Gobert v. Newton-Embry

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 15, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
DAVIS J. GOBERT,
Plaintiff - Appellant,
v. No. 19-6159
(D.C. No. 5:18-CV-00925-C)
MILLICENT NEWTON-EMBRY, (W.D. Okla.)
Regional Director, Oklahoma Department
of Corrections; MARK KNUTSON,
Manager of Administrative Review
Authority, Oklahoma Department of
Corrections; KRISTIN TIMS, Manager of
Sentence Administration, Oklahoma
Department of Corrections; JANET
DOWLING, Warden, Dick Conner
Correctional Center; REBECCA GUESS,
Records Officer, Dick Conner Correctional
Center,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, MATHESON, and EID, Circuit Judges.
_________________________________
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Davis J. Gobert, an Oklahoma prisoner proceeding pro se, appeals from the
district court’s dismissal with prejudice of his 42 U.S.C. § 1983 claim and dismissal
without prejudice of his state-law claims. Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm.
BACKGROUND
An Oklahoma court sentenced Mr. Gobert to consecutive sentences of life
imprisonment for first-degree murder and 25 years’ imprisonment for second-degree
murder. Under Oklahoma law, he must serve 85 percent of his life sentence before
becoming eligible for parole consideration (the “85% Rule”). See Okla. Stat. tit. 21,
§§ 12.1, 13.1. For purposes of determining eligibility for parole consideration, the
Oklahoma Pardon and Parole Board calculates a life sentence as 45 years.
See Runnels v. State, 426 P.3d 614, 622 (Okla. Crim. App. 2018); Anderson v. State,
130 P.3d 273, 282 (Okla. Crim. App. 2006). Mr. Gobert therefore estimates he must
serve 85% of 45 years, or 38 years and 3 months, before he can be considered for
parole. He will be eligible for parole consideration starting in June 2040.
Mr. Gobert challenges certain entries on his Consolidated Record Card
(“CRC”), the Department of Corrections’ record of his sentence. In the blanks
marked “85% Date” and “Remaining,” his CRC states “Life.” R. at 96. Mr. Gobert
wants the defendants to calculate and record on his CRC the date that he is eligible
for release under the 85% Rule (his “eligible release date”) and the number of days
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remaining until he satisfies the 85% Rule, based on a 45-year sentence.1 He believes
that by inserting “Life” in the blanks rather than calculating his eligible release date
and reflecting the number of days remaining until that date, the defendants are
denying him credit toward satisfying the 85% Rule.
After officials denied his administrative grievances, Mr. Gobert sued in
Oklahoma state court under § 1983 and state law. The defendants removed the case
to federal court. Initially it was unclear to the federal court whether Mr. Gobert
could proceed under § 1983, or whether his claim instead should proceed as a habeas
claim under 28 U.S.C. § 2241. The court ultimately allowed him to proceed under
§ 1983 on the understanding that he challenges the defendants’ recordkeeping
procedures rather than the fact or duration of his confinement.2
The defendants moved to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6),
but the magistrate judge recommended that the court dismiss the § 1983 claim on
screening under 28 U.S.C. § 1915A. The magistrate judge further recommended that
the district court decline to exercise supplemental jurisdiction over the state-law
claims and dismiss them without prejudice. After Mr. Gobert filed timely objections
1
The defendants point out that if Mr. Gobert is granted parole on the life sentence,
instead of being released, he will begin serving his consecutive 25-year sentence.
While we use the term “eligible release date” for convenience, we recognize that
Mr. Gobert will not actually be released if he is granted parole on the life sentence.
2
The defendants did not file objections to the magistrate judge’s determination that
Mr. Gobert could proceed under § 1983.
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to the report and recommendation, the district court adopted the recommendation and
entered judgment for the defendants.3
DISCUSSION
Section 1915A directs the district court to screen complaints and to dismiss
claims that are frivolous, malicious, fail to state a claim upon which relief may be
granted, or seek money damages from an immune defendant. 28 U.S.C. § 1915A(a),
(b). We review de novo the § 1915A dismissal of a complaint for failure to state a
claim. Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009). “We review the
complaint for plausibility; that is, to determine whether the complaint includes
enough facts to state a claim to relief that is plausible on its face.” Id. (internal
quotation marks omitted). Because Mr. Gobert proceeds pro se, we construe his
filings liberally, but we do not act as his advocate. See Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991).
Section 1983 establishes a cause of action for “the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws” by an official acting
“under color of” state law. 42 U.S.C. § 1983. Mr. Gobert claims a violation of the
right to due process, which requires him to show the existence of a protectable liberty
or property interest, see Al-Turki v. Tomsic, 926 F.3d 610, 614 (10th Cir. 2019). “A
3
Mr. Gobert asserts that his objections were sufficiently specific to warrant fuller
analysis and discussion by the district court. But there is no indication that the
district court did not employ the proper de novo standard of review, and we are not
persuaded that its failure to set forth independent findings of fact or conclusions of
law warrants reversal.
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constitutionally protected liberty or property interest may be a creation of federal law
(including the Constitution itself—at least for liberty interests) or of state law.” Id.
“For state law to create a liberty interest, it must establish substantive predicates to
govern official decisionmaking and mandate an outcome when relevant criteria have
been met.” Elwell v. Byers, 699 F.3d 1208, 1214 (10th Cir. 2012) (internal quotation
marks omitted). If a “state law creates a mandatory procedure but does not guarantee
a particular substantive outcome, it does not confer a protected liberty interest.” Id.
Mr. Gobert does not identify a liberty interest arising from federal law or the
Constitution itself. Instead, he asserts that he has a “state-created liberty interest” in
“his (1) actual days served towards completion of his mandatory minimum term-of-
imprisonment imposed by the judicial system, which is a statutory prerequisite in
eligibility for release, and (2) denial of his 85% [eligible for release date].” Aplt.
Opening Br. at 15. He relies on the 85% Rule (combined with the parole board’s
treatment of a life sentence as a 45-year sentence) as the source of the alleged liberty
interest. He also complains that the defendants have not followed a prison
administrative policy, OP-060211 (Sentence Administration).
Mr. Gobert asserts that he has “a legitimate entitlement to a liberty interest in
eligibility for release created by the enactment of the 85% Rule” because it “uses
explicit mandatory language” and “gives rise to a reasonable expectation that . . . a
defendant will be free from [the] particular restraint” of ineligibility for release once
he has served 85% of his sentence. Id. at 25; see also id. at 26 (“Every prisoner
sentenced under the 85% Rule is required to serve a mandatory minimum term-of-
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imprisonment prior to becoming eligible for release. Every prisoner is entitled to the
process which may or may not provide release from confinement upon completion of
the mandatory minimum.”).
But Mr. Gobert’s specific claim targets the defendants’ recordkeeping system,
and he has not plausibly shown that the 85% Rule creates a liberty interest in having
his “eligible release date” for a life sentence recorded on the CRC. The Oklahoma
Court of Criminal Appeals has admonished that assessing a life sentence as one for
45 years is relevant only to parole consideration:
Lawyers continue to confuse the punishment set out in our statutes with the
administrative rules of the Pardon and Parole Board. Under our penal
statutes, a life sentence means the natural life of the offender. The fact that
the Pardon and Parole Board has arbitrarily set forty-five (45) years as the
number the Board will use to comply with the “Forgotten Man Act” does
not affect the actual sentence; that number affects only when the Board will
consider the inmate for purposes of parole.
Runnels, 426 P.3d at 622 n.8 (citation omitted). Mr. Gobert believes that by putting
“Life” on his CRC, the defendants are refusing to recognize the number of days he
has served in prison, so that he will never be able to satisfy the 85% Rule. He has not
made a plausible showing, however, that this fear is well-founded. The defendants
are not refusing to recognize his imprisonment, because the CRC records the number
of days he serves each month. And Mr. Gobert knows that he will become eligible
for parole consideration in June 2040.
As for OP-060211, we have recognized that state policies will create a “liberty
interest in the conditions of confinement” only if they impose an “atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life.”
6
Estate of DiMarco v. Wyo. Dep’t of Corr., 473 F.3d 1334, 1339 (10th Cir. 2007)
(internal quotation marks omitted). It is not clear that the defendants have failed to
comply with the policy by inscribing “Life” in the relevant blanks. Even assuming
they have, for the same reasons just stated, Mr. Gobert has not plausibly shown that
any such failure imposes an atypical and significant hardship on him and thus creates
a liberty interest. There is no plausible showing that the defendants are refusing to
recognize the days he has served in prison or that the entries on the CRC will delay
or deprive him of consideration for parole.
Finally, Mr. Gobert argues that the district court was required to remand his
state-law claims, rather than dismissing them, because it dismissed his § 1983 claim
for lack of subject-matter jurisdiction. But the district court determined that the
§ 1983 claim failed to state a claim upon which relief could be granted, not that the
court lacked jurisdiction. It therefore had the option of dismissing the state-law
claims without prejudice or remanding them, see Barnett v. Hall, Estill, Hardwick,
Gable, Golden & Nelson, P.C., 956 F.3d 1228, 1238 (10th Cir. 2020), and we cannot
say that it was inappropriate to dismiss them, see id. at 1232 (noting “the regular
practice in this circuit of dismissing without prejudice state-law claims for which the
district court has only supplemental, rather than original, jurisdiction when the
federal-law claims to which they are supplemental are dismissed early in the
litigation”); id. at 1239 (stating that dismissal of “the federal-law claims at a very
early stage of the litigation . . . in itself counsels dismissal without prejudice of the
state-law claims at the same time”).
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CONCLUSION
Mr. Gobert’s motion to proceed without prepayment of costs and fees is
granted. His motion to certify questions to the Oklahoma Supreme Court is denied.
The district court’s judgment is affirmed.
Entered for the Court
Allison H. Eid
Circuit Judge
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