Opinion
Case No. CIV-19-758-R
09-19-2019
DANIEL COLLINS BAUDER, Plaintiff, v. DELYNN FUDGE, In Her individual and Official Capacity as Executive Director of the Oklahoma Parole Board, Defendant.
REPORT AND RECOMMENDATION
Plaintiff Daniel Collins Bauder, a state inmate appearing pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983, alleging violations of his constitutional rights. (ECF No. 1). United States District Judge David L. Russell referred the matter for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). The undersigned magistrate judge has reviewed the Complaint as required by 28 U.S.C. § 1915A(a). Based on that review, the Court concludes this action should be DISMISSED as time-barred. In the alternative, the case should be dismissed because Plaintiff has otherwise failed to state a claim upon which relief may be granted.
I. BACKGROUND AND CLAIMS ASSERTED
Mr. Bauder is in the custody of the Oklahoma Department of Corrections (DOC), serving a sentence imposed after his conviction for a violent crime he committed before July 1, 1998. His Complaint boils down to challenges to the procedures the Oklahoma Pardon and Parole Board (Board) uses to determine parole and clemency eligibility. Mr. Bauder bases his claims on his interpretation of the Oklahoma Truth in Sentencing Act. He theorizes that the Act created a liberty interest in parole and clemency that was not present in the former statute governing parole. Based on that premise, Mr. Bauder contends his rights to due process and equal protection in the parole process have been violated.
In 1997, Oklahoma adopted the Truth in Sentencing Act which established sentencing matrices for criminal violations. Had the whole of the Act gone into effect, Oklahoma state courts would have used the sentencing matrices to sentence persons convicted of crimes committed on or after July 1, 1998. But the Oklahoma Legislature repealed the sentencing matrices section of the Act before its effective date. Now, the matrices, though not codified in any law, are used, in part, for determining the initial parole docket dates for inmates convicted of violent crimes committed before July 1, 1998. Under the Act, initial parole docket dates for these inmates are set at the earlier of two dates: the date on which the inmate will have served one-third of the time to which he was actually sentenced, or the date on which the inmate would have served a percentage of the time he would have served, had the sentencing matrices gone into effect and been in effect when the inmate committed the crime for which he was convicted. Okla. Stat. tit. 57, § 332.7(A).
As it pertains to parole matters, the Truth in Sentencing Act replaced Oklahoma's "Forgotten Man Act" that required the Oklahoma Pardon and Parole Board ("PPB") consider "every inmate . . . for parole on or before the expiration of one-third of his maximum sentence." Shirley v. Chestnut, 603 F.2d 805, 806 (10th Cir. 1979).
The percentage would have been calculated using the midpoint of the range of possible sentences under the matrices.
Mr. Bauder states he was assigned an initial docket date in July 2012, calculated on his having served one-third of the time to which he was actually sentenced. (ECF No. 1:7). Thereafter, Mr. Bauder was considered for parole at three-year intervals. He was never granted parole, however, and based upon the Board's two-step procedure applied to inmates convicted of violent crimes, he was never granted a parole hearing before he was denied parole.
Under the Act, inmates convicted of violent offenses, as defined by Okla. Stat. tit. 57, § 571, are subject to a two-stage parole process. Okla. Stat. tit. 57, § 332.7(D). In the first stage, the PPB conducts a jacket review, reviewing a "completed report" by the Board staff and conducting a vote to determine whether to consider the inmate for parole at a subsequent meeting. Okla. Stat. tit. 57, § 332.7(D)(1). If the Board votes in favor of such consideration, the Board shall hear from any victim or victim representatives at the subsequent meeting that want to contest the granting of parole and shall conduct a vote on whether to recommend parole. Okla. Stat. tit. 57, § 332.7(D)(2).
II. SCREENING
Federal law requires the Court to screen complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In fulfilling this obligation, the court considers, in part, the timeliness of Plaintiff's claims. This practice is consistent with "the long-standing rule that '[i]f the allegations . . . show that relief is barred by the applicable statutes of limitations, the complaint is subject to dismissal for failure to state a claim.'" Vasquez Arroyo v. Starks, 589 F.3d 1091, 1096 (10th Cir. 2009) (quoting Jones v. Bock, 549 U.S. 199, 215 (2007)).
