Barlor v. Patton

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 7, 2017
• Docket: 16-6093
• Status: Unpublished

Opinion

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UNITED STATES COURT OF APPEALS llf' 1'"''1 - l IJ,!Jh'''-1' FOR THE TENTH CIRCUIT ,, ' ,... ,,., l'illt::: 27 DANNY BARLOR, ) Plaintiff-Appellant, ) ) v. ) Case No. 16-6093 ) ROBERT PATTON, ) TRACY ELLIS, ) OKLAHOMA DEPARTMENT OF ) OF CORRECTIONS, et al., ) Defendants-Appellees. ) I BRIEF IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS

COMES NOW, Danny Reece Barlor, hereinafter Plaintiff, with his Brief in Support of the attached Petition for a Writ of Habeas Corpus in the above-entitled and numbered cause, pursuant to the provisions of 28 USC § 2241. Plaintiff hereby adopts and incorporates all issues, allegations and exhibits contained in his previous USC 28 subsection 1983 into his Writ of Habeas Corpus now before this Court. The Plaintiff is currently incarcerated as inmate number 85688 at the James Crabtree Correctional Center, 216 North Murray Street, Helena, Oklahoma 73741. The Defendant- Appellee is the Oklahoma Department of Corrections, et al. Plaintiff cannot afford to hire an attorney to represent him and is thus proceeding on a pro se basis. It is respectfully requested that this court hold the Plaintiff to a lesser standard than an attorney, in view of his prose status and the findings of Hall v. Bellmon, 935 F2d 1106 (lOth Cir 1991) and Haines v. Kerner, 92 SCt 594 (1972). In this action, the Plaintiff is not challenging his underlying criminal conviction in Cleveland County case #CRF-80-282. He is challenging the execution of his sentence by prison officials, seeking restoration of lost earned credits, which occurred due to a loss in his earned credit level, as well as challenging the condition of his confinement. The courts have long held that an inmate may initiate a Petition for a Writ of Habeas Corpus to challenge the execution of his sentence under the provisions of 28 USC § 2241. See Montez v. McKinna, 208 F3d 862 (lOth Cir. 2000); Mcintosh v. US Parole Comm., 115 F3d 809 (1oth Cir. 1997); Bradshaw v. Story, 86 F3d 164, 166 (1oth Cir. 1996).

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The courts have also long held that prisoners do not forfeit all equal treatment rights upon incarceration. Prison practices that result in unequal treatment among prisoners must bear a rational relation to a legitimate penal interest. Lee v. Washington, 390 US 333-334 (1968). To prevail on an equal protection claim, an inmate must prove (1) that similarly situated inmates have been treated differently by the government, and (2) that there is no rational relation between the dissimilar treatment and any legitimate penal interest. Turner v. Safley, 482 US 78, 95-97 ( 1987); Whitmire v. Arizona, 298 F3d 1134, 1136 (9 1h Cir. 2002). In other very similar cases as that of this Plaintiff, Danny Barlor, ODOC inmates have filed an 28 USC § 2241 petition against the Department of Corrections as this Plaintiff, alleging a violation of their due process rights because prison officials revoked their earned credits in a disciplinary proceeding wrongly. See Gamble v. Calbone, 375 F3d 1021 (10 1h Cir. 2004). In Gamble, the Tenth Circuit held that there was a complete failure of proof of guilt, reversed the matter, and remanded for issuance of the writ of habeas corpus. This case as well as many others including the Plaintiffs shows the pattern and practice of the ODOC prison officials to railroad and wrongfully punish inmates in an arbitrary manner.

JURISDICTION Plaintiff is invoking the provisions of 28 USC § 2241 in this actions. He asserts that prison officials have arbitrarily and wrongfully taken previously earned good-time credits, wrongfully demoted him in credit level, wrongfully restricted his eligibility to advance in earned credit level and imposed many directly related sanctions and restrictions upon him. Federal habeas corpus review is warranted and requested. See Montez v. McKinna, 208 F3d 862, 865 (1 01h Cir. 2000); also Aguiar v. Tafoya, 95 Fed Appx 931 (1 01h Cir. 2004); also Ewards v. Balisok, 520 US 641 (1997). Plaintiff asserts that a favorable ruling by this court would greatly affect his length of incarceration. The US Supreme Court has long held that when a prison regulation or practice offends a fundamental constitutional guarantee, the federal courts will discharge their duty to protect constitutional rights. Procunier v. Martinez, 416 US 405 (1974). Federal habeas corpus review is warranted and requested in this pleading for just cause shown in this action.

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In addition, on a related issue, the ODOC has arbitrarily and deliberately has misapplied a DOC policy, which has created due process as well as ex post facto violations and has used those violations to discriminate against the Plaintiff by applying said policy OP-060213. As a result of the misapplication of this policy, the Plaintiffs security status has been manipulated to place the Plaintiff in maximum security as stated in his original complaint filed in the United States District Court. The policy at issued and from which the Plaintiff seeks relief has been previously scrutinized by this court in Smith v. Scott and Plaintiff appeals to this court for relief under the provisions of Smith v. Scott and requests the application of 2 part ex post facto test in this instant case as in Weaver v. Graham, 450 US 24, 29 (1981) which required proof of both retroactivity and disadvantage. GROUNDS ASSERTED

Ground One: A private prison official arbitrarily revoked earned credits, demoted Plaintiffs earned credit level, and greatly restricted or prevented Plaintiff from promotion to a higher earned credit level.

Ground Two: Prison officials have retroactively applied a change in prison policy and regulations to Plaintiff, which has prejudiced him. This is in violation of the ex post facto clause ofthe US Constitution's 141h Amendment.

Ground Three: Prison officials did conceal evidence of officer involvement where a serious inmate injury did occur and used Plaintiff as a scapegoat to shift blame as well as avoid consequence for their unprofessional actions. Plaintiff believes he has a constitutional right not to be subjected to the arbitrary actions of governing officials.

Ground Four: The Oklahoma Department of Corrections is in violations ofthe prohibition ofthe ex post facto clause by applying a prison policy to his disadvantage and prejudice which was not foreseeable, and has given the Plaintiff security points that has also resulted in blatant discrimination.

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STATEMENT OF THE CASE

Plaintiff Danny Barlor is incarcerated pursuant to his conviction for Armed Robbery in the District Court of Cleveland County in the State of Oklahoma. He was sentenced in May 1980 to 20 years in prison. In this action, Plaintiff is not attacking his conviction in his criminal case. Rather, he is challenging the execution of his sentence by the Department of Corrections (DOC), as well as the conditions of his confinement. On or about June 6, 1985 and while incarcerated at the Dick Connors Correctional Center in Hominy, Oklahoma, Plaintiff was "accused" of the offense of escape. Plaintiff was never formally charged with that alleged offense by the DOC or by the Osage County District Court. He did not receive any disciplinary write-up. As will be set forth subsequently in this Brief, he is nevertheless still being punished and prejudiced for this alleged offense despite several years of diligent efforts to have all mention of this alleged offense expunged from his field file jacket and DOC records. On or about October 2, 1991 and while incarcerated at the Dick Connor Correctional Center, Plaintiff was given a disciplinary write-up by prison officials due to a "confidential statement" from another inmate which supposedly alleged that Plaintiff had "a plan of escape." As a result, Plaintiff was found guilty in an administrative hearing and severely sanctioned. There was no "real" evidence of any such plan for escape at said hearing. As a result of the disciplinary conviction for the alleged "plan of escape," Plaintiff lost earned credits and had his earned credit level reduced to the lowest level, level one. See 57 O.S. § 138 Pursuant to DOC policy at the time OP-060100 and OP-060213, Plaintiffwas promoted from Level One to Level Two on March 2, 1993. On June 2, 1993, Plaintiffwas promoted from level Two to level There. On or about November 2, 1993, he was promoted from level three to level Four. He remained on level Four until April 18, 2003 due to good behavior and a clear disciplinary record. On April 18, 2003 and while at the Great Plains Correctional Facility in Hinton, Oklahoma, a private prison contractor for the DOC, a private prison auditor arbitrarily and

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retroactively applied a revised DOC policy which was promulgated and implemented on April 9, 1997 to reduce Plaintiffs earned credit level from level Four to level Two. This resulted in Plaintiffs loss of 22 earned credit days per month for every month since that action, loss of inmate job pay for all months, loss of four hours visitation and the number of visitors he is allowed to have, greatly reduced telephone privileges, loss of right to possess personal property items, including a television etc., loss of privilege to be housed in an Honor Housing Unit and other sanctions associated with the reduction in level. In addition to this , Plaintiff was given an additional ten (10) security points making his assessed security status maximum from medium security, which he had had since 1982 when he was classified upon his incarceration at the Lexington Assessment and Reception Center (LARC) in Lexington, Oklahoma. When the private prison auditor took the above action, the Plaintiff was not afforded any type of notice or hearing. Neither was this action associated with any type of misconduct because Plaintiff had 12 years of clear conduct at this time and has repeatedly tried to resolve this matter informally by discussing it with a variety of correctional officers and staff. A Tenth Circuit case very similar to that ofPlaintiffisAguiar v. Ta(ova, 95 Fed Appx 931 (101h Cir 2004). In Aguiar, an inmate was found by a prison disciplinary proceeding to be guilty of attempt or complicity in connection with an alleged prison escape. This resulted in the inmate's losing several hundred earned credits. The Tenth Circuit held that the findings of a prison disciplinary board were not supported by at least "some evidence" on record as necessary to uphold the board's conclusion that the inmate committed the offense of"attempt or complicity." Two prison officials said nothing more than that they knew an inmate was planning an escape based on confidential informants and physical evidence. The record contained no proffer as to what the informants could testify to, nor was there even simple summary of what the informants told prison officials, and escape paraphernalia was erroneously linked to the inmate by a prison official. In Plaintiffs complaint presented to the United States District Court evidence was submitted that the 1991 misconduct for attempted escape at issue was based entirely on confidential witness testimony fabricated by a lone inmate. Indeed, on the misconduct itself it is stated "none" where disposition of physical evidence if any is required. In addition to this, the confidential witness himself later recanted his statement, which Plaintiff also presented as a notarized affidavit to the United States District Court in support of his complaint.

