Opinion
CIV-03-1612-C.
May 25, 2005
SUPPLEMENTAL REPORT AND RECOMMENDATION
Plaintiff, a state prisoner appearing pro se, has filed this action pursuant to 42 U.S.C. § 1983, alleging the violation of certain constitutional rights during his incarceration at James Crabtree Correctional Center (JCCC). Chief United States District Judge Robin J. Cauthron referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Plaintiff names as Defendants, in their official and individual capacities: Ron Anderson, identified as legal counsel for the Oklahoma Department of Corrections (DOC); Ron Ward, Director of DOC; Melinda Guilfoyle, DOC Director's Designee; Eric Franklin, JCCC Warden; Rodney Redman, JCCC Security Chief; Pete Crum, JCCC Sargent; and "Unknown Defendants." Complaint at 1. A Special Report (S.R.) [Doc. No. 25], which the Court ordered prepared pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978), has been filed. In two separate motions Defendants move for dismissal, or, alternatively, for summary judgment. Doc. No. 26 ("Franklin, Guilfoyle and Anderson Motion") and Doc. No. 36 ("Redman, Crum and Ward Motion"). Plaintiff has replied to both motions. Doc. No. 28 ("Plaintiff's First Reply") and Doc. No. 38 ("Plaintiff's Second Reply").
Although Petitioner named Darrell Moore as a Defendant, by order dated May 19, 2004, all claims alleged against Defendant Moore in the instant case were dismissed with prejudice. Doc. No. 29.
Plaintiff has titled these responses as "Motion to Deny Defendant's Motion to Dismiss/Motion for Summary Judgment" and "Plaintiff's Motion for Summary Judgment with Brief in Support." Doc. Nos. 28 and 38. Because these documents in substance contain Plaintiff's response to Defendants' defenses and arguments, they have each been construed as a reply. To the extent these documents may be construed as motions for summary judgment filed by Plaintiff, it is recommended infra that such motions be denied.
In a Report and Recommendation entered on March 15, 2005, the undersigned found that Plaintiff had failed to exhaust his claim of retaliation and recommended that Defendants' motions be granted, to the extent Defendants sought dismissal of the complaint for failure to fully exhaust all claims as required by 42 U.S.C. § 1997e(a) and Ross v. County of Bernalillo, 365 F.3d 1181, 1189 (10th Cir. 2004). In objecting to the Report and Recommendation, Plaintiff moved to dismiss his unexhausted retaliation claim. Judge Cauthron adopted the undersigned's Report and Recommendation insofar as it found that Plaintiff had filed a "mixed complaint" subject to dismissal under Ross, supra, and that Plaintiff's claim pursuant to 18 U.S.C. § 241 should be dismissed. However, Judge Cauthron also granted Plaintiff's motion, dismissed Plaintiff's claims for retaliation and his claim under 18 U.S.C. § 241 with prejudice, declined to adopt the remainder of the recommendations, and recommitted the matter to the undersigned for further proceedings consistent with the provisions of 28 U.S.C. § 636(b)(1)(B). Doc.
It was further recommended that to the extent Plaintiff's responses to Defendants' motions were construed as motions for summary judgment [Doc. Nos. 28 and 38], such motions should be denied. It was also recommended that (1) the Court decline to exercise jurisdiction over any pendant state law claims in the complaint; (2) Plaintiff's claim pursuant to 18 U.S.C. § 241 be dismissed; and (3) Plaintiff's motions to prosecute [Doc. Nos. 34 and 39] be denied as moot. Finally, based on the recommendation that Plaintiff's complaint be dismissed for failure to exhaust, it was also recommended that Plaintiff's Motion for Preliminary Temporary Restraining Order and Preliminary Injunction [Doc. No. 19] be denied as moot.
No. 44. Thus, before the Court are: Plaintiff's claim that Defendants have violated his First Amendment, equal protection rights, and state law as well as the dispositive motions filed by Defendants and various motions filed by Plaintiff.
For the reasons stated below, the undersigned recommends that Defendants' motions to dismiss be granted on the ground that Defendants in their official capacities are immune from suit by virtue of the Eleventh Amendment. It is further recommended that Defendants' motions, construed as motions for summary judgment, be granted based on the doctrine of qualified immunity. It is also recommended that Plaintiff's equal protection claim and any conspiracy claim that may be liberally recognized in the complaint be dismissed for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915A. Finally, it is recommended that the action against the "Unknown Defendants" be dismissed for lack of timely service pursuant to Fed.R.Civ.P. 4(m), that the Court decline supplemental jurisdiction over any state law claims, that Plaintiff's motion for temporary restraining order/preliminary injunction and Plaintiff's motion to certify questions of law be denied.
Background and Plaintiff's Claims
Plaintiff has been incarcerated in the Oklahoma prison system since 1977, following five state felony convictions for which he is serving four consecutive sentences of 100 years of imprisonment and a consecutive ten-year sentence. S.R, Attachment (Att.) 2. The present suit brought by Plaintiff is based in part on a prior action in federal court. Plaintiff was previously incarcerated at the Cimarron Correctional Facility (CCF), a private prison, and in November 2001 he filed in this Court an action pursuant to 42 U.S.C. § 1983 against the private prison's operator, the Correctional Corporation of America and two CCF officials. In that action, the plaintiff alleged, inter alia, a First Amendment claim based on the defendants' refusal to permit him to receive through the mail prayer cloths anointed with oil by his pastor. He also claimed that his equal protection rights were violated because other Oklahoma inmates were permitted to receive similar religious items. Ziegler v. Correctional Corporation of America, Inc.(CCA), et al., Case No. CIV-01-1738-C (W.D. Okla.). By order dated December 12, 2002, Judge Cauthron adopted Magistrate Judge Gary M. Purcell's recommendation that Plaintiff's motion for summary judgment be granted on his First Amendment and equal protection claims. [Doc. No. 58]. Judge Cauthron further determined that Plaintiff was entitled to seek nominal and punitive damages. Id. at 8-10. The court docket shows that Plaintiff was appointed counsel and a settlement was reached in the case on February 23, 2004. [Doc. No. 108].
Specifically, Judge Cauthron adopted the finding that Defendants had failed to demonstrate a rational connection between legitimate governmental interests and the 1996 DOC policy prohibiting inmate possession of religious items not included on a list of allowed religious property. Judge Cauthron found that Defendants had failed to "present any evidence that shows how the prayer cloth anointed with oil poses any security threat or that banning possession of these cloths is reasonably related to a legitimate goal." Ziegler v. CCA et al., Case No. 01-1738, December 12, 2002, Order at 6 [Doc. 58]. Judge Cauthron also adopted the recommendation that there were no alternative means of exercising his right, that no evidence supported an inference that Plaintiff's religious practice would have a burdensome effect on prison guards, other inmates, and prison resources, and that a ready alternative with de minimus cost existed, specifically, a drug test on each prayer cloth. Id. at 7-8.
