Arnett v. Gabriel et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
GLEN DELANE ARNETT JR., )
)
Plaintiff, )
)
v. ) Case No. CIV-24-185-SLP
)
MAJOR PHILLIP GABRIEL et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
Plaintiff Glen Delane Arnett, Jr., appearing
pro se and
in forma pauperis, brings
this action under 42 U.S.C. § 1983, alleging various civil rights violations. (ECF No. 8).
United States District Judge Scott L. Palk referred this matter to the undersigned
magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C).
A review of the Amended Complaint has been conducted pursuant to 28 U.S.C. §
1915A(a) and 28 U.S.C. § 1915(e)(2)(B). Based on that review, the Court should: (1)
dismiss, with prejudice, any and all claims against the Cleveland County Detention
Center; (2) dismiss with prejudice, all official capacity claims for monetary damages
against all Defendants and all individual capacity claims seeking declaratory and/or
injunctive relief against all Defendants; (3) dismiss, without prejudice, Claim One as
asserted against Defendant Hamilton; (4) dismiss Claims Two, Four, Five, Six, Seven,
Eight, and Nine, without prejudice, in their entireties; (5) dismiss, without prejudice,
the Due Process claim against Defendant Hamilton, as set forth in Claim Three; (6)
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dismiss any claim against Defendant Sowards, as set forth in Claims Nine and Eleven,
(7) conclude that Plaintiff has stated a First Amendment retaliation claim against
Defendant Gabriel as set forth in Claim One; (8) conclude that Plaintiff has stated a
claim against Defendants Hamilton and Hagen for a violation of Equal Protection, as
set forth in Claim Three; and (9) conclude that Plaintiff has stated a First
Amendment/Free Exercise claim against Defendants Peek, Hagen, and Amason, as set
forth in Claims Nine and Eleven.
I. SCREENING REQUIREMENT
The Court must review each complaint in which a prisoner seeks redress against
a governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). The Court likewise
must review each case brought by a prisoner with respect to prison conditions and
each
case in which a plaintiff proceeds
in forma pauperis. 42 U.S.C. § 1997e(c)(1); 28 U.S.C.
§ 1915(e)(2). The Court is required to dismiss the complaint or any portion of the
complaint that is frivolous or malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief against a defendant who is immune from such relief.
See 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B); 42 U.S.C. § 1997e(c)(1).
II. STANDARD OF REVIEW
The Court must accept Plaintiff’s allegations as true and construe them, and any
reasonable inferences to be drawn from them, in the light most favorable to Plaintiff.
See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Since Plaintiff is proceeding
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pro se, his complaint must be construed liberally.
See id. at 1218. The Court “review[s]
the complaint for plausibility; that is, to determine whether the complaint includes
enough facts to state a claim to relief that is plausible on its face.”
Young v. Davis, 554
F.3d 1254, 1256 (10th Cir. 2009) (quotations and citation omitted).
A complaint fails to state such a claim when it lacks factual allegations sufficient
“to raise a right to relief above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).”
Bell Atlantic v. Twombly,
550 U.S. 544, 555 (2007) (footnote and citation omitted). Bare legal conclusions in a
complaint, however, are not assumed to be true; legal conclusions “must be supported
by factual allegations” to state a claim upon which relief may be granted.
Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009).
“[A] pro se plaintiff requires no special legal training to recount the facts
surrounding his alleged injury, and he must provide such facts if the court is to
determine whether he makes out a claim on which relief can be granted.”
Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991);
see also Whitney v. New Mexico, 113
F.3d 1170, 1173-74 (10th Cir. 1997) (noting that although courts construe
pro se
pleadings liberally, courts “will not supply additional factual allegations to round out a
plaintiff’s complaint”). Whether a complaint contains sufficient facts to avoid dismissal
is context-specific and is determined through a court’s application of “judicial
experience and common sense.”
Iqbal, 556 U.S. at 679;
see also Gee v. Pacheco, 627
F.3d 1178, 1184-85 (10th Cir. 2010) (discussing
Iqbal).’
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III. PLAINTIFF’S AMENDED COMPLAINT
Mr. Arnett has filed an Amended Complaint alleging various civil rights violations
which occurred while he was a pretrial detainee at the Cleveland County Detention
Center (CCDC).
See ECF No. 8. Specifically, Plaintiff asserts eleven distinct claims
alleging: retaliation in violation of the First Amendment; denials of access to the courts;
violations of Equal Protection, deprivations of Due Process, and violations of the Free
Exercise Clause of the First Amendment.
See ECF No. 8. As Defendants, Mr. Arnett has
named: (1) Phillip Gabriel, major at the CCDC; (2) K. Hamilton, disciplinary officer at
the CCDC; (3) J. Peek, lieutenant at the CDCC; (4) FNU Hagen, master sergeant at the
CCDC; (5) Lola Sowards, administrative clerk at the CCDC; (6) the CCDC; (7) G.
