Otto C. BOLES, Warden. Paul H. CRABTREE, Petitioner, v. Otto C. BOLES, Warden.
David Ginsburg, Washington, D.C., for the petitioners.
George H. Mitchell, Charleston, W. Va., for the respondent.
The petitioners in these consolidated cases are serving life sentences imposed under West Virginia's habitual criminal statute. This Act provides for a mandatory life sentence upon the third conviction 'of a crime punishable by confinement in a penitentiary.'1 The increased penalty is to be invoked by an information filed by the prosecuting attorney 'immediately upon conviction and before sentence.'2 Alleging that this Act had been applied without advance notice and to only a minority of those subject to its provisions, in violation respectively of the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the petitioners filed separate petitions for writs of habeas corpus in the Supreme Court of Appeals of West Virginia. Both of their petitions were denied without opinion. Unlike Chewning v. Cunningham, 368 U.S. 443, 82 S.Ct. 498, 7 L.Ed.2d 442, here each of the petitioners was represented by counsel at the time he was sentenced. Finding the cases representative of the many recidivist cases that have been docketed in this Court the past few Terms, we granted certiorari. 365 U.S. 810, 81 S.Ct. 701, 5 L.Ed.2d 690. We now affirm the judgment in each case.
William Oyler, the petitioner in No. 56, was convicted of murder in the second degree on February 5, 1953, which offense carried a penalty of from 5 to 18 years' imprisonment. Sentence was deferred, and on February 11 his motion for a new trial was overruled. On that same date the Prosecuting Attorney requested and was granted leave to file an information in writing alleging that Oyler was the same person who had suffered three prior convictions in Pennsylvania which were punishable by confinement in a penitentiary. After being cautioned as to the effect of such information, Oyler, accompanied by his counsel, acknowledged in open court that he was the person named in the information. The court then determined that the defendant had thrice been convicted of crimes punishable by confinement in a penitentiary and sentenced him to life imprisonment. In so doing the court indicated that the life sentence was mandatory under the statute and recommended that Oyler be paroled as soon as he was eligible. In 1960 Oyler filed a habeas corpus application in the Supreme Court of Appeals alleging a denial of due process under the Fourteenth Amendment in that he had not been given advance notice of his prosecution as a recidivist which prevented him from showing the inapplicability of the habitual criminal law. The statute was alleged to be inapplicable because he had never been sentenced to imprisonment in a penitentiary although he had been convicted of crimes subjecting him to the possibility of such sentence.3 He also attacked his sentence on the equal protection ground previously set forth.
In 1957 Paul Crabtree, the petitioner in No. 57, pleaded guilty to forging a $35 check, which offense carried a penalty of from 2 to 10 years' imprisonment. Sentence was deferred, and a week later the Prosecuting Attorney informed the court that Crabtree had suffered two previous felony convictions, one in the State of Washington and one in West Virginia. The trial judge, after cautioning Crabtree of the effect of the information and his rights under it, inquired if he was in fact the accused person. Crabtree, who had been represented by counsel throughout, admitted in open court that he was such person. Upon this admission and the accused's further statement that he had nothing more to say, the court proceeded to sentence him to life imprisonment. In 1960 Crabtree sought habeas corpus relief in the Supreme Court of Appeals claiming denial of due process because of the absence of notice which prevented him from showing he had never been convicted in Walla Walla County, Washington, as had been alleged in the information.4 Like Oyler, he also raised the equal protection ground.
Petitioners recognize that the constitutionality of the practice of inflicting severer criminal penalties upon habitual offenders is no longer open to serious challenge;5 however, they contend that in West Virginia such penalties are being invoked in an unconstitutional manner. It is petitioners' position that procedural due process under the Fourteenth Amendment requires notice of the habitual criminal accusation before the trial on the third offense or at least in time to afford a reasonable opportunity to meet the recidivist charge.
Even though an habitual criminal charge does not state a separate offense, the determination of whether one is an habitual criminal is 'essentially independent' of the determination of guilt on the underlying substantive offense. Chandler v. Fretag, 348 U.S. 3, 8, 75 S.Ct. 1, 4, 99 L.Ed. 4 (1954). Thus, although the habitual criminal issue may be combined with the trial of the felony charge, 'it is a distinct issue, and it may appropriately be the subject of separate determination.' Graham v. West Virginia, 224 U.S. 616, 625, 32 S.Ct. 583, 586, 56 L.Ed. 917 (1912). If West Virginia chooses to handle the matter as two separate proceedings, due process does not require advance notice that the trial on the substantive offense will be followed by an habitual criminal proceeding.6 See Graham v. West Virginia, supra.
Nevertheless, a defendant must receive reasonable notice and an opportunity to be heard relative to the recidivist charge even if due process does not require that notice be given prior to the trial on the substantive offense. Such requirements are implicit within our decisions in Chewning v. Cunningham, supra, 368 U.S. -, 82 S.Ct. 498; Reynolds v. Cochran, 365 U.S. 525, 81 S.Ct. 723, 5 L.Ed.2d 754 (1961); Chandler v. Fretag, supra. Although these cases were specifically concerned with the right to assistance of counsel, it would have been an idle accomplishment to say that due process requires counsel but not the right to reasonable notice and opportunity to be heard.
But the petitioners, who were represented by counsel, neither denied they were the persons named nor remained silent. Nor did they object or seek a continuance on the ground that they had not received adequate notice and needed more time to determine how to respond with respect to the issue of their identity. Rather, both petitioners rendered further inquiry along this line unnecessary by their acknowledgments in open court that they were the same persons who had previously been convicted. In such circumstances the petitioners are in no position now to assert that they were not given a fair opportunity to respond to the allegations as to their identity.
They assert, however, that they would have raised other defenses if they had been given adequate notice of the recidivist charges. It is, of course, true that identity is not the only issue presented in a recidivist proceeding, for, as pointed out by Mr. Justice Hughes (later Chief Justice) when this Court first reviewed West Virginia's habitual criminal law, this statute contemplates valid convictions which have not been subsequently mullified. Graham v. West Virginia, supra. A list of the more obvious issues would also include such matters as whether the previous convictions are of the character contemplated by West Virginia's statute and whether the required procedure has been followed in invoking it. Indeed, we may assume that any infirmities in the prior convictions open to collateral attack could have been reached in the recidivist proceedings, either because the state law so permits9 or due process so requires. But this is a question we need not and do not decide, for neither the petitioners nor their counsel attempted during the recidivist proceedings to raise the issues which they now seek to raise or, indeed, any other issues. They were not, therefore, denied the right to do so. The petitioners' claim that they were deprived of due process because of inadequate opportunity to contest the habitual criminal accusation must be rejected in these cases. Each of the petitioners had a lawyer at his side, and neither the petitioners nor their counsel sought in any way to raise any matters in defense or intimated that a continuance was needed to investigate the existence of any possible defense. On the contrary, the record clearly shows that both petitioners personally and through their lawyers conceded the applicability of the law's sanctions to the circumstances of their cases.
