JAMES C. PAYNE, Plaintiff/Appellant, v. JOEL KERNS and MISSY ELDRIDGE, Defendants/Appellees.
Case Number: 116978
THE SUPREME COURT OF THE STATE OF OKLAHOMA
Decided: 05/12/2020
2020 OK 31 | 467 P.3d 659
ON CERTIORARI FROM THE COURT OF CIVIL APPEALS, DIVISION I
¶0 The plaintiff/appellant, prisoner, sued various defendants for his detention lasting several months past the end of his sentence. The district court granted summary judgment in favor of the defendants. The Oklahoma Court of Civil Appeals affirmed. This Court granted certiorari on the remaining issue preserved for our review, i.e., whether a private right of action under
COURT OF CIVIL APPEALS’ OPINION VACATED IN PART; JUDGMENT REVERSED AND REMANDED
J. Derek Ingle, Boettcher Devinney Ingle & Wicker, PLLC, Tulsa, OK, for Plaintiff/Appellant
Wellon B. Poe, Collins Zorn & Wagner, P.C., Oklahoma City, for Defendants/Appellees
COMBS, J.:
I. FACTS AND PROCEDURAL HISTORY
¶1 On February 8, 2010, the appellant, James C. Payne (Payne), pled nolo contendere to the crime of stalking in Case No. CF-2010-27, District Court of Pittsburg County, State of Oklahoma. He received a five-year deferment with special rules and conditions of probation. He was required to have no contact with the stalking victim. In addition, Payne pled guilty to violating a protective order in many other cases filed in Pittsburg County related to the same victim and was sentenced to six months in the county jail. The sentences were to run concurrently. He received extra credits and was released from custody on May 5, 2010. A month later, on June 10, 2010, the district attorney filed a motion to accelerate the deferred judgment for probation violations. It alleged Payne had been contacting and harassing the victim. The district court issued a felony warrant and Payne was arrested and booked into jail by the Pittsburg County Sheriff‘s Office on June 11, 2010. Payne did not post bail and remained in the county jail.
¶2 On August 23, 2010, the district court executed a minute order finding Payne guilty of violating the terms of his deferred sentence. He was sentenced to a term of five years imprisonment with four years suspended and one year to serve in the Department of Corrections (DOC). Payne also received credit for the time he had been serving in the county jail since his June 11, 2010 arrest. Therefore, the one year sentence was to expire on June 11, 2011. A formal Judgment and Sentence was filed on May 13, 2011 and dated October 15, 2010. This occurred less than a month of when Payne‘s sentence was set to expire. The record reflects the Pittsburg County Sheriff‘s Office received the Judgment and Sentence on May 17, 2011. The Judgment and Sentence ordered Payne into DOC custody and directed the Sheriff‘s office to transfer Payne to DOC. It provided:
In the event the above sentence is for incarceration in the Department of Corrections, the Sheriff of Pittsburg County, Oklahoma is ordered and directed to deliver the Defendant to the Lexington Assessment and Reception Center at Lexington, Oklahoma, and leave therewith a copy of this Judgment and Sentence to serve as warrant authority of the Sheriff for the transportation and the imprisonment of the Defendant as herein before provided. The sheriff to make due return to the clerk of this Court, with his proceedings endorsed thereon.
The Sheriff‘s Office of Pittsburg County did not transfer Payne to the Lexington Assessment and Reception Center (LARC) until September 6, 2011, almost three months past the end of his sentence. Payne was released that same day without serving any of his time in DOC custody.
¶3 Payne filed a Notice of Governmental Tort Claims on February 27, 2012 against the State of Oklahoma, Oklahoma Department of Corrections, Pittsburg County Jail, Pittsburg County Sheriff‘s Department, Pittsburg County Commissioners Chairman Gene Rogers, Commissioner Kevin Smith, and Commissioner Ronnie Young, Pittsburg County Sheriff Joel Kerns, and Pittsburg County Jail Administrator Missy [sic] Eldridge.1 The claim was denied on March 30, 2012. On September 6, 2012, he filed a Petition in the District Court of Pittsburg County (Case No. CJ-2012-233) against the same Defendants. He alleged various violations of his constitutional rights under the United States Constitution, federal statute (
¶4 On April 11, 2014, Payne re-filed his Petition against the same Defendants in the District Court of Pittsburg County (Case No. CJ-2014-73). The Petition was identical to the one filed in CJ-2012-233, with the addition of alleged violations of his rights under the Oklahoma Constitution. Payne alleged the Defendant‘s actions violated his rights under the following sections of Article II of the Oklahoma Constitution:
§2. All persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry.
§7. No person shall be deprived of life, liberty, or property, without due process of law.
§9. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.
§30. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.
Based upon these state constitutional violations and this Court‘s jurisprudence in Washington v. Barry, 2002 OK 45, 55 P.3d 1036 and Bosh v. Cherokee County Building Authority, 2013 OK 9, 305 P.3d 994, the Petition asserted Payne had a private right of action against the Defendants notwithstanding the Oklahoma Government Tort Claims Act (OGTCA),
¶5 On January 8, 2015, the Defendants again filed a Notice and Petition for Removal in the United States District Court for the Eastern District of Oklahoma (Case No. 15-CV-10). The case was removed and the parties litigated the matter in federal court for almost two years. On January 14, 2015, the Defendants, State of Oklahoma and the Oklahoma Department of Corrections, moved to dismiss all claims against those defendants. The court granted their motion on September 17, 2015. Also, on January 14, 2015, the Defendants Pittsburg County Jail, Pittsburg County Sheriff‘s Department, Sheriff Joel Kerns, Pittsburg County Commissioners Gene Rogers and Kevin Smith, and Pittsburg County Jail Administrator “Missi” Eldridge moved to enforce the settlement agreement from 2013 or in the alternative to dismiss the action against those defendants. The court denied their motion on September 17, 2015.2 On November 25, 2015, the Defendants, Pittsburg County Jail, Pittsburg County Sheriff‘s Office, County Commissioner Gene Rogers and County Commissioner Kevin Smith, filed a Motion to Dismiss. A few days later, December 10, 2015, Payne filed a Partial Dismissal of Defendants, County Commissioners Gene Rogers, Kevin Smith and Ronnie Young, the Pittsburg County Sheriff‘s Department and the Pittsburg County Jail. On June 8, 2016, by Minute Order, the court granted the Defendants’ Motion to Dismiss and Payne‘s Partial Motion to Dismiss and stated “[t]he only defendants remaining are Pittsburg County Sheriff Joel Kerns and Pittsburg County Jail Administrator Missy Eldridge.”