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The dispositive issue is whether the evidence against the Plaintiff in the record of the prison disciplinary proceeding meets the "some evidence" standard established by Superintendent v. Hill, 472 US 445 (1985). Oklahoma inmates possess a liberty interest in earned credits, created by the Due Process Clause of the 14th Amendment. Harper v. Young, 64 F3d 563,566 (lOth Cir. 1995); Wolffv. McDonnell, 418 US 539, 556 (1974). Oklahoma inmates are entitled to due process protection prior to the loss of earned credits. Wolf(, supra; Mitchell v. Maynard, 80 F3d 1433, 1445 (lOth Cir 1996). 57 O.S. § 138 It is the Plaintiff's representation that based upon his personal experience and based on discussions with numerous other inmates and inmate law clerks over the years, that private as well as State facilities in the DOC have a pattern and practices of intentionally impeding, restricting, and interfering with an inmate's attempts to exhaust his administrative remedies in an attempt to avoid prisoner lawsuits. As an example, Plaintiff respectfully requests that this Court would give its consideration to an attachment (G-1) that was submitted to the United States District Court in support of Plaintiff's claim. This attachment is a memorandum from Debbie Morton, the director's designee, administrative review authority, and is a response to the grievance coordinator who had dismissed the Plaintiff's attempt to exhaust administrative relief as being "out of time." By Ms. Morton's own admission, this Plaintiff's complaint is timely which should have resolved the issue as it was properly presented according to the DOC grievance procedure. But, instead, Ms. Morton advised the grievance coordinator to retract his decision as being out of time, and counseled him on how to respond. This is only one example of the difficulty and resistance this Plaintiff has encountered in his attempts to exhaust his remedies on every level and at every opportunity on the administrative level. By Mr. Elliott's own admission in the Special Report of Review ofFactual Basis of Claims Asserted in Amended Complaint pursuant to 42 USC§ 1983 state that this Plaintiff has on at least 18 occasions attempted to resolve his issues. (Please see page 7 of that report). Other relevant examples Plaintiff submitted a "Request to Staff' (RTS) to his Housing Unit Manager, Mr. Spruiell, at Great Plains Correctional Facility (GPCF) on April 24, 2003 regarding the above "escape" incident to which Mr. Spriell did not respond. On June 18, 2003, Plaintiff sent another RTS to GPCF Warden Sam Calbone regarding the same issue and the failure of his unit manager to respond. Warden Calbone likewise failed to respond.

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On May 2, 2003, Plaintiff submitted a grievance regarding this matter to Warden Calbone at GPCF. Reliefwas denied on July 14,2003. On July 29,2003, Plaintiff appealed the denial of his grievance to the DOC Director, Ron Ward, and relief was denied on August 6, 2003. On January 8, 2004, Plaintiff filed his legal notice in accordance with the exhaustion requirements of 57 O.S. § 564 and the Oklahoma Government Tort Claims Act under 51 O.S. § 151, 152, et seq. and completed the exhaustion of all available administrative remedies at the relevant time. On January 28, 2004, Plaintiff filed a petition for a writ of mandamus in the District Court of Oklahoma County, as case number CJ-2004-707. In this action, Plaintiff asserted that private prison officials had violated the prohibition against ex post facto by retroactively applying a revision in prison policy to his prejudice citing the very similar relevant Tenth Circuit decision in Smith v. Scott, 223 F3d 1191 (lOth Cir. 2000) and others. On may 20,2005, relief was denied by the District Court of Oklahoma County. Plaintiff filed a motion to reconsider on June 2, 2005 and relief was denied on June 13, 2005. Plaintiff appealed to the Supreme Court of Oklahoma as case number 102,337 and reliefwas denied on September 26, 2005. On October 18, 2005, Plaintiff filed a civil rights complaint on the same issues in the US District Court as case number CIV-05-1216-T. On December 29,2005, this case was dismissed without prejudice for failure to pay the initial partial filing fee. Plaintiff represents that he made a good faith effort to submit the proper documents to cause the timely payment of the initial partial filing fee but this was prevented by prison officials' acts and omissions. In any event, Plaintiff now understands that since this matter involves his length of incarceration, the proper legal forum is a Petition for a Writ of Habeas Corpus under 28 USC § 2241 instead of a civil rights complaint under 42 USC § 1983. Prior to filing the above-mentioned civil rights complaint Plaintiff essentially started over in a diligent, good faith attempt to fully and completely exhaust his available remedies. The originals of these exhaustion documents are already on file in the USDS as attachments to CIV- 05-1216-T. Some, but perhaps not all of these documents are attached to this pleading, including Request to Staff, Grievance number 2005-070, Responses from DOC Director designee Debbie Morton, and a letter dated August 2, 2005 from Kevin Moore, DOC coordinator of the Offender Records Unit stating that "you have filed a grievance on this issue and appealed the facility

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head's response to the director's designee." Plaintiff asserts that has repeatedly and fully exhausted all available remedies. A threshold question that must be addressed in a habeas corpus case is that of exhaustion. Exhaustion is based on principles of comity, exhaustion is not jurisdictional. The state may waive a prisoner's failure to exhaust, by failing to raise an exhaustion defense in federal district court. No such defense was raised in the above listed civil rights complaint. Some cases may present special circumstances that make it appropriate to address the merits of a habeas petition, notwithstanding the lack of compete exhaustion, such as when a State's process is inadequate to protect the prisoner's rights. See Harris v. Champion, 15 F3d 1538 (lOth Cir 1994); Granberry v. Greer, 481 US 129, 131 (1987). It is similarly held in Graham v. Johnson, 94 F3d 958 (5th Cir 1996) that exhaustion of state remedies is not required in a federal habeas case if it would plainly be futile. The failure to exhaust State remedies is not a jurisdictional or inflexible bar to the grant of federal habeas relief to a state prisoner. Hoxie v. Kerby, 108 F3d 1239, 1242 (lOth Cir 1997). It was specifically held that no exhaustion requirement applies to a habeas petition filed under 28 USC § 2241. See Capps v. Sullivan, 13 F3d 350,354 n. 2 (lOth Cir 1993). The US Supreme Court has determined that the States must have a full and fair opportunity to resolve constitutional claims and to provide the necessary relief. O'Sullivan v. Boerckel, 526 US 838, 845 (1999). It is the Plaintiff's assertion that Oklahoma does not provide this in the context of the issues raised in this action for prison inmates. There is no adequate remedy providing the relief sought by Plaintiff in this type of situation. Coleman v. Thompson, Ill S. Ct 2546 (1991). This case is cognizable for federal habeas relief.