'Petitioner was discriminated against as an Habitual Criminal in that from January, 1940, to June, 1955, there were six men sentenced in the Taylor County Circuit Court who were subject to prosecution as Habitual offenders, Petitioner was the only man thus sentenced during this period. It is a matter of record that the five men who were not prosecuted as Habitual Criminals during this period, all had three or more felony convictions and sentences as adults, and Petitioner's former convictions were a result of Juvenile Court actions.
Thus petitioners' contention is that the habitual criminal statute imposes a mandatory duty on the prosecuting authorities to seek the severer penalty against all persons coming within the statutory standards but that it is done only in a minority of cases.10 This, petitioners argue, denies equal protection to those persons against whom the heavier penalty is enforced. We note that it is not stated whether the failure to proceed against other three-time offenders was due to lack of knowledge of the prior offenses on the part of the prosecutors or was the result of a deliberate policy of proceeding only in a certain class of cases or against specific persons. The statistics merely show that according to penitentiary records a high percentage of those subject to the law have not been proceeded against. There is no indication that these records of previous convictions, which may not have been compiled until after the three-time offenders had reached the penitentiary, were available to the prosecutors.11 Hence the allegations set out no more than a failure to prosecute others because of a lack of knowledge of their prior offenses. This does not deny equal protection due petitioners under the Fourteenth Amendment. See Sanders v. Waters, 199 F.2d 317 (C.A. 10th Cir. 1952); Oregon v. Hicks. 213 Or. 619, 325 P.2d 794 (1958).
Moreover, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Therefore grounds supporting a finding of a denial of equal protection were not alleged. Oregon v. Hicks, supra; cf. Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (by implication).
The other points raised by petitioners, such as the misstatement of the Washington county in which Crabtree was convicted and the fact that Oyler actually served in a Pennsylvania correctional home rather than a penitentiary, all involve state questions with which we are not concerned. Since the highest court of West Virginia handed down no opinion, we do not know what questions its judgment foreclosed. If any remain open, our judgment would not affect a test of them in appropriate state proceedings.
I join the Court's opinion in Oyler v. Boles and Crabtree v. Boles, Nos. 56 and 57, and concur in the result in Chewning v. Cunningham, No. 63, 368 U.S. 443, 82 S.Ct. 498, 7 L.Ed.2d 442.
In my view, the issues decided in Oyler and Crabtree, on the one hand, and in Chewning, on the other, represent opposite sides of the same coin. Since their interrelationship does not appear from the opinions of the Court, and since I cannot agree with the grounds of decision stated in Chewning, I file this separate opinion.
The statutes of both Virginia and West Virginia provide for enhanced punishment of multiple offenders. Apparently under the practice of neither State is the alleged recidivist given advance notice, either before the trial for his latest offense or after that trial but before sentencing, of the charges that are made in the multiple-offense accusation. It is not until he appears in open court and hears the prosecutor's information read to him that the accused learns on which convictions it is that the State relies in support of its demand for an increased sentence. And it is then and there that he must plead and state what his defense is, if he has any. This procedure was followed in each of the present cases.
For an individual unrepresented by counsel, this is surely too precipitous a procedure to satisfy the standards of fairness required of state courts by the Due Process Clause of the Fourteenth Amendment. In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682; see Williams v. New York, 337 U.S. 241, 245, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337; Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644. One who is untutored in the law cannot help but be bewildered by this sudden presentation of the charges against him and the demand for an immediate response. Without suggesting that advance notice of any particular duration must be afforded, still less that such notice must be given before trial or sentencing on the latest offense, had the petitioners in Oyler and Crabtree been without the aid of counsel at their multiple-offender hearings, I would entertain grave doubts as to the constitutionality of the procedure from which their increased sentences resulted.
But the records in these cases reveal that both Oyler and Crabtree had counsel at hand when the multiple-offender hearing was held and when they were asked to plead. Counsel could have requested a continuance in order to look into the validity of the previous convictions or other possible defenses to the recidivist charges, or, if there was any doubt, to establish the identities of the previous offenders. They chose not to do so, and I think this choice forecloses the petitioners' claims that they were not given adequate notice and opportunity to prepare a defense.
The Court strikes down the enhanced sentence, despite the apparent similarity between this claim and the one rejected in Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683, because it holds that various defenses that were available to Chewning under Virginia law could not have been known to or presented by a layman. To me, the bare possibility that any of these improbable claims could have been asserted does not amount to the 'exceptional circumstances' which, under existing law, e.g., Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, must be present before the Fourteenth Amendment imposes on the State a duty to provide counsel for an indigent accused in a noncapital case. Nor do I think that a decision on these grounds can be reconciled with the holding in Gryger, in which the Court rejected the proposition, made by able appointed counsel, that certain contentions, much like those here suggested by the Court, could have been offered had the petitioner in that case been provided with counsel for his multiple-offender hearing.
What does distinguish this case from Gryger, however, and persuades me that the failure to supply assistance of counsel amounted to a denial of the procedural fairness assured by the Fourteenth Amendment, is the want of adequate notice in advance of the hearing. In Gryger, a copy of the information listing the prior occasions on which the accused had been convicted was served upon him more than six and a half months before he was brought into court and asked to plead. This was more than ample time for him to engage an attorney, request assignment of counsel, or decide for himself what line of defense to take.2 In the case before us now, Chewning was given no such opportunity. Hence I agree that the least that fairness required was that he be provided with counsel so as to be advised of the courses available to him. With no opportunity to get such advice, I do not think that his own failure to ask for a continuance has any legal significance.
Mr. Justice DOUGLAS, with whom The Chief Justice, Mr. Justice BLACK, and Mr. Justice BRENNAN concur, dissenting.
'Full opportunity was accorded to the prisoner to meet the allegation of former conviction. Plainly, the statute contemplated a valid conviction which had not been set aside or the consequences of which had not been removed by absolute pardon. No question as to this can be raised here, for the prisoner in no way sought to contest the validity or unimpaired character of the former judgments, but pleaded that he was not the person who had thus been convicted. On this issue he had due hearing before a jury.' Graham v. West Virginia, 224 U.S. 616, 625, 32 S.Ct. 583, 586, 56 L.Ed. 917.
