Routt v. Howry

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT November 25, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
JOHN STEPHEN ROUTT,

Plaintiff - Appellant,

v. No. 19-6187
(D.C. No. 5:18-CV-00127-D)
ANDY HOWRY; BRIAN (W.D. Okla.)
THORNBOUGH,

Defendants - Appellees.
_________________________________

ORDER AND JUDGMENT *
_________________________________

Before HARTZ, McHUGH, and CARSON, Circuit Judges.
_________________________________

John Stephen Routt, an Oklahoma state prisoner proceeding pro se, appeals the

district court’s dismissal of a civil rights action he brought under 42 U.S.C. § 1983.

The sole issue on appeal is whether the district court erred in granting defendants’

motion to dismiss Routt’s individual-capacity claim on the ground of qualified

immunity. Exercising jurisdiction under 28 U.S.C. § 1291, we conclude the district

court did not err. We therefore affirm.

*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
 I. Background

In March 2015, while Routt was serving state prison sentences on two

convictions, he pled nolo contendere to another state charge. In its initial Judgment

and Sentence (Initial Judgment), the state trial court sentenced Routt to four years in

prison to run concurrently with his existing sentences and “with credit for time

served.” R. at 58 (boldface and capitalization omitted). The Initial Judgment did not

specify how much time to credit. 1

In September 2015, Routt noticed that he was not receiving credit for time

served. He brought this to the attention of his case manager and the two defendants

here, prison-records officer Andy Howry and administrator Brian Thornbough.

Between late September and the first week of December 2015, Routt met with both

Howry and Thornbough on several occasions, filed a request to staff with Howry, and

filed a grievance that Thornbough denied. Through those efforts, Routt explained

that per his plea agreement, the “time served” he was to receive credit for was

April 13, 2014 to April 2, 2015, and he asked defendants to apply that time toward

his sentence. Defendants declined to apply any time served. Howry allegedly stated

“if the court intended to give you that amount of time, then it would be put in the

[Initial] Judgment.” R. at 246 (internal quotation marks omitted). On a later

occasion, Thornbough allegedly told Routt that “[i]f the court intended for you to

have the days you stated, it would have been in the [Initial] Judgment.” R. at 247

1
Although unstated in Routt’s operative amended complaint, it is undisputed
that “time served” refers to jail time prior to sentencing on his 2015 conviction.
2
(internal quotation marks omitted). Howry allegedly told Routt that although Howry

“could make a phone call,” Howry “would not do it.” R. at 248.

On January 8, 2016, Routt filed a Motion for Specific Performance in the

sentencing court and asked his public defender to represent the motion. On

March 17, 2016, Routt received a sentencing-court order to amend the Initial

Judgment (Order to Amend). The Order to Amend, which was dated March 15,

2016, stated that Routt “was entitled to credit for time served from April 13, 2014

through April 2, 2015,” R. at 149, which was just as he had claimed. Routt gave the

Order to Amend to Thornbough’s assistant. The sentencing court also issued an

amended Judgment and Sentence (Amended Judgment). The date in the signature

block on the Amended Judgment is March 15, 2016, but the file stamp, which is

difficult to read, is dated either March 23 or March 28, 2016. Compare R. at 151,

with R. at 153.

On March 27, 2016, Routt explained to another prison official that he should

have already been discharged, and he showed the official a copy of the grievance he

had filed. On March 28, 2016, Routt was discharged.

Routt then filed the complaint in this action. The district court ordered a

Martinez report. 2 After the report was completed, Routt filed an amended complaint

2
See Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 1978) (per curiam)
(recommending preparation by state prison officials of investigative report to present
to federal court in § 1983 suit brought by prisoner). The Initial Judgment, Order to
Amend, and Amended Judgment were attached to a Martinez report. Generally, a
court may not use a Martinez report to determine whether a plaintiff has stated a
claim to relief under Federal Rule of Civil Procedure 12(b)(6), which is the
3
alleging that defendants Howry and Thornbough violated his Eighth and Fourteenth

Amendment rights by refusing to credit him for time served, which resulted in Routt

being imprisoned for 53 days past his discharge date. He named each defendant in

their official and individual capacities, and he sought compensatory damages,

punitive damages, and costs.