GROUND ONE

A PRIVATE PRISON OFFICIAL ARBITRARILY REVOKED EARNED CREDITS, DEMOTED PLAINTIFF'S EARNED CREDIT LEVEL AND GREATLY RESTRICTED OR PREVENTED PLAINTIFF FROM PROMOTION TO A HIGHER EARNED CREDIT LEVEL

As set forth above, on or about June 6, 1985 and while incarcerated at the Dick Conner Correctional Center (DCCC), Plaintiff was accused of escape. He was not given DOC

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misconduct and was not charged criminally. On or about October 2, 1991 and while still at DCCC, Plaintiff was given a disciplinary misconduct by DOC officials for a "plan of escape" due to a confidential statement from another inmate who was unidentified at that time. Pursuant to DOC policy at the time, OP-060100 and OP-060213, Plaintiff was demoted to Level One (the lowest level) as a result of the 1991 misconduct at issue and promoted to Level 2 on March 2, 1993. On June 2, 1993, he was promoted to Level3. On or about November 2, 1993, he was promoted to Level4. He remained on Level 4 due to good behavior until April 18, 2003. As a result of being found guilty of the 1991 misconduct for attempted escape, Plaintiff suffered the loss of 365 days good time (earned credits). However, there was a loss of approximately 630 earned credits due to a loss in earned credit level from October, 1991 until he was reinstated to Level4 status on or about November 1993, a combined total of over 1000 earned credits. Plaintiff was not assessed with maximum points on either the 1985 alleged escape, or the 1991 misconduct for attempted escape. On April 18, 2003 and while incarcerated at the private prison known as the Great Plains Correctional Facility, a private prison auditor arbitrarily and retroactively applied a revision in DOC policy OP-060107(1) and/or OP-060103(II) which was promulgated and implemented on April 9, 1997. This resulted in Plaintiff's loss of monthly earned credits for every month since that time and numerous other direct and indirect sanctions for the rest of Plaintiff's incarceration. This is only one occasion of several where the application of said policy has affected Plaintiff's security status to his disadvantage as well as being responsible for the loss of his earned credits. In a similar case, Mayberry v. Ward, 43 Fed Appx 343 (1oth Cir 2002) the Tenth Circuit affirmed that under Oklahoma law, as state prisoner has a liberty interest in properly earned good time credits, and is entitled to due process protection prior to loss of those credits. 57 O.S. § 138. An Oklahoma prisoner is entitled to notice and a hearing prior to retroactive demotion in earned credit level and a prison auditor lacks the authority to unilaterally interpret a filed record, especially one which does not contain a misconduct report. As set forth the Plaintiff alleged "escape" in 1985 did not even result in a misconduct report. DOC policy OP-060211 (III)(a) sets forth the proper procedure for determining a loss of earned credits. In another similar Oklahoma case, Warnick v. Booher, 425 F3d 842 (1oth Cir 2005) this Tenth Circuit held that a DOC auditor improperly took earned credits without affording the inmate due process.

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The legal maxim of delegate potestas non potest delegari is applicable in this Plaintiffs case. A delegated authority cannot be delegated. The Oklahoma Legislature gave the Department of Corrections the authority to grant earned credits to inmates, and to revoke some upon affording them due process. This is set forth in state law 57 O.S. § 138. The Legislature did not, however, give the Department of Corrections the authority to delegate this power to private prison employees who work for a profit-making corporation; and who thus have a vested financial interest in keeping their "merchandise" (penitentiary inmates) incarcerated for as long as possible when the Oklahoma prison system is overcrowded, as it has been for well over two decades. The DOC is forced to contract with private prison vendors to house inmates. The more crowded the prison system, the more business there is for the private prisons. The Oklahoma taxpayers bear the financial burden of funding the DOC and its private prison contractors. It may be of some interest to this Court that an article in Prison Legal News dated August 2015 has stated that it is a private prison policy to enter in to bed guarantees, or "lock up quotas" with the DOC, lock up quotas ensure that bed space contracts are kept regardless of whether or not that bed space is occupied or unoccupied and is only incentive to keep prisons filled. Arbitrary, retroactive application of changed prison rules by private prison auditors is a form of fraud, waste, and abuse of taxpayers' dollars as well as being violative of ex post facto prohibition. This issue should be fully investigated, litigated and adjudicated in a public forum with oral arguments and briefs before this Tenth Circuit Court. A hearing is requested, as is appointment of counsel to represent the Plaintiff. The Tenth Circuit has in the past been critical of the private prison at issue in this particular incident, the Great Plains Correctional Facility, regarding the improper issuance of "bogus" write-ups given to inmates wrongfully, with subsequent denial of due process. See Gamble v. Calhone, 375 F3d 1021, 1029 (lOth Cir 2004); Wilson v. Jones, 430 F3d 1113 (lOth Cir 2005); also see Miller v. Menghini, 213 F3d 1244, 1246 (lOth Cir 2000); Harper v. Young, 64 F3d 563,566 (lOth Cir 1995) as well as Cotton v. Calbone, In this Plaintiffs case, he has been, and still is being, punished very severely for what is at most an inchoate offense. That is an offense that has allegedly been committed, even though the substantive offense of escape was not consummated. Plaintiff Danny Barlor has never been convicted in disciplinary or district court of the crime of escape and there has been absolutely no "real" evidence of his ever having attempted to escape from prison.

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In another similar case, Burnsowrth v. Gunderson, 179 F3d 771 (9th Cir 1999), the Court held that due process was violated when a prison disciplinary board convicted an inmate of escape after that board held a hearing at which no shred of evidence of the inmate's guilt was presented. As in Plaintiff Barlor's case at issue, the disciplinary conviction in Burnsworth was based on a confidential prison informant. The disciplinary hearing was devoid of evidence to support a finding of guilty of escape citing Superintendent v. Hill, 4 72 US 445, 457 (1985), requiring that prison disciplinary convictions be supported by "some evidence" in order to satisfy due process. Accordingly, the court concluded that the hearing violated the inmate's 14th Amendment rights. When a prison disciplinary hearing may result in the loss of earned credits, a prisoner must receive (1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action. Wolff, supra. In addition, revocation of earned credits does not comport with the minimum requirements of procedural due process unless some evidence in the record supports the findings of the prison disciplinary board. Hill, supra. In Plaintiff's case at issue herein the record does not contain a proffer made by prison officials as to what the informant could testify to, nor is there even a summary of what the informant told prison officials. The prison officials further failed to conduct any kind of reliability determination of the confidential informant, as is required by Taylor v. Wallace, 931 F2d 698, 701 (1Oth Cir. 1991 ). All that appears in the record here is a "bald assertion by an unidentified person," and a claim that unspecified physical evidence was found. In Aguiar, supra, the Tenth Circuit held that where prison officials say nothing more than we know an inmate was planning an escape based on confidential informants and physical evidence, this fails to satisfy even the relaxed standard of "some evidence" established in Hill, supra. In Aquiar, supra, the court reversed and remanded to the District Court with instructions to direct the restoration of Mr. Aquiar' s earned credits. Plaintiff Barlor is requesting the same finding from this Court as in Aquiar.

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GROUND TWO

PRISON OFFICIALS HAVE RETROACTIVELY APPLIED A CHANGE IN PRISON POLICY AND REGULATIONS TO THE PLAINTIFF THAT HAS PREJUDICED HIM. THIS IS IN VIOLATION OF THE EX POST FACTO CLAUSE OF THE US CONSTITUTION'S 14TH AMENDMENT

Under a program enacted by the Oklahoma Legislature, the Department of Corrections operates a system of good time credits, whereby prisoners can reduce their term of imprisonment, pursuant to the provisions of 57 0. S. § 13 8. The Department of Corrections is statutorily authorized to develop a written policy and procedure whereby inmates shall be assigned to one of four earned credit classes, and has done so in the form ofDOC policy OP-060213 and its successor, OP-060107. These are internal DOC regulations, which have the force and effect of law on penitentiary inmates. See Prock v. District Court o(Pittsburg Countv, 630 P2d 772 (Okl. Cr. 1981); Smith v. Scott, 223 F3d 1191 (lOth Cir 2000). The class level to which an inmate is assigned determines the rate at which credits are earned. Each earned credit is equal to one day of incarceration. Earned credits may be subtracted from the total credits accumulated by an inmate, upon recommendation of the institution's disciplinary committee, following due process. In this Plaintiffs case at issue, his disciplinary write-up for an alleged "plan of escape" in 1991 resulted in a disciplinary hearing before only one individual who served as the Hearing Officer, Prosecutor, Judge, and Jury. This was in violation of DOC disciplinary policy OP=060125 and was a denial of due process. And Plaintiff did appeal the disciplinary conviction, but to no avail. As has been set fmih previously, Plaintiff was also previously "accused" of an escape in 1985. Plaintiff did not receive a disciplinary write-up and no formal charges were filed in the District Court regarding that alleged allegation. Although DOC policy requires that there be either a disciplinary write-up or formal charges filed before punishing or restricting for any incident of this nature as stated by Department of Corrections Director Larry R. Meachum in OP-

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060101. This policy is being violated in this Plaintiffs case. Plaintiff was lowered in earned credit level to level one (the lowest level), all of his earned credits were revoked, and his eligibility for advancement in earned credit level was restricted. This was in addition to the other three allowable sanctions per OP-060125. The custody assessment procedures in OP-060103(II)(B)(3) states: "Consider all escapes or attempted escapes that have occurred during the stipulated time period prior to the custody assessment ... necessary documentation for Escape or Attempted Escape will be a misconduct conviction, felony or misdemeanor conviction, as evidenced by a judgment and sentence ... every effort will be made to verify the disposition of escape charges."

The DOC Systems oflncarceration policy OP-060107(I)(D)(2) states: "Misconduct Record - inmates having an active Class X misconduct or escape points will not be eligible for promotion to level 3 or 4 until the points expire."