The issue now presented is broader. It is what the procedure used in making a charge that a person is an habitual criminal is necessary to satisfy the requirements of due process.
It is said that the record fails to show that this precise point was raised at the trial. If so, West Virginia might make that an adequate state ground, though it should be noted in passing that the court in Rhea v. Edwards, D.C., 136 F.Supp. 671, aff'd, 6 Cir., 238 F.2d 850, held that Tennessee's former procedure in habitual-offender cases violated due process where inadequate notice was given, even though the accused apparently had not made this an issue at the trial. Cf. Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131. In these cases, however, West Virginia nowhere suggests that the issue of due process is not properly here. Rather the argument is that the requirements of due process are satisfied though the issue to be tried is restricted to the identity of the accused.
A hearing under these habitual-offender statutes requires 'a judicial hearing' in order to comport with due process. Chandler v. Fretag, 348 U.S. 3, 8, 75 S.Ct. 1, 4, 99 L.Ed. 4. The Chandler case held that denial of an opportunity for an accused to retain a lawyer to represent him deprives him of due process. And see Chewning v. Cunningham, 368 U.S. 443, 82 S.Ct. 498, 7 L.Ed.2d 442. If due process is to be satisfied, the full procedural panoply of the Bill of Rights, so far as notice and an opportunity to defend are concerned, must be afforded the accused. The charge of being an habitual offender is as effectively refuted by proof that there was no prior conviction or that the prior convictions were not penitentiary offenses as by proof that the accused is not the person charged with the new offense. The charge of being an habitual offender is also effectively refuted by proof that the prior convictions were not constitutionally valid as, for example, where one went to trial without a lawyer under circumstances where the appointment of someone to represent him was a requirement of due process. Denial or absence of counsel is an issue raisable on collateral attack of state judgments. Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398. That is an inquiry that should also be permitted in these habitual-offender cases, if the procedure employed is to satisfy due process.
I mention the right of counsel merely to underline the gravity of these accusations. Unless any infirmities in the prior convictions that can be reached on collateral attack1 can be reached in these proceedings, the wrong done is seriously compounded.
'The primary purpose for affording a defendant notice is to inform him of the charge against him, and to give him a reasonable time in which to prepare his defense. Such reason for notice does not exist in the instant cases pertaining to the application of the West Virginia habitual criminal act.' Brief, p. 5.
Unless this principle is adhered to in proceedings under these recidivist statutes, serious penalties may be imposed without any real opportunity to defend.
The statute has been interpreted as requiring only that the previous convictions be such that imprisonment in a penitentiary could have been imposed. State ex rel. Johnson v. Skeen, 140 W.Va. 896, 87 S.E.2d 521 (1955).
The record indicates that instead of in Walla Walla Crabtree was convicted in Yakima County, Washington. At the time he was sentenced as a habitual criminal, he admitted that he had previously been sentenced to imprisonment in the State of Washington for a term of 20 years.
E.g., Moore v. Missouri, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301 (1895). West Virginia's statute is a carryover from the laws of Virginia, Va.Code, 1860, c. 199, §§ 25—26, and became its law when West Virginia was organized as a separate State. Since that time it has remained basically the same, save for a 1943 procedural amendment which provided that the statute should be invoked by information filed after conviction rather than by allegation in the indictment upon which the subject was being prosecuted for a substantive offense. In 1912 this Court upheld the constitutionality of the statute. Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912).
Any other rule would place a difficult burden on the imposition of a recidivist penalty. Although the fact of prior conviction is within the knowledge of the defendant, often this knowledge does not come home to the prosecutor until after the trial, and in many cases the prior convictions are not discovered until the defendant reaches the penitentiary.
West Virginia v. Blankenship, 137 W.Va. 1, 69 S.E.2d 398 (1952).
The fact that the statute expressly provides for a jury trial on the issue of identity and is silent as to how other issues are to be determined does not foreclose the raising of issues other than identity. This is especially clear in the case of legal issues, such as the petitioners now raise, where a jury trial would be inappropriate.
The denial of relief by West Virginia's highest court may have involved the determination that the statute, like its counterpart § 6260, infra, note 11, is not mandatory. Such an interpretation would be binding upon this Court. However, we need not inquire into this point.
After prisoners are confined in the penitentiary, the warden is granted discretion as to the invocation of the severer penalty. W.Va.Code, 1961, § 6260. Thus the failure to invoke the penalty in the cases cited by petitioners may reflect the exercise of such discretion.
Although petitioner did not allege in his habeas corpus petition that he was indigent at the time of the recidivist hearing, the state court apparently proceeded on the assumption that he had met the necessary poverty standard.
It is true that a subsidiary claim in Gryger was that the petitioner had been denied access to legal materials which were necessary in the preparation of his defense. But he was at least able to reflect calmly on the factual accusation being made against him and was able to plan in advance what plea to enter and how best to present his case.
Constitutional infirmities in criminal convictions in federal courts were declared to be 'a jurisdictional bar to a valid conviction' and assertable by habeas corpus in Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461, decided in 1938.
Any contrary implications from Graham v. West Virginia, supra, must be read in light of the fact that the broadening reach of constitutional issues raisable by state habeas corpus followed our decision in Johnson v. Zerbst, supra, note 1. Graham v. West Virginia was decided in 1912; Johnson v. Zerbst in 1938; and the broadening attack on state court judgments on constitutional grounds in collateral proceedings started with Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716. And see Smith v. O'Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859; Williams v. Kaiser, supra.


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Because Judge Shabaz is on a medical leave of absence from the court for an indeterminate period, the court is assigning 50% of its caseload automatically to Magistrate Judge Stephen Crocker. It is this court's expectation that the parties in a case assigned to the magistrate judge will give deliberate thought to providing consent for the magistrate judge to preside over all aspects of their case, so as to insure that all cases filed in the Western District of Wisconsin receive the attention they deserve in a timely manner. At this early date, consents to the magistrate judge's jurisdiction have not yet been filed by all the parties to this action. Therefore, for the purpose of issuing this order only, I am assuming jurisdiction over the case.
Petitioner Adekunle Adefeyinti, a prisoner at the Kenosha County Detention Center in Kenosha, Wisconsin, has submitted a proposed complaint and has requested leave to proceed in forma pauperis on his claims that he was denied adequate medication, dental care and access to the courts while he was housed at the Dodge County Detention Center in Juneau, Wisconsin. Petitioner has no means with which to pay an initial partial payment of the $350 fee for filing his complaint.