The claims in the instant complaint arise from the confiscation of a prayer cloth by prison officials shortly after Plaintiff's transfer on July 8, 2003, to JCCC, a prison operated by DOC, where Plaintiff remains incarcerated. During his initial reception at JCCC prison officials searched Plaintiff and confiscated a small red piece of cloth which was tagged as contraband. S.R., Att. 4. On July 11 Plaintiff filed a request to staff, asking that he be allowed to have the confiscated prayer cloth. Complaint, Ex. 18; S.R., Att. 9. In a second request to staff filed July 14 Plaintiff advised prison officials that he had been awarded a jury trial on damages in a case concerning the prayer cloth issue, Ziegler v. CCA, Case No. 01-1738, and requested that he not be harassed or retaliated against concerning his "right to retain and possess prayer cloths." Complaint, Ex. 16 and 17. Two deputy wardens discussed the issue and on July 21, Deputy Warden Chrisman approved Plaintiff's request and the prayer cloth was returned to Plaintiff. S.R., Atts. 7, 8 and 9. After Warden Franklin consulted with DOC General Counsel office, JCCC Security Chief Rodney Redman was instructed to retrieve the prayer cloth from Plaintiff. When Plaintiff's cell was searched, officials found and confiscated a second prayer cloth. Complaint at 9-10; see also S.R., Att. 23 (photographs of two prayer cloths). Plaintiff requested that the prayer cloths be returned and was informed that the prayer cloths would be maintained by the facility's Chaplain and that Plaintiff could pursue the process outlined in existing DOC policy concerning Religious Programs to have the cloths added to the allowable religious property matrix. Complaint, Ex. 7. It is undisputed that to date, Plaintiff has not completed a request to the facility chaplain initiating the process for getting his prayer cloths on the approved religious property matrix. S.R., Att. 16.
Deputy Warden Chrisman expressed "concern with returning the cloth due to the color of the cloth, and that fact that the cloth appeared to be impregnated with some type of unknown substance." S.R., Att. 8.
In his complaint, Plaintiff alleges that Defendants have conspired to violate and have violated his First Amendment right to freely exercise his Christian faith and his equal protection rights by confiscating and refusing to return his prayer cloths. Complaint at 1 and 13. Plaintiff seeks monetary damages, costs, and various forms of injunctive relief. Complaint at 14-15.
In his replies to Defendants' motions, Plaintiff presents more facts relating to his First Amendment claim, alleging, as he did in his prior civil rights action, that he "has received and possessed prayer cloths for 27 years while incarcerated in the [DOC] and private prisons." He further alleges that he "belie[ve]s he has little, or no faith, and that prayer cloths are essential to his spiritual and physical survival, and with prayer cloths Plaintiff feels lost, doomed, destined for failure, as these prayer cloths are prayed over by strong Christians who (sic) Plaintiff has faith that God touches their prayer requests; Plaintiff's church expressingly (sic) teaches that one must hold the prayer cloth, touch it, next to his skin, continuously, sleep, eat, work, etc." Plaintiff's First Reply [Doc. No. 28] at 5; Plaintiff's Second Reply [Doc. No. 38] at 6-8.
Plaintiff seeks compensatory, nominal and punitive damages. Complaint at 14. However, in Searles v. Van Bebber, 251 F.3d 869 (10th Cir. 2001), the inmate likewise alleged a violation of his First Amendment right to free exercise of religion, and the Tenth Circuit held that 42 U.S.C. § 1997e(e) bars an inmate from advancing any claims for compensatory damages in the absence of physical injury. Here, Plaintiff alleges no physical injury; therefore, he may seek only nominal and punitive damages. Id. at 879-81.
Plaintiff seeks an order from this Court (1) requiring that Defendants not interfere with Plaintiff's right to receive and possess prayer cloths; (2) prohibiting the Attorney General of the State of Oklahoma from representing Defendants in this case; (3) consolidating the instant case with Plaintiff's previous case in Case No. CIV-01-1738-C; (5) appointing counsel to represent Plaintiff; and (6) granting such other relief as the Court may deem just and proper. Complaint at 14-15.
Defendants' Defenses
In their dispositive motions Defendants raise a number of defenses including: 1) failure to allege a First Amendment violation; 2) Eleventh Amendment immunity with regard to Plaintiff's official capacity claims; 3) qualified immunity; and 4) failure to show an entitlement to injunctive or declaratory relief.
Discussion
I. Standard of Review
Defendants move to dismiss the cause of action in part under Fed.R.Civ.P. 12(b)(6). A motion to dismiss may be granted when the plaintiff has "failed to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In reviewing the sufficiency of a complaint under this standard, all well-pleaded factual allegations of the complaint must be accepted as trued and construed in the light most favorable to Plaintiff. Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990). Further, a pro se plaintiff's complaint should be broadly construed. See Haines v. Kerner, 404 U.S. 519 (1972). This broad reading, however, "does not relieve the [ pro se] plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Additionally, when a complaint is filed by a prisoner who, like Plaintiff, sues a governmental entity or an officer or employee of a governmental entity, it is the responsibility of the court to dismiss the cause of action at any time if the court determines that the action is frivolous, 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. 28 U.S.C. § 1915A(b).
"Summary judgment is appropriate 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Craig v. Eberly, 164 F.3d 490, 491 (10th Cir. 1998) (quoting Fed.R.Civ.P. 56(c)). The Court will view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party. See id. (citation omitted). Although the movant must show the absence of a genuine issue of material fact, he or she need not negate the nonmovant's claim. See, e.g., Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996). "Once the movant carries this burden, the nonmovant cannot rest upon his or her pleadings, but 'must bring forward specific facts showing a genuine issue for trial as to those dispositive matters for which [she] carries the burden of proof.'" Craig, at 491 (quoting Jenkins, 81 F.3d at 990).
