Miskovsky v. Jones

FILED
United States Court of Appeals
Tenth Circuit

March 17, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

GROVER MISKOVSKY,

Plaintiff - Appellant,

v. No. 13-6091
(D.C. No. 5:08-CV-00123-HE)
JUSTIN JONES, Director; JIM (W.D. Okla.)
RABON, Sentence Administrator;
RONALD ANDERSON,

Defendants - Appellees.

ORDER AND JUDGMENT *

Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34 (a)(2); 10th Cir. R. 34.1(G). This 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This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
 Plaintiff and appellant, Grover Miskovsky, appearing pro se, appeals the

grant of summary judgment to Defendants Justin Jones, Jim Rabon and Ronald

Anderson, along with the dismissal without prejudice of his state law claims, and

the denial of various other motions. For the following reasons, we affirm the

district court’s order.

BACKGROUND

Following a jury trial conducted in Oklahoma County, Oklahoma,

Mr. Miskovsky (a former Oklahoma City lawyer) was convicted of racketeering,

indecent exposure, and attempted perjury by subornation. Consistent with the

jury’s recommendation, the Oklahoma County trial judge (Judge Twyla Mason

Gray, now deceased) sentenced him to consecutive terms of imprisonment of

eighty-four, seven and two years imprisonment, respectively.

In the judgment and sentence entered on May 10, 2000, the state judge also

ordered Mr. Miskovsky to pay a total of $21,800.00 in fines, compensation to

victims, and costs, and further ordered that “the Department of Corrections is to

use the entire draw account of this defendant towards the payment of fines, costs

and fees until all are satisfied.” R. Vol. 1 at 303. His conviction and sentences

were affirmed on appeal. Miskovsky v. State, 31 P.3d 1054 (Okla. Crim. App.

2001). In his appeal, he did not challenge the sentencing directive relating to

using his entire draw account to pay fines, costs, etc.

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 During his pretrial detention, and following his incarceration,

Mr. Miskovsky filed numerous actions in state court and in federal district court,

naming Judge Gray as a defendant. Mr. Miskovsky’s claims against Judge Gray

were consistently dismissed.

Mr. Miskovsky commenced the instant proceeding on February 4, 2008.

He filed a complaint against Defendant Jones, in his official capacity as the

Director of the Oklahoma Department of Corrections (“ODOC”). 1 Mr. Miskovsky

was, at that time, incarcerated at the James Crabtree Correctional Center

(“JCCC”). Mr. Miskovsky claimed that the ODOC’s remittance of his entire draw

account to the Oklahoma County Court Clerk to pay his fines and court costs, as

directed by the court at sentencing, violates the Eighth Amendment’s prohibition

on cruel and unusual punishment because it left Mr. Miskovsky destitute. He also

claimed it violated his Fourteenth Amendment equal protection rights because no

other similarly situated prisoner was subject to a similar remittance of all of his

money in his account. Finally, he claimed the remittance provision violated his

due process rights under the Fourteenth Amendment. As relief, Mr. Miskovsky

demanded that the court issue an injunction directing the ODOC “to stop

unlawfully seizing all [his] monies” and “to return to [his] prison draw account all

monies unlawfully seized.” Compl. at 5.

1
Subsequent amendments added the remaining Defendants in this appeal.

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 Defendant Jones moved to dismiss the action or, alternatively, for summary

judgment. As directed by the court, Mr. Jones also filed a Special Report

(Martinez Report) on the ODOC’s investigation of Mr. Miskovsky’s claims. See

Martinez v. Aaron, 570 F.2d 317, 319-20 (10th Cir. 1978). The court referred the

matter to a magistrate judge for initial proceedings, consistent with 28 U.S.C.

§ 636(b)(1)(B).

On November 19, 2008, Mr. Miskovsky filed a 60-page amended

complaint. The following day, the amended complaint was stricken from the

record because it was not on a court-approved form.

On December 16, 2008, Mr. Miskovzky filed a notice of change of address,

indicating that he had been transferred from JCCC to Mack Alford Correctional

Center (“MACC”). In a Report and Recommendation entered on January 14,

2009, the magistrate judge recommended that the court dismiss Mr. Miskovsky’s

claims against Defendant Jones in his official capacity on sovereign immunity

grounds as to Mr. Miskovsky’s claims seeking damages and retrospective

declaratory and injunctive relief. The magistrate judge further recommended that

Mr. Miskovsky’s claims challenging his sentences be dismissed without prejudice

pursuant to Fed. R. Civ. P. 12(b)(6). Finally, the magistrate judge recommended

that summary judgment be entered in favor of Defendant Jones pursuant to Fed.