Wheatly, clerk at the CCDC; (8) Chris Amason, Cleveland County Sheriff; (9) “unknown
mailroom staff;” and (10) Alyssa Carter, administrative supervisor at the CCDC. (ECF
No. 1:4-5, 12, 13). Plaintiff sues each Defendant in their individual and official
capacities and seeks declaratory, injunctive, and monetary relief.
See ECF No. 8.
IV. CLEVELAND COUNTY DETENTION CENTER
As stated, Mr. Arnett has named the CCDC as a Defendant to the lawsuit. (ECF
No. 1:1, 4). But the Court should dismiss this Defendant because the CCDC is not an
entity legally capable of being sued.
Section 1983 creates a private right of action for redressing the violation of
federal law by those acting under color of state law.
See Migra v. Warren City Sch.
Dist. Bd. of Educ., 465 U.S. 75, 82 (1984). It “provides that ‘every person’ who acts
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under color of state law to deprive another of constitutional rights ‘shall be liable to
the party injured in an action at law, suit in equity, or other proper proceeding for
redress.’”
Lawrence v. Reed, 406 F.3d 1224, 1229 (10th Cir. 2005) (quoting 42 U.S.C.
§ 1983) (alterations omitted).
Whether an entity is a “person” subject to suit under § 1983 is a matter of
statutory interpretation.
See Lippoldt v. Cole, 468 F.3d 1204, 1212 (10th Cir. 2006).
“Generally, [however], governmental sub-units are not separate suable entities that
may be sued under § 1983.”
Hinton v. Dennis, 362 Fed. Appx. 904, 907 (10th Cir.
2010) (finding that a county criminal justice center was not a suable entity under §
1983).
Furthermore, the Tenth Circuit Court of Appeals has stated that a county detention
facility “is not a person or legally created entity capable of being sued.”
Aston v.
Cunningham, 2000 WL 796086 at *4 n. 3 (10th Cir. 2000);
see also Ketchum v.
Albuquerque Police Dep't, 1992 WL 51481, at *2 (10th Cir. 1992) (holding that a
municipal police department is not a suable entity because it lacks a legal identity apart
from the municipality);
see also Lindsey v. Thomson, 275 F. App’x 744, 747 (10th Cir.
2007) (unpublished op.) (affirming dismissal of § 1983 claims against police
departments and county sheriff’s department, entities with no apparent legal
existence). Accordingly, the Court should dismiss any claim against the CCDC for failure
to state a claim upon which relief may be granted.
See Maxwell v. Oklahoma City
Housing Authority, No. CIV-16-1033-R, 2016 WL 6590318, at *2 (W.D. Okla. Oct. 11,
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2016) (recommending dismissal of the CCDC as an entity not legally capable of being
sued)
adopted, 2016 WL 65874489.1
V. OFFICIAL CAPACITY CLAIMS FOR MONETARY DAMAGES AND
INDIVIDUAL CAPACITY CLAIMS FOR DECLARATORY AND
INJUNCTIVE RELIEF
As stated, Plaintiff has sued all Defendants in their official and individual
capacities and seeks declaratory, injunctive, and monetary relief.
See supra. However,
the Tenth Circuit Court of Appeals has long held that “Section 1983 plaintiffs may sue
individual-capacity defendants only for money damages and official-capacity
defendants only for injunctive relief.”
Brown v. Montoya, 662 F.3d 1152, 1161 n.5
(10th Cir. 2011).
As a result, the Court should dismiss, with prejudice, all official capacity claims
for monetary damages against all Defendants and all individual capacity claims seeking
declaratory and/or injunctive relief against all Defendants.
1 Throughout the Amended Complaint, Plaintiff references seeking liability against “Cleveland
County Detention Center—Municipality.”
See ECF No. 8. Although the detention center itself
cannot be legally sued, Cleveland County itself may be sued under a theory of municipal liability
for actions taken by County employees in their official capacities, acting pursuant to county
policy.
See Monell v. Department of Social Services of City of New York, 436 U.S. 658, 691
(1978);
Whitson v. Board of Cnty. Commissioners of Cnty. of Sedgwick, 106 F.4th 1063, 1073
(10th Cir. 2024). However, because Plaintiff has sued county officials in their official capacities,
a suit against the County itself would only be redundant.
See Kentucky v. Graham, 473 U.S.
159, 165-66, 167, n. 14 (1985) (holding that an official capacity “suit is, in all respects other
than name, to be treated as a suit against the entity.”)
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VI. CLAIM ONE—RETALIATION
In Claim One, Plaintiff alleges a violation of his “First Amendment right to be
free from undue/unjust reprisal (retaliation) from county jail guards, administrators
and staff due to use of grievance process to access the courts.” (ECF No. 1:6). Plaintiff
alleges liability against Defendants Gabriel and Hamilton, and provides the following
statement in support of his claim:
The Plaintiff was immediately removed from general population T-pod
south Cell #6, housing on 12/19/23, to administrative housing cell F-1.