II. Eleventh Amendment Immunity and Requests for Injunctive Relief
Plaintiff has brought his claims against all Defendants in their individual and official capacities. Defendants contend they are entitled to immunity from suit for damages in their official capacities under the Eleventh Amendment. Franklin, Guilfoyle and Anderson Motion at 9; Redman, Crum and Ward Motion at 9. The Eleventh Amendment provides that a state is immune from suit in federal court unless the state unmistakably waives its immunity or Congress explicitly abrogates the state's immunity by statute. See Welch v. Texas Dept. of Highways and Public Transp., 483 U.S. 468, 472-72 (1987). The State of Oklahoma has not waived its Eleventh Amendment immunity. See Okla. Stat. tit. 51, § 152.1(B) (2001) ("it is not the intent of the state to waive any rights under the Eleventh Amendment to the United States Constitution"); see also Ramirez v. Oklahoma Dep't. of Mental Health, 41 F.3d 584, 589 (10th Cir. 1994) (noting that "Oklahoma has not waived its Eleventh Amendment immunity"). Likewise, Congress has not abrogated Oklahoma's Eleventh Amendment immunity through enactment of § 1983. See Quern v. Jordan, 440 U.S. 332, 345 (1979). Thus, Plaintiff's claims for monetary damages brought against Defendants in their official capacities are barred by the Eleventh Amendment. See White v. State of Colorado, 82 F.3d 364, 366 (10th Cir. 1996) (claim for monetary relief against § 1983 defendants sued in their official capacities is barred by the Eleventh Amendment). Accordingly, it is recommended that Defendants' motions to dismiss be granted with respect to Plaintiff's claims for money damages against Defendants in their official capacities.
However, pursuant to Ex Parte Young, 209 U.S. 123 (1908), the Eleventh Amendment does not bar claims against state officials in their official capacities where the relief requested is prospective injunctive relief. "Under the Ex Parte Young legal fiction, when an official of a state agency is sued in his official capacity for prospective equitable relief, he is generally not regarded as 'the state' for purposes of the Eleventh Amendment and the case may proceed in federal court." ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1188 (10th Cir. 1998). Thus, Plaintiff's official capacity claims for equitable relief and his individual capacity claims for monetary and declaratory relief are not barred by the Eleventh Amendment.
III. Plaintiff's Free Exercise Claim
Plaintiff alleges that his First Amendment right to freely exercise his religion was violated because Defendants have refused to allow him to receive and possess his prayer cloths after Judge Cauthron previously determined, in Case No. CIV-01-1738, that he has a right to receive and possess his prayer cloths. Complaint at 1 and 13. Defendants raise the defense of qualified immunity with regard to Plaintiff's individual capacity claims based on Plaintiff's failure to demonstrate that his First Amendment rights have been violated. Franklin, Guilfoyle and Anderson Motion at 8-9 and 11-13; Redman, Crum and Ward Motion at 8-9 and 10-13. See Langley v. Adams County, 987 F.2d 1473, 1477 (10th Cir. 1993) (Qualified immunity only applies to persons sued in their individual capacities).
Plaintiff brought the present case pursuant 42 U.S.C. § 1983, and in the section entitled "Causes of Action" Plaintiff alleged that Defendants violated his First Amendment rights. Complaint at 1 and 13. Despite Plaintiff's statutory reference to "42 U.S.C. § 2000" in the "Preliminary Statement," he did not allege in the complaint facts indicating that he was asserting a claim under the Religious Land Use and Institutionalized Persons Act (RLUIPA). In response to the Defendants' dispositive motions, Plaintiff cites RLUIPA and refers to the "more stringent standard" set forth in RLUIPA. Plaintiff's First Reply at 9 and 15; Plaintiff's Second Reply at 13 and 21-22. Because this legal theory was omitted from the complaint, and Plaintiff did not obtain leave to amend his complaint to include this new legal theory, the undersigned has not considered the RLUIPA legal theory fleshed out for the first time in Plaintiff's replies to the Defendants' motions. See Fisher v. Metropolitan Life Insurance Co., 895 F.2d 1073, 1078 (5th Cir. 1990) (claim raised for the first time in response to a defendant's motion for summary judgment was not properly before the district court); see also Commonwealth of Pennsylvania v. PepsiCo, Inc., 836 F.2d 173, 181 (3rd Cir. 1988) (holding that legal theories set forth in a response brief cannot serve to amend a complaint in response to a motion to dismiss); Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984) ("it is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss").
As noted by Plaintiff in his replies, RLUIPA has a substantially different standard than a free exercise claim under the First Amendment. Under RLUIPA:
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person —
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.42 U.S.C. § 2000cc-1(a) (2000). If the Court were to find that Plaintiff has sufficiently raised a claim under RLUIPA, such claim would be subject to dismissal for failure to exhaust all claims pursuant to 42 U.S.C. § 1997e(a) and Ross, supra. Plaintiff has not alleged exhaustion or shown that he has presented prison officials with an opportunity to apply the more stringent standard in RLUIPA to his free exercise claim, Thus, a recognition of such claim would render the complaint subject to dismissal as a mixed complaint, See Wilson v. Moore, No. 4:01CV158-RV, 2002 WL 950062 (N.D. Fla.Feb. 28, 2002) (unreported disposition) (dismissing several claims made by the plaintiff, an inmate in a Florida state correctional facility, on the ground that the plaintiff had not exhausted his claims under the new RLUIPA standard, even though the claims were filed before RLUIPA was enacted).
Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The privilege "is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Id. Accordingly, qualified immunity questions should be resolved at the earliest possible stage in litigation. Saucier v. Katz, 533 U.S. 194, 201 (2001). Because Defendants rely on documentary evidence outside of the pleadings in both motions, the undersigned has construed Defendants' alternative motions as motions for summary judgment. Fed.R.Civ.P. 12(b). "To prevail on summary judgment against a defendant who asserts a defense of qualified immunity, a plaintiff must show that (1) the official violated a constitutional or statutory right; and (2) the constitutional or statutory right was clearly established when the alleged violation occurred." Mimics, Inc. v. Village of Angel Fire, 394 F.3d 836, 841 (10th Cir. 2005) (quotation omitted). If the threshold constitutional-right inquiry is not met, there is no need for further qualified immunity analysis. Saucier, 533 U.S. at 201.