Defendants filed a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) or in the alternative for summary judgment. In relevant part, they argued

that Eleventh Amendment immunity barred the official-capacity claim and that they

were entitled to qualified immunity on the individual-capacity claim. A magistrate

judge issued a report recommending that the district court dismiss the

official-capacity claim but treat the qualified-immunity claim as requiring disposition

on summary judgment and denying the motion with leave to refile after discovery.

Defendants filed objections to the recommendation. Routt responded to those

objections but filed none of his own. The district court agreed with the magistrate

procedural posture of this case. See Swoboda v. Dubach, 992 F.2d 286, 290
(10th Cir. 1993) (“In determining whether a plaintiff has stated a claim, the district
court may not look to the Martinez report, or any other pleading outside the
complaint itself, to refute facts specifically pled by a plaintiff, or to resolve factual
disputes.”). Nevertheless, we may consider the Initial Judgment, the Order to
Amend, and the Amended Judgment because we do not rely on them to refute any
facts Routt alleged or to resolve any factual disputes. See Hall v. Bellmon, 935 F.2d
1106, 1112-13 (10th Cir. 1991) (permitting use at Rule 12(b)(6) stage of “portions of
[a] Martinez report” that were “not use[d] . . . to resolve factual issues or to find that
there are no disputed facts”). Moreover, we may take judicial notice of these
documents. See Pace v. Swerdlow, 519 F.3d 1067, 1072-73 (10th Cir. 2008)
(explaining that federal courts may take judicial notice of state-court documents in
context of Rule 12(b)(6) analysis).

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judge’s recommendation regarding the official-capacity claim and dismissed it. That

ruling is not at issue in this appeal. But the district court disagreed with the

recommendation as to the individual-capacity claim and dismissed that claim under

Rule 12(b)(6) on the ground that defendants were entitled to qualified immunity

because there was no clearly established law indicating their actions were

unconstitutional. Routt appeals.

II. Discussion

Routt raises one issue on appeal: whether the district court erred in granting

defendants qualified immunity. “We review de novo the grant of a motion to dismiss

under Rule 12(b)(6) due to qualified immunity.” Doe v. Woodard, 912 F.3d 1278,

1288 (10th Cir.), cert. denied sub nom. I.B. v. Woodard, 139 S. Ct. 2616, 2616

(2019). In doing so, “we accept as true all well-pleaded facts, as distinguished from

conclusory allegations, and view those facts in the light most favorable to the

nonmoving party.” Moya v. Schollenbarger, 465 F.3d 444, 455 (10th Cir. 2006)

(brackets and internal quotation marks omitted). “At the motion to dismiss stage, it

is the defendant’s conduct as alleged in the complaint that is scrutinized for objective

legal reasonableness.” Doe, 912 F.3d at 1288 (brackets and internal quotation marks

omitted).

“The doctrine of qualified immunity protects government officials from

liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted).

5
“When a defendant raises the qualified-immunity defense, the plaintiff must . . .

establish (1) the defendant violated a federal statutory or constitutional right and

(2) the right was clearly established at the time of the defendant’s conduct.” Ullery

v. Bradley, 949 F.3d 1282, 1289 (10th Cir. 2020). The court has discretion to decide

which of the two prongs of the qualified immunity analysis to address first. Pearson,

555 U.S. at 236. We confine our analysis here to the clearly-established prong

because the parties focus only on that prong and we can more readily decide this case

on that prong. See id.

Routt points to a variety of cases from the Supreme Court and the circuit

courts that he says clearly establish a right that defendants’ conduct violated.

Construing his pro se filings liberally, but without acting as his advocate, see Yang v.

Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008), we disagree.

To determine whether a right is clearly established, “[w]e look to see if

existing precedent placed the statutory or constitutional question beyond debate.”