After stopping Major P. Gabriel (who was leaving the T-south housing
unit from a unrelated incident at cell T-7) to come back to his cell door
at T-6 and informing him (Gabriel) he’d initiated filing a grievance against
jail staff. Fifteen to thirty minutes thereafter jail officers escorted Plaintiff
to administrative segregation per Major Gabriel’s (who was acting under
color of state law) orders to do.
(ECF No. 8:7).
Prison officials may not retaliate against prisoners for exercising their
constitutional rights, including filing internal prison grievances.
See Fogle v. Pierson,
435 F.3d 1252, 1264 (10th Cir. 2006) (action filed by a state prisoner under 42 U.S.C.
§ 1983). A plaintiff must allege three elements to show a First Amendment retaliation
claim: “(1) that the plaintiff was engaged in constitutionally protected activity; (2) that
the defendant's actions caused the plaintiff to suffer an injury that would chill a person
of ordinary firmness from continuing to engage in that activity; and (3) that the
defendant’s adverse action was substantially motivated as a response to the plaintiff's
exercise of constitutionally protected conduct.”
Shero v. City of Grove, 510 F.3d 1196,
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1203 (10th Cir. 2007).
See also Gee v. Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010)
(applying same test to prisoner claims under 42 U.S.C. § 1983). Although Mr. Arnett
alleges a First Amendment claim against Defendant Hamilton, Plaintiff makes no
allegations whatsoever against this Defendant in Claim One. Thus, the Court should
dismiss Claim One against Defendant Hamilton. “Mere allegations of constitutional
retaliation will not suffice; plaintiffs must rather allege specific facts showing retaliation
because of the exercise of the prisoner’s constitutional rights.”
Gee v. Pacheco, 627
F.3d at 1191. In turn, the Court should conclude that Plaintiff has stated a First
Amendment claim against Defendant Gabriel.
Mr. Arnett alleges that Defendant Gabriel ordered Plaintiff’s removal from
general population to administrative segregation approximately 15-30 minutes after
Plaintiff had informed Defendant Gabriel that he, Plaintiff, had filed a grievance against
“jail staff.” (ECF No. 8:8). These allegations are sufficient to state a First Amendment
claim against Defendant Gabriel.
See Gee v. Pacheco, 627 F.3d at 1189 (10th Cir.
2010) (finding that inmate stated a First Amendment retaliation claim by alleging that
he: (1) filed specific grievances against the defendants which was a constitutionally
protected activity; (2) was transferred to an out-of-state supermax prison in response
which would “chill a person of ordinary firmness from continuing to engage in that
activity;” and (3) alleged that the defendants were aware of his protected activity, and
that the transfer was in close temporal proximity to the protected activity, which
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indicated that the action “was substantially motivated as a response to [the inmate’s]
exercise of constitutionally protected conduct”).
VII. CLAIMS TWO AND FIVE—DENIAL OF COURT ACCESS
In Claims Two and Five, Plaintiff alleges a denial of court access owing to the
delayed delivery of his legal mail. (ECF No. 8:7-8, 12). For these claims, Mr. Arnett
seeks liability against Defendants Gabriel, McCoy, Amason, and John Doe/”unknown
mailroom staff.” (ECF No. 8:7, 12). The Court should dismiss both claims in their
entirety.
State inmates have a constitutional right to “ ‘adequate, effective, and
meaningful’ access to the courts.”
Petrick v. Maynard, 11 F.3d 991, 994 (10th Cir.
1993) (quoting
Bounds v. Smith, 430 U.S. 817, 822 (1977),
abrogated by Lewis v.
Casey, 518 U.S. 343 (1996)). The Tenth Circuit Court of Appeals has discussed two
types of prisoner claims asserting denial of the right of access to the courts. The first
type concerns a prison’s duty “to provide affirmative assistance in the preparation of
legal papers.”
Cohen v. Longshore, 621 F.3d 1311, 1317 (10th Cir. 2010) (internal
quotation marks omitted). The second type prohibits conduct that unduly hinders
litigation at any stage of the proceedings.
See Cohen, 621 F.3d at 1317 (addressing
access-to-courts claim based on prison mail clerk’s refusal to send prisoner's legal mail,
which allegedly prevented prisoner from filing objections to magistrate judge’s
recommendations). Both types of claims, however, require a showing that the inmate
suffered “actual injury” as a result of the alleged deprivation.
Lewis v. Casey, 518 U.S.
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343, 349 (1996). To state a claim of “actual injury,” a plaintiff must allege that he was
“frustrated or impeded in his efforts to pursue a nonfrivolous legal claim concerning
his conviction or his conditions of confinement.”
Gee v. Pacheco, 627 F.3d 1178, 1191
(10th Cir. 2010) (citing
Lewis).
Indeed, the right of court access does not apply to every type of legal action.