Because petitioner is a prisoner, I am required under the 1996 Prison Litigation Reform Act to screen his complaint and dismiss any claims that are legally frivolous, malicious, fail to state a claim upon which relief may be granted or ask for money damages from a defendant who by law cannot be sued for money damages. 28 U.S.C. §§ 1915 and 1915A. In addressing any pro se litigant's complaint, the court must read the allegations of the complaint generously. Haines v. Kerner, 404 U.S. 519, 521 (1972). In his complaint, petitioner alleges the following facts.
Petitioner is a prisoner who is presently detained at the Kenosha County Detention Center in Kenosha, Wisconsin. At times relevant to this complaint, he was detained at the Dodge County Detention Facility in Juneau, Wisconsin. Respondents Nurse Hovarth, Nurse Jodi and Vicki Nelson are members of the medical staff at the Dodge County Detention Facility. Respondents Baker, Born, Rhode and Polah are correctional officers at the Dodge County Detention Facility. Respondent Born is a supervisor.
On May 5, 2008, petitioner was experiencing severe tooth pain and asked to visit the dentist. On May 7, 2008, an unidentified member of the medical staff told him that there was no dentist at the facility at that time, but that he could request pain medication. On May 8, 2008, petitioner again asked to see a dentist. The same day, he was told that he could see a dentist if one was "found" or when he was sent to a facility that had a dentist. Instead of seeing a dentist, petitioner was "called for [a] doctor visit" on May 8. At that time, he was examined by respondent Nelson. She examined his tooth and promised to provide petitioner with pain-relieving oral gel. However, petitioner never received the gel, in spite of his requests to numerous nurses when they visited his unit.
As a result of his tooth pain, petitioner was unable to chew any food or drink water for five days and was "left in pain" for more than 10 days. In response to a grievance petitioner submitted on May 8, prison staff told him that the facility was "working on getting a dentist."
Petitioner had a prescription for Zantac to treat a chronic ulcer. His pills were white in color. On May 11, 2008, respondent Nurse Jodi was distributing medication. She gave petitioner a pink pill instead of his Zantac. Before petitioner took the pill, he told Nurse Jodi that she had given him the wrong medication. She told him that if he would not take the medication, she would note in his record that he had refused medication. Petitioner asked to see the label of the medication she had given him, but Nurse Jodi refused to allow him to see it.
After petitioner took the medication, he became dizzy and remained dizzy all night. The next morning, petitioner told respondent Hovarth that Nurse Jodi had given him the wrong medication the night before. Respondent Hovarth told petitioner in an aggressive tone of voice that he needed a psychiatrist and gave him the same pills he had received the night before. He asked to see the container. Several hours later she brought him a container with both colors of pills inside. It was marked with a black marker and did not say that it was Zantac.
Because petitioner had no money to pay for copies (which cost 10 cents each), all of his requests for copies of legal documents and to use the computer to prepare documents were denied by officers at the Dodge County Detention Facility. The officers who denied him legal materials were respondents Rhode, Polah, Baker and Born.
Petitioner made "several" requests for copies of legal documents, including a request on May 4, 2008 for a legal envelope and a floppy disk containing all of the discovery in his immigration case. Petitioner needed the information on the disk and other immigration documents in order to mail his appeal to the Immigration Board of Appeals. Respondent Rhode denied petitioner's request for the materials. Respondent Polah denied petitioner's grievance regarding the denial, stating "no money, no copies." Because of this denial, petitioner missed the 30-day deadline in which he could appeal the decision of the Immigration judge.
On May 10, 2008, petitioner prepared a motion to the Board of Immigration Appeals, in which he explained why he had missed the deadline for appeal. After petitioner printed out copies of the motion, respondent Baker took the motion and told him that he could not have it because he had no money to pay for the copies. Petitioner filed a grievance regarding respondent Baker's actions. Respondent Born denied the grievance.
Petitioner raises two claims related to his medical care while he was housed at the Dodge County Detention Facility. First, petitioner contends that respondent Nelson was deliberately indifferent to his need for treatment for his severe tooth pain when she promised him pain-relieving oral gel on May 8, 2008, but failed to insure that he received it. Next, he alleges that respondent Nurse Jodi gave him the wrong medication on one occasion, that this medication made him dizzy overnight and that respondent Hovarth told him that two pills of different colors were both his ulcer medication.
The Eighth Amendment requires the government "`to provide medical care for those whom it is punishing by incarceration.'"Snipes v. DeTella, 95 F.3d 586, 590 (7th Cir. 1996) (quotingEstelle v. Gamble, 429 U.S. 97, 103 (1976)). To prevail ultimately on a claim under the Eighth Amendment, a prisoner must prove that prison officials engaged in "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle, 429 U.S. at 106.
A "serious medical need" may be a condition that a doctor has recognized as needing treatment or one for which the necessity of treatment would be obvious to a lay person. Johnson v. Snyder, 444 F.3d 579, 584-85 (7th Cir. 2006). The condition does not have to be life threatening. Id. A medical need may be serious if the condition causes serious pain, Cooper v. Casey, 97 F.3d 914, 916-17 (7th Cir. 1996), or if it otherwise subjects the prisoner to a substantial risk of serious harm, Farmer v. Brennan, 511 U.S. 825 (1994). However, "the infliction of suffering on prisoners can be found to violate the Eighth Amendment only if that infliction is either deliberate, or reckless in the criminal law sense." Duckworth v. Franzen, 780 F.2d 645, 652-53 (7th Cir. 1985). "Deliberate indifference" means that the officials were aware that the prisoner needed medical treatment, but disregarded the risk by failing to take reasonable measures. Forbes v. Edgar, 112 F.3d 262, 266 (7th Cir. 1997).
In evaluating petitioner's claim, the first question is whether petitioner's toothache could constitute a serious health care need. Petitioner alleges that the pain of his toothache was so severe that he was unable to chew any food or drink water for five days. As noted above, a condition that causes serious pain may constitute a serious health care need. Cooper, 97 F.3d at 917. Therefore, given petitioner's allegation that he was suffering from severe pain from his toothache, it is reasonable to conclude that his toothache was a serious health care need.