Aside from the untimeliness of his Complaint, the substantive issues Mr. Bauder raises fail to state a due process or equal protection claim upon which relief may be granted. See 28 U.S.C. § 1915A(a); § 1915(e)(2)(B)(ii) (pertaining to actions filed in forma pauperis).
III. ANALYSIS
A. Untimeliness of Mr. Bauder's Complaint
A district court may sua sponte dismiss a § 1983 claim based on an affirmative defense—such as an expired statute of limitations—"when the defense is obvious from the face of the complaint and no further factual record is required to be developed." Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006) (internal quotation marks omitted); see also Jackson v. Standifird, 463 F. App'x 736, 737 (10th Cir. 2012) ("Dismissal of a claim as time-barred is treated as a dismissal for failure to state a claim.").
"State statutes of limitations applicable to general personal injury claims supply the limitations periods for § 1983 claims, but federal law governs the time of accrual of § 1983 claims." Beck v. City of Muskogee Police Dep't, 195 F.3d 553, 557 (10th Cir. 1999) (citations omitted). Oklahoma's two-year statute of limitations applies to Plaintiff's claims.
A § 1983 claim accrues, and the applicable limitations period begins to run, "when the plaintiff knows or should know that his or her constitutional rights have been violated." Smith v. City of Enid ex rel. Enid City Comm'n, 149 F.3d 1151, 1154 (10th Cir. 1998) (internal quotation marks and citations omitted). In this case, Mr. Bauder knew, or should have known, the facts he thinks support his cause of action—i.e., he was aware of the procedures the Board used at his initial parole docket—at least by July 2012. Mr. Bauder's cause of action thus accrued no later than July 2012, substantially more than two years before he filed this suit on August 19, 2019.
Should Mr. Bauder argue that each successive denial of parole was a new injury, such that his suit was timely filed in relation to the Board's 2018 parole hearing, his argument would fail; the Tenth Circuit and other courts have rejected the notion that each denial of parole is a new injury. See Jackson v. Standifird, 463 F. App'x 736, 738 (10th Cir. 2012) (citing Brown v. Ga. Bd. of Pardons & Paroles, 335 F.3d 1259, 1261-62 (11th Cir. 2003) ("Each time [a prisoner's] parole reconsideration hearing is set, it does not amount to a distinct and separate injury. Rather, [the injury], to the extent it ever existed, was when the [state] Parole Board applied its new policy. . .. The successive denials of parole do not involve separate factual predicates and therefore do not warrant separate statute-of-limitations calculations.").
To the extent Mr. Bauder relies on a "continuing violation" theory to support a contention that his case was timely filed, that theory, too, is unavailing. The Eleventh Circuit rejected Mr. Brown's argument that the application of the new board policy amounted to a continuing violation, citing Eleventh Circuit precedent, Lovett v. Ray, 327 F.3d 1181 (11th Cir. 2003). Brown, 335 F.3d at 1261. The Court in Brown noted that like Mr. Lovett, Mr. Brown challenged the Georgia parole board policy change in a § 1983 action filed more than two years after he was informed of his parole hearing date set in accordance with the new policy. Id. The Court noted that Lovett held the continuing violation theory did not apply because the decision to set Lovett's parole hearing pursuant to the new policy was a "one-time act with continued consequences" which did not extend the limitations period. Brown, 335 F.3d at 1261(quoting Lovett v. Ray, 327 F.3d at 1183).
B. Due Process and Equal Protection
Mr. Bauder contends his due process rights to a "meaningful opportunity to parole review" were violated by certain actions and inactions of the Board. (ECF No. 1:5). He complains that the Oklahoma Legislature directed the Board to promulgate rules for the implementation of the parole and clemency procedures—rules the Board allegedly never made. Further, he argues the State of Oklahoma violated its contractual agreement with the United States under 42 U.S.C. § 13704, a statute under which incentive grants are promised to states who pass Truth in Sentencing laws. (ECF No. 1:3, 6).
Mr. Bauder lacks standing to challenge the Board's alleged failure to promulgate rules for application of the Truth in Sentencing matrices. Thrice, Mr. Bauder has been considered for parole based on his having served one-third of his sentence—as provided by the clear language of the statute. See Okla. Stat. tit. § 57, 332.7(A)(1). Thus, he has failed to assert a violation of his rights. See Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) ("[A] party 'generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.'" (quoting Warth v. Seldin, 422 U.S. 499 (1975)). Mr. Bauder also lacks standing to challenge the alleged breach of a contract to which he is not a party.