R. Civ. P. 56 as to Mr. Miskovsky’s claims relating to the ODOC’s deduction of

his inmate draw account funds and remittance of those funds to the County Clerk

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in accordance with the state judgment. Mr. Miskovsky filed a lengthy objection

to the Report and Recommendation and he requested leave to file an Amended

Complaint.

In an Order entered July 24, 2009, the district court judge adopted the

Report and Recommendation. The court dismissed without prejudice Mr.

Miskovsky’s claims challenging the validity of his sentence pursuant to the

doctrine established in Heck v. Humphrey, 512 U.S. 477 (1994). The court also

granted summary judgment in favor of Defendant Jones with respect to Mr.

Miskovsky’s Eighth Amendment, equal protection and due process claims. The

court did grant Mr. Miskovsky leave to file an amended complaint limited to

“other claims arising out of the same underlying circumstances and which are not

inconsistent with the disposition of claims effected by this order.” Order at 3.

In an 80-page Amended Complaint filed August 31, 2009, Mr. Miskovsky

named nine Defendants, including Mr. Jones, Mr. Rabon, Mr. Anderson, a “John

Doe,” six additional ODOC officials, and Judge Gray. In this Amended

Complaint, Mr. Miskovsky reasserted his previous claims of constitutional

deprivations and also added a number of new claims.

The magistrate judge recommended dismissal of the claims asserted in the

Amended Complaint on the grounds that (1) Mr. Miskovzky had raised some

grounds that were previously resolved; and (2) the new grounds raised failed to

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state a viable claim for relief. By order dated July 30, 2010, the district court

dismissed all the claims asserted in the Amended Complaint. Mr. Miskovsky

appealed, and, on August 30, 2011, our court affirmed the grant of summary

judgment with respect to Mr. Miskovsky’s Eighth Amendment claim and his 42

U.S.C. § 1983 claim concerning the ODOC’s disbursement of funds from his

account. Miskovsky v. Jones, 437 Fed. Appx. 707 (10th Cir. 2011). Our court

also affirmed the dismissal of Mr. Miskovsky’s claim that Defendants retaliated

against him for bringing lawsuits by interfering with his legal mail. We reversed

the dismissal of Mr. Miskovsky’s claims that Defendants Jones, Gray, Anderson

and Rabon had entered into a conspiracy to violate his constitutional rights and

had retaliated against him by transferring him to a more dangerous prison.

This left the following remaining claims before the district court: (1)

Mr. Miskovsky’s claim that his transfer from JCCC to MACC in December 2008

was unconstitutional retaliation by Defendants Jones, Anderson, Rabon and Gray

for the two pleadings Mr. Miskovsky filed in federal court; and (2) his claim that

the above-described transfer was the result of a conspiracy between Defendants

Jones, Anderson, Rabon and Gray to transfer Mr. Miskovsky to an unsuitable

prison in retaliation for his two filings against the Defendants. The propriety of

the state law claims also remained.

The matter was again referred to a magistrate judge. In a Third

Supplemental Report and Recommendation, the magistrate judge recommended

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that Mr. Miskovsky’s cause of action against the former Judge Gray (now

deceased) be dismissed with prejudice pursuant to Fed. R. Civ. P. 25(a). The

district court adopted the Report and Recommendation and dismissed the claims

against Judge Gray with prejudice. R. Vol. 1 at 1022.

Defendants Jones, Anderson and Rabon then filed motions to dismiss or,

alternatively, for summary judgment with respect to Mr. Miskovsky’s remaining

claims, and Mr. Miskovsky responded.

In his Fourth Supplemental Report and Recommendation, the magistrate

judge first addressed the remaining claims against Defendant Jones. The Report

noted that, with respect to Mr. Miskovsky’s § 1983 claims against Mr. Jones,

those claims were barred on the bases of Eleventh Amendment immunity as to

any official capacity claims and failure to allege the requisite personal

participation as to any individual capacity claims. The magistrate judge

concluded that the “remaining § 1983 claims of conspiracy and retaliatory transfer

before this Court, as alleged by Plaintiff in his Amended Complaint and found by

the Tenth Circuit Court of Appeals, do not involve Defendant Jones.” Fourth

Supp. Report at 10-11; R. Vol. 1 at 1007-08. The judge accordingly

recommended denial, as moot, of Defendant Jones’ motion to dismiss and/or for

summary judgment.

