Barlor v. Patton

Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 1
UNITED STATES COURT OF APPEALS
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FOR THE TENTH CIRCUIT
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DANNY BARLOR, )
Plaintiff-Appellant, )
)
v. ) Case No. 16-6093
)
ROBERT PATTON, )
TRACY ELLIS, )
OKLAHOMA DEPARTMENT OF )
OF CORRECTIONS, et al., )
Defendants-Appellees. ) I
BRIEF IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS
COMES NOW, Danny Reece Barlor, hereinafter Plaintiff, with his Brief in Support of
the attached Petition for a Writ of Habeas Corpus in the above-entitled and numbered cause,
pursuant to the provisions of 28 USC § 2241. Plaintiff hereby adopts and incorporates all issues,
allegations and exhibits contained in his previous USC 28 subsection 1983 into his Writ of
Habeas Corpus now before this Court.
The Plaintiff is currently incarcerated as inmate number 85688 at the James Crabtree
Correctional Center, 216 North Murray Street, Helena, Oklahoma 73741. The Defendant-
Appellee is the Oklahoma Department of Corrections, et al.
Plaintiff cannot afford to hire an attorney to represent him and is thus proceeding on a pro
se basis. It is respectfully requested that this court hold the Plaintiff to a lesser standard than an
attorney, in view of his prose status and the findings of Hall v. Bellmon, 935 F2d 1106 (lOth Cir
1991) and Haines v. Kerner, 92 SCt 594 (1972).
In this action, the Plaintiff is not challenging his underlying criminal conviction in
Cleveland County case #CRF-80-282. He is challenging the execution of his sentence by prison
officials, seeking restoration of lost earned credits, which occurred due to a loss in his earned
credit level, as well as challenging the condition of his confinement.
The courts have long held that an inmate may initiate a Petition for a Writ of Habeas
Corpus to challenge the execution of his sentence under the provisions of 28 USC § 2241. See
Montez v. McKinna, 208 F3d 862 (lOth Cir. 2000); Mcintosh v. US Parole Comm., 115 F3d 809
(1oth Cir. 1997); Bradshaw v. Story, 86 F3d 164, 166 (1oth Cir. 1996).
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.J
The courts have also long held that prisoners do not forfeit all equal treatment rights upon
incarceration. Prison practices that result in unequal treatment among prisoners must bear a
rational relation to a legitimate penal interest. Lee v. Washington, 390 US 333-334 (1968). To
prevail on an equal protection claim, an inmate must prove (1) that similarly situated inmates
have been treated differently by the government, and (2) that there is no rational relation between
the dissimilar treatment and any legitimate penal interest. Turner v. Safley, 482 US 78, 95-97
( 1987); Whitmire v. Arizona, 298 F3d 1134, 1136 (9 1h Cir. 2002).
In other very similar cases as that of this Plaintiff, Danny Barlor, ODOC inmates have
filed an 28 USC § 2241 petition against the Department of Corrections as this Plaintiff, alleging
a violation of their due process rights because prison officials revoked their earned credits in a
disciplinary proceeding wrongly. See Gamble v. Calbone, 375 F3d 1021 (10 1h Cir. 2004). In
Gamble, the Tenth Circuit held that there was a complete failure of proof of guilt, reversed the
matter, and remanded for issuance of the writ of habeas corpus. This case as well as many others
including the Plaintiffs shows the pattern and practice of the ODOC prison officials to railroad
and wrongfully punish inmates in an arbitrary manner.
JURISDICTION
Plaintiff is invoking the provisions of 28 USC § 2241 in this actions. He asserts that
prison officials have arbitrarily and wrongfully taken previously earned good-time credits,
wrongfully demoted him in credit level, wrongfully restricted his eligibility to advance in earned
credit level and imposed many directly related sanctions and restrictions upon him. Federal
habeas corpus review is warranted and requested. See Montez v. McKinna, 208 F3d 862, 865
(1 01h Cir. 2000); also Aguiar v. Tafoya, 95 Fed Appx 931 (1 01h Cir. 2004); also Ewards v.
Balisok, 520 US 641 (1997).
Plaintiff asserts that a favorable ruling by this court would greatly affect his length of
incarceration.
The US Supreme Court has long held that when a prison regulation or practice offends a
fundamental constitutional guarantee, the federal courts will discharge their duty to protect
constitutional rights. Procunier v. Martinez, 416 US 405 (1974). Federal habeas corpus review
is warranted and requested in this pleading for just cause shown in this action.
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In addition, on a related issue, the ODOC has arbitrarily and deliberately has misapplied a
DOC policy, which has created due process as well as ex post facto violations and has used those
violations to discriminate against the Plaintiff by applying said policy OP-060213. As a result of
the misapplication of this policy, the Plaintiffs security status has been manipulated to place the
Plaintiff in maximum security as stated in his original complaint filed in the United States
District Court. The policy at issued and from which the Plaintiff seeks relief has been previously
scrutinized by this court in Smith v. Scott and Plaintiff appeals to this court for relief under the
provisions of Smith v. Scott and requests the application of 2 part ex post facto test in this instant
case as in Weaver v. Graham, 450 US 24, 29 (1981) which required proof of both retroactivity
and disadvantage.
GROUNDS ASSERTED
Ground One: A private prison official arbitrarily revoked earned credits, demoted Plaintiffs
earned credit level, and greatly restricted or prevented Plaintiff from promotion to a higher
earned credit level.
Ground Two: Prison officials have retroactively applied a change in prison policy and
regulations to Plaintiff, which has prejudiced him. This is in violation of the ex post facto clause
ofthe US Constitution's 141h Amendment.
Ground Three: Prison officials did conceal evidence of officer involvement where a serious
inmate injury did occur and used Plaintiff as a scapegoat to shift blame as well as avoid
consequence for their unprofessional actions. Plaintiff believes he has a constitutional right not to
be subjected to the arbitrary actions of governing officials.
Ground Four: The Oklahoma Department of Corrections is in violations ofthe prohibition ofthe
ex post facto clause by applying a prison policy to his disadvantage and prejudice which was not
foreseeable, and has given the Plaintiff security points that has also resulted in blatant
discrimination.
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STATEMENT OF THE CASE
Plaintiff Danny Barlor is incarcerated pursuant to his conviction for Armed Robbery in
the District Court of Cleveland County in the State of Oklahoma. He was sentenced in May 1980
to 20 years in prison. In this action, Plaintiff is not attacking his conviction in his criminal case.
Rather, he is challenging the execution of his sentence by the Department of Corrections (DOC),
as well as the conditions of his confinement.
On or about June 6, 1985 and while incarcerated at the Dick Connors Correctional Center
in Hominy, Oklahoma, Plaintiff was "accused" of the offense of escape. Plaintiff was never
formally charged with that alleged offense by the DOC or by the Osage County District Court.
He did not receive any disciplinary write-up. As will be set forth subsequently in this Brief, he is
nevertheless still being punished and prejudiced for this alleged offense despite several years of
diligent efforts to have all mention of this alleged offense expunged from his field file jacket and
DOC records.
On or about October 2, 1991 and while incarcerated at the Dick Connor Correctional
Center, Plaintiff was given a disciplinary write-up by prison officials due to a "confidential
statement" from another inmate which supposedly alleged that Plaintiff had "a plan of escape."
As a result, Plaintiff was found guilty in an administrative hearing and severely sanctioned.
There was no "real" evidence of any such plan for escape at said hearing. As a result of the
disciplinary conviction for the alleged "plan of escape," Plaintiff lost earned credits and had his
earned credit level reduced to the lowest level, level one. See 57 O.S. § 138
Pursuant to DOC policy at the time OP-060100 and OP-060213, Plaintiffwas promoted
from Level One to Level Two on March 2, 1993. On June 2, 1993, Plaintiffwas promoted from
level Two to level There. On or about November 2, 1993, he was promoted from level three to
level Four. He remained on level Four until April 18, 2003 due to good behavior and a clear
disciplinary record.
On April 18, 2003 and while at the Great Plains Correctional Facility in Hinton,
Oklahoma, a private prison contractor for the DOC, a private prison auditor arbitrarily and
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retroactively applied a revised DOC policy which was promulgated and implemented on April 9,
1997 to reduce Plaintiffs earned credit level from level Four to level Two. This resulted in
Plaintiffs loss of 22 earned credit days per month for every month since that action, loss of
inmate job pay for all months, loss of four hours visitation and the number of visitors he is
allowed to have, greatly reduced telephone privileges, loss of right to possess personal property
items, including a television etc., loss of privilege to be housed in an Honor Housing Unit and
other sanctions associated with the reduction in level. In addition to this , Plaintiff was given an
additional ten (10) security points making his assessed security status maximum from medium
security, which he had had since 1982 when he was classified upon his incarceration at the
Lexington Assessment and Reception Center (LARC) in Lexington, Oklahoma.
When the private prison auditor took the above action, the Plaintiff was not afforded any
type of notice or hearing. Neither was this action associated with any type of misconduct because
Plaintiff had 12 years of clear conduct at this time and has repeatedly tried to resolve this matter
informally by discussing it with a variety of correctional officers and staff.
A Tenth Circuit case very similar to that ofPlaintiffisAguiar v. Ta(ova, 95 Fed Appx
931 (101h Cir 2004). In Aguiar, an inmate was found by a prison disciplinary proceeding to be
guilty of attempt or complicity in connection with an alleged prison escape. This resulted in the
inmate's losing several hundred earned credits.
The Tenth Circuit held that the findings of a prison disciplinary board were not supported
by at least "some evidence" on record as necessary to uphold the board's conclusion that the
inmate committed the offense of"attempt or complicity." Two prison officials said nothing more
than that they knew an inmate was planning an escape based on confidential informants and
physical evidence. The record contained no proffer as to what the informants could testify to, nor
was there even simple summary of what the informants told prison officials, and escape
paraphernalia was erroneously linked to the inmate by a prison official.
In Plaintiffs complaint presented to the United States District Court evidence was
submitted that the 1991 misconduct for attempted escape at issue was based entirely on
confidential witness testimony fabricated by a lone inmate. Indeed, on the misconduct itself it is
stated "none" where disposition of physical evidence if any is required. In addition to this, the
confidential witness himself later recanted his statement, which Plaintiff also presented as a
notarized affidavit to the United States District Court in support of his complaint.
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The dispositive issue is whether the evidence against the Plaintiff in the record of the
prison disciplinary proceeding meets the "some evidence" standard established by
Superintendent v. Hill, 472 US 445 (1985). Oklahoma inmates possess a liberty interest in
earned credits, created by the Due Process Clause of the 14th Amendment. Harper v. Young, 64
F3d 563,566 (lOth Cir. 1995); Wolffv. McDonnell, 418 US 539, 556 (1974). Oklahoma inmates
are entitled to due process protection prior to the loss of earned credits. Wolf(, supra; Mitchell v.
Maynard, 80 F3d 1433, 1445 (lOth Cir 1996). 57 O.S. § 138
It is the Plaintiff's representation that based upon his personal experience and based on
discussions with numerous other inmates and inmate law clerks over the years, that private as
well as State facilities in the DOC have a pattern and practices of intentionally impeding,
restricting, and interfering with an inmate's attempts to exhaust his administrative remedies in an
attempt to avoid prisoner lawsuits.
As an example, Plaintiff respectfully requests that this Court would give its consideration
to an attachment (G-1) that was submitted to the United States District Court in support of
Plaintiff's claim. This attachment is a memorandum from Debbie Morton, the director's
designee, administrative review authority, and is a response to the grievance coordinator who
had dismissed the Plaintiff's attempt to exhaust administrative relief as being "out of time." By
Ms. Morton's own admission, this Plaintiff's complaint is timely which should have resolved the
issue as it was properly presented according to the DOC grievance procedure. But, instead, Ms.
Morton advised the grievance coordinator to retract his decision as being out of time, and
counseled him on how to respond. This is only one example of the difficulty and resistance this
Plaintiff has encountered in his attempts to exhaust his remedies on every level and at every
opportunity on the administrative level. By Mr. Elliott's own admission in the Special Report of
Review ofFactual Basis of Claims Asserted in Amended Complaint pursuant to 42 USC§ 1983
state that this Plaintiff has on at least 18 occasions attempted to resolve his issues. (Please see
page 7 of that report).
Other relevant examples Plaintiff submitted a "Request to Staff' (RTS) to his Housing
Unit Manager, Mr. Spruiell, at Great Plains Correctional Facility (GPCF) on April 24, 2003
regarding the above "escape" incident to which Mr. Spriell did not respond. On June 18, 2003,
Plaintiff sent another RTS to GPCF Warden Sam Calbone regarding the same issue and the
failure of his unit manager to respond. Warden Calbone likewise failed to respond.
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On May 2, 2003, Plaintiff submitted a grievance regarding this matter to Warden Calbone
at GPCF. Reliefwas denied on July 14,2003. On July 29,2003, Plaintiff appealed the denial of
his grievance to the DOC Director, Ron Ward, and relief was denied on August 6, 2003. On
January 8, 2004, Plaintiff filed his legal notice in accordance with the exhaustion requirements of
57 O.S. § 564 and the Oklahoma Government Tort Claims Act under 51 O.S. § 151, 152, et seq.
and completed the exhaustion of all available administrative remedies at the relevant time.
On January 28, 2004, Plaintiff filed a petition for a writ of mandamus in the District
Court of Oklahoma County, as case number CJ-2004-707. In this action, Plaintiff asserted that
private prison officials had violated the prohibition against ex post facto by retroactively
applying a revision in prison policy to his prejudice citing the very similar relevant Tenth Circuit
decision in Smith v. Scott, 223 F3d 1191 (lOth Cir. 2000) and others.
On may 20,2005, relief was denied by the District Court of Oklahoma County. Plaintiff
filed a motion to reconsider on June 2, 2005 and relief was denied on June 13, 2005. Plaintiff
appealed to the Supreme Court of Oklahoma as case number 102,337 and reliefwas denied on
September 26, 2005.
On October 18, 2005, Plaintiff filed a civil rights complaint on the same issues in the US
District Court as case number CIV-05-1216-T. On December 29,2005, this case was dismissed
without prejudice for failure to pay the initial partial filing fee. Plaintiff represents that he made a
good faith effort to submit the proper documents to cause the timely payment of the initial partial
filing fee but this was prevented by prison officials' acts and omissions. In any event, Plaintiff
now understands that since this matter involves his length of incarceration, the proper legal
forum is a Petition for a Writ of Habeas Corpus under 28 USC § 2241 instead of a civil rights
complaint under 42 USC § 1983.
Prior to filing the above-mentioned civil rights complaint Plaintiff essentially started over
in a diligent, good faith attempt to fully and completely exhaust his available remedies. The
originals of these exhaustion documents are already on file in the USDS as attachments to CIV-
05-1216-T. Some, but perhaps not all of these documents are attached to this pleading, including
Request to Staff, Grievance number 2005-070, Responses from DOC Director designee Debbie
Morton, and a letter dated August 2, 2005 from Kevin Moore, DOC coordinator of the Offender
Records Unit stating that "you have filed a grievance on this issue and appealed the facility
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head's response to the director's designee." Plaintiff asserts that has repeatedly and fully
exhausted all available remedies.
A threshold question that must be addressed in a habeas corpus case is that of exhaustion.
Exhaustion is based on principles of comity, exhaustion is not jurisdictional. The state may
waive a prisoner's failure to exhaust, by failing to raise an exhaustion defense in federal district
court. No such defense was raised in the above listed civil rights complaint. Some cases may
present special circumstances that make it appropriate to address the merits of a habeas petition,
notwithstanding the lack of compete exhaustion, such as when a State's process is inadequate to
protect the prisoner's rights. See Harris v. Champion, 15 F3d 1538 (lOth Cir 1994); Granberry
v. Greer, 481 US 129, 131 (1987).
It is similarly held in Graham v. Johnson, 94 F3d 958 (5th Cir 1996) that exhaustion of
state remedies is not required in a federal habeas case if it would plainly be futile. The failure to
exhaust State remedies is not a jurisdictional or inflexible bar to the grant of federal habeas relief
to a state prisoner. Hoxie v. Kerby, 108 F3d 1239, 1242 (lOth Cir 1997). It was specifically held
that no exhaustion requirement applies to a habeas petition filed under 28 USC § 2241. See
Capps v. Sullivan, 13 F3d 350,354 n. 2 (lOth Cir 1993).
The US Supreme Court has determined that the States must have a full and fair
opportunity to resolve constitutional claims and to provide the necessary relief. O'Sullivan v.
Boerckel, 526 US 838, 845 (1999). It is the Plaintiff's assertion that Oklahoma does not provide
this in the context of the issues raised in this action for prison inmates. There is no adequate
remedy providing the relief sought by Plaintiff in this type of situation. Coleman v. Thompson,
Ill S. Ct 2546 (1991). This case is cognizable for federal habeas relief.
GROUND ONE
A PRIVATE PRISON OFFICIAL ARBITRARILY REVOKED EARNED CREDITS,
DEMOTED PLAINTIFF'S EARNED CREDIT LEVEL AND GREATLY RESTRICTED OR
PREVENTED PLAINTIFF FROM PROMOTION TO A HIGHER EARNED CREDIT LEVEL
As set forth above, on or about June 6, 1985 and while incarcerated at the Dick Conner
Correctional Center (DCCC), Plaintiff was accused of escape. He was not given DOC
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misconduct and was not charged criminally. On or about October 2, 1991 and while still at
DCCC, Plaintiff was given a disciplinary misconduct by DOC officials for a "plan of escape"
due to a confidential statement from another inmate who was unidentified at that time.
Pursuant to DOC policy at the time, OP-060100 and OP-060213, Plaintiff was demoted
to Level One (the lowest level) as a result of the 1991 misconduct at issue and promoted to Level
2 on March 2, 1993. On June 2, 1993, he was promoted to Level3. On or about November 2,
1993, he was promoted to Level4. He remained on Level 4 due to good behavior until April 18,
2003. As a result of being found guilty of the 1991 misconduct for attempted escape, Plaintiff
suffered the loss of 365 days good time (earned credits). However, there was a loss of
approximately 630 earned credits due to a loss in earned credit level from October, 1991 until he
was reinstated to Level4 status on or about November 1993, a combined total of over 1000
earned credits. Plaintiff was not assessed with maximum points on either the 1985 alleged
escape, or the 1991 misconduct for attempted escape.
On April 18, 2003 and while incarcerated at the private prison known as the Great Plains
Correctional Facility, a private prison auditor arbitrarily and retroactively applied a revision in
DOC policy OP-060107(1) and/or OP-060103(II) which was promulgated and implemented on
April 9, 1997. This resulted in Plaintiff's loss of monthly earned credits for every month since
that time and numerous other direct and indirect sanctions for the rest of Plaintiff's incarceration.
This is only one occasion of several where the application of said policy has affected Plaintiff's
security status to his disadvantage as well as being responsible for the loss of his earned credits.
In a similar case, Mayberry v. Ward, 43 Fed Appx 343 (1oth Cir 2002) the Tenth Circuit
affirmed that under Oklahoma law, as state prisoner has a liberty interest in properly earned good
time credits, and is entitled to due process protection prior to loss of those credits. 57 O.S. § 138.
An Oklahoma prisoner is entitled to notice and a hearing prior to retroactive demotion in earned
credit level and a prison auditor lacks the authority to unilaterally interpret a filed record,
especially one which does not contain a misconduct report. As set forth the Plaintiff alleged
"escape" in 1985 did not even result in a misconduct report. DOC policy OP-060211 (III)(a) sets
forth the proper procedure for determining a loss of earned credits.
In another similar Oklahoma case, Warnick v. Booher, 425 F3d 842 (1oth Cir 2005) this
Tenth Circuit held that a DOC auditor improperly took earned credits without affording the
inmate due process.
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The legal maxim of delegate potestas non potest delegari is applicable in this Plaintiffs
case. A delegated authority cannot be delegated. The Oklahoma Legislature gave the Department
of Corrections the authority to grant earned credits to inmates, and to revoke some upon
affording them due process. This is set forth in state law 57 O.S. § 138. The Legislature did not,
however, give the Department of Corrections the authority to delegate this power to private
prison employees who work for a profit-making corporation; and who thus have a vested
financial interest in keeping their "merchandise" (penitentiary inmates) incarcerated for as long
as possible when the Oklahoma prison system is overcrowded, as it has been for well over two
decades. The DOC is forced to contract with private prison vendors to house inmates. The more
crowded the prison system, the more business there is for the private prisons. The Oklahoma
taxpayers bear the financial burden of funding the DOC and its private prison contractors. It may
be of some interest to this Court that an article in Prison Legal News dated August 2015 has
stated that it is a private prison policy to enter in to bed guarantees, or "lock up quotas" with the
DOC, lock up quotas ensure that bed space contracts are kept regardless of whether or not that
bed space is occupied or unoccupied and is only incentive to keep prisons filled.
Arbitrary, retroactive application of changed prison rules by private prison auditors is a
form of fraud, waste, and abuse of taxpayers' dollars as well as being violative of ex post facto
prohibition. This issue should be fully investigated, litigated and adjudicated in a public forum
with oral arguments and briefs before this Tenth Circuit Court. A hearing is requested, as is
appointment of counsel to represent the Plaintiff.
The Tenth Circuit has in the past been critical of the private prison at issue in this
particular incident, the Great Plains Correctional Facility, regarding the improper issuance of
"bogus" write-ups given to inmates wrongfully, with subsequent denial of due process. See
Gamble v. Calhone, 375 F3d 1021, 1029 (lOth Cir 2004); Wilson v. Jones, 430 F3d 1113 (lOth
Cir 2005); also see Miller v. Menghini, 213 F3d 1244, 1246 (lOth Cir 2000); Harper v. Young,
64 F3d 563,566 (lOth Cir 1995) as well as Cotton v. Calbone,
In this Plaintiffs case, he has been, and still is being, punished very severely for what is
at most an inchoate offense. That is an offense that has allegedly been committed, even though
the substantive offense of escape was not consummated. Plaintiff Danny Barlor has never been
convicted in disciplinary or district court of the crime of escape and there has been absolutely no
"real" evidence of his ever having attempted to escape from prison.
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In another similar case, Burnsowrth v. Gunderson, 179 F3d 771 (9th Cir 1999), the
Court held that due process was violated when a prison disciplinary board convicted an inmate of
escape after that board held a hearing at which no shred of evidence of the inmate's guilt was
presented. As in Plaintiff Barlor's case at issue, the disciplinary conviction in Burnsworth was
based on a confidential prison informant. The disciplinary hearing was devoid of evidence to
support a finding of guilty of escape citing Superintendent v. Hill, 4 72 US 445, 457 (1985),
requiring that prison disciplinary convictions be supported by "some evidence" in order to satisfy
due process. Accordingly, the court concluded that the hearing violated the inmate's 14th
Amendment rights.
When a prison disciplinary hearing may result in the loss of earned credits, a prisoner
must receive (1) advance written notice of the disciplinary charges; (2) an opportunity, when
consistent with institutional safety and correctional goals, to call witnesses and present
documentary evidence in his defense; and (3) a written statement by the factfinder of the
evidence relied on and the reasons for the disciplinary action. Wolff, supra. In addition,
revocation of earned credits does not comport with the minimum requirements of procedural due
process unless some evidence in the record supports the findings of the prison disciplinary board.
Hill, supra.In Plaintiff's case at issue herein the record does not contain a proffer made by prison
officials as to what the informant could testify to, nor is there even a summary of what the
informant told prison officials. The prison officials further failed to conduct any kind of
reliability determination of the confidential informant, as is required by Taylor v. Wallace, 931
F2d 698, 701 (1Oth Cir. 1991 ). All that appears in the record here is a "bald assertion by an
unidentified person," and a claim that unspecified physical evidence was found.
In Aguiar, supra, the Tenth Circuit held that where prison officials say nothing more than
we know an inmate was planning an escape based on confidential informants and physical
evidence, this fails to satisfy even the relaxed standard of "some evidence" established in Hill,
supra. In Aquiar, supra, the court reversed and remanded to the District Court with instructions to
direct the restoration of Mr. Aquiar' s earned credits. Plaintiff Barlor is requesting the same
finding from this Court as in Aquiar.
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GROUND TWO
PRISON OFFICIALS HAVE RETROACTIVELY APPLIED A CHANGE IN PRISON
POLICY AND REGULATIONS TO THE PLAINTIFF THAT HAS PREJUDICED HIM. THIS
IS IN VIOLATION OF THE EX POST FACTO CLAUSE OF THE US CONSTITUTION'S
14TH AMENDMENT
Under a program enacted by the Oklahoma Legislature, the Department of Corrections
operates a system of good time credits, whereby prisoners can reduce their term of
imprisonment, pursuant to the provisions of 57 0. S. § 13 8.
The Department of Corrections is statutorily authorized to develop a written policy and
procedure whereby inmates shall be assigned to one of four earned credit classes, and has done
so in the form ofDOC policy OP-060213 and its successor, OP-060107. These are internal DOC
regulations, which have the force and effect of law on penitentiary inmates. See Prock v. District
Court o(Pittsburg Countv, 630 P2d 772 (Okl. Cr. 1981); Smith v. Scott, 223 F3d 1191 (lOth Cir
2000). The class level to which an inmate is assigned determines the rate at which credits are
earned. Each earned credit is equal to one day of incarceration.
Earned credits may be subtracted from the total credits accumulated by an inmate, upon
recommendation of the institution's disciplinary committee, following due process.
In this Plaintiffs case at issue, his disciplinary write-up for an alleged "plan of escape" in
1991 resulted in a disciplinary hearing before only one individual who served as the Hearing
Officer, Prosecutor, Judge, and Jury. This was in violation of DOC disciplinary policy
OP=060125 and was a denial of due process. And Plaintiff did appeal the disciplinary
conviction, but to no avail.
As has been set fmih previously, Plaintiff was also previously "accused" of an escape in
1985. Plaintiff did not receive a disciplinary write-up and no formal charges were filed in the
District Court regarding that alleged allegation. Although DOC policy requires that there be
either a disciplinary write-up or formal charges filed before punishing or restricting for any
incident of this nature as stated by Department of Corrections Director Larry R. Meachum in OP-
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060101. This policy is being violated in this Plaintiffs case. Plaintiff was lowered in earned
credit level to level one (the lowest level), all of his earned credits were revoked, and his
eligibility for advancement in earned credit level was restricted. This was in addition to the other
three allowable sanctions per OP-060125.
The custody assessment procedures in OP-060103(II)(B)(3) states:
"Consider all escapes or attempted escapes that have occurred during the
stipulated time period prior to the custody assessment ... necessary documentation
for Escape or Attempted Escape will be a misconduct conviction, felony or
misdemeanor conviction, as evidenced by a judgment and sentence ... every effort
will be made to verify the disposition of escape charges."
The DOC Systems oflncarceration policy OP-060107(I)(D)(2) states:
"Misconduct Record - inmates having an active Class X misconduct or escape
points will not be eligible for promotion to level 3 or 4 until the points expire."
According to the above two DOC policies, an inmate having an "escape history" will be
assessed with escape points all throughout his current incarceration. This was not always the
situation, however. At the time ofPlaintiffBarlor's conviction, sentencing, and incarceration, the
relevant DOC policies did not have a lengthy restriction on advancement in earned credit level
for an escape offense(s). Thus, the subsequent change(s) in DOC policy regarding escapes was
not foreseeable in 1985 and in 1991 when offense allegations were made and said policies should
not be applied to the Plaintiff. In support ofthis the Oklahoma Department of Corrections has
stated in Smith v. Scott that "the policy at issue is not retroactive and that misconduct security
points expire ten years after the date of his escape." The application of these changes is a
violation of the ex post facto clause of the 14th Amendment to the US Constitution. Furthermore,
the DOC's misinterpretation of the policy at issue allows the Department under color of state law
to "pick and choose" to whom this policy will be applied to. As has been previously stated prison
practices that result in unequal treatment among prisoners must bear a rational relation to a
legitimate penal interest. To prevail on an equal protection claim, an inmate must prove (1) that
similarly situated inmates have been treated differently by the government, and (2) that there is
no rational relation between the dissimilar treatment and any legitimate interest. Plaintiff did
make request to the USDC in his response to the Supplemental Report and Recommendation that
the Court require the DOC to release the following information (1) the number of inmates who
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are similarly circumstanced as this Plaintiff who have had security point reductions as a result of
the 1997 misapplied policy at issue and (2) the current number of inmates who have had security
point reductions 10 years after the date of an escape as stated by the DOC in Smith v. Scott. The
release of this statistical information would substantiate the Plaintiffs claim of ex post facto as
well as due process violations that has been brought before this Court. Plaintiff respectfully asks
this Court to require that the DOC would release the information requested to determine ex post
facto as well as due process violations have occurred by the DOC to the Plaintiffs prejudice and
disadvantage by applying said policy retrospectively as well as retroactively.
In Smith v. Scott, 223 F3d 1191 (1Oth Cir. 2000) this Tenth Circuit analyzed an almost
identical situation. A key question this Court considered is whether the phrase "active
misconduct security points" as used in the old version of the regulation encompasses the term
"active custody assessment points" in the Escape History section "from the 1997 amendment of
Op-060 102."
In PlaintiffBarlor's situation, the two alleged escapes generated two types of
classification points: both "misconduct security points" for one year and for purposes of security
assignment, and "escape history points" for the rest of his incarceration. Because the old DOC
regulation only referred to "misconduct security points" he should have been eligible for
promotion to earned credit levels 3 and 4 after one year and security misconduct points expire
after 10 years as stated in Smith v. Scott. Plaintiff in this case should be afforded the regulation
in effect at the time of the commission of his underlying criminal offense, his conviction, and his
incarceration.
Both the Oklahoma Constitution, Article II § 1 and the US Constitution, Article 1 § 10
prohibit ex post facto violations. An agency regulation (such as the DOC policies at issue herein)
which are legislative in nature, are encompassed by this prohibition, because a legislative body
"cannot escape the constitutional restraints on its power by delegating its law-making function to
an agency." US v. Bell, 991 F2d 1445, 1450 (8th Cir. 1993); Also US v. Saucedo, 950 F2d 1508,
1510 n. 12 (lOth Cir 1991). Thus, the contested regulations must be treated as laws for the
purposes of this litigation.
To fall within the ex post facto prohibition of the US Constitution, a law must be
retrospective, that is, it must apply to events occurring before its enactment, and it must
14
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Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 15
disadvantage the offender affected by it, by altering the definition of criminal conduct, or
increasing the punishment for the crime. See Smith v. Scott, supra.
In Plaintiff Barlor' s case, the amendment to the DOC regulation governing earned credit,
under which any inmate with "active custody assessment points" is not eligible for promotion to
earned credit levels 3 or 4 during the length of his incarceration was a substantial charge of the
prior version of the regulation, as was the application of additional security points due to the
misinterpretation of the policy at issue. This was not foreseeable at the time of the alleged
offense(s) therefore retroactive application ofthe amendment to punish the Plaintiff was barred
by the ex post facto clause. See Smith v. Scott, supra.
Whether a state law (or DOC policy) is properly characterized as falling under the ex post
facto clause is a federal question that federal courts must determine for themselves. See
Lustgarden v. Gunter, 966 F2d 552,553 (lOth Cir. 1992); USv. Bell, 991 F2d 1445, 1450 (8th
Cir. 1993).
In an Oklahoma case, Arnold v. Cody, 951 F2d 280, 283 (1Oth Cir. 1991 ), the court
applied a two-part test in holding that Oklahoma's emergency time credits statute violates the ex
post facto clause. Also see Lvnce v. Mathis, 519 US 433, 441 (1997); Weaver v. Graham, 450
us 24 (1981).
As set forth above, the Smith v. Scott, supra case is very similar and in some way
identical to that of this Plaintiff. This Tenth Circuit found in Smith that:
"We find that the 1997 amendment to OP-060213 was not foreseeable. This
decision is based upon several factors. First, and most importantly, the language
ofthe 1988 version ofOP-060213 plainly lacks any indication that 'escape history
points' are the same as 'misconduct security points.' The ODOC has not pointed
to any other document, statute, or regulation which would support its
interpretation."
This Court went on in the Smith decision to find that "based upon these factors we find that the
1997 amendment was a substantive change which was not foreseeable when the Petitioner was
charged with the escape misconduct. It application to Mr. Smith was a violation of the ex post
facto clause and due process notions affair notice, and the writ of habeas corpus should be
granted."
The Plaintiff has stated before this Court that there are comparisons between his issues
and those of the Petitioner Steve Smith, and that those comparisons are to some degree identical.
15
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''• Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 16
In Smith v. Scott, the Petitioner suffered demotion in level and loss of earned credits as a result
of a misapplied DOC policy, as did Barlor. In Smith v. Scott, the Petitioner was given additional
security points by a DOC policy that was proven to be in ex post facto as well as due process
violations, as was Barlor. However, in addition to these disadvantages and prejudices, Barlor was
placed in maximum security as a result of the security points given him by the policy at issue.
And for no other reason than having excessive security points as stated in CIV -15-66-D. The
circumstances which revolve around this maximum placement occurred at the Oklahoma State
Reformatory in January 2013. Maximum security placement of the Plaintiff occurred in March
2013, and continued until June 30,2015. The Plaintiffwent to great lengths in his Response to
Supplemental Report and Recommendation and in his Response to Defendant's Motion to
Dismiss, or in the alternative Motion for Summary Judgment to give a true and factual account
of a 2013 incident that was used by DOC officials to place the Plaintiff in maximum security by
using due process as well as ex post facto violations. As previously stated, the Plaintiff does not
have legal counsel to accurately present his issues to the Court and the Plaintiff's intentions was
to give the USDC insight to events as they actually occurred, so that the Court could see the true
nature of these events and have the necessary advantage needed to render an unbiased decision in
CIV-15-66-D. The Defendants would lead this Court to believe that allegations made against Ms.
Ellis are "absurd allegations" as well as deny that any documents exist in relation to these
allegations. However, this Plaintiff did in good faith present these documents to the USDC. In
addition to this, these documents are supporting evidence to this Plaintiff's complaint, was
xeroxed, logged and dated by facility law library services, and mailed by US mail to the Court
Clerk, USDC. All documents are related to this Plaintiff's complaint and are signed and dated by
DOC personnel. Ms. Ellis did use here influence to manipulate the disciplinary process as well as
Plaintiff's security status. Ms. Ellis did conceal evidence of this Plaintiff's innocence where there
was officer involvement where an inmate injury did occur as Plaintiff stated in his original
complaint.
In respect to these documents, Plaintiff invokes the provisions of 224 7 in this action and
respectfully requests this Court to acknowledge the documents at issue in light of the Defendants
denial of the existence of said documents and because the DOC has prevented the Plaintiff from
presenting a complete and proper defense in violation of Brady v. Maryland, 373 US 83 (1963)
and US v. Bagley, 473 US 667 (1985). Holmes v. South Carolina, 126 S.Ct. 1727, _ _, (2006)
16
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Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 17
(citing State V. Gregory, 343 S.C. 543, 541 S.E.2d 541 (2001)(third party [or documentary]
evidence is admissible if it '"raise[ s] a reasonable inference or presumption as to [the
defendant's] own innocence.
With regard to the documents referred to, the Plaintiff did present these documents as
attachments to the USDC in support of his claim of ex post facto and due process violations as
well as damages that have occurred as a result of those violations. As an example, the maximum
packet dated January 29, 2013 and presented to the USDC as attachment E2 does state that this
Plaintiff "is in need of maximum security placement as he poses a threat to the security of the
facility staff." (OSR) Even though all evidence of this alleged incident has been expunged from
Plaintiff's filed file jacket, this packet will be viewed by the Oklahoma Pardon and Parole Board
at the Plaintiff's next scheduled hearing and will certainly influence any decisions made
regarding this Plaintiff. This maximum packet would not have occurred were it not for the
maximum points given to Barlor in 2003 as a result ofOP-060213 and, to verify this, the
offender who actually committed the battery and convicted in disciplinary court for the offense
was subsequently transferred to another medium security facility. In addition to being placed in
maximum security attachments H-1, H-2 section C.9 states Plaintiff had no misconduct to place
him in maximum security, section 10, D and Estates Plaintiff was denied transfer, from a
maximum security to a medium security facility, due to the 1985 and 1991 alleged offenses that
support, the Plaintiff's claim of due process as well as ex post facto violations.
To further substantiate the Plaintiff's claim that violations have occurred the maximum
packet (attachment E-2) was dated January 29, 2013, however, the disciplinary conviction
responsible for the decision regarding maximum placement was overturned by the warden of the
facility (OSR) where the alleged battery was said to have occurred on 2/13/13 stating that due
process had been denied. See attachments E-1 and B-4. Hence, the only consideration given to
the maximum placement of the Plaintiff were the security points given as a result of the
misapplied policy (OP-060213) in 2003 for alleged occurrences in 1985 and 1991. By DOC
policy maximum placement consideration only takes place when an offender has 13 or more
security points. The Plaintiff simply points this out to show that the allegation of battery was not
the reason for his maximum placement.
In considering the request the Plaintiffhas made to this Court in regard to the DOC
documents at issue the Plaintiff would ask this Court to consider attachment B-4 section A-5
17
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Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 18
where the warden of the OSR facility, Tracy McCollum, has stated "documentation was not
provided for the reason of denying the viewing of the video." As well as attachment B-1 where
the Holdenville maximum facility Investigator Lt. Stanley has stated that "I have tried on 4
occasions to receive video and statements needed I have been unable to receive items." And also
the Disciplinary Officer's statement in attachment B-3. G. Robinson has stated "unable to obtain
video evidence from writing facility."
Representation for the DOC has stated several times in his Joint Response Brief that there
were no attachments or documents and uses this as a basis to ask this Court to set this Plaintiffs
complaint aside, citing Hall v. Bellmon, 935 F2d 1106, 1110 (lOth Cir. 1991) and Dunn v. White,
880 F2d 1188, 1197 (1oth Cir. 1989). "A plaintiff must assert facts which are supported by the
evidence and mere conclusory allegations without supporting factual averments are insufficient
to state a claim on which relief can be based." Plaintiff also invokes the provisions of these
established case laws. The Joint Response Brief presented to this Court on behalf of the DOC
states that Mr. Barlor's allegations in regard to Defendant Ellis are "absurd," (page 15, lines 1-3).
However, in this context, by the Attorney General's own admission, Ms. Ellis' actions are
construed as "ill-willed" in the event this Court determines, based on the enclosed attachments,
that evidence was, in fact, concealed. Plaintiff would ask this Court in light of said documents
which DOC deny exists what is it that facility staff at OSR is attempting to hide or conceal from
this Court? Plaintiff did make request to the USDC that the DOC be required to release the
113/2013 surveillance video tape so that determination ofthe true nature ofthe issue at hand is
this instant case would be made.
The Plaintiff in this instant case has carefully read all correspondence received from this
Court and has only added the attached documents as a result of the DOC's denial that these
documents exist. The Plaintiff did make reference to the documents as attachments in all motions
mailed and filed in the USDC as well as deposited in the United States mail, after having been
logged and dated, exact copies of all correspondence to the Oklahoma Attorney General's office.
The Plaintiff believes he has presented to this Court evidence of due process and ex post facto
violations as well as violations of DOC policies to the Plaintiffs prejudice and disadvantage.
And because the Plaintiff has laid claim to these violations he asks this Court to acknowledge an
additional attachment labeled as E-5, which directly relates to the issues centered in this Writ and
18
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Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 19
shows that disadvantages resulting from OP-060213 are current as well as ongoing since the
misapplication of this DOC policy.
Plaintiff contends he was placed in maximum security as a result of Ms. Ellis
manipulating his security status as well as the disciplinary process to cover for officer
involvement where a serious inmate injury did occur as stated in his original complaint.
Plaintiff maintains he was denied constitutional protection afforded him under the Double
Jeopardy Clause. The DOC is not authorized to inflict multiple punishments upon the Plaintiff
for the same offense. It is this Plaintiff's assertion that prison officials did conceal evidence of
officer involvement where an inmate injury did occur. Plaintiff was placed in maximum security
in an attempt to make him less credible in regard to this incident and excessive security points at
issue and given by the misapplication of OP-060213 were used to justify his maximum security
placement. This policy is not retroactive as stated by the DOC in Smith v. Scott, supra, and
should have never been applied to this Plaintiff.
WHEREFORE the reasons set forth above, Plaintiff prays that this Tenth Circuit Court
grant the relief requested in this case and issue an appropriate order to the Oklahoma Department
of Corrections.
Respectfully submitted,
{)c G~
JDanny Barlor #85688
JCCC Unit 4E
216 North Murray Street
Helena, Oklahoma 73741
(580) 852-3221 c/o Jo Gwinn, Unit Manager
Certificate of Mailing
I, Danny Barlor, hereby certify that on the 3_ day of t\l.o.v-~..U , 2016, I mailed a
true and correct copy ofthe foregoing Briefto: Lc'-Ar-r C..Lvk..) ~. t...ut Stod..Jt.s
~.Art £~l~ Qr i--k -b-t"'- Cu~.-\=,UJU"'\v.u, Cw lora.o\C
19
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Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016
{ ·-:_.··
Page:Parole/Comm/PPCS
20
OFFEN~.E; REPORT. ·~\``;.~:··- ~/ Dkt. Date
Fc;acility. -
-~ ...
·.·Computer Code B1il
SECTION I · ; ·-~ .v. ''
Nam-e- ~of Inmate i" ODOC Register Number
Place of Offense I
~5 "'`` Housing Assignment
i)CC.c IU-\U ;::;~1-
OHense Offense . . _
Rtfe.M ~te-d £sc..a{JQ. Computer Code j(p~.~s
Description of incdent (to include any unusual inmate behavior)
lt:-"Y'i I
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· . .,
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Disposition of Physical Evidence (if any)
· ·: ·: ;·U.Jr'fun~diate
, .. ' " ··":" .
Action
..
Taken (to include the use of force and prehearing. detention)
.
~\ \\ \ __ ~-
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· ··Name and Title of Reporting Employee
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Name·'t~d H(Ke,Jl-1-c
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(r(edd r !,9•1e1stigatioR'by
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SEG,'tiQN II . Inmate should initial appropriate response . 1 . . . . . . .·.. ·. :{f~''?~
:_;t:.v I have received a copy ofthe written charge against me. I realize that I have a right to remain silent and I understand that I ha````
.~'1J- a righ.t to an impartiai hearing. . .
____._. - I r~quest a hearing .. ·
.,& . _
-.-' ·r request a hearing 't>ut I waive' my right to 24 hours preparation' time.
I waive my right to a Disciplinary Hearing on the above charge. I do this of my bwn. f,re~ choice w.ith full knowledge that. this shall
be con9iqered as a plea of gqihy and that allowable sanctions be imposed with no ii.gh,t tor appe~l,
• ~- . ; ' . ' .: '
·
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of)pmate , ODOC Register Numper
.,.;. r~r- r Y Time
__ \._. inmate chose not to sign for a copy of the Misc6nduct Report. ;{~)his time. -,._,•
Y("
£IV!nmate ddes not ~ish to present witn~sses \'
Inmate pesires a Staff Representative Assigned
(Inmate's Signature)
-~nmaie does not desire a Staff Representative Assigned
.· '• .' .· ~ ~i!-.l;f~.:.~. -
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Sta~ement(s) of inmate or staff witness or others
:,
.-
.
...
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~----````----------------~--
~Writt~ri confidenti~l witness testimony attached
List of approved witnesses attached
.. ·•.
·,·:-,.- Discretiomiry action taken regarding witness testimony. Documentation/Justification attached
·::',:- . ·
~============~============================~
.. ~- : . -
.-.
Hearing Date ,J~dd~t¥).
S1gnatu're~"of
Investigator . . .
•· Hearing Time
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I acknowledge receipt of this Report
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,J,In"m,...am:=·::``..Si,.,....g-naf~u-=re::::L=::::__------ ··:'
ORIGINAL: Director
FIRST COPY: Field File
SECOND COPY: Inmate DOC 062002 (R78"
I I
.. :.
Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 22
··~
Tape No.~
. ', -~-· .. : . Side
Footage____6;..
. . . ~,:./
"'·. DISCIPLINARY HEARING ACTIONS
I. Name of Facility · · :.2:) b C C!_ Facility Code c;l 9 r1 Date of Violation
Name of Inmate (last Name) dt,e/ 0£ (First Name) ___:"'":z.:>-~w"'"."'d.::..:,.....~=-=---7'-1<--_ _ _ _ _ M.L _ _ _ __
Violation A77J::•. ,_, pled rC sc &,cu-:: Violation Code _ ____c_/!_,~""''-~_,3.....,__ _ Class of Oifense(3; 8
Hearing Date _Ld_ I ._LL I 9I Inmate Number _ __._.,.f'-':.5(=---=0"'--'-~"--.'-'Cf''----_ Time --"$"'---'-.'=5'--c""z,. .:'.:. . ;v'-'''-'-')_ _ P1ace # N-c-1.
1 I
Assigned Staff Representative A...)
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n. (understand that I waive the opportunity of this case being appealed if I glead guilty_ to this offense.
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Signature and. Number
2. Not Guilty LL. Inmate's initials _ _ __
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``n~:bg,·wit~:ypt~ :~e~d``{j~ 2. Not Guilty _ _ _ __
·E0d'~0 ``1~dupon~rBnding~Guilt ~k``+·~k~-``~r_·_.~0~;ll£~.·~t~h````~h``L'~S~-w1t~·~··````--~·-·=~«L````r``~&~-``~L``7~J~fu.t~'l~·uh``-~uk~j~h``~?~·~/~/~-~
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coae . .. SuspensiorJ
Punishment imposed: 1. ·z:J:) for-~-,-,--"-:'--- de
2. A-:2. for de
3. for d<
[)isciplinary Officer's Signature -4-/_,_~l-t,.,.: " Z; . .f~.-rC"'i""-Z"'.l.,_:'._:-:....4".'~"·.~"-i"';;f'"·-'-'--='---------'--­
-!
v.
As a result of conviction for subsequent offense prior to' expiration of the suspended punishment, the previous suspended
punishment is hereby- revoked: to run consecutive to the new punishment.
{
Previous Violation:- --c'---------'----------;---~-----'­
Previous Punishment: 1:-- - - - - - - - - - - - 2. 3.
Date of Imposition: __}__}_~
... / \ ,
.....
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Date. . - /0 tfll ``~ Signature '\t)l/\ . ( ``)z_..,
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VI. I have received a copy of the dispostion. >)
Date _!__!!__ I _!__2_ I ti I /,.. l
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Inmate's Signature and Number . /~..,._ ...... ,
/
ORIGINAL: Director
FIRST CO-PY: Field File
pECOND COPY: Inmate DOC 062003 (R787) •
I I
Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 23
. State of Oklahoma )
. County ~i \~-u :3•'e..S }
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I I
Appellate Case: 16-6093 Document: 01019716770
··~
Date Filed: 11/07/2016 Page: 24
~ .·
RECEIVED
July 21, 2005
.;- .J...r,.;
, ~.~ JUL 2 7 2005
o.Ji0' (\. i.:,.
MEMORANDUM
"
TO: Sam Calbone, Warden n. u.'
Great Plains Correctional Facilit~\ ~ 1~
FROM: Debbie L. Morton, Manager lJ_Y;V
Director's Designee
Administrative Review Authority
SUBJ: Danny Barlor, #85688
05-1485; 05-70
1; Classification
The attached grievance was returned to the inmate because it is out of time. However, this action .,
effects the imnate at each classification review and therefore, is considered to be timely. An
amended respons;should be prepared to answer the inmate's issue .
. Per OP-090124, the reviewing authority must respond within fifteen working days of receipt of the
returned grievance. Once the grievance has been reinvestigated and responded to, please forward
the amended response and the original grievance/paperwork to Deborah Romine with a copy of the
response only to Deborah Romine, Administrative Programs Officer, Administrative Review
Authority.
Thank you for your cooperation in this matter.
For your information, the inmate does not receive a copy of this memo.
/DR
Attachment
cc: Dennis Cunningham, Administrator, Private Prisons
G- \
Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 25
. I
---- i - . . ' ',--
r.:);~
I,; ._'.'; <--•,_;_.-<.; ·:)
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3400 N. 1·:\_STER!,; -P.O.
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'v,.
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LARHY H. M£ACIWM Ju.ne 25,-1984
I liiO:CTt)H
``' { :-) ;)`` -``-
{_/
Jom..; GRIDER
ME1·DFJ\hT:UI1
CLI !T S."-';DEL 'lD:
Ll•'Jlutr !Jifj·( tl!r
.·\drlilfd">1! .1(HI' St·ll.H'(·S
IJ,•plll) f)Jrn·ttlf
r·,,J,lltllJ!!llj' C1rit.t?...n c:lo:..Tt::entation fro<<
appropriate I-2'.-; 2nfora-::mcnt or Criminal ,Justice p2rsonneJ.
if the escap:'3 'd.>S fran a juL"ic~diction clh:::r tJ1a11 the
[ h·J···JI} t 1 r•, l!Jf
Oklabcrn.--:1 Dep::rrb1LJ1t of Corn.~;:::t ior:s. Alleg-eQ.i.. escape~
j' [ (,J.;_._!. ..J ~ 1 ;_.I H..~ l'...:. [ L! !e · frcrn''t!:he Oklahana ·hlafOilli'tlrol"'-t ``·Coz:-root..ions jurisdictioJt
for .m±eh 'f'``''is··not!J;: ami~nQ.u<;~;t: convict:iGn-- or: -convictio~
'! WH!AS \IlliTE in•di~riai!:•0!1>\.¥i:: 'i.Shal..J;.,f);l9t....,hed:lO.Dt;ic1ered- .. for sc-curi~
/.h•j•',J!)' Dtrt·~ tur cl~'fic~tiont
I'J•.f'r..lllc!. ;i.i,'j ~:.•.:f\1t't'~
Ir. rna.tes \·:hose security classification are effected by this p::Jlicy
JO\'C£ JJ\CKSON
revision are eligible for inncdi2.tc recJassification. Copies of tl!is
rncm:Jt"2..'1du:·n shall be m::o.ck~ avaj 12hlc~ to th? jJ1JY..Cltes by r;:ostir:9 it in
each living area a.nd the law J.ilxury.
LHH/bh - 298
cc: Jo:tm Grider 'l'om LY~elace
Joy Ha&..viger t>~lFacility Heads
Ga.ry /~. Parsons Stephen lv. Ka.i~.r.:>r
Ga.r:-y D •.. t-la ynarc1 Les CrabtreG
Cliff S-.:mC.el
\:./EQUAL OPPOHTLJ.\.ITY E\1PLO'
Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 26
Case 5:15-cv-00066-D Document 20-11 Filed 05/29/15 Page 5 of
6
(-c·~
:~ '(Jl~
•
MEMORANDUM
DATE: January 29, 2013
TO: Lesla Miser, Administrator
Classification and Population
FROM: Tracy McCollwri, Warden
RE: Justification for Maximum Security Placement
Offender Name and Number: BARLOR, DANNY 85688
The above ref~renced offender Is In need of maximum security placement as he poses a threat
to the security of fa~ility staff for the following reasons:
1. Incident/situation that occurred which resulted In this request (be very speciflc)ON
01/03/2013 OFFENDER BARLOR, DANNY 85688 WAS INVOLVED IN AN ALTERCATION
WITH 3 OTHER OFFENDERS RESULTING IN 1 OFFENDER BEING SENT TO THE
EMERGENCY ROOM AND HE REMAINS IN THE HOSPITAL AT THIS TIME. BARLOR WAS
PLACED IN SHU AND DROPPED TO L-1. OFFENDER BARLOR WAS FOUND GUILTY OF 04-
4 ~LASS X MISCONDUCT. UCC RECOMENDS TRANSFER TO A MAXIMUM FACILITY.