Because there is no constitutionally protected liberty interest in parole when the grant of parole is discretionary—as it is under Oklahoma's statutory scheme—Mr. Bauder has no constitutional right to consideration of parole or commutation of his sentence. Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 8-10 (1979); Phillips v. Williams, 608 P.2d 1131, 1134 (Okla. 1980) (describing the extensive discretion granted to the Board and the Governor in granting parole under Oklahoma's statutory scheme). Neither does the mission statement of the Department of Corrections create a constitutionally protected liberty interest in recommendation of commutation. See Okla. Stat. tit. 22, § 1514.
Mr. Bauder argues that the Oklahoma Truth in Sentencing Act altered the law so as to create a liberty interest in early release where none existed before. He is incorrect. In Shabazz v. Keating, 977 P.2d 1089 (Okla. 1999), decided after the effective date of the Act, the Oklahoma Supreme Court reiterated that there is no protectible liberty interest in an Oklahoma parole. Shabbaz states that Oklahoma's parole release procedure affords no more than a hope for parole. Thus,"[n]o due process strictures can be applied to test the permissible parameters of the parole process." Id. at 1093.
Mr. Bauder's equal protection claim also fails. Though his claim is a bit disjointed, it appears Mr. Bauder is attempting to assert an equal protection claim based on the fact that parole consideration for prisoners who have committed violent crimes are treated differently than prisoners who have committed non-violent crimes. He is apparently referencing the two-step parole process applicable to inmates who have committed violent crimes.
The Equal Protection Clause prohibits discrimination by the government if the discriminatory act "burdens a fundamental right, targets a suspect class, or intentionally treats one differently than others similarly situated without any rational basis for the difference." Vacco v. Quill, 521 U.S. 793, 799 (1997). To state an equal protection claim, Mr. Bauder would have to allege that he was "similarly situated" to other inmates who are treated differently, and that the difference in treatment was not "reasonably related to legitimate penological interests." Fogle v. Pierson, 435 F.3d 1252, 1261 (10th Cir. 2006). Mr. Bauder has not alleged facts sufficient to satisfy either element.
Mr. Bauder has not demonstrated that parole is a "fundamental right" as there is no legitimate expectation of parole under Oklahoma law. Moreover, violent inmates are not a suspect class. Shifrin v. Fields, 39 F.3d 1112, 1114 (10th Cir.1994) (violent offenders are not a suspect class). Finally, the State of Oklahoma obviously has a legitimate governmental interest in protecting its citizens from violent offenders by applying more stringent procedures for their parole considerations. See, cf., Martinez, 164 F.3d 1257, 1261 (10th Cir. 1998) (upholding classification of violent offenders, explaining, "[W]e conclude that the regulation's treatment of inmates with prior convictions for violent crimes is rationally related to the legitimate governmental end of preventing the early release of potentially violent inmates."); see also, cf., Bird v. Wy. Attorney Gen., 712 F. App'x 742, 745 (10th Cir. 2017) ("Offenses punished by a life sentence are generally more abhorrent than those punished by a term of years. It is therefore rational to impose more severe sanctions—such as ineligibility for parole—on the former.").
The undersigned notes that Plaintiff briefly mentions the possibility that the Truth in Sentencing Act might be an unconstitutional ex post facto law. (ECF No. 1:18.). Plaintiff has not sufficiently developed this argument. Moreover, this claim has been raised before and rejected by the Tenth Circuit in Henderson v. Scott, 260 F.3d 1213, 1216 (10th Cir. 2001) (Truth in Sentencing Act does not affect duration of sentence in any way). --------
IV. RECOMMENDATION
It is recommended that Mr. Bauder's Complaint be DISMISSED as time-barred. In the alternative, the case should be dismissed because Plaintiff has otherwise failed to state a claim upon which relief may be granted.
V. NOTICE OF RIGHT TO OBJECT
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, 2019. 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).
This Report and Recommendation terminates the District Judge's referral in this matter.
ENTERED on September 19, 2019.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE