Opinion
No. 99-3123-KHV
May 1, 2000
MEMORANDUM AND ORDER
Plaintiff, an inmate at El Dorado Correctional Facility, brings this action in forma pauperis under 42 U.S.C. § 1983. Plaintiff alleges that Charles Simmons, Secretary of Corrections, Michael Nelson, Warden at El Dorado Correctional Facility, and Ricky Woods, Unit Team Manager, violated his constitutional rights under the First, Fourth, Six, Eighth and Fourteenth Amendments. This matter comes before the Court on defendants' Motion For Summary Judgment (Doc. # 20) filed October 21, 1999, and Plaintiffs Response to Defendant's Motion For Summary Judgment (Doc. # 22) filed November 18, 1999, which the Court construes as a cross motion for summary judgment. Also before the Court are plaintiffs Motion For Discovery (Doc. # 14) and plaintiffs Motion For Objection (Doc. # 15), both filed September 27, 1999. For the reasons set forth below, the Court finds that defendants' motion for summary judgment should be sustained, and that plaintiffs motions should be overruled.
On June 7, 1999, the Court dismissed defendant Governor Bill Graves from this action. See Doc. #4.
Summary Judgment Standard
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law."Anderson, 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence. The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323; Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.
"[W]e must view the record in a light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51. In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial. Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law."Anderson, 477 U.S. at 251-52.
In pro se prisoner litigation, the Tenth Circuit endorses the completion and filing of a "Martinez" report where the prison constructs an administrative record detailing the factual investigation of the events at issue. See Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 1978). The Martinez report "is treated like an affidavit, and the court is not authorized to accept the factual findings of the prison investigation when the plaintiff has presented conflicting evidence."Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991)). The pro se prisoner's complaint, when sworn and made under a penalty of perjury, is also treated as an affidavit and, like the Martinez report, serves as evidence for a summary judgment determination. See id.
Facts
The following facts are uncontroverted or, where controverted, viewed in the light most favorable to plaintiff.
On or before April 17, 1998, Barry Nolan, a television news reporter, contacted unnamed prison officials to get permission to go to the prison to interview plaintiff. On April 28, 1998, Nolan wrote plaintiff a letter which indicated that prison administrators had agreed to allow the interview. Nolan advised plaintiff that he needed to request the interview in writing and fill out a "Form 9." Plaintiff, however, did not comply with the prison's Internal Management Policy and Procedures 08-104, which required that he file a written request and signed waiver form. See Martinez Report, Exhibit K.
On April 16, 1998, a female employee of the prison's contract medical provider made a written complaint that plaintiff had approached her several times. According to that employee, plaintiff between April 4 and April 15, 1998 complained that she was hard to catch alone, commented that she was avoiding him, and said that he wanted to sing to her, ask personal questions, and read poetry to her. On April 20, 1998, prison administrators placed plaintiff in administrative segregation for these incidents. Woods, the unit team manager, filed an administrative segregation report and placed plaintiff in segregation to ensure the safety and security of the facility under K.A.R. § 44-14-302(g), a provision which dealt with "other security risk." Martinez Report, Ex. A.
Prison officials gave plaintiff a chance to present objections or explanations at a pre-segregation hearing under K.A.R. 44-14-303(b). Plaintiff stated that he had nothing to say except "I object to the whole thing." See Martinez Report, Exhibit A. Although plaintiff received a copy of the report on the day defendants placed him in administrative segregation, he refused to sign it.
While confined in administrative segregation, plaintiff has not had access to his personal typewriter. Under current prison policies,
[a]ny typewriter possessed by an inmate as an item of personal property shall be removed from his/her possession prior to placement in segregation, shall be stored by the facility, and shall be returned to the inmate upon his/her removal from segregation.Martinez Report, Ex. E, Internal Management Policy and Procedure 12-120. The prison administration enacted this policy after discovering that prisoners used typewriter parts to make weapons.
In his Motion of Objection (Doc. #15) filed September 27, 1999, defendant asks the Court to exclude from evidence Exhibits B and C of theMartinez Report. Because the Court does not rely on these exhibits in ruling on summary judgment, his motion is moot.