The remaining question is whether respondent Nelson's response to petitioner's request for treatment for his toothache could constitute deliberate indifference. Again, deliberate indifference is a high standard; inadvertent error, negligence, gross negligence or even ordinary malpractice are insufficient grounds for invoking the Eighth Amendment. Vance v. Peters, 97 F.3d 987, 992 (7th Cir. 1996). Petitioner alleges that respondent Nelson promised him pain-relieving oral gel during her examination of him, but failed to insure that he received it. At worst, if respondent Nelson knew that prescriptions were regularly not delivered to prisoners, it may have been negligent for her to fail to follow-up to make sure that petitioner had received the recommended medication. However, it would be entirely speculative to assume that respondent Nelson never actually meant to withhold the medication from petitioner, or acted with reckless disregard to whether he received it. Therefore, petitioner will be denied leave to proceed on his claim against respondent Nelson.
Next, I turn to petitioner's allegation that he received the wrong medication from respondent Nurse Jodi on May 11, 2008. The Supreme Court has held that deliberate indifference requires that "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference." Farmer, 511 U.S. at 837. Even if I infer from petitioner's allegations that Nurse Jodi knew that she was giving petitioner the incorrect medication, there is no support for his claim that she exhibited deliberate indifference to a substantial risk of serious harm to him because the harm he suffered — dizziness for a short period of time — is not sufficiently serious to support an Eighth Amendment claim. Petitioner will be denied leave to proceed on his claim against respondent Nurse Jodi.
Finally, petitioner's claim against respondent Hovarth is even more tenuous. He asserts that she was rude to him, ignored his complaint about Nurse Jodi and told him that two pills of different colors were both his ulcer medication. Respondent Hovarth's dismissive behavior may suggest a poor attitude toward prisoners, but there is no indication that petitioner was harmed or even exposed to a risk of harm, as a result of respondent Hovarth's actions. Therefore, petitioner will be denied leave to proceed on his claim against respondent Hovarth as well.
Finally, petitioner asserts that respondents' refusals to allow him to photocopy materials for free interfered with his ability to pursue an appeal with the Board of Immigration Appeals. It is well established that prisoners have a constitutional right of meaningful access to the courts to pursue nonfrivolous actions.Lewis v. Casey, 518 U.S. 343 (1996). Less well established is what supplies a prison must provide in order to allow meaningful access. At a minimum, prisons are required to provide prisoners with basic materials necessary to pursuing a lawsuit. Bounds v. Smith, 430 U.S. 817, 824-25 (1977) (" . . . [i]ndigent inmates must be provided at state expense with paper and pen to draft legal documents with notarial services to authenticate them, and with stamps to mail them.").
However, despite courts' willingness to suggest that prisons have some affirmative duty to assist prisoners in securing minimally sufficient supplies to litigate their lawsuits, the Court of Appeals for the Seventh Circuit has held repeatedly that prisoners have "no constitutional entitlement to subsidy."Lindell v. McCallum, 352 F.3d 1107, 1111 (7th Cir. 2003); Lewis v. Sullivan, 279 F.3d 526, 528 (7th Cir. 2002) ("The right to petition for redress of grievances does not imply a right to free writing paper and stamps."); see also Johnson v. Daley, 339 F.3d 582, 586 (7th Cir. 2003) (prisoners have no constitutional right to have their adversaries or public treasury defray all or part of cost of civil litigation). In this case, petitioner contends that he was entitled to photocopies of materials and pleadings, regardless whether he was able to pay for them. However, whatever responsibility the prison had to provide petitioner with free copies of legal materials, there is no indication that a refusal to provide photocopies caused petitioner to be unable to pursue his appeal. It would be sheer speculation to suppose that petitioner was prevented from hand-writing his pleadings to the Board of Immigration Appeals or that the Board would reject plaintiff's handwritten materials. Because petitioner was denied copies only and not access to other materials with which he could have prepared his filing with the Board, I conclude that he does not state a claim for denial of access to courts.
[T]he mere denial of access to . . . legal materials is not itself a violation of a prisoner's rights; his right is to access the courts, and only if the defendants' conduct prejudices a potentially meritorious challenge to the prisoner's conviction, sentence, or conditions of confinement has this right been infringed.
Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006). In this case, petitioner states that he was not able to appeal his immigration decision in a timely manner. If prison officials prevented petitioner from pursuing his appeal at all, this might provide the grounds for an access-to-courts claim. However, petitioner himself indicates that he understands that there is an opportunity to convince the Board of Immigration Appeals to waive its filing deadline for appeals. Perhaps now that petitioner has been moved to a facility where he is able to prepare typed legal documents he has filed his appeal. Or perhaps he has tried to file an untimely appeal but has been refused. Because petitioner's complaint does not include this information, I cannot infer that respondents' refusals to allow petitioner to make free photocopies led to any lasting adverse outcome.
4. The clerk of court is directed to close the file.

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Plaintiff, Al-Hussaini Hussain, ("Hussain") appeals from the district court's dismissal of his claims for intentional infliction of emotional distress, defamation and invasion of privacy, after the court granted the defendants' two motions for partial summary judgment. The plaintiff contends that he was improperly precluded from conducting additional discovery and that the defendants were not entitled to dismissal of his case on summary judgment. For the reasons hereinafter set forth, we AFFIRM.
In this diversity action, Hussain alleges that the defendants, Palmer Communications, Inc., d/b/a KFOR-TV, Jayna Davis, Brad Edwards, and Melissa Klinzing, defamed him, invaded his privacy, and intentionally inflicted emotional distress on him through news reports broadcast on KFOR-TV Channel 4 in June of 1995. According to Hussain, he was accused, via television broadcasts of a series of news reports on KFOR, of complicity in the April 1995 bombing of the A.P. Murrah Federal Building in Oklahoma City. The news reports contained various comments about the potential bombers and displayed a photograph of an Iraqi man, who had been living in Oklahoma City since November of 1994, who might be the John Doe #2 sought by authorities in relation to the bombing. The name of the man was never revealed by KFOR, and the face of the man was digitally concealed in all of the news reports. The reports generally related information gathered by KFOR's reporters tending to connect the unidentified man to the bombing.
The plaintiff was unquestionably the unidentified man discussed in KFOR's news reports. Following KFOR's first four broadcasts, Hussain contacted other media outlets, voluntarily allowing his name and face to be broadcast on two other television stations and then also voluntarily identifying himself as the person in KFOR's news reports. Ultimately, it was determined that no John Doe #2 existed.
Hussain originally filed suit in state court in August of 1995, asserting claims identical to those asserted in the suit presently before this court. Some discovery for the state court suit was conducted by both sides, including interrogatories, requests for production and requests for admission. In March of 1997, the defendants filed a motion for summary judgment, and the plaintiff responded with only a motion for continuance. Thereafter, in April of 1997, the plaintiff voluntarily dismissed his state court suit. The suit was pending in state court for twenty months and, during that time, the plaintiff took no depositions. In September of 1997, the plaintiff filed this suit in federal court.