Est. of Reat v. Rodriguez, 824 F.3d 960, 965 (10th Cir. 2016) (ellipsis and internal

quotation marks omitted). This typically “requires either a Supreme Court or Tenth

Circuit decision on point, or the clearly established weight of authority from other

courts must have found the law to be as the plaintiff maintains.” Id. (internal

quotation marks omitted).

“[A] right is clearly established when a precedent involves materially similar

conduct or applies with obvious clarity to the conduct at issue.” Apodaca v.

Raemisch, 864 F.3d 1071, 1076 (10th Cir. 2017) (internal quotation marks omitted).

6
“[A] general constitutional rule already identified in the decisional law may apply

with obvious clarity to the specific conduct in question, even though the very action

in question has not previously been held unlawful,” if it “giv[es] fair and clear

warning” that the conduct violates the plaintiff’s rights. United States v. Lanier,

520 U.S. 259, 271 (1997) (brackets and internal quotation marks omitted). For

example, in Taylor v. Riojas, the Supreme Court recently reversed the grant of

qualified immunity under the “obvious clarity” standard where a prisoner was housed

in a cell “teeming with human waste for . . . six days.” No. 19-1261, 2020 WL

6385693, at *1 (U.S. Nov. 2, 2020) (per curiam) (internal quotation marks omitted).

But lacking a rule that applies with obvious clarity, “[t]he dispositive question is

whether the violative nature of particular conduct is clearly established. This inquiry

must be undertaken in light of the specific context of the case, not as a broad general

proposition.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam) (citation and

internal quotation marks omitted).

Routt relies on a number of cases standing for the general constitutional

principles that a prisoner has a due-process liberty interest in credit for jail time

served (or, analogously, in good-time credits) and a right under the Eighth

Amendment’s prohibition on cruel and unusual punishment to be released when his

sentence ends. See, e.g., Sandin v. Conner, 515 U.S. 472, 487 (1995) (recognizing

liberty interest “where the State’s action will inevitably affect the duration of [a]

sentence”); Johnson v. Patton, 580 F. App’x 646, 651-52 (10th Cir. 2014) (liberty

interest in jail-time credit); Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 811

7
(10th Cir. 2007) (liberty interest in good-time credits); Brown v. Perrill, 21 F.3d

1008, 1010 (10th Cir. 1994) (liberty interest in jail-time credit); Mitchell v. Maynard,

80 F.3d 1433, 1444 (10th Cir. 1996) (liberty interest in good-time credits); Mitchell

v. N.M. Dep’t of Corr., No. 93-2038, 1993 WL 191810, at *3 (10th Cir. June 1, 1993)

(unpublished) (“Imprisonment beyond one’s term can constitute cruel and unusual

punishment for purposes of the Eighth Amendment.”). But none of these cases

involved an alleged failure or refusal to investigate a prisoner’s contention that he

was not receiving proper credit for time served or other time credits, and none applies

with “obvious clarity” to defendants’ particular conduct.

Citing no on-point Supreme Court authority, and conceding there is no Tenth

Circuit precedent directly on point, see Aplt. Opening Br. at 7, Routt relies on three

extra-circuit cases. We begin with two that come from the Ninth Circuit—Haygood

v. Younger, 769 F.2d 1350 (9th Cir. 1985) (en banc), and Alexander v. Perrill,

916 F.2d 1392 (9th Cir. 1990). Neither applies with obvious clarity or aids in clearly

establishing that defendants’ particular conduct violated Routt’s rights.

Haygood involved confinement beyond the end of a sentence arising from

prison officials’ erroneous interpretation of state law concerning the sequencing of

sentences, see 769 F.2d at 1352-53, and the failure to provide a timely hearing, see

id. at 1358. In upholding a jury verdict in Haygood’s favor on his § 1983 claims, the

Ninth Circuit ruled that prison officials had a duty to investigate his claim of

computational error in the calculation of his sentence and their failure to do so raised

viable due process and Eighth Amendment claims. Id. at 1355, 1358-59. In

8
Alexander, the Ninth Circuit upheld the denial of qualified immunity to federal

prison officials who failed to investigate a claim of over-detention based on improper

credit by the Bureau of Prisons’ (BOP’s) Central Office for time served in a foreign

jail. See 916 F.2d at 1393-94. The court reaffirmed its “decision in Haygood that

prison officials who are under a duty to investigate claims of computational errors in

the calculation of prison sentences may be liable for their failure to do so when a

reasonable request is made.” Id. at 1398.