In resolving the issue of whether Defendants have violated Plaintiff's rights under the First Amendment, the Court must determine whether the prison officials' conduct interfered with Plaintiff's reasonable opportunity to exercise his religion. The United States Supreme Court has held that "convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison," and that "inmates clearly retain protections afforded by the First Amendment, including its directive that no law shall prohibit the free exercise of religion." O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (internal citation omitted). "In some instances, however, constitutional rights must be curtailed due to the very fact of incarceration or for valid penological reasons." Beerheide v. Suthers, 286 F.3d 1179, 1184 (10th Cir. 2002) (citing O'Lone, 482 U.S. at 348). "[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Id. (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). Additionally, the Supreme Court has made clear that even in cases involving First Amendment claims, a federal court should refuse "to 'substitute [its] judgment on . . . difficult and sensitive matters of institutional [prison] administration'" for the institutional policies and determinations of those prison officials who are "charged with the formidable task of running a prison." O'Lone, 482 U.S. at 353; see also Kikumura v. Hurley, 242 F.3d 950, 956 (10th Cir. 2001) ("[C]ourts are not to substitute their judgment on matters of institutional administration for the determinations made by prison officials, even when First Amendment claims have been made.") (citing O'Lone, 482 U.S. at 353). See also Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 126 (1977) ("because the realities of running a penal institution are complex and difficult, we have also recognized the wide-ranging deference to be accorded the decisions of prison administrators"). To balance the prisoner's constitutional rights with legitimate penal interests, the court considers: (1) whether a rational connection exists between the prison policy regulation and a legitimate governmental interest advanced as its justification; (2) whether alternative means of exercising the right are available notwithstanding the policy or regulation; (3) what effect accommodating the exercise of the right would have on guards, other prisoners, and prison resources generally; and (4) whether ready, easy-to-implement alternatives exist that would accommodate the prisoner's rights. Beerheide, 286 F.3d at 1185 (citing Turner, 482 U.S. at 89-91).
For the following reasons, the undersigned finds that Plaintiff has failed to show that Defendants have violated his First Amendment rights, and therefore Defendants are entitled to qualified immunity. First, Plaintiff alleges in his complaint and also asserted during the administrative remedy process that the Court previously found that he was "entitled to receive and possess his prayer cloths" in Case No. CIV-01-1738 and therefore JCCC prison officials' confiscation of and failure to return his prayer cloths violated that court order. Complaint, Ex. 5; see also S.R., Att. 17 at p. 5-6. Plaintiff mistakenly alleges that the Court granted Plaintiff injunctive relief in Case No. CIV-01-1738 regarding the possession of his prayer cloths.
Judge Purcell recommended that Plaintiff be granted summary judgment on his First Amendment and equal protection claims, leaving damages as the only remaining issue for trial. Judge Purcell further noted that because Plaintiff was no longer housed at the private prison (LCF), "any claims for injunctive relief are rendered moot." See Ziegler v. CCA, et al., Case No. CIV-01-1738-C, (Doc. No. 47 at 24 n. 7). Although as previously stated, Judge Cauthron held that the private prison's determination that Plaintiff could not receive prayer cloths violated his constitutional rights, Judge Cauthron did not grant Mr. Zeigler's request for equitable relief nor did she order the defendants to permit Plaintiff to possess his prayer cloth in his cell.
Rather, court records in Case No. CIV-01-1738-C show that Plaintiff was unsuccessful in his attempt to obtain injunctive relief against DOC and JCCC officials. On September 24, 2003, after he had been transferred to JCCC, a DOC facility, and after JCCC officials confiscated the prayer cloths which are the subject of the instant case, Plaintiff moved for declaratory judgment and/or injunctive relief in Case No. CIV-011-738, requesting that the Court order DOC and JCCC prison officials to allow Plaintiff to possess his prayer cloths. Ziegler v. CCA, et al., Case No. CIV-01-1738-C [Doc. No. 86]. By order dated December 17, 2003, Judge Cauthron denied Plaintiff's motion on the ground that DOC was not a party in that case and was not subject to the jurisdiction of the Court. Id. [Doc. No. 94]. Therefore, contrary to Plaintiff's assertions in the instant complaint and in his administrative grievances to JCCC officials, Judge Cauthron's orders in Case No. CIV-01-1738 did not order or mandate that DOC/JCCC officials allow Plaintiff's in-cell possession of prayer cloths.
Second, Plaintiff fails to show that an application of a DOC policy has resulted in the denial of his ability to engage in his religious practice. In their dispositive motion Defendants contend that because Plaintiff has failed to follow DOC policy and procedures to seek access to this prayer cloth as advised, he has not met his burden of showing that his First Amendment rights have been violated. The undersigned agrees.
Following the confiscation of his two prayer cloths, Plaintiff submitted a request to staff to Warden Eric Franklin, asserting that pursuant to a court order in Case No. CIV0-1-1738-C, he had already been granted the right to receive and possess prayer cloths, and that the confiscation of his prayer cloths violated that court order. Complaint, Ex. 5; see also S.R., Att. 17 at p. 5-6. In response, Plaintiff was instructed to contact the chaplain "to begin the process to have this religious item added to the Religious Property Matrix in accordance with "OP-030112" entitled "Religious Programs." Complaint, Ex. 5. Rather than submit a request to the chaplain, Plaintiff filed a formal grievance on the issue, and the warden again advised Plaintiff as to the proper procedures to pursue in order to have the specific religious items added to the religious property matrix pursuant to OP-030112. Complaint, Ex. 2. Plaintiff appealed, and the DOC Director's Designee denied relief. Complaint, Exs. 1-3.
Plaintiff cannot show that his prayer cloths have been excluded from the DOC's religious property matrix because he has not complied with the procedure outlined in the policy to place the issue before the proper prison authorities. As explained above, prison officials are required to afford inmates reasonable opportunities to exercise their sincerely held religious beliefs, subject to prison restrictions rationally related to legitimate penological interests. Hammons v. Saffle, 348 F.3d 1250, 1254 (10th Cir. 2003). Claims founded upon a violation of this right, however, presuppose the existence of a prison regulation, policy, or other conduct that interferes with an inmates' ability to exercise his religious beliefs. Given that Plaintiff has made no request to the prison chaplain to have his prayer cloths added to the religious property matrix, prison officials have not been afforded the opportunity to analyze whether accommodating such a request would comport with legitimate penological interests. As such, Plaintiff has failed to demonstrate the existence of a genuine issue of material fact as to whether his First Amendment rights have been violated. See, e.g., Wares v. VanBebber, 319 F.Supp.2d 1237, 1243-44 (D.Kan. 2004) (granting summary judgment to state prison officials on Jewish inmate's First Amendment claim alleging officials interfered with Sukkot observance in 1997, where inmate failed to request a Sukkah booth); Ulmann v. Anderson, No. Civ. 02-405-JD, 2004 WL 883221, at *8 (D.N.H. April 26, 2004) (unreported decision) (granting summary judgment on plaintiff's Religious Land Use and Institutionalized Persons Act claim where inmate never alerted defendants that his religious beliefs required him to pray with a teffilin and adhere to a kosher diet until the final 12 days of his incarceration). Since no constitutional violation has been shown, the undersigned finds that Defendants are entitled to summary judgment on the basis of qualified immunity, and it is unnecessary to continue any further with the qualified immunity analysis. Saucier v. Katz, 533 U.S. at 201.