Thus far, the Supreme Court has identified only three types-“direct appeals from the
convictions for which they were incarcerated,” “habeas petitions,” and “actions under
42 U.S.C. § 1983 to vindicate basic constitutional rights.”
Lewis, 518 U.S. at 354;
see
also Lewis at 355 (stating that “[t]he tools [
Bounds] requires to be provided are those
that the inmates need in order to attack their sentences, directly or collaterally, and in
order to challenge the conditions of their confinement. Impairment of any
other
litigating capacity is simply one of the incidental (and perfectly constitutional)
consequences of conviction and incarceration.”).
Here, in Claims Two and Five, Mr. Arnett alleges the delay of legal mail by 59
days hindered his ability to file pretrial motions and/or respond to pretrial motions in
his criminal case which is pending in this Court, Case No. 23-CR-00114-PRW-1. (ECF
No. 8:7, 12). But these types of pleadings do not trigger constitutional protection in
the form of court access as outlined in	
Bounds and	
Lewis. Plaintiff’s complaint
regarding the delay of his legal mail does not concern filing pleadings which are
pertinent to challenging his conviction, either directly or collaterally, or involve
vindication of his basic constitutional rights while incarcerated. As a result, the Court
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should conclude that Mr. Arnett has failed to state a First Amendment claim for a denial
of court access, and should dismiss Claims Two and Five in their entirety.
VIII. CLAIM THREE—EQUAL PROTECTION AND DUE PROCESS
In Claim Three, Mr. Arnett alleges that Defendants Hamilton and Hagen violated
Plaintiff’s Fifth and Fourteenth Amendment rights to Equal Protection when he was
treated differently than other similarly situated inmates. (ECF No. 8:10). Mr. Arnett
also alleges that Defendant Hamilton violated his right to Due Process by issuing him
a misconduct without proper notice. (ECF No. 8:10). The Court should conclude that
Mr. Arnett has stated a claim against Defendants Hamilton and Hagen for a violation
of Equal Protection and against Defendant Hamilton for a violation of Due Process.
A. Equal Protection
Although Plaintiff invokes both the Fifth and Fourteenth Amendments in his
Equal Protection claim, the undersigned begins by noting that the Fifth Amendment
protection against the deprivation of “life, liberty, or property, without due process of
law” is not applicable to the states.
See Sawyer v. Burke, 504 F. App’x 671, 673 (10th
Cir. 2012) (dismissing the plaintiff’s Fifth Amendment due process claim because the
plaintiff had “only alleged constitutional violations committed by agents of the State of
Kansas, not the federal government. Therefore, the Due Process Clause of the Fifth
Amendment is not implicated.”) (unpublished opinion). However, the Fourteenth
Amendment prohibits states from depriving “any person of life, liberty, or property,
without due process of law.” U.S. Const. amend. XIV. As a result, the Court should
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construe the Equal Protection portion of Claim Three as arising only under the
Fourteenth Amendment.
To state an Equal Protection claim, a plaintiff must allege that the government
treated him differently than others who were similarly situated.
See Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, (1985). Here, Mr. Arnett alleges that his Equal
Protection rights were violated when he, “the only African-American . . . involved in
[an] incident,” was placed in administrative segregation while “similarly situated White
and Mexican males involved in the same incident . . . were not placed in administrative
segregation.” (ECF No. 8:10). Plaintiff alleges that Defendant Hagen “suggested to
place [Plaintiff] in administrative segregated housing instead of disciplinary segregated
housing like/with inmate Hernandez” and that Defendant Hamilton told Plaintiff she
would “serve him a write up (to keep Plaintiff in administrative segregation) . . . after
she’s already released inmate Hernandez to general population.” (ECF No. 8:10).2 At
this stage, the Court should conclude that Mr. Arnett has stated a claim against
Defendants Hamilton and Hagen for a violation of Equal Protection, as set forth in
Claim Three.
B. Due Process
To meet the standards of Due Process in a prison disciplinary proceeding, an
inmate must receive the protections set forth in
Wolff v. McDonnell, 418 U.S. 539,
2 At this stage of the proceedings, the undersigned presumes that Defendant Hamilton indeed
served Plaintiff the write-up which kept him in administrative segregation, as his requested
remedy for this claim involves, in part, a release back to general population.
See ECF No. 8:10.
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563–66, (1974): written notice of the charges at least twenty-four hours before the
hearing, an opportunity to present witnesses and evidence in defense of those charges,
and a written statement by the fact finder of the evidence relied on and the reasons
for the disciplinary action.
Smith v. Maschner, 899 F.2d 940, 946 (10th Cir. 1990).
Additionally, due process requires “some evidence to support the hearing panel’s
decision ... and the decisionmaker must be impartial.”
Gwinn v. Awmiller, 354 F.3d
1211, 1219 (10th Cir. 2004) (citing
Wolff, 418 U.S. at 592, (Marshall, J., concurring)).