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 The magistrate judge then addressed the remaining issues in turn. 2 After

identifying the undisputed material facts before the court, the magistrate judge

addressed the allegations that Defendants Anderson, Rabon and Gray conspired to

retaliate against Mr. Miskovzky.

“It is well-settled that prison officials may not retaliate against or harass an

inmate because of the inmate’s exercise of his right of access to the courts.” Gee

v. Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010) (brackets and quotation marks

omitted). We have stated that:

[g]overnment retaliation against a plaintiff for exercising his or her
First Amendment rights may be shown by proving the following
elements: (1) that the plaintiff was engaged in constitutionally
protected activity; (2) that the defendant’s actions caused the
plaintiff to suffer an injury that would chill a person of ordinary
firmness from continuing to engage in that activity; and (3) that the
defendant’s adverse action was substantially motivated as a response
to the plaintiff’s exercise of constitutionally protected conduct.

2
The magistrate judge began with the allegation in the Defendants’ Reply
brief that Mr. Miskovsky had submitted allegedly false affidavits with his
responsive pleadings. The magistrate judge observed that “[m]ost of these
affidavits bear indicia of falsity, including the fact that Plaintiff’s signature and
notarization appear on a completely separate page from the text of the affidavits,
the fact that the separate signature and notarization page is typewritten with a
different font from that employed in the body of the affidavit or the fact that the
separate signature and notarization pages are typewritten whereas the body of the
affidavit is handwritten, and an identical handwritten correction of a
typographical error on the notarization.” Fourth Supp. Report at 12.; R. Vol. 1 at
1009. The judge determined that, whatever the seriousness of the allegations
made by the Defendants, the affidavits in question did not provide evidence of a
material disputed relevant fact. It was therefore not necessary to consider the
legal sufficiency of the purported affidavits in resolving the motions at hand.

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Shero v. City of Grove, 510 F. 3d 1196, 1203 (10th Cir. 2007). It is clear that

Mr. Miskovsky’s Amended Complaint asserts the “three elements of a retaliation

claim” recognized in Shero, id. As the magistrate judge stated:

There is no dispute that Plaintiff filed two pleadings in this
action on November 19, 2008. Turning to the second element of the
unconstitutional retaliation claim the undisputed facts show that
Plaintiff was transferred on December 4, 2008, from one medium
security facility to another medium security facility. With respect to
the third element of retaliatory motive, the undisputed facts show
that Plaintiff’s transfer was initiated by JCCC Warden Parker via a
written Facility Assignment Form on October 31, 2008, that Warden
Parker’s transfer request was reviewed by and approved by the
appropriate administrative channels consistent with ODOC policy,
including JCCC’s Facility Classification Committee and ODOC’s
Population Office, and that the transfer decision was made by
ODOC’s Population Officer Smith.

Moreover, although Plaintiff alleged in his Amended
Complaint that MACC was a more dangerous facility than JCCC, he
subsequently filed a motion in this action seeking an injunction to
prevent ODOC officials from transferring him out of MACC. In this
motion, Plaintiff stated that he did not want to be transferred to
another prison.

Fourth Supp. Report at 16-17; R. Vol. 1 at 1013-14. The magistrate judge finally

concluded that:

the undisputed record shows, consistent with ODOC’s policy
concerning inmate transfers, that Plaintiff’s transfer was initiated by
JCCC Warden Parker for the stated reason that Plaintiff was
becoming adversarial with staff at the prison, that the transfer request
was approved by JCCC’s Facility Classification Committee, and that
the transfer request was then submitted to and approved by ODOC’s
Population Office, where the decision was made to transfer Plaintiff
to MACC, another medium security prison.

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Fourth Supp. Order at 17-18; R. Vol. 1 at 1014-15. Thus, the magistrate judge

concluded that “Plaintiff has failed to demonstrate a disputed issue of fact with

respect to the essential element of his retaliation claim that the transfer was made

to a more dangerous prison.” Id. at 18. Indeed, Mr. Miskovsky’s motion filed

“during the litigation of this case TO PREVENT HIS TRANSFER FROM MACC

to another prison is completely contrary to his allegation in his Amended

Complaint that MACC was a ‘more dangerous’ facility than JCCC.” Id.

The magistrate judge accordingly concluded that Mr. Miskovsky had not

demonstrated a material issue of fact showing a constitutional violation and that a

reasonable jury would not find in his favor regarding his § 1983 conspiracy claim.