Plaintiff maintains that he is not required to follow DOC's current procedures in OP-030112 for adding his prayer cloth to the religious property matrix, because the Court previously decided the issue with respect to the "same D.O.C. policy OP-030112." Plaintiff's First Reply at 2; Plaintiff's Second Reply at 3. He further argues, as he did during the prison administrative process that it was decided in Case No. CIV-01-1738 that he did not have to seek permission to be included on "some exclusive list of allowable items." Complaint, Ex. 3; see also Plaintiff's First Reply at 17; Plaintiff's Second Reply at 24.
However, Plaintiff's characterization of the policy that was in place at the time he filed his complaint in Case No. CIV-01-1738 and the current policy concerning possession of religious items is incorrect. Plaintiff in fact recognizes that the policy has been amended. Complaint at 9 (stating Defendant Anderson and unknown defendants "amended DOC Policy OP-030112 to create an exclusive list so the DOC could 'pick and choose' which religion to support and to develop Moore a defense to liability in Ziegler, supra, defying Judge Cauthron's order and defying Plaintiff's rights."). In addressing Plaintiff's previous challenge to the private prison's ban on his receipt of prayer cloths (Case No. CIV-01-1738), Judge Cauthron adopted Judge Purcell's determination that Defendants' reliance on the policy then in place was inconsistent with the fact that "nothing in DOC's (1996) 'Religious Programs' policy prohibits inmate possession of religious items that are not included in the list of religious property contained in the policy." Ziegler v. CCA, et al., Case No. CIV-01-1738-C, December 12, 2002 Order [Doc. No 58] at 5-6; Second Supplement Report and Recommendation [Doc. No 47] at 11. Likewise, Judge Cauthron agreed with Judge Purcell's finding that Defendants' argument that Plaintiff was disallowed from receiving the prayer cloths because they were not sent by a recognized commercial vendor was of no importance since DOC policy contained no such restriction and that Defendants were relying on an unwritten policy to prohibit inmates from receiving and possessing religious oils or perfumes unless they were mailed from such vendors. Id. at 12. Applying the Turner factors, Judge Cauthron held that Defendants failed to demonstrate a rational connection between the refusal to permit Plaintiff's possession based on the policy then in place and legitimate governmental interest.
The present policy "Religious Programs," DOC OP-030112, has been in effect since June 26, 2002, with amendments not relevant to the issue here, effective September 6, 2002, and April 1, 2003. S.R., Att. 18. The present policy, like the previous one, includes a list of religious items allowed for individual possession by an inmate in his cell or on his person. S.R., Att. 10 (Addendum B). The policy also provides that certain religious items may be allowed but not authorized to be kept in a cell and such items may be accessed through proper procedures. S.R., Att. 18 at p. 11(OP-030112(IX)(A)(3) and (E)). The policy further provides that:
Items not listed on the religious property matrix may be requested by inmates by completing a 'Request to Staff' to the facility chaplain. The request will be reviewed by the facility head and facility chaplain who will forward the request to the Agency Religious Services Coordinator with their comments. The request will then be referred to the Oklahoma Interfaith Council for their review, comments and recommendation.
S.R., Att. 18 at p. 10 (OP-030112(VIII)(C)). Finally, "the request and responses will be forwarded to the General Counsel for review and advice to the Director for a final decision." Id. at p. 11. Finally, the policy sets forth procedures for obtaining religious objects and for purchasing religious items authorized for possession. Id. at p. 12 (OP-030112(IX)(E)). There is no dispute that Plaintiff has been advised that he must initiate the process set forth in OP-030112. It is also undisputed that because he has refused to do so, prison officials have neither approved nor denied a request to possess the prayer cloths at issue in the this case.
As previously discussed, when a prison regulation impinges upon an inmate's exercise of his or her right to freely exercise religious beliefs, a claim of violations of the Free Exercise Clause must be evaluated under Turner v. Safley, 482 U.S. 78 (1987). See O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987) (holding Turner applies to inmates' claims that prison regulations violate First Amendment Free Exercise Clause). Here, Plaintiff does not allege that the current relevant policy, DOC OP-030112, itself is facially invalid. Additionally, Plaintiff does not nor can he challenge the policy as applied; Plaintiff has not provided prison officials with an opportunity to approve or deny a request to possess his prayer cloths under the applicable policy. Therefore, it is not necessary to engage in the four-factor Turner test to determine the reasonableness of the prison regulation.
If Plaintiff chooses to follow the current DOC procedures, allowing DOC investigation as to the propriety of allowing his in-cell possession of prayer cloths, and if Plaintiff is denied possession/access to the prayer cloths by application of the DOC policy, OP-030112, Plaintiff may then challenge an adverse application of the policy in a separate cause of action under 42 U.S.C. § 1983, after exhausting his administrative remedies as required by 42 U.S.C. § 1997e(a).
IV. Equal Protection
While not raised as a separate discrete claim for relief, Plaintiff alleges in his complaint that by confiscating and failing to return his prayer cloths, Defendants also violated his equal protection rights. Complaint at 1 and 13. Plaintiff does not elaborate on his equal protection claim in his complaint. In his Replies, Plaintiff states without support that "Islamic inmates are allowed to retain and personally possess 'holy oils' in their locations, in their cells." Plaintiff's First Reply [Doc. No. 28] at 4; Plaintiff's Second Reply [Doc. No. 38] at 6. He further alleges that "other inmates are allowed, by policy, to receive and possess items, necessary to practice their religious practices." Id.
Defendants have not recognized or addressed a claim under an equal protection theory. However, the Court is obligated to construe Plaintiff's pro se complaint liberally. Haines v. Kerner, 404 U.S. at 520. For the following reasons, the undersigned finds that to the extent the complaint may be liberally read as raising an equal protection claim, such claim should be dismissed for failure to state a claim upon which relief may be granted. 28 U.S.C. § 1915A.
The Equal Protection Clause "requires the government to treat similarly situated people alike." Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir. 1998) (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). Thus, to assert a viable equal protection claim, a plaintiff must first make a threshold showing that he was treated differently from others similarly-situated. Id. Plaintiff has not made this showing. Although Plaintiff claims that Muslim inmates are allowed to possess in their cells diluted holy oils to apply to their skin during prayer, he does not allege or demonstrate that inmates have been allowed to access or possess these religious items without following the relevant DOC policy. In addition, the undersigned finds that Plaintiff's equal protection claim is entirely conclusory and without factual support. The broad reading of pro se complaints "does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The lack of sufficient and supported factual allegations is fatal to Plaintiff's equal protection claim. See Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992) (finding court should dismiss claims supported only by vague and conclusory allegations).
Therefore, the undersigned recommends that Plaintiff's equal protection claim be dismissed against all Defendants pursuant to 28 U.S.C. § 1915A. See Brown v. Zavaras, 63 F.3d 967, 972 (10th Cir. 1996) (finding conclusory allegations of equal protection violation insufficient to withstand dismissal under Fed.R.Civ.P. 12(b)(6)).
V. Conspiracy Claim
Plaintiff does not allege a separate claim of conspiracy. However, throughout his complaint and other pleadings, he claims a conspiracy existed to violate his First Amendment and equal protection rights. Complaint at 1 and 13. As with Plaintiff's equal protection claim, Defendants have not separately addressed a claim of conspiracy. To the extent Plaintiff's complaint may be liberally read as alleging a § 1983 claim of conspiracy, the undersigned recommends that such claim also be dismissed for failure to state a claim for which relief may be granted. 28 U.S.C. § 1915A.
Plaintiff alleges that DOC furthered the conspiracy by amending OP-030112 to now require a specific procedure to have religious items added to the exclusive list, a procedure which was not included in the previous DOC policy.
Allegations of conspiracy may form the basis of a § 1983 claim. See Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 533 (10th Cir. 1998). However, a conspiracy claim presupposes the deprivation of a federally protected right. See Dixon v. City of Lawton, 898 F.2d 1443, 1449 (10th Cir. 1990) (to prevail on a conspiracy claim, a plaintiff must prove an actual deprivation of a constitutional right). As a result, a plaintiff must plead not only a conspiracy, but also an underlying deprivation of federal rights. See id. ("[W]e join those courts which have recognized that to recover under a § 1983 conspiracy theory, a plaintiff must plead and prove not only a conspiracy, but also an actual deprivation of rights; pleading and proof of one without the other will be insufficient.").
The undersigned has already determined that Plaintiff has failed to show that his First Amendment right to freely exercise his religion had been violated. Thus, a conspiracy claim based on these same allegations cannot stand. See Thompson v. City of Lawrence, Kansas, 58 F.3d 1511, 1517 (10th Cir. 1995) (holding that the § 1983 conspiracy theory failed in light of the court's earlier determination that no constitutional violation had taken place). Further, the undersigned previously concluded that Plaintiff's allegations regarding the denial of equal protection do not rise to the level of a constitutional violation. Thus, again, a conspiracy claim based on these allegations cannot stand. See Thompson, 58 F.3d at 1517.
Moreover, to assert a conspiracy claim, a plaintiff "must allege specific facts showing an agreement and concerted action among the defendants." Tonkovich, 159 F.3d at 533; see also Salehpoor v. Shahinpoor, 358 F.3d 782, 789 (10th Cir.) (requiring plaintiff to allege by direct or circumstantial evidence that defendants had meeting of minds or agreement), cert. denied, 125 S.Ct. 47 (2004). "Conclusory allegations of conspiracy are insufficient to state a valid § 1983 claim." Tonkovich, 159 F.3d at 533 (quotation omitted); see also Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1214 (10th Cir. 2003) (holding conclusory conspiracy allegations are not sufficient to state a constitutional claim), cert. denied, 125 S.Ct. 344 (2004). Here, Plaintiff has presented only conclusory allegations of conspiracy among various DOC prison officials. He has offered no support for such allegations, such as affidavits from persons with personal knowledge attesting to Defendants' involvement in wrongful conduct or malicious conduct toward Plaintiff. Thus, Plaintiff's allegations of conspiracy are insufficient to state a claim for relief under § 1983. Accordingly, the undersigned finds that any claim of conspiracy should be dismissed for failure to state a claim on which relief may be granted, pursuant to 28 U.S.C. § 1915A.
VI. Unknown Defendants
In the caption of his complaint, Plaintiff named "Unknown Defendants." However, in the body of the complaint Plaintiff makes no specific allegations against the unidentified and unnamed Defendants and states that he "lists such [Defendants] in case he needs to amend his complaint." Complaint at 6. "While a plaintiff can sue unnamed defendants, the plaintiff must provide a description sufficient to identify those involved so process can eventually be served." Frischenmeyer v. Buffington, No. 98-2109, 1998 WL 777382, at *2 (10th Cir. Nov. 4, 1998); see also Roper v. Grayson, 81 F.3d 124, 126 (10th Cir. 1996) ("Courts have generally recognized the ability of a plaintiff to use unnamed defendants so long as the plaintiff provides an adequate description of some kind which is sufficient to identify the person involved so process eventually can be served.").
This unpublished disposition and others cited herein are cited as persuasive authority pursuant to Tenth Circuit Rule 36.3.
Moreover, as more than 120 days have elapsed since the filing of the complaint without service being made on these Unknown Defendants, the complaint is subject to dismissal as to them under Fed.R.Civ.P. 4(m) in the absence of justification for the failure. Jones v. Frank, 973 F.2d 872, 873-74 (10th Cir. 1992). The Court is required to consider whether a plaintiff has shown good cause for failure to timely effect service. See Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1994). The undersigned finds that a permissive extension of time is not warranted. Service in this case does not involve the United States, nor is there any indication of an attempt by a defendant to avoid service. Although a failure to extend the time for service of these unidentified Defendants could present a statute of limitations problem, that possibility alone is not sufficient to justify an extension of time to serve, particularly given the undersigned's recommended disposition of this action. For the reasons discussed in this Report and Recommendation, the undersigned has recommended that Plaintiff's claims be dismissed or summary judgment entered in Defendants' favor. Thus, no purpose would be served in allowing Plaintiff additional time to name and serve "Unknown Defendants." Accordingly, the undersigned finds that Plaintiff's claims against these unnamed Defendants should be dismissed without prejudice under Fed.R.Civ.P. 4(m).
Rule 4(m) states that a court on its own initiative, after notice to the plaintiff, "shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period."
The Court in Espinoza specifically identified three factors pertinent to this issue: 1) whether the statute of limitations would run without the extension; 2) whether the case involves service on the United States; and 3) whether Defendant attempted to evade service. Espinoza, 52 F.3d at 842.