¶7 On April 7, 2017, the remaining Defendants, “Sheriff Joel Kerns” (Kerns) and “Jail Administrator Missi Eldridge” (Eldridge) filed a Motion for Summary Judgment in the District Court of Pittsburg County. They argued 1) the remaining Defendants were not proper parties under a Bosh claim, 2) Payne had no private right of action against the Defendants under the Oklahoma Constitution, 3) the constitutional claims are time barred, 4) Payne abandoned his state tort law claims, 5) the Defendants were not liable for the state tort law claims, and 6) the state law claims should be dismissed based upon promissory estoppel. On August 8, 2017, the district court entered a Minute Order granting the Defendants’ motion. The Minute Order states:
After hearing argument of counsel, review of the parties’ motions, briefs, attached exhibits, and review of the relevant provisions of the Oklahoma Constitution, the OGTCA, applicable statute and case law, including, but not limited to, Bosh v. Cherokee Bldg. Authority, 2013 OK 9, GJA v. OK DHS 2015 OK CIV APP 32, and Deal v. Brooks 2016 OK CIV APP 81; the Court finds that Defendant‘s Motion for Summary Judgment, in its entirety, should be and is hereby GRANTED. This Court is not comfortable extending the analysis and holding in Bosh to claims asserted in this action, and therefore the Court finds that there is no substantial controversy as to any material fact.
The Defendants were ordered to prepare a journal entry. On December 5, 2017, the Defendants filed a Motion to Settle Journal Entry with an attached proposed journal entry. The Defendants asserted in their motion “[t]he Minute Order reflects the general rulings of the Court but does not set forth sufficient factual and legal conclusions necessary for any appeal.” The proposed journal entry included findings of fact and conclusions of law. Its conclusions of law section asserted the individual Defendants are not proper parties because they are immune from liability under the OGTCA and that the court declines to extend the analysis in Bosh to recognize a private right of action under the Oklahoma Constitution to the facts of this case. In addition, the Defendants provided it was unnecessary to address the other defenses they had raised, i.e., improper parties, promissory estoppel, and statute of limitations. Payne responded to the motion and asserted the proposed journal entry does not accurately reflect the court‘s ruling. The court, he asserted, only focused on the Bosh claim and not on any other issue raised by the Defendants. He noted it was apparent that the Defendants themselves do not construe the court‘s statement of “in its entirety” to include every defense argued for in the Motion for Summary Judgment. He requested the court enter a journal entry that reflected the Minute Order. The court apparently agreed with Payne and denied Defendants’ Motion to Settle Journal Entry. It entered a Journal Entry and Order on April 4, 2018, which was identical to the Minute Order. On May 1, 2018, Payne appealed.
¶8 The only issues Payne raised in his Petition in Error were whether the district court erred by not finding sections 2, 7, 9 and 30 of Article II of the Oklahoma Constitution created a private right of action for his delayed release pursuant to Washington v. Barry, 2002 OK 45, 55 P.3d 1036, Bosh v. Cherokee County Governmental Building Authority, 2013 OK 9, 305 P.3d 994, and Deal v. Brooks, 2016 OK CIV APP 81, 389 P.3d 375 (approved for publication by the Oklahoma Supreme Court). The matter was assigned to the Oklahoma Court of Civil Appeals, Division I. The court filed its opinion on May 17, 2019, affirming the district court‘s Journal Entry and Order granting summary judgment. The Oklahoma Court of Civil Appeals opinion is paraphrased as follows: 1) a right of action under
II. STANDARD OF REVIEW
¶10 Whether summary judgment was properly entered is a question of law which we review de novo. Manley v. Brown, 1999 OK 79, ¶ 22, 989 P.2d 448, 455. In a de novo review, we have plenary, independent and non-deferential authority to determine whether the trial court erred in its application of the law and whether there is any genuine issue of material fact. Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084. Like the trial court, we examine the pleadings and summary judgment evidentiary materials submitted by the parties to determine if there is a genuine issue of material fact. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. We view the facts and all reasonable inferences arising therefrom in the light most favorable to the non-moving party. Id. The purpose of summary adjudications is not to substitute a trial by affidavit for one by jury, but rather to afford a method of summarily terminating a case when only questions of law remain. Martin v. Aramark Services, Inc., 2004 OK 38, ¶12, 92 P.3d 96. When uncontroverted proof lends support to conflicting inferences, the choice to be made between the opposite alternatives does not present an issue of law but rather one for the trier of fact. Walters v. J.C. Penny Co., Inc., 2003 OK 100, ¶13, 82 P.3d 578. Even when basic facts are undisputed, motions for summary judgment should be denied if, under the evidence, reasonable persons might reach different inferences or conclusions from the undisputed facts. Bird v. Coleman, 1997 OK 44, ¶20, 939 P.2d 1123. It is not the duty of the appellate court on review to make first-instance determinations of disputed law or fact issues. Bivins v. State of Oklahoma, ex rel. Oklahoma Memorial Hospital, et al., 1996 OK 5, ¶19, 917 P.2d 456. An appellate court cannot craft an initial decision upon an untried question and then direct that it be followed on remand. Id.
III. ANALYSIS
A. A PRIVATE RIGHT OF ACTION FOR DETENTION BEYOND THE EXPIRATION OF ONE‘S SENTENCE EXISTS UNDER OKLA. CONST. ART. 2, §9.
¶11 Payne asserts his delayed release amounted to cruel or unusual punishment in violation of
The OGTCA cannot be construed as immunizing the state completely from all liability for violations of the constitutional rights of its citizens. To do so would not only fail to conform to established precedent which refused to construe the OGTCA as providing blanket immunity, but would also render the Constitutional protections afforded the citizens of this State as ineffective, and a nullity.
The Oklahoma Court of Civil Appeals examined this language several years later.
¶13 In GJA v. Oklahoma Dept. of Human Services, a father sued the Department of Human Services (DHS) and many John Doe employees for failing to stop abuse of his children while they were in the custody of their mother. 2015 OK CIV APP 32, 347 P.3d 310. The father alleged DHS violated the children‘s constitutional right to Due Process of Law pursuant to Bosh. Id., ¶22. DHS moved to dismiss arguing Bosh did not create an actionable claim under the facts of this case. The court determined the first inquiry is whether Bosh should be limited to its facts and holdings or does the decision stand for the proposition that the Supreme Court of Oklahoma recognizes a broader scope of actionable claims based upon violations of constitutional rights. Id., ¶26. It noted clearly the father‘s allegations did not involve the same or similar circumstances as in Bosh, but such a limitation fails to account for the reasoning in Bosh. Id., ¶¶28-29. After examining the quoted language in paragraph 12 of this opinion, the court determined:
[t]he Court has not only adjudicated a specific claim based upon a set of facts, but also the Court made a statement of policy (upholding constitutional guarantees and protections) as its broader holding. The Court then specifically applied that broader policy statement holding to the facts of the case.
Id., ¶30. It found, Bosh stood for the proposition that the protections and guarantees afforded the citizens by the state and federal constitutions represented the highest values of the people and the Supreme Court recognizes a broader scope of actionable claims based upon violations of constitutional rights. Id., ¶¶31-32. The court further found that a court‘s role as gatekeeper will serve to focus Bosh claims upon those acts or inactions which rise to the level of a constitutional claim without having to limit the interpretation of Bosh. Id., 35.
¶14 Following our decision in Bosh, the state legislature amended the OGTCA. On April 21, 2014, H.B. No. 2405 became effective. 2014 Okla. Sess. Laws c. 77. The Act extended the State‘s immunity from suit to torts arising from alleged deprivations of constitutional rights. In Barrios v. Haskell County Public Facilities Authority, we noted, prior to this amendment, the OGTCA did not expressly include immunity from such torts and therefore this Court acknowledged common law tort remedies for claims arising under the constitution. 2018 OK 90, ¶9, 432 P.3d 233. In Barrios we were asked to answer a federal certified question, i.e., “do sections 7 and 9 of Article II of the Oklahoma Constitution allow an inmate to bring a tort claim for denial of medical care notwithstanding the OGTCA‘s provisions providing immunity to the State from torts arising out of the ‘provision, equipping, operation or maintenance of any prison, jail or correctional facility.‘” Id., ¶1. We acknowledged the Legislature‘s long-recognized power to define the scope of the State‘s sovereign immunity and held the amendments in H.B. 2405 foreclosed our ability to expand the common law in a manner inconsistent with statutory law. Id. ¶12. Therefore, “because these ‘constitutional’ torts are now clearly ‘torts’ governed by the [O]GTCA, the [O]GTCA‘s specific prohibition against tort suits arising out of the ‘operation or maintenance of any prison, jail or correctional facility’ bars the claims at issue here.” Id. Barrios, however, is not relevant to the present case. Payne‘s delayed release occurred in 2011, well before H.B. 2405 became effective. The Oklahoma Constitution further limits the effectiveness of H.B. 2405 and our decision in Barrios.
The Legislature shall have no power to revive any right or remedy which may have become barred by lapse of time, or by any statute of this State. After suit has been commenced on any cause of action, the Legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit.
¶15 Neither Washington nor Bosh limited a private right of action to claims based upon excessive force. Since 2002, this Court has recognized the potential for a private right of action for violations of
B. THE DEFENDANTS’ STATE OF MIND IS DISPOSITIVE TO DETERMINING WHETHER PAYNE‘S CONSTITUTIONAL RIGHT TO BE PROTECTED FROM CRUEL AND UNUSUAL PUNISHMENT HAS BEEN VIOLATED
¶16 The opinion of the Oklahoma Court of Civil Appeals interpreted Payne‘s cruel or unusual punishment claims as one based upon “excessive force” and focused on the standard discussed in Washington. However, the standard for actions based upon detention past the expiration of one‘s sentence is not identical. As in Washington, we turn to federal precedent to help establish the standard in this first impression issue.
¶17 In Sample v. Diecks, 885 F.2d 1099 (3d Cir. 1989), a prisoner was held over nine months past the expiration of his sentence. Upon his release, Sample filed a damages suit against Diecks, the senior records officer in the correctional facility, and Robinson, the Commissioner of the bureau of corrections pursuant to
¶18 The appellate court determined whether the detention beyond expiration of a sentence violates the Eighth Amendment requires two things: 1) was the detention “punishment;” and 2) was it “cruel and unusual.” Sample, at 1108. It found detention beyond one‘s term no doubt constitutes punishment. Id. Concerning cruel and unusual punishments, the court explained the Eighth Amendment prohibits punishments which, although not physically barbarous, involve the unnecessary and wanton infliction of pain, or are grossly disproportionate to the severity of the crime. Id. One class of unnecessary and wanton wrongs and the one most relevant here is those that are “totally without penological justificiation.” Id. The court first noted that once any deterrent and retributive purposes were fulfilled there was no penological justification for a prisoner‘s continued detention. Id. However, it found that elimination of all errors in many instances would be unfeasible and accidents or mistakes are a necessary cost of any prison system and aren‘t repugnant to the conscience of mankind and do not violate the Eighth Amendment. Id. at 1108-9. The court looked at the state of mind of the prison administrators and found more or less deference should be given based upon the situation. Id. at 1109. It determined the degree to which a harm is unnecessary in the sense of being unjustified by the exigencies of prison administration will affect the state of mind requirements a plaintiff must meet to demonstrate a prison official violated the Eighth Amendment. Id.
¶19 The court found the judiciary should give a high level of deference to prison officials in cases of a prison riot, as in Whitley. Sample, at 1109. In such a case, subjecting prison officials to suits based upon an absence of due care or even deliberate indifference would result in second guessing and have a deleterious effect on the broad ambit of discretion prison officials need in such situations. Id. An official acting in good faith within that discretion, although in the process injuring a prisoner, has not inflicted cruel and unusual punishment upon that inmate. Id. However, a lesser showing of deference is required in cases of deprivation of medical care. In such situations simple malpractice under a common law negligence standard without a more culpable state of mind is not enough; but where prison officials or doctors act with deliberate indifference to serious medical needs of prisoners, they have unnecessarily and wantonly inflicted pain on inmates and thereby violated the Eighth Amendment. Id.
¶21 After determining the Eighth Amendment can be violated by a showing of deliberate indifference, the court explained the requisite elements a plaintiff must demonstrate. It found:
[A] plaintiff must first demonstrate that a prison official had knowledge of the prisoner‘s problem and thus of the risk that unwarranted punishment was being, or would be, inflicted. Second, the plaintiff must show that the official either failed to act or took only ineffectual action under circumstances indicating that his or her response to the problem was a product of deliberate indifference to the prisoner‘s plight. Finally, the plaintiff must demonstrate a causal connection between the official‘s response to the problem and the infliction of the unjustified detention.
Sample at 1110. The court noted that not all officials who are aware of a problem exhibit indifference by failing to resolve it. For example, a warden does not exhibit deliberate indifference by failing to address a sentence calculation problem brought to his attention when there are procedures in place for others to pursue the matter. Id. However, if a prison official knows, given his or her job description or role he or she has assumed in the administration that the sentencing matter will not likely get resolved unless he or she addresses it or refers it to others, then it is more likely the requisite attitude will be present. Id.
¶22 In 2010, this Court vacated an Oklahoma Court of Civil Appeals decision and reversed in part the decision of the trial court granting summary judgment. Estate of Crowell v. Board of County Commissioners, 2010 OK 5, 237 P.3d 134. We held reasonable minds could differ on the issue of whether the sheriff and jail personnel acted with deliberate indifference in the delay to provide medical treatment to an inmate. Id., ¶37. A prisoner died in custody due to delayed receipt of medical attention. The personal representative of the prisoner‘s estate brought a civil rights action under
¶23 A year later, the Oklahoma Court of Civil Appeals reversed a judgment dismissing a petition with similar facts to Crowell. Edelen v. Board of Commissioners of Bryan County, 2011 OK CIV APP 116, 266 P.3d 660. The opinion quoted Crowell‘s language concerning a sheriff‘s liability, i.e., a sheriff may be accountable whenever a sheriff knew or should have known of the misconduct and yet failed to prevent future harm. Id., ¶8. The court found “Edelen‘s petition states a claim against the Sheriff based on a potential violation of the Eighth Amendment to the United States Constitution pursuant to
¶24 In the present matter, the Journal Entry and Order granting summary judgment was inappropriate. The district court ruled it was uncomfortable in extending the analysis and holding in Bosh to the claims asserted in this action and therefore there was no substantial controversy as to any material fact. The district court made no factual determinations concerning whether the remaining defendants showed the requisite state of mind to violate Payne‘s constitutional right to be protected from “cruel or unusual punishments” under the Oklahoma Constitution. Having determined a private right of action existed at the time Payne was detained past his sentence under
COURT OF CIVIL APPEALS’ OPINION VACATED IN PART; JUDGMENT REVERSED AND REMANDED
¶25 Gurich, C.J., Kauger (by separate writing), Edmondson, Colbert and Combs, JJ., concur.
¶26 Darby, V.C.J., Winchester (by separate writing), Kane and Rowe (by separate writing), JJ., dissent.
JAMES C. PAYNE v. JOEL KERNS and MISSY ELDRIDGE
Case Number: 116978
THE SUPREME COURT OF THE STATE OF OKLAHOMA
KAUGER, J., concurring:
¶1 I concur with the majority opinion. I am writing to address the spate of recent troubling incidents involving the Department of Corrections (DOC) and access to justice. In this cause, the DOC extended the prisoner‘s confinement for more than 3 months past his sentence. The failure of the DOC to timely release him is exacerbated by the absence of a final order.
¶2 We do not recognize the minute order entered in this cause by the district court as a final appealable order. 1 When the Court of Criminal Appeals does not receive a final order, jurisdiction is declined. The failure of the trial court to prepare a final order denies the prisoner the right of access to the Court.
¶3 Were the prisoner held in a federal prison, the United States would be liable for false imprisonment. In Millbrook v. United States, 569 U.S. 50, 133 S.Ct. 1441 (2013), the unanimous Court held that the waiver of sovereign immunity based on the law enforcement provision in the Federal Torts Claims Act extends to acts or omissions of law enforcement officers that arise during the scope of their employment. This cause should be remanded to determine if the material facts support relief under Oklahoma law.
¶4 Marsden Elias (Elias) entered a plea of nolo contendre to a felony offense on November 16, 2004. The trial court sentenced him to fifteen years with the first three years to be served in the custody of the Department of Corrections with the balance as supervised probation. When Elias committed another felony offense in 2008, he pled guilty and was sentenced to six months in the county jail and four years probation. Because the first sentence included a finite time for incarceration, followed by probation, no consideration was given to the maximum term that Elias would have to serve.
¶5 Because Elias had committed two offenses, the State, on June 18, 2010, filed an Application to Revoke the Suspended Sentences. During the December 16, 2010, revocation hearing, the transcript reflects that the trial judge stated he would show on the record that the crime to which Elias had pled guilty in 2004, was not an eighty-five percent crime. The judge, the prosecutor, and defense counsel agreed that it was not.2 The court minute regarding the Application to Revoke/Accelerate shows that Elias was not sentenced to an eighty-five percent crime.3 The trial court later recanted its opinion that the crime was not an eighty-five percent crime. However, the trial court did nothing to correct its mistake, other than observe that it was incorrect when it denied Elias‘s Application for Post Conviction Relief.4 The Department of Corrections’ records show that it determined Elias‘s term of incarceration to be subject to the eighty-five percent rule.5 The Minute Order, filed October 31, 2012, noted that Elias needed to file an action against the Department of Correction to address the interpretation of his sentence.6
¶6 When a trial court commits a mistake seriously affecting a substantial right, such as the length of the required time of incarceration, the trial court must correct the mistake to conform the sentence accurately with the law. Even so, it is not up to the Department of Corrections to unilaterally correct a mistake. The power to define and to fix the punishment for crimes is vested in the legislature. The imposition of the sentence within the limits prescribed by the legislature is purely a judicial function. The Legislature has invested the Department of Corrections with the authority to ensure a judicial sentence is carried out as ordered by the district court. Nevertheless, the court‘s authority to impose a sentence cannot be, and is not delegated to an administrative body such as the Department of Corrections.
¶7 Someone needs to fix this!
III.
GLEN FOLSOM v. OKLAHOMA DEPARTMENT OF CORRECTIONS
Case No. 118,395 cons. with 118,411
A. FAILURE TO ENTER AN APPEALABLE ORDER BY THE TRIAL COURT
¶8 Glen Folsom (prisoner/Folsom) is an indigent inmate incarcerated under the custody of the DOC at Oklahoma State Penitentiary. On January 16, 2019, the District Court entered a court minute in the District Court of Pottawatomie County Case No. CF-2002-327 denying Folsom‘s application for post-conviction relief. Title 22 O.S. 2011 §1084, requires a District Court to issue a “final judgment” in all post conviction proceedings. The pertinent part of §1084 provides:
. . .The court shall make specific findings of fact and state expressly its conclusions of law, relating to each issue presented. This order is a final judgment.
Despite the lack of a final judgment, Folsom filed a post-conviction appeal on May 24, 2019, in the Court of Criminal Appeals Case No. PC-2019-379. The Court of Criminal Appeals summarily dismissed his appeal for lack of a formal order, but it did not direct the trial court to comply with its statutory duty.
¶9 On January 3, 2020, Folsom filed a “Motion for Relief” in Court of Criminal Appeals Case No. MA-2020-9 seeking extraordinary relief from the District Court‘s failure to enter the requisite final judgment. On January 22, 2020, the Court of Criminal Appeals declined to exercise jurisdiction over the matter finding Folsom had not served the adverse party with his request for relief.
¶10 On January 15, 2020, Folsom filed a “Petition in Error” with this Court in Case No. 118,574. Folsom challenges the Court of Criminal Appeals October 7, 2019, order in Case No. PC-2019-379 declining jurisdiction of his post-conviction appeal. Folsom further challenges his criminal convictions. Contemporaneous with this Petition, Folsom filed a “Motion to File Out of Time” seeking this Court to consider his appeal despite its alleged untimeliness.
¶11 On that same date, Folsom also filed a petition in error to review a certified interlocutory order raising the same challenges to his criminal convictions. However, Folsom also complained that the District Court of Pottawatomie County had not entered a final judgment in the post-conviction proceedings contrary to the Rules of the Court of Criminal Appeals, Rule 5.4(A) o the Rules of the Court of Criminal Appeals which provides:
The Judge assigned to adjudicate the application for post-conviction relief shall prepare a detailed order setting out specific findings of fact and conclusions of law on each proposition for relief presented in the application. The order shall also specify the pleadings, documents, exhibits, specific portions of the original record and transcripts, considered in adjudicating the application, which shall then become a part of the record on appeal as defined by Rule 5.2(C)(6).
For almost a year, the District Court of Pottawatomie County failed to comply with both Rule 5.4 and §1084. The District Court of Pottawatomie County docket in Case No. No. CF-2002-327 does not reflect that anything other than a minute order was ever filed in this matter until February 14, 2020.
¶12 On May 8, 2019, Folsom filed an action in Pittsburg County District Court Case No. CV-2019-65 challenging the conditions of his confinement and asserting the denial of access to the courts. On September 16, 2019, the trial court entered ten separate court minutes sustaining the DOC‘s various motions to dismiss. On October 21, 2019, Folsom filed an appeal from this ruling in Case No. 118,341. The premature nature of Folsom‘s appeal has since been cured. Finally, the trial court entered a final journal entry as to each of the defendants with the last journal entry being filed on January 29, 2020.
¶13 Once again in Cause No. 118,575, Folsom appealed seeking a certified copy of the January 16, 2019, order denying his post-conviction relief so that he could appeal to the Court of Criminal Appeals. Once again this is a minute order. The docket does not indicate whether the order was mailed to Folsom or his lawyer. Nor is it clear whether the court minute contained a certificate of service. Court minutes should be banished. Trial courts should see to it that final judgments are prepared in a timely manner.
¶14 Normally jurisdiction of this cause would belong in the Court of Criminal Appeals. Correction of any errors in the criminal matters involving Folsom through post-conviction relief, obviously rests with the Court of Criminal Appeals. However, there is a consistent pattern of interference with access to justice which we are free to address.
B. FAILURE TO PROVIDE SUFFICIENT PHOTOCOPIES
¶15 Folsom filed a pro se pleading on November 4, 2019, asking this Court to order the law librarian at the Oklahoma State Penitentiary to provide him with sufficient copies of documents that he was preparing to file with this Court. He states that he received three copies of his petition for certiorari and three copies of the petition in error. Folsom also alleged that the law librarian advised him that he could not appeal to the Oklahoma Supreme Court. On November 14, 2019, Folsom was directed by this Court to provide more facts and to clarify his complaints.
¶16 On November 20, 2019, he requested nineteen copies of his five page conclusion. He was provided three copies. The request for nineteen copies was said to be too voluminous. On that same date, Folsom‘s request for nineteen copies of the Petition in Error and Part two of the Habeas was also denied by a penitentiary librarian as too voluminous. On that same date, he was provided three copies of his Petition for Certiorari instead of the fifteen requested. The Oklahoma Department of Corrections Request for Legal Research Assistance stated in pertinent part:
15 copies of your 5 page Petition for Certiorari Certified Interlocutory Order is denied due to being to [sic] voluminous. You have been provided 3 copies of your petition.
Again, the reason given was that the request was too voluminous. Folsom alleged that the librarian stated that she ran the law library and did not give a ---- what he filed. Apparently the DOC counsel agreed with her.
¶17 On November 25, 2019, Folsom filed a pleading with this Court which stated that a law library staff member refused to provide the requisite number of copies so that he could file documents in pending matters. He also alleges that he was denied copies, pens, and paper. Foust v. Pearman, 1992 OK 135, 850 P.2d 1047, 1050 states:
Prisoners are entitled to access to the courts. Gaines v. Maynard, 808 P.2d 672, 675 (Okla.1991). The method of the access may be by persons trained in the law, law libraries, or a combination of the two. Id. This access includes stamps. ‘It is indisputable that indigent inmates must be provided at state expense with paper and pen to draft legal documents, with notatorial services to authenticate them, and with stamps to mail them.’ Bounds v. Smith, 430 U.S. 817, 824-825, 97 S.Ct. 1491, 1496, 52 L.Ed.2d 72 (1977).
¶18 On December 23, 2019, apologizing for having to use toilet paper, the prisoner sought requested forms and court rules. Folsom filed a pleading with the Court on December 2, 2019, alleging that he could neither get copies, nor go to the law library. The DOC filed a response to the petitioner‘s motion for extraordinary relief on December 12, 2019. The document states that the DOC found Folsom‘s request for fifteen (15) to nineteen (19) copies of pleadings to be unreasonably voluminous. It also states that Folsom did not provide a clear legal right to have the things done which are asked for or show that the DOC has a clear and indisputable legal duty to accommodate such request.
¶19 The rules of this Court have the force and effect of a statute. Here, the DOC employee has substituted her opinion for the rules of the Court. The DOC regulation process provides that legal photocopying services can be denied for being “unreasonably voluminous.”
¶20 The DOC is without authority to decide that our rule requirements are too voluminous. And, even if it could, it is ignoring the definition of voluminous. Voluminous has been defined as: 1). forming, filing or writing a large volume or many volumes 2). sufficient to fill a volume or volumes 3). of great volume, size or extent, of ample size, extent, or fullness 4). having many coils, convolutions, or windings.
His request would not result in an unreasonably voluminous endeavor, nor would it fill a large volume. Instead it hinders the prisoner‘s access to justice, and it is a practice that is most capable of being repeated to deny other prisoners the same rights. It is not within the authority of a DOC librarian to ignore a Supreme Court rule nor to predetermine to which court the prisoner should appeal. Nor is it within the authority of counsel for the DOC to decide that compliance with Supreme Court Rule 1.4 is too voluminous. The prisoner requested copies to comply with the Supreme Court rule. Regardless of how the DOC may perceive the prisoner‘s cause of action, it is not within its authority to regulate the appellate process. Nevertheless, the counsel for the DOC asserts that it had determined that the requested 15-19 copies of the prisoner‘s various pleadings were too voluminous. The brief states:
Instead of denying the entire request, DOC limited the request to a more reasonable amount of copies. Petitioner provides no authority demonstrating a clear legal right to have the things done which are asked for or that DOC has a clear and indisputable legal duty to accommodate such request. Accordingly, Petitioner‘s motion for extraordinary relief should be denied.
¶21 In other words, the DOC is free to ignore the rules of appellate procedure insofar as the prisoner was concerned because it felt like it. Or, that it knows better than the Court. Or, perhaps, as many children have heard their parents say, “Because we said so!” One can but wonder if the DOC refused to follow the rules and filed only three copies of its response to the prisoner‘s petition? ( The answer is NO!) Perhaps the rule should be changed, but it is not within the authority of the DOC to do so.
¶22 Evidently, the refusal to make the necessary copies is the practice of the DOC. In the most recent filing by the prisoner, the DOC magnanimously increased the number of copies that it will make from 3 to 6. At the same time, it is alleged that the DOC continues to deny paper to the prisoner to prepare his appeals. This is a potential unconstitutional denial of access to the courts for all prisoners who seek redress because of the initial hurdle it places on all those who seek access to justice before the appellate courts of the State of Oklahoma.
Because of these reasons, and the mockery the DOC makes of the rules of this Court, I would order a special report to examine the barriers which the DOC has erected to prevent access to justice by Oklahoma prisoners. I would also order the DOC to appear and to show cause as to why it continues to violate the rules of this court-------- to explain why “what‘s sauce for the goose is not sauce for the gander.”
IV.
GLEN FOLSUM v. STAFF IN STATE AND PRIVATE PRISON et al.
Case No. 118,753
C. FAILURE TO PROVIDE SUFFICIENT MEDICAL CARE.
¶23 Folsum, who is currently incarcerated at the Oklahoma State Penitentiary in McAlester, Oklahoma, sought relief as a medical emergency because he was bleeding internally from his rectum and he was refused treatment. On May 4, 2020, the Court dismissed his application for relief as frivolous. I would order a special Martinez report. See, Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978). The fact that the same issue is on appeal in Cause No 118,341 is small comfort if the issue of rectal bleeding and cancer are true.
V.
DANIEL PAUL STARR v. OKLAHOMA DEPARTMENT OF CORRECTIONS, et al.
Case No. 118,466
¶24 Starr is an Oklahoma DOC inmate currently incarcerated in the Cimarron Correctional Facility. This correctional facility is a medium security prison in Payne County, Oklahoma; it is owned and operated by CoreCivic, formerly Corrections Corporation of America, under contract with the Oklahoma Department of Corrections.
¶25 Starr received a misconduct citation for an incident on July 11, 2018, when he went to the mail room to mail a package as legal mail. Inside was a hidden compartment as well as a return envelope addressed to another inmate with instructions on how to send back 28 grams worth of a controlled substance. Starr‘s disciplinary hearing was held on August 8, 2018.
¶26 Starr asserted he was denied due process during the disciplinary process because the DOC refused to provide him with closed circuit video footage to prove he did not send anything to the mail room on July 11, 2018. Starr contended another inmate attempted to send contraband through the postal service as legal mail by addressing it under Starr‘s name.
¶27 State statutes do not authorize or require judicial review of internal prison disciplinary actions in circumstances such as these where an inmate is punished with changes to the situs of his confinement and not loss of earned credits. However, both the federal and the state Due Process Clauses command that prisoners with claims to interests of expectations of a constitutionally -protected nature be afforded access to the courts. See, Prock v. District Court of Pittsburg County, 1981 OK 41, ¶22, 630 P.2d 772. By punishing inmates with something less than revocation of earned credits, the DOC escapes the statutory review process of 57 O.S. 2011§564.1. Inmates must be afforded some other process by which they can challenge the DOC‘s adherence to its own rules, and the regulations that limit its official latitude to change the conditions of confinement and the circumstances under which breach-of-discipline sanctions may be imposed. See, Prock, supra at ¶15.
¶28 The DOC‘s justification for its alleged inability to provide Starr with the video footage he seeks are questionable. The DOC asserts it has no authority or duty to compel Cimarron Correctional Facility, a private prison, to produce records. It provides no authority in support of that argument. However, the DOC website is contra to this argument. The Oklahoma Department of Corrections website states:
The Oklahoma Department of Corrections contracts with private prison and county jail contractors as a means to provide bed space and constitutionally required services for inmates. State statutes deem the Director of the Department of Corrections responsible for the monitoring of private prisons in Oklahoma. [Emphasis supplied].
¶29 If the touchstone of due process is protection of the individual from arbitrary action of government, the DOC should not be able to escape judicial review of the arbitrariness of the disciplinary process by imposing a lesser punishment than revocation of earned credits, thus evading review. A special report should have been ordered to determine whether this is a persistent attempt to circumvent due process.
VI.
FLOYD MARKHAM, Jr. v. HONORABLE IRMA J. NEWBURN
Case No. 118,186
¶30 Floyd Markham (Markham/petitioner) is an inmate in the custody of the DOC. He was housed at the Lawton Correctional Facility, a private prison. On October 22, 2018, he filed a writ of mandamus in Comanche County against the DOC and several of its employees. The matter concerned the calculation of the time he has remaining to serve on several criminal convictions. The cause was assigned to Judge Irma Newburn. A cover letter to the court clerk indicates that all officials were served. Counsel for the Lawton Correctional Facility filed a response stating that they were not served. The respondents never filed responses to the action pending in the District Court. On February 15, 2019, petitioner filed a motion asking that respondents reply. On May 23, 2019, he filed a motion to expedite proceedings. The trial court did nothing in response to either filing.
¶31 This Court has general superintending control of the courts of the State of Oklahoma. Okla. Const. art. 7, §4. This cause involves an administrative civil matter involving the correction of DOC records. Failure of a district judge to take any action in a matter for nearly two years is unsupportable. I would issue a writ of mandamus directing the trial court to issue an order: 1) Requiring the defendants in the underlying action to respond to petitioner‘s application for writ of mandamus; 2) Directing defendants to show cause why the application should not be allowed; or 3) Granting the writ without further notice.
VII.
BRIAN ADAMS v. THE DISTRICT COURT FOR THE 13TH JUDICIAL DISTRICT, OTTAWA COUNTY, STATE OF OKLAHOMA
Case No. 118,618
¶32 Adams, (Petitioner/Adams) seeks a writ of mandamus from this Court directing the trial court in State of Oklahoma v. Brian Frank Adams, No. CM-2015-213 (Ottawa County) to dismiss the underlying misdemeanor criminal proceeding for failure to prosecute. Petitioner is currently in the custody of the Department of Corrections, serving a sentence imposed in State of Oklahoma v. Brian Frank Adams, No. CF-2014-56A (Delaware County) for three felony counts of unauthorized use of an implement of husbandry, selling a stolen implement of husbandry, and altering/defacing a vehicle identification number. In 2015, prior to his current incarceration, petitioner was charged with misdemeanor counts of driving under suspension and without a seatbelt in State of Oklahoma v. Brian Frank Adams, No. CM-2015-213 (Ottawa County). A bench warrant was issued in that case on April 5, 2016, for his failure to appear.
¶33 While in custody, he was informed by the DOC of the pending charges and warrant in No. CM-2015-213. On July 11, 2019, Adams filed a motion to dismiss the Ottawa county misdemeanor case. On July 18, 2019, the Ottawa County district court held a hearing on his motion and determined: 1) Petitioner was incarcerated by the DOC in Taft, Oklahoma; 2) there was a pending untried case against Adams with an outstanding arrest warrant; and 3) Adams was available to the State of Oklahoma. The trial court entered an order that Adams be transported to the Ottawa County Detention Center on the outstanding warrant.
¶34 This never happened. On November 5, 2019, petitioner filed a motion to dismiss the Ottawa county case for failure to prosecute, pursuant to
¶35 Petitioner initiated this original proceeding on February 6, 2020, by filing his Petition for Alternative Writ of Mandamus pursuant to
¶36 Petitioner is correct. On the docket entry for No. CM-2015-213, the date he filed his writ application did not indicate dismissal or that the trial court has directly ruled on his motion Adams is currently incarcerated. There is a good reason for his desire to have his misdemeanor traffic charges resolved. The Department of Corrections Sentence Administration Guidelines, Department of Corrections, OP-060211, IV (A )(2) (e) enacted July 18, 2017, states:
....(e). Inmates with outstanding warrants/detainers or pending charges involving law violations committed while in agency custody... [are not eligible for restoration of earned credits.]
It is obviously a reasonable action by Adams to attempt get the matter resolved.
Apparently, the February 6, 2020, petition for mandamus in this Court activated the judicial process. On February 18, 2020, the District Court of Ottawa County dismissed the case for failure to prosecute, and ordered costs assessed against the State of Oklahoma. I, therefore, concur that this proceeding should be dismissed as moot.
CONCLUSION
¶37 Each of these incidents considered alone might not be egregious, However, we have confronted several incidents within the last few months. How many more similar events have occurred? Although one of these failures by the DOC might be ignored, each of them is capable of happening again. In an era of “criminal justice reform” it is appropriate to address these denials of access and to remember that prisoners have rights too.
PAYNE v. KERNS
Winchester, J., with whom Darby, V.C.J. and Kane, J. join, dissenting:
¶1 The majority opinion recognizes a private right of action for violations of
¶2 The county‘s continued detention of Payne based on the facts of this case--the delay of the district court in filing the Judgment and Sentence, the county‘s understanding and application of Oklahoma statutes and DOC rules, and DOC‘s delayed release of Payne--was at most a negligent unlawful extension of Payne‘s incarceration. It is not the type of conduct that rises to the level of cruel and unusual punishment prohibited by the Oklahoma Constitution and U.S. Constitution, even under the standard of “deliberate indifference” proposed by the majority today.
¶3 In Barrios v. Haskell County Public Facilities Authority, 2018 OK 90, ¶¶ 16-17, 432 P.3d 233, 240, this Court indicated a strong reluctance to extend Bosh or expand tort remedies for constitutional violations. The Court noted that expanding tort remedies for constitutional violations is a “disfavored judicial activity.” Id. ¶ 16, 432 P.3d at 240 (citing Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017)). The majority opinion in this case is inconsistent with this pronouncement in Barrios and extends Bosh to conduct that is at most negligent.
¶4 Under existing Oklahoma precedent, I do not believe the conduct of Defendants Joel Kerns and Missy Eldridge supports a private cause of action for violation of
PAYNE v. KERNS
Rowe, J., with whom Darby, V.C.J., Winchester and Kane, JJ., join, dissenting:
¶1 I dissent from the Court‘s decision to recognize a private cause of action for civil damages under
¶2 The questions raised by the case at bar do not pertain to cruel and unusual punishment but rather whether the two county officials’ tortious conduct creates a private right of action under the Oklahoma Constitution.
¶3 Here, the Plaintiff, James C. Payne, alleges that he was held in detention at the Pittsburg County jail for approximately three months beyond the end of his sentence. Over the course of nearly a decade since his release, the Plaintiff has sought to recover civil damages from the Defendants, the State of Oklahoma, and various other county institutions and officials for violations of his rights under the United States Constitution, federal statute, and the Oklahoma Constitution. The Plaintiff now asks this Court to reverse an order granting summary judgment in favor of the Defendants on his claim for damages under
¶4 Prior to 1978, this Court recognized the common law doctrine of sovereign immunity. See, e.g., Henry v. Oklahoma Turnpike Authority, 1970 OK 232, 478 P.2d 898; State ex rel. Dept. of Highways v. Keen, 1960 OK 170, 354 P.2d 399; State ex rel. Com‘rs of Land Office v. Duggins, 1953 OK 402, 258 P.2d 891; Patterson v. City of Checotah, 1940 OK 294, 103 P.2d 97; Wentz v. Potter, 1933 OK 655, 28 P.2d 562. Under the common law approach to sovereign immunity, a sovereign government could not be sued without its consent. Vanderpool v. State, 1983 OK 82, ¶7, 672 P.2d 1153, 1154.
¶5 In 1983, this Court acknowledged in Vanderpool v. State the legislature‘s right to codify sovereign immunity by statute.1 It is only by virtue of explicit legislation, like that in The Governmental Tort Claims Act (“GTCA“),
¶6 The Plaintiff seeks to prevail on a claim that has not previously been recognized by this Court, i.e. whether there exists a private right of action under
¶7 In Bosh v. Cherokee County Bldg. Authority, we held that
¶8 Nevertheless, in Bosh we carved out an exception to the GTCA by imposing liability vis-à-vis the doctrine of respondeat superior, to hold that the State should be liable for the tortious conduct of its employees when they are acting within the scope of employment. 2013 OK 9, ¶¶9-13, 305 P.3d at 998-99. Despite acknowledging the claimed immunity regarding the operation of prisons and jails, we disregarded it because the alternative might run contrary to the potential cause of action discussed in Washington and create blanket immunity for state employees to violate citizens’ constitutional rights. Id. at ¶¶17-23, 305 P.3d at 1000-01.
¶9 In Barrios v. Haskell County Public Facilities Authority, we held that the plaintiff‘s causes of action under
¶10 Although the instant cause of action accrued prior to Barrios, and prior to the 2014 GTCA amendments barring constitutional tort claims,
¶11 As noted in Barrios, the justification for recognizing constitutional tort claims, particularly at the federal level, has eroded in recent years.
The best support for the notion that violations of Article II, Section 9 rights should be vindicated through tort suits comes from the United States Supreme Court‘s decision in Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), where that Court held that Eighth Amendment rights could be vindicated through tort suits. In the very recent decision of Ziglar v. Abbasi, [] 137 S.Ct. 1843, 198 L.Ed.2d 290 (2017), however, the United States Supreme Court declined to recognize a tort claim brought by detainees who alleged they were abused in violation of their Due Process Rights. In so doing, the Ziglar Court called the continuing validity of Carlson into grave doubt, saying that it might decide the case differently today because “the arguments for recognizing implied causes of action for damages” had “los[t] their force.”
2018 OK 90, ¶14, 432 P.3d 233, 239. The Ziglar Court expressed concerns regarding the separation of powers and imposition on legislative authority. Ziglar, 137 S.Ct. at 1856.
¶12 The unavailability of money damages as a remedy for violations of one‘s rights under the Oklahoma Constitution, however, does not render these constitutional provisions hollow, nor does it deprive a plaintiff of the opportunity to seek financial redress for harm already suffered.7 For example, one may still seek injunctive relief to prevent anticipated constitutional violations.8 Additionally, under
¶13 Accordingly, I would affirm the Court of Civil Appeals’ holding that no private cause of action exists under