The plaintiff had a lengthy history of seeking continuances, filing late responses, or filing no responses at all. The plaintiff filed essentially identical discovery requests as propounded with his state court suit upon the defendants contemporaneously with the filing of his federal suit. The plaintiff did no other discovery in the ten months between the filing of the federal complaint and the scheduling conference.
II. LAW AND ANALYSISA. Additional Discovery.
Instead of responding to the defendants' summary judgment motions, the plaintiff filed requests for additional discovery. The district court denied his requests. We review the district court's denial of the plaintiff's Rule 56(f) requests for an abuse of discretion. See Diaz v. Paul J. Kennedy Law Firm, 289 F.3d 671 (10th Cir. 2002); Jensen v. Redevelopment Agency of Sandy City, 998 F.2d 1550, 1553 (10th Cir. 1993). We find no abuse of discretion.
Should it appear from the affidavits of a party opposing the motion [for summary judgment] that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
A party seeking time to conduct additional discovery under Rule 56(f) must provide an affidavit identifying what facts are not available and what steps the party has taken to obtain those facts. See Comm. for the First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir.1992). "Rule 56(f) may not be invoked by the mere assertion that discovery is incomplete or that specific facts necessary to oppose summary judgment are unavailable...." Pasternak v. Lear Petroleum Exploration, Inc., 790 F.2d 828, 833 (10th Cir. 1986). "Furthermore, if the party filing the Rule 56(f) affidavit has been dilatory, or the information sought is either irrelevant to the summary judgment motion or merely cumulative, no extension will be granted." Jensen, 998 F.2d at 1554. "The purpose of the affidavit is to ensure that the nonmoving party is invoking the protections of Rule 56(f) in good faith and to afford the trial court the showing necessary to assess the merits of a party's opposition." Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.2d 901, 905 (10th Cir. 1995).
In response to the defendants' motions for summary judgment, the plaintiff filed brief oppositions, in which he argued against dismissal and claimed that additional discovery was necessary to "present all facts which are essential to justify his opposition." Attached to his oppositions were affidavits from his attorney, stating that additional discovery was necessary. Generally, affidavits submitted under Rule 56(f) are entitled to liberal treatment unless they are dilatory or meritless. See Patty Precision v. Brown & Sharpe Mfg. Co. 742 F.2d 1260, 1264 (10th Cir. 1984). However, there are limits regarding when relief under Rule 56(f) should be granted. For instance, the mere assertion that evidence supporting a party's allegation is in the opposing party's hands is insufficient to justify a denial of a summary judgment motion on Rule 56(f) grounds. See id. "[T]he party filing the [Rule 56(f)] affidavit must show how additional time will enable him to rebut movant's allegations of no genuine issue of fact." Id.
There is ample support in the record for the district court's ultimate decision to deny the plaintiff's Rule 56(f) request. One of the principal causes of the discovery problems was the scheduling of the plaintiff's deposition, which was continually delayed due to various reasons. The district court had ruled that no discovery could occur until after the completion of the plaintiff's deposition. The plaintiff contends that he did not consent to the ruling but simply obeyed it. On appeal, the plaintiff continues to assert that his hands were "tied" throughout his entire case with regard to discovery. However, the plaintiff's contributions to the delays in scheduling his own deposition, in addition to the plaintiff's failure to conduct other discovery, support the district court's decision to deny the plaintiff's Rule 56(f) request.(3) There is no requirement in Rule 56 that discovery be complete before summary judgment can be entered. See Pub. Serv. Co. v. Cont'l Cas. Co., 26 F.3d 1508, 1518 (10th Cir. 1994). Hussain did not show his inability to oppose the summary judgment without the discovery sought, and the district court was within its discretion in denying his requests for additional discovery. Under these circumstances, there was no reversible error on the part of the district court to deny the plaintiff's requests for further discovery. See Comm. for the First Amendment v. Campbell, 962 F.2d 1517, 1523 (10th Cir.1992) (upholding denial of Rule 56(f) motion).
We review the district court's grant of summary judgment de novo, applying the same legal standards as used by the district court under Federal Rule of Civil Procedure 56. See Midland Mortgage Co. v. United States Fid. and Guar. Co., 301 F.3d 1277, 1279 (10th Cir. 2002) (citation omitted). Sitting in diversity, we apply Oklahoma law. See Habermehl v. Potter, 153 F.3d 1137, 1139 (10th Cir. 1998).
The defendants sought summary judgment as to the plaintiff's defamation claim, relying upon the following arguments: that the statements about which the plaintiff complained were substantially true (i.e., that the plaintiff is Iraqi) or were non-actionable expressions of opinion; that some of the statements were not about him and were not defamatory to him; that he was not identifiable in the broadcasts; that there was no evidence that he was harmed; and that the defendants were not professionally negligent in preparing the reports that were broadcast. The plaintiff presented no legal arguments or authorities in opposition to the defendants' fully supported motion for summary judgment as to the defamation claim.
Pursuant to the Supreme Court's decision in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997 (1974), individual states may define the appropriate standard of liability of the news media for defamatory falsehoods that injure a private individual. Under Oklahoma law, negligence is the standard of liability. See Martin v. Griffin Television, Inc., 549 P.2d 85, 92 (Okla.1976). Thus, in reporting news stories about private individuals, the media must exercise ordinary care--that "degree of care which ordinarily prudent persons engaged in the same kind of business usually exercise under similar circumstances." Id. As we said in Walker v. City of Oklahoma City, 203 F.3d 837 (10th Cir. 2000) (unpublished disposition), to hold a media defendant liable for defaming a private individual, a plaintiff must establish: (1) that the media defendant published a defamatory falsehood concerning the plaintiff; (2) that the defendant acted negligently in failing to ascertain that the statement was false; and (3) that the plaintiff suffered damages as a result of the falsehood."
Whether a statement is one of fact or opinion is a question of law for the court--but a difficult one. See Rinsley v. Brandt, 700 F.2d 1304, 1309 (10th Cir. 1983). The district court concluded that KFOR's news reports were not substantially false, that the defendants could not, therefore, have recklessly disregarded the truth, and that the news reports were not highly offensive. As for this argument, the defendants contend that the plaintiff again presented no evidence, argument or authorities that any of the statements which the court concluded were opinion in whole or in part were not so.