According to the above two DOC policies, an inmate having an "escape history" will be assessed with escape points all throughout his current incarceration. This was not always the situation, however. At the time ofPlaintiffBarlor's conviction, sentencing, and incarceration, the relevant DOC policies did not have a lengthy restriction on advancement in earned credit level for an escape offense(s). Thus, the subsequent change(s) in DOC policy regarding escapes was not foreseeable in 1985 and in 1991 when offense allegations were made and said policies should not be applied to the Plaintiff. In support ofthis the Oklahoma Department of Corrections has stated in Smith v. Scott that "the policy at issue is not retroactive and that misconduct security points expire ten years after the date of his escape." The application of these changes is a violation of the ex post facto clause of the 14th Amendment to the US Constitution. Furthermore, the DOC's misinterpretation of the policy at issue allows the Department under color of state law to "pick and choose" to whom this policy will be applied to. As has been previously stated prison practices that result in unequal treatment among prisoners must bear a rational relation to a legitimate penal interest. To prevail on an equal protection claim, an inmate must prove (1) that similarly situated inmates have been treated differently by the government, and (2) that there is no rational relation between the dissimilar treatment and any legitimate interest. Plaintiff did make request to the USDC in his response to the Supplemental Report and Recommendation that the Court require the DOC to release the following information (1) the number of inmates who

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are similarly circumstanced as this Plaintiff who have had security point reductions as a result of the 1997 misapplied policy at issue and (2) the current number of inmates who have had security point reductions 10 years after the date of an escape as stated by the DOC in Smith v. Scott. The release of this statistical information would substantiate the Plaintiffs claim of ex post facto as well as due process violations that has been brought before this Court. Plaintiff respectfully asks this Court to require that the DOC would release the information requested to determine ex post facto as well as due process violations have occurred by the DOC to the Plaintiffs prejudice and disadvantage by applying said policy retrospectively as well as retroactively. In Smith v. Scott, 223 F3d 1191 (1Oth Cir. 2000) this Tenth Circuit analyzed an almost identical situation. A key question this Court considered is whether the phrase "active misconduct security points" as used in the old version of the regulation encompasses the term "active custody assessment points" in the Escape History section "from the 1997 amendment of Op-060 102." In PlaintiffBarlor's situation, the two alleged escapes generated two types of classification points: both "misconduct security points" for one year and for purposes of security assignment, and "escape history points" for the rest of his incarceration. Because the old DOC regulation only referred to "misconduct security points" he should have been eligible for promotion to earned credit levels 3 and 4 after one year and security misconduct points expire after 10 years as stated in Smith v. Scott. Plaintiff in this case should be afforded the regulation in effect at the time of the commission of his underlying criminal offense, his conviction, and his incarceration. Both the Oklahoma Constitution, Article II § 1 and the US Constitution, Article 1 § 10 prohibit ex post facto violations. An agency regulation (such as the DOC policies at issue herein) which are legislative in nature, are encompassed by this prohibition, because a legislative body "cannot escape the constitutional restraints on its power by delegating its law-making function to an agency." US v. Bell, 991 F2d 1445, 1450 (8th Cir. 1993); Also US v. Saucedo, 950 F2d 1508, 1510 n. 12 (lOth Cir 1991). Thus, the contested regulations must be treated as laws for the purposes of this litigation. To fall within the ex post facto prohibition of the US Constitution, a law must be retrospective, that is, it must apply to events occurring before its enactment, and it must

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disadvantage the offender affected by it, by altering the definition of criminal conduct, or increasing the punishment for the crime. See Smith v. Scott, supra. In Plaintiff Barlor' s case, the amendment to the DOC regulation governing earned credit, under which any inmate with "active custody assessment points" is not eligible for promotion to earned credit levels 3 or 4 during the length of his incarceration was a substantial charge of the prior version of the regulation, as was the application of additional security points due to the misinterpretation of the policy at issue. This was not foreseeable at the time of the alleged offense(s) therefore retroactive application ofthe amendment to punish the Plaintiff was barred by the ex post facto clause. See Smith v. Scott, supra. Whether a state law (or DOC policy) is properly characterized as falling under the ex post facto clause is a federal question that federal courts must determine for themselves. See Lustgarden v. Gunter, 966 F2d 552,553 (lOth Cir. 1992); USv. Bell, 991 F2d 1445, 1450 (8th Cir. 1993). In an Oklahoma case, Arnold v. Cody, 951 F2d 280, 283 (1Oth Cir. 1991 ), the court applied a two-part test in holding that Oklahoma's emergency time credits statute violates the ex post facto clause. Also see Lvnce v. Mathis, 519 US 433, 441 (1997); Weaver v. Graham, 450 us 24 (1981). As set forth above, the Smith v. Scott, supra case is very similar and in some way identical to that of this Plaintiff. This Tenth Circuit found in Smith that: "We find that the 1997 amendment to OP-060213 was not foreseeable. This decision is based upon several factors. First, and most importantly, the language ofthe 1988 version ofOP-060213 plainly lacks any indication that 'escape history points' are the same as 'misconduct security points.' The ODOC has not pointed to any other document, statute, or regulation which would support its interpretation."

This Court went on in the Smith decision to find that "based upon these factors we find that the 1997 amendment was a substantive change which was not foreseeable when the Petitioner was charged with the escape misconduct. It application to Mr. Smith was a violation of the ex post facto clause and due process notions affair notice, and the writ of habeas corpus should be granted." The Plaintiff has stated before this Court that there are comparisons between his issues and those of the Petitioner Steve Smith, and that those comparisons are to some degree identical.

15 I I .... ''• Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 16

In Smith v. Scott, the Petitioner suffered demotion in level and loss of earned credits as a result of a misapplied DOC policy, as did Barlor. In Smith v. Scott, the Petitioner was given additional security points by a DOC policy that was proven to be in ex post facto as well as due process violations, as was Barlor. However, in addition to these disadvantages and prejudices, Barlor was placed in maximum security as a result of the security points given him by the policy at issue. And for no other reason than having excessive security points as stated in CIV -15-66-D. The circumstances which revolve around this maximum placement occurred at the Oklahoma State Reformatory in January 2013. Maximum security placement of the Plaintiff occurred in March 2013, and continued until June 30,2015. The Plaintiffwent to great lengths in his Response to Supplemental Report and Recommendation and in his Response to Defendant's Motion to Dismiss, or in the alternative Motion for Summary Judgment to give a true and factual account of a 2013 incident that was used by DOC officials to place the Plaintiff in maximum security by using due process as well as ex post facto violations. As previously stated, the Plaintiff does not have legal counsel to accurately present his issues to the Court and the Plaintiff's intentions was to give the USDC insight to events as they actually occurred, so that the Court could see the true nature of these events and have the necessary advantage needed to render an unbiased decision in CIV-15-66-D. The Defendants would lead this Court to believe that allegations made against Ms. Ellis are "absurd allegations" as well as deny that any documents exist in relation to these allegations. However, this Plaintiff did in good faith present these documents to the USDC. In addition to this, these documents are supporting evidence to this Plaintiff's complaint, was xeroxed, logged and dated by facility law library services, and mailed by US mail to the Court Clerk, USDC. All documents are related to this Plaintiff's complaint and are signed and dated by DOC personnel. Ms. Ellis did use here influence to manipulate the disciplinary process as well as Plaintiff's security status. Ms. Ellis did conceal evidence of this Plaintiff's innocence where there was officer involvement where an inmate injury did occur as Plaintiff stated in his original complaint. In respect to these documents, Plaintiff invokes the provisions of 224 7 in this action and respectfully requests this Court to acknowledge the documents at issue in light of the Defendants denial of the existence of said documents and because the DOC has prevented the Plaintiff from presenting a complete and proper defense in violation of Brady v. Maryland, 373 US 83 (1963) and US v. Bagley, 473 US 667 (1985). Holmes v. South Carolina, 126 S.Ct. 1727, _ _, (2006)

16 I I

Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 17

(citing State V. Gregory, 343 S.C. 543, 541 S.E.2d 541 (2001)(third party [or documentary] evidence is admissible if it '"raise[ s] a reasonable inference or presumption as to [the defendant's] own innocence. With regard to the documents referred to, the Plaintiff did present these documents as attachments to the USDC in support of his claim of ex post facto and due process violations as well as damages that have occurred as a result of those violations. As an example, the maximum packet dated January 29, 2013 and presented to the USDC as attachment E2 does state that this Plaintiff "is in need of maximum security placement as he poses a threat to the security of the facility staff." (OSR) Even though all evidence of this alleged incident has been expunged from Plaintiff's filed file jacket, this packet will be viewed by the Oklahoma Pardon and Parole Board at the Plaintiff's next scheduled hearing and will certainly influence any decisions made regarding this Plaintiff. This maximum packet would not have occurred were it not for the maximum points given to Barlor in 2003 as a result ofOP-060213 and, to verify this, the offender who actually committed the battery and convicted in disciplinary court for the offense was subsequently transferred to another medium security facility. In addition to being placed in maximum security attachments H-1, H-2 section C.9 states Plaintiff had no misconduct to place him in maximum security, section 10, D and Estates Plaintiff was denied transfer, from a maximum security to a medium security facility, due to the 1985 and 1991 alleged offenses that support, the Plaintiff's claim of due process as well as ex post facto violations. To further substantiate the Plaintiff's claim that violations have occurred the maximum packet (attachment E-2) was dated January 29, 2013, however, the disciplinary conviction responsible for the decision regarding maximum placement was overturned by the warden of the facility (OSR) where the alleged battery was said to have occurred on 2/13/13 stating that due process had been denied. See attachments E-1 and B-4. Hence, the only consideration given to the maximum placement of the Plaintiff were the security points given as a result of the misapplied policy (OP-060213) in 2003 for alleged occurrences in 1985 and 1991. By DOC policy maximum placement consideration only takes place when an offender has 13 or more security points. The Plaintiff simply points this out to show that the allegation of battery was not the reason for his maximum placement. In considering the request the Plaintiffhas made to this Court in regard to the DOC documents at issue the Plaintiff would ask this Court to consider attachment B-4 section A-5