Notably, neither Haygood nor Alexander involved a delay in the resolution of

the prisoner’s claim of over-detention not caused by the prison officials’ failure to

investigate. That is the case here. Routt was released on March 28, 2016, which he

alleged was 53 days after his sentence should have expired if defendants had properly

credited him for time served. That means Routt’s sentence expired on or about

February 4, 2016. But according to the allegations in his complaint, all of Routt’s

complaints to defendants about credit for time served were well prior to that date.

Routt’s first contact with defendants was in late September 2015 and his last contact

with them occurred during “[t]he first week of December 2015,” when Thornbough

called Routt to his office and provided Routt with a response to his grievance. R.

at 248. Routt then filed, on January 8, 2016, an ultimately successful motion with the

sentencing court. That motion, too, was filed before what turned out to be the correct

expiration of his sentence, but the sentencing court did not rule on it until after

Routt’s sentence had expired. Routt did not allege that defendants played any role in

the timing of the sentencing court’s processing of his motion, and Routt was released

9
once the sentencing court issued the Amended Judgment. Accordingly, we conclude

that Haygood and Alexander do not apply with obvious clarity to the facts of this

case or involve materially similar conduct. Therefore, they could not have provided

fair notice of a potential constitutional violation in this case.

Alexander is inapposite for yet another reason—the Ninth Circuit considered it

important that a federal regulation required the defendant warden to investigate by at

least making inquiry with the BOP’s Central Office. See 916 F.2d at 1398-99. Routt

contends that defendants had a similar duty to investigate under Oklahoma

Department of Corrections (ODOC) Policy OP-060211. We disagree because the

policy language is too imprecise to clearly establish such a duty. 3 Under the policy,

the award of pre-sentencing jail time is contingent “[u]pon receipt of proper

documentation,” which “means the Judgment and Sentence or other sentencing

documents.” R. at 66, OP-060211 § II.A.1. Where, as with the Initial Judgment

here, “the Judgment and Sentence or sentencing document does not specify the

amount of pre-sentencing jail time an inmate is to receive, then a statement from the

sentencing county will be used to determine the amount of pre-sentencing jail time to

be granted.” Id., § II.A.1. (emphasis added). The policy further provides that

“[s]tatements from county jails used to determine jail time will be received directly

3
The ODOC policy is relevant to whether defendants’ actions were objectively
reasonable. See Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1252-53 (10th Cir.
2003) (explaining that although “the presence of a statute is not relevant to the
question of whether the law is ‘clearly established,’ . . . a state officer’s reliance on a
statute is one factor to consider in determining whether the officer’s actions were
objectively reasonable”).
10
from the court clerk or detaining agency in the county or counties where the inmate

was detained and will be signed.” Id., § II.A.2. (emphasis added).

Although the policy contemplates that ODOC will receive and use

documentation provided by a county court clerk or detaining agency that is

determinative of the amount of jail time to credit, nothing in the policy clearly

imposes a duty on the part of ODOC to act affirmatively in obtaining the necessary

information from the sentencing county. Furthermore, as just discussed, Routt

clearly could have obtained the required documentation himself prior to the

expiration of his sentence, either by seeking it from the sentencing court earlier or if

the sentencing court had entered its Amended Judgment sooner. So this is not a case

where defendants had the sole ability to obtain the required information. Cf. Sample

v. Diecks, 885 F.2d 1099, 1110 (3d Cir. 1989) (“A warden . . . may have ultimate

responsibility for seeing that prisoners are released when their sentences are served,

[but a warden] does not exhibit deliberate indifference [required for an Eighth

Amendment claim] by failing to address a sentence calculation problem brought to

his attention when there are procedures in place calling for others to pursue the

matter.”). The policy, therefore, does not undermine the objective reasonableness of

defendants’ response to Routt’s complaint that he was not receiving credit for time

served. To the contrary, defendants’ refusal to credit Routt for time served in the