In Zeran v. Diamond Broad., Inc., 203 F.3d 714 (10th Cir. 2000), a panel of this court addressed a claim similar to the one currently before us. In Zeran, the plaintiff was the victim of a hoax related to the Oklahoma City bombing due to a radio broadcast. The plaintiff filed suit against the radio station, asserting claims for defamation, false light invasion of privacy and intentional infliction of emotional distress. Although the plaintiff had suffered an injury, the Zeran court found that the plaintiff did not suffer an injury to his reputation, which is the essence of an action for defamation. See id. at 719. The same is true in the instant case. Although our plaintiff may have suffered an injury, he did not suffer injury to his reputation, as he could point to no one who thought he was John Doe #2 as referred to in KFOR's news reports. In the instant case, as in Zeran, the plaintiff's defamation claim fails because the plaintiff has not shown that any person thinks less of him as a result of the broadcasts. Accordingly, the district court was correct in its grant of summary judgment to the defendants as to the plaintiff's claim for defamation.
(2) Invasion of Privacy--False Light.
[t]he rule stated in this Section applies only when the publicity given to the plaintiff has placed him in a false light before the public, of a kind that would be highly offensive to a reasonable person. In other words, it applies only when the defendant knows that the plaintiff, as a reasonable man, would be justified in the eyes of the community in feeling seriously offended and aggrieved by the publicity. . . . It is only when there is such a major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position, that there is a cause of action for invasion of privacy.
To satisfy the first element of the tort of false light invasion of privacy, the plaintiff must prove that he was portrayed "in [a] false manner or that statements were untrue or misleading." McCormack, 613 P.2d at 741. With regard to a false light invasion of privacy claim, mere negligence is insufficient to establish the requisite fault necessary to hold a defendant liable. The Oklahoma Supreme Court has clearly stated that the defendant must have "had a high degree of awareness of probable falsity or in fact entertained serious doubts as to the truth of the publication." Colbert, 747 P.2d at 289, 291. In this regard, the plaintiff has failed to offer any proof that the defendants either knew the information they broadcast was false or acted recklessly. The district court, after reviewing the undisputed facts and analyzing KFOR's news reports, concluded that the defendants did not recklessly disregard the truth. We agree. This was even more true in view of the fact that the district court accurately determined that KFOR's news reports were not substantially false nor highly offensive, as they were news reports about an unidentifiable person.
In Colbert, the Oklahoma Supreme Court surveyed and rejected the arguments for a negligence standard in false light cases stating that it was "committed" to "a standard of knowing or reckless conduct to afford recovery to those who suffer mental anguish by reason of a false light invasion of privacy." Colbert, 747 P.2d at 292. In order to establish reckless disregard, the plaintiff must demonstrate actual knowledge of probable falsity. The plaintiff contends that the defendants failed to properly investigate their information and were reckless by accepting the information at face value and not verifying its authenticity. "The only extent that an investigation enters into the consideration of the premises is if the investigation is made and through it, actual knowledge is imparted." Jurkowski v. Crawley, 637 P.2d 56, 60 (Okla. 1981).
The district court correctly found that the plaintiff could not establish that the news reports were highly offensive to a reasonable person and substantially false. Accordingly, the district court did not err when it granted summary judgment as to plaintiff's false light invasion of privacy claim.
(3) Intentional Infliction of Emotional Distress.
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
to determine whether the defendant's conduct may reasonably be regarded as sufficiently extreme and outrageous to meet the . . . standards [of a cause of action for intentional infliction of emotional distress]. Only when it is found that reasonable men would differ in an assessment of this critical issue may the tort-of-outrage claim(1) be submitted to the jury.
Eddy, 715 P.2d at 76-77. The defendants' conduct must be "beyond all possible bounds of decency" or "utterly intolerable in a civilized community." Id. at 77. Nothing short of "[e]xtraordinary transgressions of the bounds of civility" will give rise to liability for intentional infliction of emotional distress. Merrick v. N. Natural Gas Co., 911 F.2d 426, 432 (10th Cir. 1990) (applying Oklahoma law). Furthermore, the "distress must be of such a character that no reasonable person could be expected to endure it." Daemi v. Church's Fried Chicken, Inc., 931 F.2d 1379, 1389 (10th Cir. 1991) (citation omitted). To establish a prima facie case of intentional infliction of emotional distress, a plaintiff must demonstrate: (1) that the tortfeasor acted intentionally or recklessly; (2) that the tortfeasor's conduct was extreme and outrageous; (3) that plaintiff actually experienced emotional distress; and (4) that the emotional distress was severe. See Pytlik v. Prof'l Res. Ltd., 887 F.2d 1371, 1379 (10th Cir. 1989) (applying Oklahoma law); Daemi, 931 F.2d at 1387.
After careful review, we find nothing in the record which indicates that the defendants behaved in such an extreme or outrageous manner towards Hussain as to impose liability for intentional infliction of emotional distress. There is no evidence in the record to indicate that the plaintiff could prove that the defendants' conduct qualified under any of these standards. Accordingly, the grant of summary judgment as to the plaintiff's claim for intentional infliction of emotional distress was proper.
The above analysis of the evidence and applicable legal standards supports the district court's conclusions that the plaintiff's claims cannot survive summary judgment.
**. The Honorable Tom Stagg, United States District Judge for the Western District of Louisiana, sitting by designation.
3.There were numerous delays in taking the plaintiff's deposition, not all of which were plaintiff's fault. The delays began when the plaintiff, citing psychological reasons, moved to quash the notice setting his deposition in Oklahoma City. The defendants agreed to consider other alternatives if the plaintiff would provide medical records supporting his assertions. The plaintiff requested and received numerous postponements of his deposition in order to obtain the medical records. In September of 1998, the plaintiff abandoned his request that the deposition be moved. The defendants then requested numerous other medical records, which the plaintiff agreed to provide. The plaintiff also agreed to an independent medical examination in advance of his deposition.
1.We note that, even had additional discovery been allowed by the district court, the plaintiff likely would have failed to meet the necessary elements to recover on any of these claims.
2.Furthermore, as a general rule, statements which are opinionative and not factual in nature, which cannot be verified as true or false, are not actionable under Oklahoma law. See Miskovsky v. Okla. Publ'g Co., 654 P.2d 587, 593-94 (Okla. 1982). However, if an opinion is stated as or "is in the form of a factual imperative," or if an opinion is "expressed without disclosing the underlying factual basis for the opinion, the opinion is actionable under Oklahoma law if the opinion implies or creates a reasonable inference that the opinion is justified by the existence of undisclosed defamatory facts." McCullough v. Cities Serv. Co., 676 P.2d 833, 835 (Okla. 1984).