17 I I .... Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 18

where the warden of the OSR facility, Tracy McCollum, has stated "documentation was not provided for the reason of denying the viewing of the video." As well as attachment B-1 where the Holdenville maximum facility Investigator Lt. Stanley has stated that "I have tried on 4 occasions to receive video and statements needed I have been unable to receive items." And also the Disciplinary Officer's statement in attachment B-3. G. Robinson has stated "unable to obtain video evidence from writing facility." Representation for the DOC has stated several times in his Joint Response Brief that there were no attachments or documents and uses this as a basis to ask this Court to set this Plaintiffs complaint aside, citing Hall v. Bellmon, 935 F2d 1106, 1110 (lOth Cir. 1991) and Dunn v. White, 880 F2d 1188, 1197 (1oth Cir. 1989). "A plaintiff must assert facts which are supported by the evidence and mere conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based." Plaintiff also invokes the provisions of these established case laws. The Joint Response Brief presented to this Court on behalf of the DOC states that Mr. Barlor's allegations in regard to Defendant Ellis are "absurd," (page 15, lines 1-3). However, in this context, by the Attorney General's own admission, Ms. Ellis' actions are construed as "ill-willed" in the event this Court determines, based on the enclosed attachments, that evidence was, in fact, concealed. Plaintiff would ask this Court in light of said documents which DOC deny exists what is it that facility staff at OSR is attempting to hide or conceal from this Court? Plaintiff did make request to the USDC that the DOC be required to release the 113/2013 surveillance video tape so that determination ofthe true nature ofthe issue at hand is this instant case would be made. The Plaintiff in this instant case has carefully read all correspondence received from this Court and has only added the attached documents as a result of the DOC's denial that these documents exist. The Plaintiff did make reference to the documents as attachments in all motions mailed and filed in the USDC as well as deposited in the United States mail, after having been logged and dated, exact copies of all correspondence to the Oklahoma Attorney General's office. The Plaintiff believes he has presented to this Court evidence of due process and ex post facto violations as well as violations of DOC policies to the Plaintiffs prejudice and disadvantage. And because the Plaintiff has laid claim to these violations he asks this Court to acknowledge an additional attachment labeled as E-5, which directly relates to the issues centered in this Writ and

18 I I

Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 19

shows that disadvantages resulting from OP-060213 are current as well as ongoing since the misapplication of this DOC policy. Plaintiff contends he was placed in maximum security as a result of Ms. Ellis manipulating his security status as well as the disciplinary process to cover for officer involvement where a serious inmate injury did occur as stated in his original complaint. Plaintiff maintains he was denied constitutional protection afforded him under the Double Jeopardy Clause. The DOC is not authorized to inflict multiple punishments upon the Plaintiff for the same offense. It is this Plaintiff's assertion that prison officials did conceal evidence of officer involvement where an inmate injury did occur. Plaintiff was placed in maximum security in an attempt to make him less credible in regard to this incident and excessive security points at issue and given by the misapplication of OP-060213 were used to justify his maximum security placement. This policy is not retroactive as stated by the DOC in Smith v. Scott, supra, and should have never been applied to this Plaintiff. WHEREFORE the reasons set forth above, Plaintiff prays that this Tenth Circuit Court grant the relief requested in this case and issue an appropriate order to the Oklahoma Department of Corrections.

Respectfully submitted,

{)c G~ JDanny Barlor #85688 JCCC Unit 4E 216 North Murray Street Helena, Oklahoma 73741 (580) 852-3221 c/o Jo Gwinn, Unit Manager

Certificate of Mailing

I, Danny Barlor, hereby certify that on the 3_ day of t\l.o.v-~..U , 2016, I mailed a true and correct copy ofthe foregoing Briefto: Lc'-Ar-r C..Lvk..) ~. t...ut Stod..Jt.s ~.Art £~l~ Qr i--k -b-t"'- Cu~.-\=,UJU"'\v.u, Cw lora.o\C

19 I I

Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 { ·-:_.·· Page:Parole/Comm/PPCS 20 OFFEN~.E; REPORT. ·~\~~;.~:··- ~/ Dkt. Date Fc;acility. - -~ ... ·.·Computer Code B1il SECTION I · ; ·-~ .v. '' Nam-e- ~of Inmate i" ODOC Register Number

Place of Offense I ~5 "'~~ Housing Assignment i)CC.c IU-\U ;::;~1- OHense Offense . . _ Rtfe.M ~te-d £sc..a{JQ. Computer Code j(p~.~s Description of incdent (to include any unusual inmate behavior)

lt:-"Y'i I

---.,._

· . ., •.:-. ,_ ·.. : . :. . ·. ·' . r Disposition of Physical Evidence (if any)

· ·: ·: ;·U.Jr'fun~diate , .. ' " ··"":"" . Action .. Taken (to include the use of force and prehearing. detention) .

~\ \\ \ __ ~-

----- /J · ··Name and Title of Reporting Employee . . Name·'t~d H(Ke,Jl-1-c I

R~e (r(edd r !,9•1e1stigatioR'by I IJ ( __.. , :~ Name · '- \..._--&!/~ JD v I _,_._ 1r_ 9/ --, y .. .S Date _ _ I __ Time _,;..---- 4/ J"!_,

·- ,-~_,(·:. :~-/.: : . " ) . :.··· '1 -~'-:: k . i· . { ,,: , )1 ~i~)~i,:~ SEG,'tiQN II . Inmate should initial appropriate response . 1 . . . . . . .·.. ·. :{f~''?~ :_;t:.v I have received a copy ofthe written charge against me. I realize that I have a right to remain silent and I understand that I ha~~~~ .~'1J- a righ.t to an impartiai hearing. . . ____._. - I r~quest a hearing .. · .,& . _ -.-' ·r request a hearing 't>ut I waive' my right to 24 hours preparation' time. I waive my right to a Disciplinary Hearing on the above charge. I do this of my bwn. f,re~ choice w.ith full knowledge that. this shall be con9iqered as a plea of gqihy and that allowable sanctions be imposed with no ii.gh,t tor appe~l, • ~- . ; ' . ' .: ' · ·- ' ., • • p • . • . • . • ~ .•

of)pmate , ODOC Register Numper .,.;. r~r- r Y Time

__ \._. inmate chose not to sign for a copy of the Misc6nduct Report. ;{~)his time. -,._,•

Y

Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 21

INVESTIGATION REPORT-

-- Inmate would like to call the following witnesses:

Name Can testify to: - - - - - - - - - - - - - - - -

Name .-Can testify to: - - - - - - - - - - - - - - - -~

,.>("

£IV!nmate ddes not ~ish to present witn~sses \'

Inmate pesires a Staff Representative Assigned (Inmate's Signature) -~nmaie does not desire a Staff Representative Assigned .· '• .' .· ~ ~i!-.l;f~.:.~. - ,. "]:~:;-- .

Sta~ement(s) of inmate or staff witness or others

:, .- . ... ~-··

~----~~~~----------------~--

~Writt~ri confidenti~l witness testimony attached List of approved witnesses attached .. ·•. ·,·:-,.- Discretiomiry action taken regarding witness testimony. Documentation/Justification attached ·::',:- . ·

~============~============================~

.. ~- : . - .-.

Hearing Date ,J~dd~t¥). S1gnatu're~"of Investigator . . .