11
absence of proper documentation was objectively reasonable under the plain terms of

the policy. 4

We further note that the Ninth Circuit itself has distinguished Haygood and

Alexander in circumstances similar to those here. In Alston v. Read, 663 F.3d 1094

(9th Cir. 2011), which defendants rely on, the issue was “whether state prison

officials had a clearly established duty to seek out original court records in response

to a prisoner’s unsupported assertion that he was being overdetained in violation of

the United States Constitution.” Id. at 1096 (emphasis added). The court determined

that “neither Haygood nor Alexander establishes a duty to obtain a prisoner’s court

file where the institutional file appears complete, the sentence was appropriately

[]calculated under state law, and the prisoner has presented no evidence to the

contrary.” Id. at 1099. Although Routt’s circumstances are slightly different, Alston

is sufficiently analogous to lend further support to our conclusion that it was not

clearly established that defendants’ particular conduct here violated Routt’s

constitutional rights. See Mullenix, 577 U.S. at 12.

4
Routt claims that at the time he inquired of defendants, ODOC already
possessed the documentary evidence needed to calculate how much credit for time
served to award him. See Aplt. Opening Br. at 8-9, 14. But he does not identify that
evidence. Based on his allegations, his entitlement to time served was part of his
plea agreement, but he did not allege (and does not argue) that defendants had a copy
of the agreement. The only other evidence establishing the amount of jail time he
was to receive credit for are the Order to Amend and the Amended Judgment, neither
of which ODOC received until long after Routt made his inquiries to defendants. We
therefore reject his suggestion that it is impermissible to focus on whether defendants
had a constitutional obligation to investigate his court records and make inquiries on
his behalf. See id. at 8.
12
 The third extra-circuit case Routt directs us to is Moore v. Tartler, 986 F.2d

682 (3d Cir. 1993). In Moore, the Third Circuit affirmed the grant of summary

judgment on an Eighth Amendment claim to parole board officials who

misinterpreted the meaning of a sentence to “time in to 23 months” and, as a result,

detained Moore beyond the end of his sentence. See id. at 683 (internal quotation

marks omitted). After examining Haygood and Alexander, id. at 686-87, the court

ruled that although a parole board investigation could have been more expeditious,

the defendants did not stand “idly by” (as the Alexander defendants had done) after

Moore raised “concerns about the parole board’s interpretation of the disputed

sentencing order but instead . . . [began] an inquiry that culminated in [the sentencing

judge] clarifying his sentencing in writing.” Id. at 687 (internal quotation marks

omitted). Significantly, Moore observed that the investigation “was conducted . . .

pursuant to standard parole board operating procedures.” Id. (internal quotation

marks omitted). This points up an important distinction from this case where, as we

have discussed, ODOC Policy OP-060211 did not direct defendants to take any

specific course of action in response to Routt’s assertions concerning the amount of

jail-time credits he was entitled to. We therefore cannot say that Moore is

particularly helpful to Routt. Even if it were, we would be left with only one case

from another circuit, and that is insufficient to constitute the weight of authority from

other circuits that is necessary to finding it clearly established that defendants’

particular conduct violated Routt’s rights. See Christensen v. Park City Mun. Corp.,

554 F.3d 1271, 1278 (10th Cir. 2009) (explaining that the “weight of authority”

13
standard requires something more than “a handful of decisions from courts in other

circuits” that have not been “broadly accepted”).

III. Conclusion

We agree with the district court that there was no clearly established law

indicating that defendants’ actions were unconstitutional and therefore defendants

were entitled to dismissal of Routt’s amended complaint based on qualified

immunity. Consequently, we affirm the district court’s judgment. We grant Routt’s

motion to proceed on appeal without prepayment of costs or fees and remind him of

his obligation to continue making partial payments until the appellate filing and

docketing fees are paid in full. See 28 U.S.C. § 1915(a)(1) (excusing only

prepayment of appellate fees).

Entered for the Court

Carolyn B. McHugh
Circuit Judge

14