2. Total number of m'isconducts offender has received this incarceration. Specify the number
which are violent and the number which were violent against staff.
TOTAL MISCONDUCTS-15 VIOLENT 6
01/29/2013 04-4 PARTICIPATING IN AN ACTIVITY THAT DIRECTLY RESULTS IN THE INJURY OF
ANOTHER PERSON ClASS X. 11/30/11 09-2 POSS OF A WEAPON CLASS X, 03/04/11 02-23
SELL/TRADE/GIVE PRESCIBED DRUGS CLASS X, 02/19/11 04-4 ACTIVITY RESULTING IN INJURY
CLASS X, 10/02/91 16-3 ATEMP TO ESCAPE CLASS X, 12/15/88 04-3 BATTERY OF ANOTHER
PERSON CLASS X ~
3. Has a mlsconduct(s) been written as a result of the Incident/situation precipitating
this request? If so, list the charge. If not, explain why.
YES: 04-4 PARTICIPATING IN AN ACTIVITY THAT DIRECTLY RESULTS IN THE INTENTIONAL
INJURY OF ANOTHER PERSON.
4. Is there an internal affairs investigation on-going as a result of the Incident/situation,
or has an internal affairs Investigation already been ·completed? Give details.
NO
@
OAG/A.JS/Barlor v Patton - CIV-15-66 (WD)/0057
c.-~
Case
Appellate Case: 5:15-cv-00066-D
16-6093 Document
Document: 20-11 Filed
01019716770 Date05/29/15 Page 6 of 6 Page: 27
Filed: 11/07/2016
I_ . J.
/) ' )
5. List any !mown gang associations and gang activities of the offender.
6. Attach copies of all related Incident reports, misconducts and sanctions Imposed, or
any other pertinent information related to this request.
rn/~pproved 0 Disapproved
``1JL-
Signature of Administrator, Classification and Population
::i/2&//13
Date '
If disapproved, state reason(s) why below and return to the requesting facility.
Note: Offender transfer packet is to be attached to this justification form.
(t)
OAG/AJS/Barlor v Patton- CIV-15-66 (WD)/0058
I' '
Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 28
OFFENDER MISCONDUCT APPEAL FORM
DUE PROCESS REVIEW
Appeal # OSR 13-08
I. Name of Offender Barlor Danny DOC# 85688
Last Name First Name
Violation Battery 04-4, Class X Offense Date 01/03/2013 Hearing Date 01/25/2013
II. Due Process Review:
1. 0 Offender provided written notice of the charge.
2. 0 Offender provided at least 24 hours to prepare after receiving notice of the charge before the hearing was conducted
3. ~ Offender provided copies of evidence used. {except any confidential informant statements and only photocopies or
written description of any physical evidence)
4. [gl Offender afforded the opportunity to call witness/es
5. 0 If relevant witnesses were not allowed at the hearing, were their written statements submitted and is there a
discretionary action form?
6. ~ Offender permitted to present documentary evidence.
7. 0 Offender permitted to attend hearing. If not, is there documentation as to why?
8. 0 Was there a determination of the reliability of any confidential informant testimony?
9. ~ Is there a written explanation of the evidence used for a determination of guilt?
10. 0 Is there a written reason for the discipline imposed?
11. ~ Is there "any/some" evidence of guilt?
12. [gl If applicable, was a staff representative/mental health staff representative assigned?
13. [gl No direct involvement by the hearing officer?
Finding/Issue: See attachment
!~
'/! [
Reviewer's Printed Name and Signature _."-!Li.!.!n~d_,_a.!.!M.!.!o"-!n-'-'k~s-..l.\\.-".!,.(CA'"'''-"ik.:.:~··
n (1 1 ,,
".../..:::~C..:.·~\.......!:Gv``L-::-·:t.P=;.__----
"":::::(R_::s..' Date February 13, 2013
Ill. Facility Head Action
1. Affirm 0 2. Dismissed 0 \3. Order Re-hearing and Re-investigation\~ 4. Modified 0
Printed Name and Signature
____-;----)- A(-:``-
. . !T~r~aC: :.~Y. . !M.!.!.!:.cC" o" l.! lu'-!.m!.!- _ _ _~-'----.£.7-___.;.-,£----t~:....:~__.::=---- Date February 13. 2013
IV. I have received a copy of the due process review.
2- {$'- ) 3
Offender Signature l'j DOC Number Date
Staf
~A/~ 1tness
.l··
Date
~.5- t.3
V. If affirmed, to appeal! must forward my appeal to the director no later than 30 calendar days after receiving this due
process review and must use form DOC 060125V.
Original: Commitment Document Folder DOC 060125 L
First Copy: Field File
Second Copy: Offender (R 12/10)
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Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 29
OFFENDER MISCONDUCT APPEAL FORM
DUE PROCESS REVIEW
Appeal# OSR 13-08
I. Name of Offender Barlor Danny DOC# 85688
Last Name First Name
Violation Battery 04-4, Class X Offense Date 01/03/2013 Hearing Date 01/25/2013
You have alleged you were not:
(A.4.)Permitted the opportunity to present relevant witnesses or to submit relevant written witness statements.
The Investigator indicated on the Investigator's Report that you wished to call offender Robinson as a witness. Offender
Robinson did not testify during your hearing and there is not a Witness Discretionary Action Record for offender
Robinson giving the reason.
(A.S.)Permitted to present relevant documentary evidence.
The Investigator indicated on the Investigator's Report that you wished to present documentary evidence and you also
requested during your hearing to view the video. Per OP-060125 (F.3.c.) "~•aUJtJO-.,&m::f"ar:t•oflhl
tv.,_, -~'IMttJr~Rdtbei_.,~: .· .· .. ~w»
•·•~ ,__elltatton wa.ul8.icP"*''``""''...``*"'-_.,~
You have alleged there was no:
f!h2.) Written statement of the evidence utilized for a determination of guilt.
Per OP-060125 (IV.D.2.): "The finding of guilt on the "Disciplinary Hearing Report" form must be documented by a
written statement by the disciplinary officer and a copy provided to the offender. The reasons must point out the
essential facts upon which inferences were based, mentioning what evidence the reporting officer relied on. The
statement regarding the evidence relied upon for the finding of guilt shall specify the offending behavior of the offender
The Disciplinary Hearing Officer's statement written in Section Ill does not contain the language required by policy.
*Based on the above, due process was not provided. I am ordering a re-hearing and re-investigation for this offense.*
At least 24 hours prior to your re-hearing you will receive written notification of the scheduled date and approximate
time of your re-hearing.
Original: Commitment Document Folder DOC 060125 L
First Copy: Field File
Second Copy: Offender {R 12/10)
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Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 30
Investigator's Report
· Investigating Officer (Print): c;;£,. lxr
•1
Offender Name and Number: d .61-C /o,./ .g $(:, fV Date: -2-/ '7- }J
Offense: {7-..f'L .] /
/:d-+4' ``
~4 Offense Code:
-
L[ ~ 'tX
.
Date of Offense: ;·'" Y-1-:1
Statement of offender regarding offense:--,,r-d,.L..'_··+'=-· -~_.;:M~_,v,'-',1-~·-------------
A, Offender wishes to call witness/es D Offender d;""-not wish to p~rsent witness
Name: ~ kXl e"d Can testify toZ,-~r-F""d~-~t;L_-<-·
_ _ _ _ _ _ _ _ __
Name: tZcz V1 ~<{(.('. A_.../[. 4
YES NO (One box should be checked for each statement)
1. D y Offender provided documentary evidence to investigator. If yes, state evidence.
2 Statement(s) provided by witness/es attached (o_r document refusal to provide
. D --.ff information).
3.~0 Discretionary action taken regarding witness testimony. Documentation/
justification attached.
4. _...g-- 0 Offender has received photocopy/description of all evidence.
5. D.~ Written confidential witness testimony/evidence taken (not provided to offender).
6. 0 ,....U A staff representative will ONLY be appointed if offender meets criteria specified
in OP-060125 Section Ill. item A. Assignment of a staff representative is
warranted. If so, assigned representative is:_ _ _ _ _ _ _- - - = - - - - -
7.~ Offender requested documentary evidence. If yes, state evidence:{!\ d--e .c.....--
. If denied, state reason for denial: '
-------------------- ----------
8.~ 7
CRC attached (front and back side )
Additional facts discoverefL_by investigator not in incident and/or witness
o}v.._ '-1 r-· • ~l
Your disciplinary hearing will normally be scheduled on a docket, which will commence within seven
days (excluding weekends and holidays) fro. m the da.te the responsibl;ls aff person affirmed the
chare-~ a~inst you. ...... ~ . \ I
liff_l-'_ JJUU I t_ C 2 L <. ,:) ..~i<)!!:.L-
'1 0 ,_~,..;::.;-"T--~--
.. .