•· Hearing Time Hearing Location

a I acknowledge receipt of this Report

¥ _. -7 ..... - ( /. /} . '

,• .. ~ .'c._., C-o- Date" u/ -~.•.~~ ,J,In""m,...am:=·::~~..Si,.,....g-naf~u-=re::::L=::::__------ ··:' ORIGINAL: Director FIRST COPY: Field File SECOND COPY: Inmate DOC 062002 (R78" I I

.. :. Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 22

··~ Tape No.~ . ', -~-· .. : . Side Footage____6;.. . . . ~,:./

"'·. DISCIPLINARY HEARING ACTIONS

I. Name of Facility · · :.2:) b C C!_ Facility Code c;l 9 r1 Date of Violation Name of Inmate (last Name) dt,e/ 0£ (First Name) ___:"'":z.:>-~w"'".""'d.::..:,.....~=-=---7'-1<--_ _ _ _ _ M.L _ _ _ __ Violation A77J::•. ,_, pled rC sc &,cu-:: Violation Code _ ____c_/!_,~"""''-~_,3.....,__ _ Class of Oifense(3; 8 Hearing Date _Ld_ I ._LL I 9I Inmate Number _ __._.,.f'-':.5(=---=0"'--'-~"--.'-'Cf''----_ Time --""$"'---'-.'=5'--c"""z,. .:'.:. . ;v'-'''-'-')_ _ P1ace # N-c-1. 1 I Assigned Staff Representative A...) r

n. (understand that I waive the opportunity of this case being appealed if I glead guilty_ to this offense. ~~ --r ' . /,k ( ,1,;..,/,,o: sf i ··./;, ~ _-_.L.t·d;! ;-4 If !{,~ f 1- (._/;_~ {/_/ __ ..,.. / t· /~1"/.r:_;, It'!:-·/,·,·{· ~~ i _., - ,' - ..,--· rj' r T

Inmate ' Signature and. Number 2. Not Guilty LL. Inmate's initials _ _ __

III. ~~n~:bg,·wit~:ypt~ :~e~d~~{j~ 2. Not Guilty _ _ _ __

·E0d'~0 ~~1~dupon~rBnding~Guilt ~k~~+·~k~-~~~r_·_.~0~;ll£~.·~t~h~~~~~h~~L'~S~-w1t~·~··~~~~--~·-·=~«L~~~~r~~~&~-~~~L~~7~J~fu.t~'l~·uh~~-~uk~j~h~~~?~·~/~/~-~ j1 [;,;_(~;bl:.'i:J:1(;¥AJ:i:t:j!I~'f '':r{, /J,: ' ; . ' r I /

. ~" • ·\:o..... ., ~l;';, .. :~---.

Sanction.. . · coae . .. SuspensiorJ Punishment imposed: 1. ·z:J:) for-~-,-,--"-:'--- de 2. A-:2. for de 3. for d<

[)isciplinary Officer's Signature -4-/_,_~l-t,.,.: " Z; . .f~.-rC""'i"""-Z""'.l.,_:'._:-:....4"".'~""·.~""-i""';;f'""·-'-'--='---------'--­ -!

v. As a result of conviction for subsequent offense prior to' expiration of the suspended punishment, the previous suspended punishment is hereby- revoked: to run consecutive to the new punishment. {

Previous Violation:- --c'---------'----------;---~-----'­ Previous Punishment: 1:-- - - - - - - - - - - - 2. 3. Date of Imposition: __}__}_~

... / \ , .....

/l4/~!: ~ehearing Facility Heao.Review V' Affirm _ _--'--_Dismissed · / ..--MI.dified/ /. er Eor Date. . - /0 tfll ~~~ Signature '\t)l/\ . ( ~~)z_.., , •• ; . j

VI. I have received a copy of the dispostion. >) Date _!__!!__ I _!__2_ I ti I /,.. l I / -· /' In · Inmate's Signature and Number . /~..,._ ...... ,

/

ORIGINAL: Director FIRST CO-PY: Field File pECOND COPY: Inmate DOC 062003 (R787) • I I

Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 23

. State of Oklahoma ) . County ~i \~-u :3•'e..S } AFFIDAVIT.··

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..• . .: ·.-:.- __- : I I

Appellate Case: 16-6093 Document: 01019716770 ··~ Date Filed: 11/07/2016 Page: 24 ~ .· RECEIVED July 21, 2005 .;- .J...r,.; , ~.~ JUL 2 7 2005 o.Ji0' (\. i.:,.

MEMORANDUM "

TO: Sam Calbone, Warden n. u.' Great Plains Correctional Facilit~\ ~ 1~

FROM: Debbie L. Morton, Manager lJ_Y;V Director's Designee Administrative Review Authority

SUBJ: Danny Barlor, #85688 05-1485; 05-70 1; Classification

The attached grievance was returned to the inmate because it is out of time. However, this action ., effects the imnate at each classification review and therefore, is considered to be timely. An amended respons;should be prepared to answer the inmate's issue .

. Per OP-090124, the reviewing authority must respond within fifteen working days of receipt of the returned grievance. Once the grievance has been reinvestigated and responded to, please forward the amended response and the original grievance/paperwork to Deborah Romine with a copy of the response only to Deborah Romine, Administrative Programs Officer, Administrative Review Authority.

Thank you for your cooperation in this matter.

For your information, the inmate does not receive a copy of this memo.

/DR

Attachment

cc: Dennis Cunningham, Administrator, Private Prisons

G- \ Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 25 . I ---- i - . . ' ',-- r.:);~ I,; ._'.'; <--•,_;_.-<.; ·:) -I.; .

3400 N. 1·:\_STER!,; -P.O. (} / . ( / -,II r : / / (J.) •vf..._) Ol{LAHm.-r,~ CfTY, ()j,:u-..IJ I j r ( 405) 427--o::ll i 1,, .J J I ·~. ··-" ·. I ·1 ~- ·~ -~ : 'v,. ·, / .r '

{' ~- .- -/ (:·!:\'/) ;--~~-~- l.__ LARHY H. M£ACIWM Ju.ne 25,-1984 I liiO:CTt)H ~~' { :-) ;)~~ -~~- {_/ Jom..; GRIDER ME1·DFJ\hT:UI1

CLI !T S."-';DEL 'lD: Ll•'Jlutr !Jifj·( tl!r .·\drlilfd">1! .1(HI' St·ll.H'(·S

IJ,•plll) f)Jrn·ttlf r·,,J,lltllJ!!llj' C1

Effective ]\ngust 1, 1983 the iWi.:::Jte classification S'JStc..'11 \•.'aS cr;31Y:Jed ! II i'U [) iJtft l {(If regarding escapes. rl'he follc:r..;ing is a revision of tr.a t rns'IDrandwm r lj\l ~[UrJ .1'.!1 i jl. r::crtain.ing to suffici.c::.nt dcx.'l.Fct::OiiLJ.tion for considering an escai_:)e for the Initial Security j\._::;~;.::css:m:::.nt c-,!Jd the Security &."Classification Assessrrent. ; 1, l•,_;t) 1Jr tt·(·;r1r ,1 r' :_.I t\ i ~{( T :1 !1, •"":Sl1Jf1 Ne--.::e::o:.sary ocx::·urr-sntation for escape shu.ll be a c-onviction iS '•lf~Al'T, M.D. of a felony or nLisconduct, o. c.:onviction for esca.p,; as evidenced en a ra2 sheet or '.·.>rit.t?...n c:lo:..Tt::entation fro<< appropriate I-2'.-; 2nfora-::mcnt or Criminal ,Justice p2rsonneJ. if the escap:'3 'd.>S fran a juL"ic~diction clh:::r tJ1a11 the [ h·J···JI} t 1 r•, l!Jf Oklabcrn.--:1 Dep::rrb1LJ1t of Corn.~;:::t ior:s. Alleg-eQ.i.. escape~ j' [ (,J.;_._!. ..J ~ 1 ;_.I H..~ l'...:. [ L! !e · frcrn''t!:he Oklahana ·hlafOilli'tlrol"'-t ~~·Coz:-root..ions jurisdictioJt for .m±eh 'f'~~''is··not!J;: ami~nQ.u<;~;t: convict:iGn-- or: -convictio~ '! WH!AS \IlliTE in•di~riai!:•0!1>\.¥i:: 'i.Shal..J;.,f);l9t....,hed:lO.Dt;ic1ered- .. for sc-curi~ /.h•j•',J!)' Dtrt·~ tur cl~'fic~tiont I'J•.f'r..lllc!. ;i.i,'j ~:.•.:f\1t't'~

Ir. rna.tes \·:hose security classification are effected by this p::Jlicy JO\'C£ JJ\CKSON revision are eligible for inncdi2.tc recJassification. Copies of tl!is rncm:Jt"2..'1du:·n shall be m::o.ck~ avaj 12hlc~ to th? jJ1JY..Cltes by r;:ostir:9 it in each living area a.nd the law J.ilxury.

LHH/bh - 298 cc: Jo:tm Grider 'l'om LY~elace Joy Ha&..viger t>~lFacility Heads Ga.ry /~. Parsons Stephen lv. Ka.i~.r.:>r Ga.r:-y D •.. t-la ynarc1 Les CrabtreG Cliff S-.:mC.el

\:./EQUAL OPPOHTLJ.\.ITY E\1PLO' Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 26 Case 5:15-cv-00066-D Document 20-11 Filed 05/29/15 Page 5 of 6

(-c·~ :~ '(Jl~ • MEMORANDUM

DATE: January 29, 2013

TO: Lesla Miser, Administrator Classification and Population

FROM: Tracy McCollwri, Warden

RE: Justification for Maximum Security Placement Offender Name and Number: BARLOR, DANNY 85688

The above ref~renced offender Is In need of maximum security placement as he poses a threat to the security of fa~ility staff for the following reasons:

1. Incident/situation that occurred which resulted In this request (be very speciflc)ON 01/03/2013 OFFENDER BARLOR, DANNY 85688 WAS INVOLVED IN AN ALTERCATION WITH 3 OTHER OFFENDERS RESULTING IN 1 OFFENDER BEING SENT TO THE EMERGENCY ROOM AND HE REMAINS IN THE HOSPITAL AT THIS TIME. BARLOR WAS PLACED IN SHU AND DROPPED TO L-1. OFFENDER BARLOR WAS FOUND GUILTY OF 04- 4 ~LASS X MISCONDUCT. UCC RECOMENDS TRANSFER TO A MAXIMUM FACILITY.