Here, Plaintiff alleges that Defendant Hamilton violated his Due Process rights
because she failed to provide him “notice of misconduct within twenty four hours (24
hrs) hours of alleged misconduct.” (ECF No. 8:10). These allegations do not state a
Due Process claim because
Wolff does not mandate notice of the
misconduct, rather
it requires a twenty-four hour notice in advance of any disciplinary hearing associated
with the alleged misconduct, to ensure that the inmate may adequately prepare for
the same. Mr. Arnett has made no allegations that he was not given notice in time to
prepare for any hearing related to the misconduct. Thus, the Court should dismiss the
Due Process claim against Defendant Hamilton, as set forth in Claim Three.
IX. CLAIM FOUR—DUE PROCESS
In Claim Four, Mr. Arnett alleges a deprivation of Due Process through the
taking of his personal property. (ECF No. 8:11). According to Mr. Arnett, when he was
removed from administrative segregation, he was given back his personal property
that had been taken when he was placed in segregation, but several items were
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missing. (ECF No. 8:11). For liability on this claim, Plaintiff names Defendants
Hamilton, Hagen and Amason. (ECF No. 8:11). Plaintiff blames Defendants Hamilton
and Hagen for the taking and Defendant Amason for “set[ting] forth policy of
taking/depriving me of my property.” (ECF No. 8:11).
The Fourteenth Amendment guarantees due process “when a person is to be
deprived of life, liberty, or property.”
Templeman v. Gunter, 16 F.3d 367, 369 (10th
Cir. 1994);
see U.S. Const. amend. XIV, § 1. (providing that “no State shall . . . deprive
any person of life, liberty, or property, without due process of law.”). In the prison
context, there are two types of property revocations that implicate due process
principles. The first involves the adoption of “new polic[ies] that limit[ ] the amount of
property prisoners c[an] keep in their cells.”
Cosco v. Uphoff, 195 F.3d 1221, 1222
(10th Cir. 1999). “[A] prison regulation governing what prisoners may possess in their
cells will create a protected . . . property interest only if the deprivation . . . impos[es]
atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life.”
Robinson v. Doe, 761 Fed. App’x 855, 857 (10th Cir. 2019) (citing
Cosco,
195 F.3d at 1222).
The second type of property revocation involves the “unauthorized intentional
deprivation of property” by a prison official.
Hudson v. Palmer, 468 U.S. 517, 533
(1984). This occurs where prison officials revoke property “in violation of, rather than
according to, established procedure[s].”
Johnson v. Whitney, 723 Fed. App'x 587, 593
(10th Cir. 2018). Such a claim is only actionable where no “meaningful postdeprivation
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remedy for the loss is available.”
Hudson, 468 U.S. at 533;
see also
Bridgeforth v.
Ramsey, 1999 WL 992978, *1 (10th Cir. Nov. 2, 1999) (“Even if the seizure of a
prisoner's property is improper, an intentional deprivation of property does not give
rise to a Fourteenth Amendment due process claim if adequate state post-deprivation
remedies are available.”). The plaintiff must plead specific facts showing that the state
post-deprivation procedure has been unresponsive and inadequate.
See Freeman v.
Department of Corrections, 949 F.2d 360, 362 (10th Cir. 1991);
Johnson, 723 Fed.
App'x at 593.
Here, Plaintiff alleges that the property deprivation was pursuant to some sort
of policy allegedly created by Defendant Amason.
See supra. When a deprivation is
pursuant to a policy, the state has the power to control the deprivation and, therefore,
generally must, in the absence of compelling reasons to the contrary, give the plaintiff
a predeprivation hearing.
Gillihan v. Shillinger, 872 F.2d 935, 939–40 (10th Cir. 1989),
overruled on other grounds. The problem arises, however, with Plaintiff’s failure to
specify the precise policy which Defendant Amason created and Defendants Hamilton
and Hagen allegedly enforced in taking Plaintiff’s property. Instead, Mr. Arnett merely
alleges that upon his release from administrative segregation, his personal property
items were missing. Without more information, the Court should conclude that Plaintiff
has failed to state a Due Process claim for the deprivation of his personal property,
and dismiss Claim Four in its entirety.
See Cooley v. Douglas Cnty. Sheriff, No. 22-
3149-SAC, 2022 WL 3355774, at *4 (D. Kan. Aug. 15, 2022) (dismissing Due Process
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claim alleging deprivation of personal property pursuant to a prison policy for failure
to state a claim because inmate failed to identify the policy under which his items were
allegedly destroyed).3
X. CLAIM SIX—DENIAL OF COURT ACCESS
In Claim Six, Plaintiff alleges a denial of court access due to the deprivation of
notary services. (ECF No. 8:13). For this claim, Mr. Arnett names Defendants Hagen,
Wheatly, Carter, and Amason. (ECF No. 8:13). In support of Claim Six, Plaintiff states
that upon his request for a notary, Defendant Wheatly told Plaintiff that notarial
services required him to have money on the books and then sign a disbursement form
for $5.00 to pay for the notary. (ECF No. 8:13). Nearly one month later, Plaintiff states
that he asked Defendant Hagen for a notary and he had Plaintiff “sign a disbursement
form to be charged for a notary [he] never received.” (ECF No. 8:13). Mr. Arnett then
states that he submitted a staff request and Defendant Hagen responded that “she
returned the paperwork to [Plaintiff].” (ECF No. 8:13). Plaintiff then states that
Defendant Carter “refused to notarize” an
in forma pauperis form relevant to this
action. (ECF No. 8:13). In his “relief requested” section for this claim, Mr. Arnett states
3 If the alleged taking of Plaintiff’s property was not pursuant to an established jail policy, but
was, rather, an “unauthorized intentional deprivation of property,” Plaintiff’s claim would also
fail because the State of Oklahoma provides post-deprivation remedies for illegal loss of
property through the state court system.