Hearing Date ~pproximate Hearing Time and Location Investigator's sfgnature
I acknowledge receipt of this report; all attachments, and the contents therein. (4-4238)
· Date :2_,17, /_J
Offender's Signature
Original: Commitment Document Folder
First Copy: Field File
Second Copy: Offender DOC 0601258 (R 10/12)
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Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 31
Case 5:15-cv-00066-D Document 20-15 Filed 05/29/15 Page 1 of 4
Attachment
15
OAG/AJS/Barlor v Patton - CIV-15-66 (WD)/01 08
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Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 32
Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 33
Case 5:15-cv-00066-D Document 20-14 Filed 05/29/15 Page 3 of 4
OMSO 199D . ) MALE OFFENDERS DATE: 01./ 14;,/,l.S.
PAGE 2 OF OKLA~".JMADEPARTMENT OF CORRECTIONS .) TIHE: 02:26:46 PH
CUSTODY ASSESSMENT SCALE
DOC: 85688
7. ASSIGNED PROGRAH PARTICIPATION (since last classification) 0
~ None, wating list, enrolled, participating 0 pt
Cl Completed program within past 2 years (unless has points in escape section) -1 pt
Recommended Program NO ASSESSED NEEDS/PROGRAMS ALREADY COMP End Date
Recommended Program VoTech End Date
Recommended Program Masonry End Date 07/12/04
Recommended Program Business and Basic Computer Technology End Date 11/26/03
Recommended Program Education End Date
Recommended Program GED llnd Date 03/15/79
Recommended Program Daily Living Skills End Date 02/0l/99
B. ADJUSTMENT (indicate earned credit class level assigned) 0
0 Level 1 1 pt
~ Level 2 (or has points in escape section) 0 pt
0 Level 3 and 4 (unless has points in escape section) -1 pt
9. CURRilNT AGE 0
0 Age 25 or younger 2 pts
0 Age 26 to 31 1 pt
00 Age 32 to 39 (or has points in escape section) 0 pt
-1 pt
0 Age 40 to 49 (unless has points in escape section)
Age over 50 (unless has points in escape section) -2 pta
0
Offender 1 s current age is:59
10. COMPREHENSIVE CUSTODY SCOR!l (add items 1-10) Total Score: 16
C. SCALE SUMMARY AND RECOMMENDATIONS Assessed Custody Level: MAXIMUM
1. CUSTODY LEVEL INDICATED by SCALE
0 6 or fewer points on items 1-9 Minimum
0 7-12 points on items 1-9 Medium
00 12 or more points on items 1-3 Maximum
013 or more points on items 1-9 Maximum
2. MANDATORY OVERRIDES (No lm1er than medium security) reason is required
0 Life/Life without Parole 0 Restricted !larned Credits With llxcess Days 00 None
0 Time Left to Serve (Highest Crime Category)
3. DISCRETIONARY OVERRIDES FOR HIGHER CUSTODY LllVEL reason is required
D Circumstances of the offense 0 Hanagement Problem 00 None
0 History of Violence 0 llscapes
0 Gang Affiliation 0 Felony Detainer
0 Time left to serve D Pending Cases
0 Other (specify) :
4. DISCRilTIONARY OVIlRRIDES for LOWilR SECURITY LllVEL reason is required
0 None
0 Circumstances of the offense 0 Outstanding Conduct
0 Time Left to Serve GO Other (specify); 4YRS CLEAR CONDUCT
5. RllCOMMEND!lD CUSTODY LllVEL
D Minimum (< 7300 days) 00 Hedium 0 Maximum
6. Community Placement (<2920 remaining and meet eligibility for community as outlined in OP-060104)
0 YES 00 NO
1. GPS Placement after 90 days at community as outlined in OP-061001)
0 YES 00 NO
8 Custody Level Assignment: MEDIUM
9. Comments: ``IHC...,.IPl~,!~OI``~)>*'"``·illiSQ i6IWi1 lli!1118Mft',........_.~._WBuRii•·~WwBiili•
I'IM€etiDUii~'~ll~ll£1:;AII'ilillil? II'MIII!!~!t' 'N t+liDi.41H..,i'~.
DOC 060103A (H) (R 10/14)
OAG/AJS/Barlor v Patton CIV-15-66 (WD)/01 06
Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 34
I I
OKLAHOMA
Appellate Case: STATE01019716770
16-6093 Document: DEPARTMENT OF CORRECTIONS
Date Filed: 11/07/2016 Page: 35
New Arrival/ Adjustment Review I Earned Credit Level- Nov 2008 DOC# 85688
Offender Information
Facility _ _ _ _,...J,_c,_cc...__ _ __ Facility Arrival Date _ __.l....ou.t.-.2....s.~-t.2....
g...,J...
s __ lARC Arrival Date _ __.o~su.t...,l..;z9.L/.o~.l..;z9,g_B&2_ _
Name BART.oR. DANNY R DOC Number BS6BB Gender MAI,E Date of Birth _ __.Q....3u.I.-.2...,J.~-t....
J ..;z9_..s....
s __
Date of Assessment QB /lQ /2Q16 Housing Restrictions NO Identification NO
Name of Emergency Contact 5arlgr Relationship Mather PhoneNumber C4QSI609-6176
Address 46QO se 26th Pel City. OK 73115 Will 1/M reside at this address after re-entry? No
Sentence Information
85% NO 57 O.S. 1991 Sec 521 eligible _N..;..o_t_e_1_i....:g"i;,b;..,l....;e;,;._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
PPWP eligibility Days Remaining 2390
~li\111-~' .,_... ~,P,olntatHI•I. Assigned Security MED Mandatory Override?
Misconduct History Active Misconduct Points
--------------------------
0 Date of last Misconduct .,;.,lulu/;,jl.ll6u./"'2.J.I0..1.l.o~.l_ _ _ __
ParoleDate 02/01/2017 ParoleStipulations None found
---------------------------------------------------------
Parole Conditions None found
Escape History ---------------------------------------------------------------------------------
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - E s c a p e Points
---
Facility Security Level From Custody Escape Date Apprehension Date
Current Patterns of Behavior
Performance Rating = Poor, Good, Excellent, Outstanding
Staff orrrsraNIUNG Program Participation _ _..,~o.ux.~..~rr.,.s>.JT..c:AwNPu.u.T.~:~NJ.:iG'--- Job _ _..,~O,ui~IT._.SI.JT..c:AwNl)u.u.I.~:~NJ.:iG'---
Other Offenders OUTSTI\Nl)TNG Personal Hygiene _ __.o.<>x.uiTu;SuT..cA...,Nl)........,T..,N,.,r.'--- Living Area _ _..,~O,ui~lTuS:uT..c:ANDWJ.ui~N.I.:iG'---
Program I Job Evaluations
Month/Year Rating Assignment
08/2016 Good Unassigned: UNEMPLOYED
07/2016 Good Unassigned: UNEMPLOYED
06/2016 Good Unassigned: UNEMPLOYED
05/2016 Good Unassigned: UNEMPLOYED
Case Plan
Initial Plan
Needs J;>lan of Action Projected Enrollment Completion Restricti~s/Clonfne§tsl,'
com``- ' l 111e
Updated Plan
Needs Plan of Action Projected Enrollment Completion
Education Daily Living Skills COMPLETED 02/0l/1999 Smart 3/16/90 & IPCS
6/17/83
Education GED COMPLETED 03/15/1979 Smart 3/16/90 & IPCS
6/17/83
VoTech Masonry COMPLETED 07/12/2004
VoTech Business and Basic Computer COMPLETED 11/26/2003
Technology
NO ASSESSED No Plan Needed
NEEDS/PROGRAM
OMS0188D DOC 060203A (R 11/08) RUTLMARK 08/14/2016 14:25
E-S
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Appellate Case: 16-6093 STATE
OKLAHOMA Document: 01019716770 Date
DEPARTMENT OF Filed: 11/07/2016 Page: 36
CORRECTIONS
New Arrival/ Adjustment Review I Earned Credit Level - Nov 2008 DOC# 85688
Harden/District Supervisor or designee approval
Pre-Release
Financial
Employment
Program Referral
Residence
Comment
Earned Credit Level Eligible Action Comment
LEVEL 4 Stay out of trouble and find a job to maintain le·
Prepared by Date ALl 's tit&
::hairperson Date AUG 1 § 2016
'v1ember Date AUG l 5 2015
Date of Next Review 12/08/2016 Comments INMATE HAS 9,703 DAYS REMAINING - ECL 4 1/1/16.
"''"'"' Sig,,,, ~"··~,``~
~u ~ Date
AUG 1 5 20\&
OMS0188D DOC 060203A (R 11/08) RUTLMARK 08/14/2016 14:25
Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 37