VII. State Law Claims
Although Plaintiff makes a vague reference to seeking this Court's supplemental jurisdiction of "state law claims," he does not cite any specific provision in support of such claims. Complaint at 2. As previously discussed, the undersigned is recommending that Plaintiff's federal claims against Defendants in their official capacities be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted, that summary judgment be granted to Defendants on the grounds of qualified immunity, and that Plaintiff's equal protection and conspiracy claims be dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915A. Therefore, to the extent Plaintiff's complaint could be construed as sufficiently raising state law claims, it is further recommended that the Court decline to exercise supplemental jurisdiction over these state law claims. See Taylor v. Meacham, 82 F.3d 1556, 1564 n. 11 (10th Cir. 1996) ("Once a federal court dismisses claims over which it has original jurisdiction, it may decline to exercise supplemental jurisdiction over related state law claims.") (citing 28 U.S.C. § 1367(c)(3)).
VIII. Additional Matters Pending Before the Court
A. Motion for Preliminary Temporary Restraining Order/Preliminary Injunction
Plaintiff has filed a motion for a temporary restraining order and preliminary injunction, primarily requesting the same relief demanded in his complaint: that Defendants be ordered to allow Plaintiff to receive and possess prayer cloths anointed in oil, pursuant to this Court's previous ruling in Case No. CIV-01-1738-C. [Doc. No. 19] at 1 and 15. He further requests that Defendants be ordered to allow Plaintiff additional (outside cell) storage space for his expanding legal materials. Id. at 1 and 15. He also seeks an order from the Court enjoining Defendants from retaliating against him for filing grievances and civil rights suits. Id. at 1 and 15. Specifically, he wants Defendants prohibited from transferring him to another facility, issuing "bogus" misconducts, discriminating against him in prison jobs and spreading rumors about him to other inmates. Id. Finally, Plaintiff requests that under its pendant jurisdiction, this Court require the Attorney General of Oklahoma to make the required "investigation of the Defendants' conduct," to determine whether it is in "good faith." Id. at 2 and 15. Defendants contend that Plaintiff is not entitled to injunctive relief. Franklin, Guilfoyle and Anderson Motion at 17; Redman, Crum and Ward Motion at 16-17.
To obtain a preliminary injunction under Fed.R.Civ.P. 65, the movant must show (1) a substantial likelihood of success on the merits of the case; (2) irreparable injury to the movant if the preliminary injunction is denied; (3) the threatened harm to the movant outweighs the injury that the proposed injunction may inflict upon the opposing party; and (4) the injunction, if issued, would not be adverse to the public interest. Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001); Chemical Weapons Working Group, Inc. v. United States Dep't of the Army, 111 F.3d 1485, 1489 (10th Cir. 1997); Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980). Plaintiff primarily requests a mandatory preliminary injunction (one that directs a party to act). Where the preliminary injunction would provide mandatory rather than prohibitory relief, and/or award Plaintiff virtually all the relief to which he may be entitled — two historically disfavored categories — Plaintiff "must 'satisfy a heightened burden.'" O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975-76 (10th Cir. 2004) ( en banc) ( per curiam). Plaintiff has not satisfied the foregoing requirements and has failed to meet his heightened burden.
The en banc Court "jettison[ed] that part of SCFC ILC[ , Inc. v. VISA, Inc., 936 F.2d 1096 (10th Cir. 1991),] which describes the showing the movant must make in such situations as 'heavily and compellingly.'" O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d at 975. The Court held that:
[C]ourts in this Circuit must recognize that any preliminary injunction fitting within one of the disfavored categories must be more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course. Furthermore, because a historically disfavored preliminary injunction operates outside of the normal parameters for interim relief, movants seeking such an injunction are not entitled to rely on this Circuit's modified-likelihood-of-success-on-the-merits standard. Instead, a party seeking such an injunction must make a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms, and may not rely on our modified likelihood-of-success-on-the-merits standard.Id. at 975-76.
In what is largely a restatement of the allegations raised in his complaint, Plaintiff primarily requests a mandatory preliminary injunction ordering Defendants to allow him to possess his prayer cloths in his prison cell. However, in this regard, Plaintiff fails to show a substantial likelihood that he will prevail on the claims identified in his motion. To justify a preliminary injunction, Plaintiff must establish a substantial issue regarding the constitutionality of prison official's conduct. See Kikumura, 242 F.3d at 955 (even when the other three elements for a preliminary injunction have been satisfied, the plaintiff must raise "questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation"). As previously discussed, Plaintiff has failed to show that his First Amendment rights have been violated because he has not shown that he has been denied access to the prayer cloths. Plaintiff has been advised that he may seek access to the prayer cloths by following the process outlined in current DOC policy OP-030112, Religious Programs, and requesting that his prayer cloths be added to the allowable religious property matrix. Plaintiff admits that he has refused to utilize this procedure, and thus it is unknown whether DOC officials would allow or reject such request. Plaintiff has simply not provided the Court with enough information to establish that he has a substantial likelihood of prevailing on the merits. In considering whether Plaintiff has shown a substantial likelihood that he will prevail on the merits of his First Amendment claim and in balancing the equities between the parties, the undersigned finds that Plaintiff has not met the heavy burden required for the issuance of a preliminary injunction concerning the return of his prayer cloths. O Centro Espirita Beneficiente Uniao Do Vegetal, 389 F.3d at 975-76. Therefore, the undersigned recommends that Plaintiff's request for injunctive relief in this regard be denied.
Should JCCC officials deny Plaintiff's access to his prayer cloths, Plaintiff may be able to state a valid first Amendment claim, if, as in Case No. CIV-01-1738-C, prison officials "fail to demonstrate a rational connection between their 'policy' and legitimate governmental interests." Ziegler v. Corrections Corporation of America, Inc., Case No. CIV-01-1735-C (W.D. Okla. Dec. 12, 2002). In that event, however, Plaintiff must bring a separate action pursuant to 42 U.S.C. § 1983, after exhausting his administrative remedies concerning such denial.
Plaintiff also fails to meet his heightened burden with respect to his remaining requests for preliminary injunctive relief. Although Plaintiff requests that Defendants be enjoined from taking retaliatory actions against him, he offers no further information concerning any threatened or actual actions that he faces, and therefore, his concern about retaliation is speculative and conclusory. Plaintiff's belief that he may be subjected to unspecified actions in the future is not sufficient to establish that he is in danger of irreparable harm. See Johnson v. Saffle, No. 99-6148, 2000 WL 130726, at*2 (10th Cir. Feb. 4, 2000) (affirming the denial of a temporary restraining order "because plaintiff had failed to establish a threat of irreparable harm"). In any event, Plaintiff's requests to prohibit JCCC officials from transferring him to another facility, issuing misconducts, denying certain prison jobs, and making statements that Plaintiff may consider a "rumor" would interfere with prison management which would be contrary to the public interest. Turner v. Safley, 482 U.S. 78 (1987). Plaintiff shows neither a likelihood of success on the merits nor irreparable injury with respect to his request regarding potential retaliatory actions. Thus, Plaintiff is not entitled to injunctive relief in this regard.