See Hudson v. Palmer, 468 U.S. 517, 533 (1983)
(holding the “unauthorized intentional deprivation of property” by a state employee “does not
constitute a violation of the procedural requirements of the Due Process Clause of the
Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available”);
see
also 2 O.S. §§ 1571-71.1, 1580; 23 O.S. §§ 3, 4; 76 O.S. § 1.
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that Defendant Amason “set forth the no notary policy to be compelled to provide
notaries for legal purposes at all times.” (ECF No. 8:13).
As stated, inmates have a constitutional right to “adequate, effective, and
meaningful” access to the courts.
See supra,
Bounds v. Smith, 430 U.S. 817 at 821-
22. The right to access the courts includes being provided notarial services to
authenticate legal documents at state expense, if necessary.
Id. at 824-25. However,
as noted, a denial of court access claim requires a showing that the inmate suffered
“actual injury” as a result of the alleged deprivation.
Lewis v. Casey, 518 U.S. 343, 349
(1996). To state a claim of “actual injury,” a plaintiff must allege that he was
“frustrated or impeded in his efforts to pursue a nonfrivolous legal claim concerning
his conviction or his conditions of confinement.”
See supra,
Gee v. Pacheco, 627 F.3d
at 1191 (10th Cir. 2010).
Here, the Court should conclude that Plaintiff has failed to state a claim against
any of the named Defendants in Claim Six. First, Plaintiff alleges that Defendant Hagen
had Plaintiff “sign a disbursement form to be charged for a notary [he] never received.”
(ECF No. 8:13). But Mr. Arnett has not alleged that Defendant Hagen herself was
responsible for Plaintiff not receiving notarial services, only that she was responsible
for providing Plaintiff with a disbursement form, which he signed. Second, Plaintiff’s
allegations against Defendant Wheatley are not that she deprived Plaintiff notary
services, only that she explained the process for obtaining such services to Mr. Arnett.
Third, Plaintiff alleges that Defendant Carter “refused to notarize” an
in forma pauperis
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form for Plaintiff to proceed in this action.
See supra. But an examination of the
relevant form shows that it was signed and certified by Ms. Carter, with the Court
subsequently granting Plaintiff’s application to proceed
in forma pauperis, contravening
Plaintiff’s allegation that he suffered an “actual injury” as the result of Defendant
Carter’s actions or inactions. Finally, Plaintiff alleges that Defendant Amason “set forth
the no notary policy to be compelled to provide notaries for legal purposes at all times.”
(ECF No. 8:13). But Plaintiff’s allegations regarding a “no notary” policy are vague,
confusing, and in any event, cannot support a First Amendment claim absent
allegations of “actual injury,” as discussed. In sum, the Court should dismiss Claim Six
in its entirety.
XI. CLAIM SEVEN—FREE EXERCISE OF RELIGION
In Claim Seven, Plaintiff alleges a violation of his First Amendment right to free
exercise of his religion when his Qur’an was taken by jail officials. (ECF No. 8:14).
According to Plaintiff, Defendants Hamilton and Hagen “were both responsible for
gathering [Plaintiff’s] property for inventory” when he was taken to administrative
segregation, and upon his release from that housing, his Qur’an was missing (ECF No.
8:14). Additionally, Mr. Arnett seeks liability against Defendant Amason for “acting
under the color of state law by set said policy.” (ECF No. 8:14). The Court should
dismiss Claim Seven in its entirety.
The Supreme Court has stated that “[w]here the claim is invidious discrimination
in contravention of the First ... Amendment[ ], [its] decisions make clear that the
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plaintiff must plead and prove that the defendant acted with discriminatory purpose.”
Iqbal, 556 U.S. at 676, (citing
Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S.
520, 540–541, (1993) (plurality op. of Kennedy, J.)); Indeed, the Tenth Circuit Court
of Appeals has held that “[a] valid claim for loss of prisoner's property in violation of
the Due Process Clause of the Fourteenth Amendment must include allegations of
deliberate conduct by state actors.”
Hall v. Bellmon, 935 F.2d 1106, 1113 (C.A.10
(Okla.), 1991)
Here, Plaintiff does not allege that Defendant Hamilton and Hagen had acted
pursuant to a specific jail policy. Thus, to plausibly state a claim of religious
discrimination, Mr. Arnett “must plead sufficient factual matter to show that”
Defendants Hamilton and Hagen took his Qur’an “not for a neutral ... reason but for
the purpose of discriminating on account of ... religion.”
