd. of Pardons, 582 F.3d 1208, 1215 (10th Cir. 2009) (rejecting equal protection
claims because the petitioner “fails to identify any similarly-situated individual that has
been given any different or more beneficial treatment.”).
III.

Conclusion
IT IS THEREFORE ORDERED that that the Report and Recommendation [Doc.

No. 8] is ADOPTED and Plaintiff’s Objection [Doc. No. 9] thereto is OVERRULED. The
Complaint is DISMISSED.

A separate judgment of dismissal shall be entered

contemporaneously with this Order.
IT IS FURTHER ORDERED that the Motion for Leave to File Supplemental Brief
to Objection to Magistrate[’]s Report and Recommendation [Doc. No. 10] is GRANTED.
IT IS FURTHER ORDERED that the Motion to Amend Complaint [Doc. No. 11]
is DENIED AS MOOT.
IT IS SO ORDERED this 15th day of July, 2021.

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