2. Total number of m'isconducts offender has received this incarceration. Specify the number which are violent and the number which were violent against staff. TOTAL MISCONDUCTS-15 VIOLENT 6 01/29/2013 04-4 PARTICIPATING IN AN ACTIVITY THAT DIRECTLY RESULTS IN THE INJURY OF ANOTHER PERSON ClASS X. 11/30/11 09-2 POSS OF A WEAPON CLASS X, 03/04/11 02-23 SELL/TRADE/GIVE PRESCIBED DRUGS CLASS X, 02/19/11 04-4 ACTIVITY RESULTING IN INJURY CLASS X, 10/02/91 16-3 ATEMP TO ESCAPE CLASS X, 12/15/88 04-3 BATTERY OF ANOTHER PERSON CLASS X ~

3. Has a mlsconduct(s) been written as a result of the Incident/situation precipitating this request? If so, list the charge. If not, explain why. YES: 04-4 PARTICIPATING IN AN ACTIVITY THAT DIRECTLY RESULTS IN THE INTENTIONAL INJURY OF ANOTHER PERSON.

4. Is there an internal affairs investigation on-going as a result of the Incident/situation, or has an internal affairs Investigation already been ·completed? Give details. NO

@ OAG/A.JS/Barlor v Patton - CIV-15-66 (WD)/0057 c.-~ Case Appellate Case: 5:15-cv-00066-D 16-6093 Document Document: 20-11 Filed 01019716770 Date05/29/15 Page 6 of 6 Page: 27 Filed: 11/07/2016

I_ . J. /) ' )

5. List any !mown gang associations and gang activities of the offender.

6. Attach copies of all related Incident reports, misconducts and sanctions Imposed, or any other pertinent information related to this request.

rn/~pproved 0 Disapproved

~~1JL- Signature of Administrator, Classification and Population ::i/2&//13 Date '

If disapproved, state reason(s) why below and return to the requesting facility.

Note: Offender transfer packet is to be attached to this justification form.

(t) OAG/AJS/Barlor v Patton- CIV-15-66 (WD)/0058

I' ' Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 28 OFFENDER MISCONDUCT APPEAL FORM DUE PROCESS REVIEW Appeal # OSR 13-08

I. Name of Offender Barlor Danny DOC# 85688 Last Name First Name

Violation Battery 04-4, Class X Offense Date 01/03/2013 Hearing Date 01/25/2013

II. Due Process Review:

1. 0 Offender provided written notice of the charge. 2. 0 Offender provided at least 24 hours to prepare after receiving notice of the charge before the hearing was conducted 3. ~ Offender provided copies of evidence used. {except any confidential informant statements and only photocopies or written description of any physical evidence) 4. [gl Offender afforded the opportunity to call witness/es 5. 0 If relevant witnesses were not allowed at the hearing, were their written statements submitted and is there a discretionary action form? 6. ~ Offender permitted to present documentary evidence. 7. 0 Offender permitted to attend hearing. If not, is there documentation as to why? 8. 0 Was there a determination of the reliability of any confidential informant testimony? 9. ~ Is there a written explanation of the evidence used for a determination of guilt? 10. 0 Is there a written reason for the discipline imposed? 11. ~ Is there "any/some" evidence of guilt? 12. [gl If applicable, was a staff representative/mental health staff representative assigned? 13. [gl No direct involvement by the hearing officer?

Finding/Issue: See attachment

!~ '/! [ Reviewer's Printed Name and Signature _."-!Li.!.!n~d_,_a.!.!M.!.!o"-!n-'-'k~s-..l.\\.-".!,.(CA'"'''-"ik.:.:~·· n (1 1 ,, ".../..:::~C..:.·~\.......!:Gv~~L-::-·:t.P=;.__---- """":::::(R_::s..' Date February 13, 2013

Ill. Facility Head Action 1. Affirm 0 2. Dismissed 0 \3. Order Re-hearing and Re-investigation\~ 4. Modified 0

Printed Name and Signature ____-;----)- A(-:~~- . . !T~r~aC: :.~Y. . !M.!.!.!:.cC" o" l.! lu'-!.m!.!- _ _ _~-'----.£.7-___.;.-,£----t~:....:~__.::=---- Date February 13. 2013

IV. I have received a copy of the due process review.

2- {$'- ) 3 Offender Signature l'j DOC Number Date

Staf ~A/~ 1tness .l·· Date ~.5- t.3

V. If affirmed, to appeal! must forward my appeal to the director no later than 30 calendar days after receiving this due process review and must use form DOC 060125V.

Original: Commitment Document Folder DOC 060125 L First Copy: Field File Second Copy: Offender (R 12/10) i I

Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 29 OFFENDER MISCONDUCT APPEAL FORM DUE PROCESS REVIEW Appeal# OSR 13-08

I. Name of Offender Barlor Danny DOC# 85688 Last Name First Name

Violation Battery 04-4, Class X Offense Date 01/03/2013 Hearing Date 01/25/2013

You have alleged you were not:

(A.4.)Permitted the opportunity to present relevant witnesses or to submit relevant written witness statements.

The Investigator indicated on the Investigator's Report that you wished to call offender Robinson as a witness. Offender Robinson did not testify during your hearing and there is not a Witness Discretionary Action Record for offender Robinson giving the reason.

(A.S.)Permitted to present relevant documentary evidence.

The Investigator indicated on the Investigator's Report that you wished to present documentary evidence and you also requested during your hearing to view the video. Per OP-060125 (F.3.c.) "~•aUJtJO-.,&m::f"ar:t•oflhl tv.,_, -~'IMttJr~Rdtbei_.,~: .· .· .. ~w» •·•~ ,__elltatton wa.ul8.icP"*''~~"""''...~~*""'-_.,~ You have alleged there was no:

f!h2.) Written statement of the evidence utilized for a determination of guilt.

Per OP-060125 (IV.D.2.): "The finding of guilt on the "Disciplinary Hearing Report" form must be documented by a written statement by the disciplinary officer and a copy provided to the offender. The reasons must point out the essential facts upon which inferences were based, mentioning what evidence the reporting officer relied on. The statement regarding the evidence relied upon for the finding of guilt shall specify the offending behavior of the offender

The Disciplinary Hearing Officer's statement written in Section Ill does not contain the language required by policy.

*Based on the above, due process was not provided. I am ordering a re-hearing and re-investigation for this offense.*

At least 24 hours prior to your re-hearing you will receive written notification of the scheduled date and approximate time of your re-hearing.

Original: Commitment Document Folder DOC 060125 L First Copy: Field File Second Copy: Offender {R 12/10) I I

Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 30 Investigator's Report

· Investigating Officer (Print): c;;£,. lxr •1

Offender Name and Number: d .61-C /o,./ .g $(:, fV Date: -2-/ '7- }J Offense: {7-..f'L .] / /:d-+4' ~~ ~4 Offense Code: - L[ ~ 'tX . Date of Offense: ;·'" Y-1-:1 Statement of offender regarding offense:--,,r-d,.L..'_··+'=-· -~_.;:M~_,v,'-',1-~·-------------

A, Offender wishes to call witness/es D Offender d;"""-not wish to p~rsent witness Name: ~ kXl e"d Can testify toZ,-~r-F"""d~-~t;L_-<-· _ _ _ _ _ _ _ _ __

Name: tZcz V1 ~<{(.('. A_.../[. 4 YES NO (One box should be checked for each statement) 1. D y Offender provided documentary evidence to investigator. If yes, state evidence. 2 Statement(s) provided by witness/es attached (o_r document refusal to provide . D --.ff information). 3.~0 Discretionary action taken regarding witness testimony. Documentation/ justification attached. 4. _...g-- 0 Offender has received photocopy/description of all evidence. 5. D.~ Written confidential witness testimony/evidence taken (not provided to offender). 6. 0 ,....U A staff representative will ONLY be appointed if offender meets criteria specified in OP-060125 Section Ill. item A. Assignment of a staff representative is warranted. If so, assigned representative is:_ _ _ _ _ _ _- - - = - - - - - 7.~ Offender requested documentary evidence. If yes, state evidence:{!\ d--e .c.....-- . If denied, state reason for denial: ' -------------------- ---------- 8.~ 7 CRC attached (front and back side )

Additional facts discoverefL_by investigator not in incident and/or witness o}v.._ '-1 r-· • ~l