Id. at 677;
see also Pahls v.
Thomas, 718 F.3d 1210, 1230 n.8 (10th Cir. 2013) (“[W]here liability is to be imposed
upon an individual defendant for discrimination in violation of the First Amendment, a
plaintiff must prove a discriminatory purpose, supported by evidence of the
defendant’s subjective motivations.”).
Here, Plaintiff has only speculated that Defendants Hagen and Hamilton took
his Qur’an because they were the individuals responsible for taking an inventory of
Plaintiff’s property prior to him entering administrative segregation.
See supra. But
Plaintiff’s allegations fail to: (1) affirmatively allege that either Defendants actually
confiscated the Qur’an, and/or (2) that they had acted with a discriminatory purpose
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in doing so. And Plaintiff’s reference to “said policy” set forth by Defendant Amason
lacks the requisite specificity necessary to state a claim for relief against him.
Accordingly, the Court should dismiss, without prejudice, the allegations against all
three Defendants as set forth in Claim Seven.
XII. CLAIM EIGHT—DENIAL OF COURT ACCESS
In Claim Eight, Plaintiff has alleged a denial of court access because upon being
released from administrative segregation and receiving his personal property back,
“legal documents were missing.” (ECF No. 8:15). Mr. Arnett seeks liability against
Defendants Hamilton and Hagen on this claim because they were “both responsible
for the gathering of [Plaintiff’s] property for inventory” and Plaintiff alleges that
Defendant Amason for the setting forth “policies and inadequate training.” (ECF No.
8:15).
As discussed, to state a claim of “actual injury,” which is necessary in a denial
of court access claim, a plaintiff must allege that he was “frustrated or impeded in his
efforts to pursue a nonfrivolous legal claim concerning his conviction or his conditions
of confinement.”
See supra,
Gee v. Pacheco, 627 F.3d at 1191 (10th Cir. 2010). Here,
Plaintiff has failed in this regard. First, Mr. Arnett has failed to identify the precise
nature of his “legal documents” which were allegedly missing. Second, Plaintiff has
failed to identify an ”nonfrivolous legal claim” that he was impeded in pursuing based
on the absence of said documents. As a result, the Court should dismiss the allegations
against all three Defendants, without prejudice, as set forth in Claim Eight.
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XIII. CLAIMS NINE AND ELEVEN—FREE EXERCISE OF RELIGION
In Claims Nine and Eleven, Plaintiff alleges a violation of his First Amendment
right to free exercise of his religion as a Muslim because jail officials, acting pursuant
to jail policy, had confiscated his religious books, namely, his “Holy Bible,” and the
tablet he was allegedly provided on which to read his religious materials were
nonfunctioning. (ECF No. 8:16, 18). For these claims, Plaintiff seeks liability against
Defendants Peek, Hagen, Sowards, and Amason. (ECF No. 8:16, 18). Specifically,
Plaintiff alleges: (1) Defendants Peek and Hagen “took” his religious books on January
30, 2024; (2) Defendant Sowards responded to two grievances regarding Plaintiff’s
inquiry into the matter, explaining first that the facility had a new policy prohibiting
physical books in the jail due to destruction of books and that the facility was working
on getting tablets for the inmate to use and later, that Plaintiff’s “pod” had available
electronic tablets on which Plaintiff could read; and (3) Defendant Amason “set in
place” the relevant “policies and practices.” (ECF No. 8:16, 18).
“The Free Exercise Clause mandates that prison authorities afford prisoners
reasonable opportunities to exercise their sincerely held religious beliefs.”
Hammons
v. Saffle, 348 F.3d 1250, 1254 (10th Cir. 2003) (citing
O'Lone v. Shabazz, 482 U.S.
342, 348 (1987));
see also U.S. Const. amend I (“Congress shall make no law ...
prohibiting the free exercise [of religion].”). When alleging prison policy caused a
violation of an inmate’s free exercise rights, “a prisoner-plaintiff must survive a two-
step inquiry. First, the prisoner-plaintiff must [allege] that a prison regulation
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substantially burdened sincerely-held religious beliefs.”
See Kay v. Bemis, 500 F.3d
1214, 1218 (10th Cir. 2007) (internal quotation marks and ellipsis omitted). With
respect to the second inquiry, “prison-official defendants may identify the legitimate
penological interests that justified the impinging conduct,” and the court must apply a
balancing test to determine the reasonableness of the regulation.
Id. at 1218–19
(brackets omitted);
see also Turner v. Safley, 482 U.S. 78, 89–91 (1987) (identifying
four factors relevant to whether penological interests justify the conduct burdening the
prisoner’s free exercise).
Only the first of these inquiries is relevant at the screening stage.