Accordingly, the court concluded that Defendants Anderson and Rabon were

entitled to summary judgment with respect to Mr. Miskovsky’s remaining

retaliation and conspiracy claims.

Next, the magistrate judge declared “frivolous and malicious” the request

by Mr. Miskovsky to strike the affidavit authored by Ms. Dianna Eldridge and to

impose sanctions on Attorney Kulmacz. 3

3
In her affidavit, Mr. Eldridge stated that she was the law librarian at
MACC and that on June 15, 2012, she notarized one single affidavit for Mr.
Miskovsky, and she did not notarize any other signature. Finding “no procedural
insufficiency in this affidavit, which bears a notary’s signature and seal, or
procedural insufficiency in any other affidavit presented with Defendants
Anderson and Rabon’s Reply brief,” the magistrate judge concluded that Mr.
Miskovsky’s “motion seeking to ‘strike’ the affidavit and Plaintiff’s further
request that the Court ‘impose sanctions’ against Defendants’ attorney [Mr.
(continued...)

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 Having decided that no federal claims remained in the case, the magistrate

judge decided to “decline to exercise supplemental jurisdiction over Plaintiff’s

state-law-based claims.” Fourth Supp. Order at 19-20; R. Vol. 1 at 1016-17

(citing 28 U.S.C. § 1367(c)(3)). They were accordingly dismissed without

prejudice.

To summarize: the magistrate judge recommended that Defendant Jones’

motion to dismiss/motion for summary judgment be denied as moot; that

Defendants Anderson and Rabon’s motion for summary judgment be granted and

that judgment issue in favor of Defendants Anderson and Rabon against Mr.

Miskovsky. The judge further recommended dismissal without prejudice of the

state law claims, denial of Mr. Miskovsky’s requests to strike and for sanctions,

and denial of Defendants’ request to strike Mr. Miskovsky’s request for sanctions.

The district court subsequently adopted the recommendations of the

magistrate judge. After agreeing that no federal claims remained against Mr.

Jones, the court acknowledged that the “only remaining federal claims in this

action are the retaliation claim based on plaintiff’s prison transfer—expressly

made against defendants Rabon, Anderson, and Gray—and the related conspiracy

claim.” Order at 2; R. Vol. 1 at 1033. Turning to those claims against

Defendants Anderson and Rabon, the court stated, “[a]fter de novo review, the

3
(...continued)
Kulmacz] is baseless.” Fourth Supp. Report at 19; R. Vol. 1 at 16.

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court agrees with the magistrate judge’s well-reasoned conclusion that Plaintiff

has failed to raise a disputed issue of material fact as to the required elements of

his retaliation claim, and that, consequently, defendants Anderson and Rabon are

entitled to judgment as a matter of law in that claim.” Id. at 3; R. Vol. 1 at 1034.

That disposition “forecloses plaintiff’s remaining conspiracy claim, which relies

on the underlying retaliation claim to establish the requisite deprivation of a

constitutional right.” Id. The court accordingly directed entry of summary

judgment for Defendants on the conspiracy claim.

Finally, with respect to the various motions to strike and for sanctions, the

court agreed with the recommendation to deny them. Regarding Mr. Miskovsky’s

second motion for sanctions against Defendants’ attorney, the court declared it

“frivolous and malicious.” Id. at 4. This appeal followed.

DISCUSSION

“This court reviews the denial of a Rule 12(b)(6) motion to dismiss de

novo, applying the same standard as the district court, and accepting the well-

pleaded allegations of the complaint as true and construing them in the light most

favorable to the plaintiff.” Doe v. City of Albuquerque, 667 F.3d 1111, 1118

(10th Cir. 2012) (quotation and alteration omitted). We review the “district

court’s refusal to impose Rule 11 sanctions for abuse of discretion.” Brown v.

Eppler, 725 F.3d 1221, 1228 n.3 (10th Cir. 2013). And, of course, “[g]rants of

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summary judgment are reviewed de novo, applying the same standard as the

district court.” Id.

We agree fully with the district court’s order, adopting the magistrate

judge’s thorough and well-reasoned discussion and analysis. We have nothing

more to add.

CONCLUSION

Accordingly, we AFFIRM the district court’s judgment for substantially the

reasons stated in its order and in the magistrate judge’s report and

recommendation which it adopted. Appellant’s “Motion to Strike” is DENIED.

ENTERED FOR THE COURT

Stephen H. Anderson
Circuit Judge

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