Your disciplinary hearing will normally be scheduled on a docket, which will commence within seven days (excluding weekends and holidays) fro. m the da.te the responsibl;ls aff person affirmed the chare-~ a~inst you. ...... ~ . \ I liff_l-'_ JJUU I t_ C 2 L <. ,:) ..~i<)!!:.L- '1 0 ,_~,..;::.;-"T--~-- .. . Hearing Date ~pproximate Hearing Time and Location Investigator's sfgnature

I acknowledge receipt of this report; all attachments, and the contents therein. (4-4238)

· Date :2_,17, /_J Offender's Signature Original: Commitment Document Folder First Copy: Field File Second Copy: Offender DOC 0601258 (R 10/12) I I

Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 31 Case 5:15-cv-00066-D Document 20-15 Filed 05/29/15 Page 1 of 4

OAG/AJS/Barlor v Patton - CIV-15-66 (WD)/01 08 I I

Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 32 Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 33 Case 5:15-cv-00066-D Document 20-14 Filed 05/29/15 Page 3 of 4

OMSO 199D . ) MALE OFFENDERS DATE: 01./ 14;,/,l.S. PAGE 2 OF OKLA~".JMADEPARTMENT OF CORRECTIONS .) TIHE: 02:26:46 PH CUSTODY ASSESSMENT SCALE DOC: 85688 7. ASSIGNED PROGRAH PARTICIPATION (since last classification) 0 ~ None, wating list, enrolled, participating 0 pt Cl Completed program within past 2 years (unless has points in escape section) -1 pt

Recommended Program NO ASSESSED NEEDS/PROGRAMS ALREADY COMP End Date

Recommended Program VoTech End Date

Recommended Program Masonry End Date 07/12/04

Recommended Program Business and Basic Computer Technology End Date 11/26/03

Recommended Program Education End Date

Recommended Program GED llnd Date 03/15/79

Recommended Program Daily Living Skills End Date 02/0l/99

B. ADJUSTMENT (indicate earned credit class level assigned) 0 0 Level 1 1 pt ~ Level 2 (or has points in escape section) 0 pt 0 Level 3 and 4 (unless has points in escape section) -1 pt

9. CURRilNT AGE 0 0 Age 25 or younger 2 pts 0 Age 26 to 31 1 pt 00 Age 32 to 39 (or has points in escape section) 0 pt -1 pt 0 Age 40 to 49 (unless has points in escape section) Age over 50 (unless has points in escape section) -2 pta 0 Offender 1 s current age is:59 10. COMPREHENSIVE CUSTODY SCOR!l (add items 1-10) Total Score: 16

C. SCALE SUMMARY AND RECOMMENDATIONS Assessed Custody Level: MAXIMUM 1. CUSTODY LEVEL INDICATED by SCALE 0 6 or fewer points on items 1-9 Minimum 0 7-12 points on items 1-9 Medium 00 12 or more points on items 1-3 Maximum 013 or more points on items 1-9 Maximum

2. MANDATORY OVERRIDES (No lm1er than medium security) reason is required 0 Life/Life without Parole 0 Restricted !larned Credits With llxcess Days 00 None

0 Time Left to Serve (Highest Crime Category)

3. DISCRETIONARY OVERRIDES FOR HIGHER CUSTODY LllVEL reason is required D Circumstances of the offense 0 Hanagement Problem 00 None 0 History of Violence 0 llscapes 0 Gang Affiliation 0 Felony Detainer 0 Time left to serve D Pending Cases 0 Other (specify) :

4. DISCRilTIONARY OVIlRRIDES for LOWilR SECURITY LllVEL reason is required 0 None 0 Circumstances of the offense 0 Outstanding Conduct 0 Time Left to Serve GO Other (specify); 4YRS CLEAR CONDUCT

5. RllCOMMEND!lD CUSTODY LllVEL D Minimum (< 7300 days) 00 Hedium 0 Maximum 6. Community Placement (<2920 remaining and meet eligibility for community as outlined in OP-060104) 0 YES 00 NO 1. GPS Placement after 90 days at community as outlined in OP-061001) 0 YES 00 NO 8 Custody Level Assignment: MEDIUM 9. Comments: ~~IHC...,.IPl~,!~OI~~~)>*'"~~·illiSQ i6IWi1 lli!1118Mft',........_.~._WBuRii•·~WwBiili• I'IM€etiDUii~'~ll~ll£1:;AII'ilillil? II'MIII!!~!t' 'N t+liDi.41H..,i'~.

DOC 060103A (H) (R 10/14)

OAG/AJS/Barlor v Patton CIV-15-66 (WD)/01 06 Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 34 I I

OKLAHOMA Appellate Case: STATE01019716770 16-6093 Document: DEPARTMENT OF CORRECTIONS Date Filed: 11/07/2016 Page: 35 New Arrival/ Adjustment Review I Earned Credit Level- Nov 2008 DOC# 85688

Offender Information Facility _ _ _ _,...J,_c,_cc...__ _ __ Facility Arrival Date _ __.l....ou.t.-.2....s.~-t.2.... g...,J... s __ lARC Arrival Date _ __.o~su.t...,l..;z9.L/.o~.l..;z9,g_B&2_ _ Name BART.oR. DANNY R DOC Number BS6BB Gender MAI,E Date of Birth _ __.Q....3u.I.-.2...,J.~-t.... J ..;z9_..s.... s __ Date of Assessment QB /lQ /2Q16 Housing Restrictions NO Identification NO Name of Emergency Contact 5arlgr Relationship Mather PhoneNumber C4QSI609-6176 Address 46QO se 26th Pel City. OK 73115 Will 1/M reside at this address after re-entry? No

Sentence Information 85% NO 57 O.S. 1991 Sec 521 eligible _N..;..o_t_e_1_i....:g""i;,b;..,l....;e;,;._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

PPWP eligibility Days Remaining 2390 ~li\111-~' .,_... ~,P,olntatHI•I. Assigned Security MED Mandatory Override? Misconduct History Active Misconduct Points -------------------------- 0 Date of last Misconduct .,;.,lulu/;,jl.ll6u./"'2.J.I0..1.l.o~.l_ _ _ __

ParoleDate 02/01/2017 ParoleStipulations None found --------------------------------------------------------- Parole Conditions None found

Escape History --------------------------------------------------------------------------------- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - E s c a p e Points --- Facility Security Level From Custody Escape Date Apprehension Date

Current Patterns of Behavior Performance Rating = Poor, Good, Excellent, Outstanding Staff orrrsraNIUNG Program Participation _ _..,~o.ux.~..~rr.,.s>.JT..c:AwNPu.u.T.~:~NJ.:iG'--- Job _ _..,~O,ui~IT._.SI.JT..c:AwNl)u.u.I.~:~NJ.:iG'---

Other Offenders OUTSTI\Nl)TNG Personal Hygiene _ __.o.<>x.uiTu;SuT..cA...,Nl)........,T..,N,.,r.'--- Living Area _ _..,~O,ui~lTuS:uT..c:ANDWJ.ui~N.I.:iG'---

Program I Job Evaluations Month/Year Rating Assignment

08/2016 Good Unassigned: UNEMPLOYED 07/2016 Good Unassigned: UNEMPLOYED 06/2016 Good Unassigned: UNEMPLOYED 05/2016 Good Unassigned: UNEMPLOYED

Case Plan Initial Plan Needs J;>lan of Action Projected Enrollment Completion Restricti~s/Clonfne§tsl,'

com~~- ' l 111e Updated Plan Needs Plan of Action Projected Enrollment Completion Education Daily Living Skills COMPLETED 02/0l/1999 Smart 3/16/90 & IPCS 6/17/83 Education GED COMPLETED 03/15/1979 Smart 3/16/90 & IPCS 6/17/83 VoTech Masonry COMPLETED 07/12/2004

VoTech Business and Basic Computer COMPLETED 11/26/2003 Technology NO ASSESSED No Plan Needed NEEDS/PROGRAM

OMS0188D DOC 060203A (R 11/08) RUTLMARK 08/14/2016 14:25

E-S I I

Appellate Case: 16-6093 STATE OKLAHOMA Document: 01019716770 Date DEPARTMENT OF Filed: 11/07/2016 Page: 36 CORRECTIONS New Arrival/ Adjustment Review I Earned Credit Level - Nov 2008 DOC# 85688

Harden/District Supervisor or designee approval Pre-Release Financial

Employment

Program Referral

Residence

Comment

Earned Credit Level Eligible Action Comment LEVEL 4 Stay out of trouble and find a job to maintain le·

Prepared by Date ALl 's tit& ::hairperson Date AUG 1 § 2016 'v1ember Date AUG l 5 2015 Date of Next Review 12/08/2016 Comments INMATE HAS 9,703 DAYS REMAINING - ECL 4 1/1/16.

"''"'"' Sig,,,, ~"··~,~~~ ~u ~ Date AUG 1 5 20\&

OMS0188D DOC 060203A (R 11/08) RUTLMARK 08/14/2016 14:25 Appellate Case: 16-6093 Document: 01019716770 Date Filed: 11/07/2016 Page: 37