Analysis
A. Administrative Segregation 1. Fourteenth Amendment Due Process
Plaintiff asserts that defendants violated his right to due process under the Fourteenth Amendment when they placed him in administrative segregation. Defendants assert that they confined plaintiff to administrative segregation for a legitimate reason (creating a threat to the security of the facility) and that they are entitled to summary judgment on plaintiffs due process claim.
Although plaintiff also recites the Sixth Amendment in his due process claim, the Court sees no discernable Sixth Amendment claim.
Placement in administrative segregation does not implicate the Due Process Clause of the Fourteenth Amendment unless the confinement presents the type of atypical, significant deprivation in which a state might conceivably create a liberty interest. Sandin v. Conner, 515 U.S. 472 (1995). On numerous occasions, this judicial district has found that Kansas prison regulations do not create a protected liberty interest.See Rush v. McKune, 888 F. Supp. 123, 125 (D. Kan. 1995); Lloyd v. Suttle, 859 F. Supp. 1408, 1410 (D. Kan. 1994). The record contains no evidence that the deprivations alleged in this case rose to the level of an atypical or significant hardship, such that they involve a protected liberty interest rather than a normally expected, ordinary incident to confinement. Thus, with respect to his due process claim, plaintiff has not identified an infringement of any liberty interest which the Constitution protects. Defendants are entitled to summary judgment on this claim. 2. Eight Amendment Cruel and Unusual Punishment
In his Motion For Discovery (Doc. # 14) plaintiff requests, inter alia, that defendants produce documents which indicate the dates when plaintiff signed grievances, and also the identity of a person who contacted a police department to question plaintiffs aunt. The Court finds that such information is not relevant to plaintiffs claims and thus overrules this part of plaintiffs motion.
Plaintiff also appears to assert that his confinement in administrative segregation constitutes cruel and unusual punishment. The record does not reveal how long plaintiff has been in administrative segregation. For purposes of analysis, the Court assumes that he has been in administrative segregation since April 20, 1998, the initial date of placement. Prolonged confinement in administrative segregation may in some circumstances constitute cruel and unusual punishment. Easter v. Hill, 1997 WL 30553 (D. Kan. Jan. 8, 1997) No. 95-3047-KHV (citing Meriwether v. Faulkner, 821 F.2d 408, 416 (7th Cir. 1987)). Plaintiff, however, must show that administrative segregation inflicted an additional punishment without basis, in violation of the Eighth Amendment. Id.
The Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones. A prison official violates the Eighth Amendment when two conditions are met: 1) the deprivation alleged is sufficiently serious — the prison official's act or omission results in the denial of the minimal civilized measure of life's necessities; and 2) the prison official acts with "deliberate indifference" — he knows of and disregards an excessive risk to inmate health and safety.Brown v. Nix, 33 F.3d 951, 954-55 (8th Cir. 1994).
In this case, plaintiff has not pointed to evidence that defendants denied him basic human necessities such as food, clothing, shelter, sanitation, medical care or personal safety. Because plaintiff has. therefore failed to cite to evidence that his confinement was cruel and unusual, defendants are entitled to summary judgment on this claim.
B. First Amendment Right to Media Interview
Plaintiff next asserts that defendants violated the First Amendment when they denied him an on-camera interview with a television reporter. Under the First Amendment, however, plaintiff does not have a right to engage in an in-person interview with the press. "Denying media access to conduct face-to-face interviews with inmates is constitutional as long as alternative means for communicating with the media are available." Pell v. Procunier, 417 U.S. 817, 834 (1974); see also Saxbe v. Washington Post Co., 417 U.S. 843, 850 (1974). Here, plaintiff was free to communicate with reporters through the mail, and the record reveals that he did so. Defendants are entitled to summary judgment on this First Amendment claim. C. Retaliatory Placement in Administrative Segregation
Plaintiff asserts that at one point he could not send a letter to a reporter because he did not have money to buy a stamp. He does not contend, however, that he has a constitutional right to free postage to communicate with the press.
Plaintiffs Motion for Discovery requests, inter alia, that defendants file documents or records showing the dates that a reporter contacted prison officials and the written reasons officials denied the interview. Because of the Court's finding that plaintiff had no right to an on-camera interview, this information would not affect the outcome of the case and thus the Court must overrule this aspect of plaintiffs motion for discovery.