Kay, 500 F.3d
at 1217, 1219. Throughout Plaintiff’s Amended Complaint, Mr. Arnett makes various
references to his Muslim faith, specifically stating, in Claim Nine, that without his Qur’an
or tablet, he is unable to perform “Tajjahud/Tarawih at 3:00 am.” (ECF No. 8).4 The
Court should conclude Mr. Arnett has sufficiently alleged that the policy substantially
burdened sincerely-held religious beliefs. Additionally, Plaintiff has alleged that
Defendant Amason was allegedly responsible for implementing the policy referenced
by Defendant Sowards in her first response to Plaintiff’s inquiry regarding new policy
which rendered inmates unable to keep physical books in their cells. But at this stage,
the Court is without enough information to determine whether this rationale is
reasonable under
Turner or whether the offering of tablet use as an alternative means
4 The Tarawih and Tajajjud are Muslim prayers.
See https://explore-islam.com/tahajjud-
voluntary-night-prayers/ (last visited Aug. 27, 2024).
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of reading was adequate. Thus, at this juncture, the Court should conclude that Plaintiff
has stated a First Amendment/Free Exercise claim against Defendants Peek, Hagen,
and Amason, as set forth in Claims Nine and Eleven. But the Court should dismiss any
claim against Defendant Sowards, as set forth in Claims Nine and Eleven, as Mr. Arnett
alleged only that she responded to Plaintiff’s grievances, explaining the new policy and
that a tablet should be available for him to use.
See Requena v. Roberts, 893 F.3d
1195, 1216 (10th Cir. 2018) (noting that a prison official’s “mere response and denial
of [an inmate’s] grievance is insufficient to establish the requisite personal participation
under § 1983.”).
XIV. CLAIM TEN—EQUAL PROTECTION
In Claim Ten, Plaintiff alleges that his right to Equal Protection was violated
when he was “not provided the use of a tablet the same as other similarly situated
inmates in Cleveland County Detention Center general population or other
administrative segregation pods.” (ECF No. 8:17). For this claim, Plaintiff names
Defendants Sowards and Amason. (ECF No. 8:17). Regarding Defendant Sowards,
Plaintiff states that she responded to a grievance submitted by Plaintiff requesting a
tablet to “practice [his] religious materials” by stating “There are three (3) tablets
assigned to F-Pod.” (ECF No. 8:17). As stated, to state an equal protection claim,
plaintiff must allege that the government treated him differently than others who were
similarly situated.
See Cleburne v. Cleburne Living Ctr., 473 U.S. 432, (1985). Nothing
in Defendant Sowards’ response to Plaintiff gives any indication that she, by her
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response to Plaintiff’s grievance, had targeted Plaintiff to treat him differently than any
other inmate. And, as noted by the Tenth Circuit Court of Appeals, a prison official’s
“mere response and denial of [an inmate’s] grievance is insufficient to establish the
requisite personal participation under § 1983.”
See supra,
Requena v. Roberts, 893
F.3d at 1216.
Furthermore, Plaintiff’s allegations against Defendant Amason are once again
vague and unspecified, stating only that Defendant Amason “set in place” “policies and
practices.” (ECF No. 8:17). Plaintiff has failed to identify a specific policy related to his
Equal Protection claim, nor explain how said policy had targeted him in violation of his
right to Equal Protection. As a result, the Court should dismiss Claim Ten, in its entirety.
XV. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based on the foregoing, the Court should: (1) dismiss, with prejudice, any and
all claims against the Cleveland County Detention Center; (2) dismiss with prejudice,
all official capacity claims for monetary damages against all Defendants and all
individual capacity claims seeking declaratory and/or injunctive relief against all
Defendants; (3) dismiss, without prejudice, Claim One as asserted against Defendant
Hamilton; (4) dismiss Claims Two, Four, Five, Six, Seven, Eight, and Nine, without
prejudice, in their entireties; (5) dismiss, without prejudice, the Due Process claim
against Defendant Hamilton, as set forth in Claim Three; (6) dismiss any claim against
Defendant Sowards, as set forth in Claims Nine and Eleven, (7) conclude that Plaintiff
has stated a First Amendment retaliation claim against Defendant Gabriel as set forth
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in Claim One; (8) conclude that Plaintiff has stated a claim against Defendants
Hamilton and Hagen for a violation of Equal Protection, as set forth in Claim Three;
and (9) conclude that Plaintiff has stated a First Amendment/Free Exercise claim
against Defendants Peek, Hagen, and Amason, as set forth in Claims Nine and Eleven.
Plaintiff is hereby advised of his right to object to this Report and
Recommendation.
See 28 U.S.C. § 636. Any objection must be filed with the Clerk of
the District Court by October 7, 2024.
See 28 U.S.C. § 636(b)(1); and Fed. R. Civ.
P. 72(b)(2). Failure to make timely objection to this Report and Recommendation
waives the right to appellate review of both factual and legal questions contained
herein.
Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
XVI. STATUS OF THE REFERRAL
This Report and Recommendation terminates the referral to the undersigned
magistrate judge in the captioned matter.
ENTERED on September 19, 2024.
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