3.Section 652A provides four distinct forms of invasion of privacy recognized as tortious: (1) unreasonable intrusion upon the seclusion of another, (2) appropriation of the other's name or likeness, (3) unreasonable publicity given to the other's private life, and (4) publicity that unreasonably places the other in a false light before the public. See also McCormack, 613 P.2d at 740.
4.The Restatement says, and was quoted in McCormack as saying, that the actor must have had knowledge or acted in reckless disregard as to (1) the falsity of the publicized matter and (2) the false light in which the other would be placed. The Colbert court replaces the "and" with "or", indicating that reckless disregard either toward falsity or false light is sufficient for liability. Hussain's claims fails under either standard.
1.Intentional infliction of emotional distress is also known as a tort of outrage. See Gaylord Entm't Co. v. Thompson, 958 P.2d 128, 149 (Okla. 1998).

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FindACase | STC.UNM v. Quest Diagnostics Inc.
STC.UNM v. Quest Diagnostics Inc.
QUEST DIAGNOSTICS INCORPORATED and QUEST DIAGNOSTICS CLINICAL LABORATORIES, INC., Defendants.
THIS MATTER comes before the Court on STC.UNM's Objection to Order Permitting Limited Discovery (Doc. 38) (“Objection”) [Doc. 39]. The Court, having considered the objection, briefs, and relevant law, and being otherwise fully informed, finds that the Objection is not well-taken and will be overruled.
Plaintiff commenced this action in New Mexico State District Court, Second Judicial District Court, in Bernalillo County, and asserted contract claims against Defendants based on a 2006 License Agreement. Defendants then removed the action to this Court, asserting federal question and diversity jurisdiction. Thereafter, Defendants filed declaratory judgment counterclaims regarding patent issues.
Plaintiff filed a motion to dismiss and a motion to remand on December 7, 2017 and December 8, 2017, respectively. Both motions are based in part on Plaintiff's argument that it is an arm of the State of New Mexico, and thus is entitled to sovereign immunity under the Eleventh Amendment. Docs. 10, 12. In support of its motion to dismiss, Plaintiff filed a declaration of Elizabeth Kuuttila, Chief Executive Officer and Chief Economic Development Officer of STC.UNM, and attached several exhibits, which address the issue of Plaintiff's Eleventh Amendment immunity. Doc. 11. In response to Plaintiff's motions, on December 13, 2017, Defendants filed a motion requesting discovery “limited to the issues of establishing that STC.UNM is not entitled to either common law or Eleventh Amendment sovereign immunity (and/or has waived any claim to such immunity).” Doc. 17. According to Defendants, such discovery is necessary in order to respond to Plaintiff's motions to dismiss and to remand. Id.
On January 31, 2018, this Court referred to Magistrate Judge Karen B. Molzen Plaintiff's motion to remand. Doc. 37. On March 7, 2018, Judge Molzen entered an Order Permitting Limited Discovery by Deposition (“the Order”), determining that Defendants' motion for discovery, as limited in her Order, was well-taken. Doc. 38. Specifically, the Order authorizes limited discovery in the form of a deposition of Ms. Kuuttila regarding the contents of her declaration and attached exhibits and the day-to-day activities of STC.UNM that bear on its autonomy from the state. Id. On the instant Objection, Plaintiff argues that by granting Defendants limited discovery, the Order “misapplies the law on sovereign immunity and constitutes clear legal error.” Doc. 39 at 2.
Because the Order granting discovery is not dispositive of this case, under Rule 72(a) of the Federal Rules of Civil Procedure and 28 U.S.C. Section 636(b)(1)(A), this Court must defer to Judge Molzen's “ruling unless it is clearly erroneous or contrary to law.” Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th Cir. 1997) (holding that “[d]iscovery is a nondispositive matter”). Specifically, Rule 72(a) provides that, on “timely objections” to a magistrate judge's order on a non-dispositive matter, “the district court must . . . modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed.R.Civ.P. 72(a); see also 28 U.S.C. § 636(b)(1)(A) (district judge may “reconsider any pretrial matter . . . where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law”). 28 U.S.C. § 636(b)(1)(A). The clearly erroneous standard “requires that the reviewing court affirm unless it on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (citation omitted). As the Seventh Circuit has articulated the standard, to be clearly erroneous “a decision must strike [the court] as more than just maybe or probably wrong; it must . . . strike [the court] as wrong with the force of a five-week-old, unrefrigerated dead fish.” Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988).
In its Objection, Plaintiff argues that the Order permitting Defendants limited discovery is clearly erroneous and contrary to law because Eleventh Amendment immunity is a question of federal law reviewed de novo, and thus the Court need make no factual inquiry in determining whether Plaintiffs are entitled to remand and dismissal of Defendants' counterclaims. Doc. 39 at 7. According to Plaintiff, the law is clear that nothing beyond state law is relevant to the immunity determination, “including deposition testimony, policies, procedures, and course of conduct evidence.” Id. at 8. Further, Plaintiff argues that under Tenth Circuit law, “discovery is prohibited pending determination of [the immunity] jurisdictional challenge.” Id. at 10.
The Court agrees that “Eleventh Amendment immunity is a question of federal law and [the appellate court's] review is de novo, ” and that, while the court gives “deference to state court decisions regarding whether a given entity is an arm of the state, ” it does “not view these rulings as dispositive.” Steadfast Ins. Co. v. Agric. Ins. Co., 507 F.3d 1250, 1253 (10th Cir. 2007). The Court, however, does not equally agree that it follows that, when making its immunity determination, the district court is prohibited either from considering the factual circumstances of the case before it or from ordering limited discovery to aid in its determination. Plaintiff has not cited, and the Court has not found, any authority to support its position that the court not only need not, but may not engage in a factual inquiry in determining whether it is entitled to Eleventh Amendment immunity or permit limited discovery to aid in its determination.
First, [the court] assess[es] the character ascribed to the entity under state law. Simply stated, [the court] conduct[s] a formalistic survey of state law to ascertain whether the entity is identified as an agency of the state. Second, [the court] consider[s] the autonomy accorded the entity under state law. This determination hinges upon the degree of control the state exercises over the entity. Third, [the court] stud[ies] the entity's finances. Here, [the court] look[s] to the amount of state funding the entity receives and consider[s] whether the entity has the ability to issue bonds or levy taxes on its own behalf. Fourth, [the court] ask[s] whether the entity in question is concerned primarily with local or state affairs. In answering this question, [the court] examine[s] the agency's function, composition, and purpose.