Plaintiff asserts that defendants placed him in administrative segregation because he tried to exercise his First Amendment rights by seeking permission to interview with a reporter. As the Tenth Circuit has stated,
We have held that prison officials may not retaliate against or harass an inmate because of the inmate's exercise of his constitutional rights. This principle applies even where the action taken in retaliation would be otherwise permissible. As the Supreme Court made clear . . . however, it is not the role of the federal judiciary to scrutinize and interfere with the daily operations of a state prison, and our retaliation jurisprudence does not change this role. Obviously, an inmate is not inoculated from the normal conditions of confinement experienced by convicted felons serving time in prison merely because he has engaged in protected activity. Accordingly, a plaintiff must prove that but for the retaliatory motive, the incidents to which he refers, including the disciplinary action, would not have taken place. An inmate claiming retaliation must allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights.Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (citations and quotations omitted). Plaintiff alleges that he asserted a right to speak with the press or at least made a request and thus exercised free speech rights on account of which defendants allegedly retaliated. Plaintiff fails to allege, however, any communication of an idea. See Bee v. Greaves, 744 F.2d 1387, 1393-94 (10th Cir. 1984) (First Amendment protects communication of ideas), cert. denied, 469 U.S. 1214 (1985). The Court is not convinced that plaintiffs request to engage in an interview with the press merits First Amendment scrutiny. "It is possible to find some kernel of expression in almost every activity person undertakes — for example, walking down the street or meeting one's friends at the shopping mall — but such a kernel is not sufficient to bring the activity within the protection of the First Amendment." City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989). The Court finds that plaintiffs request to speak with the press did not implicate his right to free speech. Defendants are entitled to summary judgment on plaintiffs retaliation claim.
D. Fourteenth Amendment Due Process Right To Personal Property
Plaintiff next asserts that defendants denied him access to his personal property, namely, his manual typewriter. Plaintiff has no constitutional due process right to a typewriter. See Twyman v. Crisp, 584 F.2d 352, 258 (10th Cir. 1978) (right of access to courts does not include constitutional right to typewriter). Prison policy precludes prisoners from possessing typewriters in segregation because they can use typewriter parts to make weapons. Prison officials enjoy substantial deference regarding matters of internal security. Lloyd v. Suttle, 859 F. Supp. 1408, 1410 (D. Kan. 1994) (citing Rhodes v. Chapman, 452 U.S. 337, 439 n. 14 (1981)). Absent clear abuse or caprice in exercise of their discretion, prison management is not subject to judicial review. Id. Further, circumstances in which inmates are allowed to own personal property but not to possess it do not implicate the due process clause. See Williams v. Meese, 926 F.2d 994, 998 (10th Cir. 1991). Defendants are entitled to summary judgment on this claim. IT IS THEREFORE ORDERED that defendants' Motion For Summary Judgment (Doc. # 20) filed October 21, 1999 be and hereby is SUSTAINED.
Plaintiffs complaint states that on December 24, 1997, he filed a grievance against Major Medlin, Chief of Security, for "threats and harassment." Plaintiff fails to set forth any specific claim based on this assertion. Further, plaintiff did not name Medlin as a defendant in this action.
Plaintiffs complaint also alleges "indifferent medical treatment," but plaintiff does not articulate a factual basis which demonstrates failure to provide medical treatment under the Eighth Amendment.
Plaintiffs complaint also invokes the Fourth Amendment but the Court does not discern a specific Fourth Amendment claim in any of his papers.
Finally, plaintiffs brief alleges that prison officials placed an HIV positive inmate with in plaintiffs cell and that this inmate damaged plaintiffs property. Plaintiff does not further explain this claim.
IT IS FURTHER ORDERED that Plaintiffs Response to Defendant's Motion For Summary Judgment (Doc. # 22) filed November 18, 1999, which the Court construes as a cross motion for summary judgment, be and hereby is OVERRULED.
IT IS FURTHER ORDERED that plaintiffs Motion For Discovery (Doc. # 14) and plaintiffs Motion For Objection (Doc. # 15), both filed September 27, 1999, be and hereby are OVERRULED.