In Turner, the Supreme Court cautioned against judicial interference with the daily administration of prisons:
Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint.Turner, 482 U.S. at 84-85.
As to his request for additional space for storing legal materials, Plaintiff fails to show that without such injunctive relief, he will be denied access to the courts. "[A]n inmate's right of access does not require the state to supply legal assistance beyond the preparation of initial pleadings in a civil rights action regarding current confinement or a petition for a writ of habeas corpus." Carper v. DeLand, 54 F.3d 613, 617 (10th Cir. 1995); see also Love v. Summit County, 776 F.2d 908, 914 (10th Cir. 1985) ("The Supreme Court has never extended the Fourteenth Amendment due process claim based on access to the courts . . . to apply further than protecting the ability of an inmate to prepare a petition or complaint."). In this case, Plaintiff has filed timely responses to both dispositive motions and he fails to allege any facts showing that the denial of additional storage space caused any actual injury. Plaintiff has not shown irreparable injury with respect to his request that Defendants be ordered to allow him additional storage space for his legal materials. Under these circumstances, Plaintiff is not entitled to a temporary restraining order or preliminary injunction concerning extra storage space for legal materials.
Finally, Plaintiff is not entitled to injunctive relief with regard to his request that the Oklahoma Attorney General be ordered "by this Court's pendant jurisdiction, to make the required investigation of the Defendant's conduct whether it be 'good faith,' as required by 74 O.S 20G." It has previously been recommended that the Court decline jurisdiction over any pendant state law claims Plaintiff has raised in the instant complaint. Thus, to the extent Plaintiff's claims for injunctive relief involve state causes of action, it is recommended that such request be denied.
In sum, the undersigned finds that Plaintiff has failed to meet his heightened burden to establish an entitlement to injunctive relief. Accordingly, it is recommended that Plaintiff's motion for a temporary restraining order and preliminary injunction be denied.
B. Plaintiff's Motion to Certify Questions of Law
Plaintiff has also filed a motion requesting that this Court certify to the Oklahoma Supreme Court the questions of whether the Oklahoma Attorney General must decline to represent any state employee who has demonstrated "bad faith" and whether state employees are required to pay legal fees once "bad faith" has been judicially determined. [Doc. No. 46]. Defendants argue that Plaintiff's motion should be denied because the questions for which he is seeking certification do not meet the requirements of Oklahoma's Uniform Certification of Question of Law Act, Okla. Stat. tit. 20, §§ 16011-611. In accordance with the applicable statute, a question may be certified to the Oklahoma Supreme Court only if: (1) the answer may be determinative of an issue in the pending litigation; and (2) no controlling decision exists in the Oklahoma Supreme Court or the Oklahoma Court of Criminal Appeals.
This statutory authority provides:
The Supreme Court and the Court of Criminal Appeals may answer a question of law certified to it by a court of the United States, or by an appellate court of another state, or of a federally recognized Indian tribal government, or of Canada, a Canadian province or territory, Mexico, or a Mexican state, if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling decision of the Supreme Court or Court of Criminal Appeals, constitutional provision, or statute of this state.
Okla. Stat. tit. 20, § 1602.
The undersigned agrees that Plaintiff's motion should be denied. It is noted initially that certification of questions of law is discretionary with the trial court. Armijo v. Ex Cam, Inc., 843 F.2d 406, 407 (10th Cir. 1988) ("Whether to certify a question of state law to the state supreme court is within the discretion of the federal court. Certification is not to be routinely invoked whenever a federal court is presented with an unsettled question of state law.") (citations omitted). In the instant case denial of the motion is appropriate because the undersigned has previously recommended that summary judgment be granted to Defendants on Plaintiff's First Amendment claim and that Plaintiff's remaining § 1983 claims be dismissed for failure to state a claim upon which relief may be granted, pursuant to Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. § 1915A. It has also been recommended that the Court decline supplemental jurisdiction on any state law claims raised by Plaintiff. Should these recommendations be adopted, the outcome of this case would not involve an unsettled question of state law. Accordingly, the undersigned recommends that the Court decline to certify these two questions to the Oklahoma Supreme Court. See Boyd Rosene Assocs., Inc. v. Kansas Municipal Gas Agency, 178 F.3d 1363, 1365 (10th Cir. 1999) (observing that "[c]ertification is never compelled, even when there is no state law governing an issue").
RECOMMENDATION
For the reasons set forth above, the undersigned recommends that the motions to dismiss filed by Defendants Franklin, Guilfoyle and Anderson [Doc. No. 26] and by Defendants Redman, Crum and Ward [Doc. No. 36] be granted as to Plaintiff's claims against all Defendants in their official capacities. It is further recommended that Defendants' motions [Doc. Nos. 26 and 36], construed as motions for summary judgment be granted as to Plaintiff's First Amendment claims based on Defendants' claims of qualified immunity. The undersigned also recommends that to the extent the complaint is construed as raising equal protection and conspiracy claims, such claims be dismissed pursuant to 28 U.S.C. § 1915A for failure to state a claim upon which relief may be granted. It is also recommended that the action against "Unknown Defendants" be dismissed for lack of timely service pursuant to Fed.R.Civ.P. 4(m).
In light of these recommendations, it is further recommended that to the extent Plaintiff's responses to Defendants' motions [Doc. Nos. 28 and 38] are construed as motions for summary judgment such motions be denied as moot. It is also recommended that (1) the Court decline to exercise jurisdiction over any pendant state law claims in the complaint; (2) Plaintiff's Motion for Preliminary Temporary Restraining Order and Preliminary Injunction [Doc. No. 19] be denied; (3) Plaintiff's motions to prosecute [Doc. Nos. 34 and 39] be denied as moot; and (4) Plaintiff's motion to certify questions of law [Doc. No. 46] be denied.
Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by the 14th day of June, 2005, in accordance with 28 U.S.C. § 636 and Local Civil Rule 72.1. Plaintiff is further advised that failure to make timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal questions contained herein. Moore v. United States, 950 F.2d 656 (10th Cir. 1991). This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.