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UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
United States Court of Appeals
Tenth Circuit
SEP 19 2000
PATRICK FISHER
Clerk
STEVE A. WILSON,
Plaintiff-Appellant,
and
WADRESS HUBERT METOYER,
JR.; SHERMAN CHEADLE; KERRY
QUATTLEBAUM; WALTER
WILLIAMS, JR.; LEROY THOMAS;
DONALD RAY LAMBERT;
WILLIAM C. DAVIS; WILLIE HILL,
Plaintiffs,
No. 00-6126
(W. District of Oklahoma)
(D.C. No. 99-CV-494-L)
v.
OKLAHOMA DEPARTMENT OF
CORRECTIONS; OKLAHOMA
PARDON AND PAROLE BOARD,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRORBY, KELLY, and MURPHY, Circuit Judges.
This order and judgment is not binding precedent, except under the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. 36.3.
*
After examining the briefs and the appellate record, this court 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).
The case is therefore ordered submitted without oral argument.
Appellant, Steve A. Wilson (the Appellant), proceeding pro se, appeals
the district courts dismissal of a 42 U.S.C. 1983 civil rights complaint he and
several other individuals (the Plaintiffs) filed against defendants. 1 Plaintiffs
complaint alleged several violations of their constitutional rights arising from the
enactment of the Oklahoma Truth In Sentencing Act (the Act). The Act made
alterations to Oklahoma law relating to sentencing and parole. The Oklahoma
Department of Corrections and the Oklahoma Pardon and Parole Board were
named in the title of the complaint as defendants.
Defendant, Oklahoma Department of Corrections, filed a motion to dismiss.
The matter was referred to a United States magistrate judge who prepared a
Report and Recommendation (R & R) recommending dismissal of the
Nine individuals, including the Appellant, signed the complaint in this
action. The notice of appeal, however, was signed only by the Appellant although
it appears the Appellant attempted to sign the notice of appeal on behalf of all the
Plaintiffs. The notice of appeal must be signed by the appellants counsel or, if
the appellant is proceeding pro se, by the appellant. 10th Cir. R. 3.1. Because
the Appellant may not act on behalf of the other
pro se Plaintiffs, the Appellant is
the only proper appellant before this court.
1
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complaint. The reasoning underlying the magistrates recommendation that
Plaintiffs complaint should be dismissed is comprehensively expounded in the
R & R.
The court first concluded that defendants, as state agencies, were entitled to
Eleventh Amendment immunity and that immunity had not been waived. See,
e.g., Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam); Knoll v. Webster,
838 F.2d 450, 451 (10th Cir. 1988); see also Wallace v. Oklahoma, 721 F.2d 301,
305-06 (10th Cir. 1983). The court also concluded that defendants were not
persons within the meaning of 42 U.S.C. 1983. See Will v. Michigan Dept of
State Police, 491 U.S. 58, 71 (1989) (holding that states and governmental
entities considered arms of the state for Eleventh Amendment purposes are not
persons within the meaning of 42 U.S.C. 1983); Sutton v. Utah State Sch. for
the Deaf & Blind, 173 F.3d 1226, 1237 (10th Cir. 1999) ( holding that a cause of
action under 1983 requires a deprivation of a civil right by a person acting
under color of state law). The court noted that Plaintiffs named several
individuals employed by defendants in the jurisdictional statement of their
complaint. The court, however, concluded that these individuals were not
properly before the court as defendants because Plaintiffs did not clearly state in
their complaint that they intended these individuals to be defendants. See Fed. R.
Civ. P. 10(2) (providing that all parties must be named in the title of the action);
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cf. Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (recognizing that a
party not properly named in the caption of a complaint may still be properly
before the court if the allegations in the body of the complaint make it plain the
party is intended as a defendant).
The district court next concluded that it would be futile to allow Plaintiffs
to amend their complaint to name a proper person as a defendant. The district
court noted that Plaintiffs had not sought or been granted certification to maintain
their suit as a class action. The court then concluded that Plaintiffs could not be
permissively joined pursuant to Rule 20 of the Federal Rules of Civil Procedure
because their claims do not arise out of the same transaction, occurrence, or
series of transactions or occurrences. Fed. R. Civ. P. 20(a). The court also
noted that the relief sought by Plaintiffs includes the modification of the
sentences each received. To the extent Plaintiffs attack the fact or duration of
their confinement, their claims are not cognizable under 42 U.S.C. 1983 but
must, instead, be brought in a petition for a writ of habeas corpus.
See Rhodes v.
Hannigan , 12 F.3d 989, 991 (10th Cir. 1993).
The district court, after considering Plaintiffs objections to the R & R,
granted the motion and dismissed Plaintiffs complaint against both defendants 2
The claims against the Oklahoma Pardon and Parole Board were dismissed
pursuant to 28 U.S.C. 1915A.
2
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concluding that it failed to state a claim upon which relief may be granted. In
reaching that conclusion, the district court specifically rejected the argument
made by Appellant in his objection to the R & R, that the naming of several
individuals in the body of the complaint was sufficient to satisfy Rule 20 of the
Federal Rules of Civil Procedure. Upon de novo review of Plaintiffs complaint
and appellate brief, the R & R dated January 25, 2000, the district courts Order
dated March 29, 2000, and the entire record on appeal, this court
affirms the
district courts dismissal of Plaintiffs complaint for substantially those reasons
set forth in the R & R and the district courts Order.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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