Opinion
CIVIL ACTION No. 00-3456-KHV.
December 21, 2001
MEMORANDUM AND ORDER
This matter comes before the Court on Defendants' Motion For Summary Judgment (Doc. #23) filed July 30, 2001. After carefully considering the parties' arguments and authorities, the Court is ready to rule. For reasons stated below, defendants' motion is sustained.
Factual Background
The following facts are either undisputed or, where disputed, construed in the light most favorable to plaintiff.
Plaintiff is currently incarcerated at the El Dorado Correctional Facility ("EDCF") in Kansas. He brings suit pursuant to 28 U.S.C. § 1983 against David R. McKune, warden of the Lansing Correctional Facility ("LCF"), and Mike Nelson, warden of the EDCF.
On April 18, 2000, plaintiff, then an inmate at LCF, was placed in administrative segregation pursuant to K.A.R. § 44-14-302(b) pending results of an investigation into a physical altercation at the prison. Defendants believe that plaintiff is a leader of an unsanctioned prison group and has been involved in illegal and violent activity with this group since November of 1991.
Defendants transferred plaintiff to EDCF on April 20, 2000 and once again placed him in administrative segregation. Subsequently, his security status was changed from administrative segregation pending results of an investigation under K.A.R. § 44-14-302(b) to "other security risk" under K.A.R. § 44-14-302(g). Under K.A.R. § 44-14-311, an inmate in administrative segregation must be reviewed weekly for the first eight weeks and at least every 30 days thereafter. On the morning of April 25, 2000, prison personnel woke plaintiff in his cell and took him to the Administrative Segregation Review Board. Plaintiff did not realize that this was the Review Board. Plaintiff asked the Review Board why he was still being held in administrative segregation and was told that he was still being investigated. After the meeting, plaintiff did not know the specific reason for his continued placement in administrative segregation and he had not been formally charged with the violation of any prison regulation or statute. The Review Board again met with plaintiff on May 2, 9, 16 and 23 and June 6 and 13, 2000. On June 29, 2000, the Review Board conducted its first monthly segregation review and found that the reasons for placing plaintiff in segregation still existed and that plaintiff continued to pose a threat to the security of the facility. Exhibit E in Report Of "Martinez v. Aaron" Investigation ("Martinez Report") (Doc. #15) filed May 17, 2001. These reviews have continued to the present with similar findings. See id. Defendants consider plaintiff "high risk" due to his involvement with the unsanctioned prison group. Defendants claim that this belief justifies plaintiff's placement and continued confinement in administrative segregation.
At EDCF, Unit Team Manager Spiker has repeatedly denied plaintiff's oral and written requests to participate in the Television Loaner Program. The program provides donated televisions to inmates who do not own them. The rules and procedures of the loaner program provide that an inmate must attain Level II privileges in the Offender Privileges and Incentive Level System or be approved by the Unit Manager to receive a loaner item. In addition, if an inmate has the fiscal means to provide his own item, he is ineligible under the loaner program. Unit Managers are given discretion regarding loaner items and may use such items to reward good behavior or as a management tool in some other manner. Defendants denied plaintiff a loaner television because he had not attained Level II and his behavior while in segregation did not rise to the level where provision of a loaner television would be appropriate. Furthermore, plaintiff had the fiscal means to buy his own television set and he purchased a color television on November 16, 2000, approximately 12 days before he filed suit.
In his complaint, plaintiff alleges that defendants violated his constitutional right to equal protection and due process. Specifically, plaintiff claims that McKune denied him equal protection by not releasing him back into the general population like other inmates who were suspected or found to be involved in the altercation (Count I); that defendants violated plaintiff's right to due process by holding him in administrative segregation without evidence of illegal, criminal or sociopathic behaviors (Count II); and that Nelson denied plaintiff equal protection by not treating him like other inmates with regard to the Television Loaner Program (Count III). Plaintiff seeks a declaratory judgment that defendants violated his constitutional rights, an injunction directing his immediate release from segregation, compensatory relief in the amount of $100 for every day that he is held in segregation, $50,000 in punitive damages against McKune, $50,000 in punitive damages against Nelson, and $500 in compensatory relief for legal costs and fees in this litigation. In the alternative, plaintiff seeks appointment of counsel and trial by jury.
Defendants seek summary judgment, arguing that (1) administrative segregation affords no basis for an equal protection or due process claim and (2) defendants had a rational justification for denying plaintiff participation in the loaner program and that plaintiff has therefore not stated an equal protection violation.
Summary Judgment Standards
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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. Id. at 252. The moving party bears the initial burden of showing the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986); 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 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); 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. See 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." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). 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) (citations omitted). 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.
AnalysisI. Administrative Segregation Claims
Plaintiff argues that defendants violated his constitutional rights to equal protection and due process by holding him in administrative segregation. Defendants contend that they have ample reason to hold plaintiff in administrative segregation, i.e. their belief that he is the member of an unsanctioned prison group, and that he has not presented any evidence that administrative segregation is a significant hardship.
In his response to defendants' motion for summary judgment, plaintiff argues that defendants placed him in administrative segregation due to his participation in a prison group. Plaintiff asserts that defendants have not shown that this prison group is undeserving of First Amendment protection and that defendants' actions constitute retaliation in violation of his First Amendment right to freedom of association. As an initial matter, this argument is not in plaintiff's complaint and he presents it for the first time in his response to defendants' motion. The Court will not consider new claims which plaintiff did not include in his complaint and presented for the first time in a response brief. See Davis v. Seiter, No. 96-3316-KHV, 1998 WL 404354, at *8 (D.Kan. June 30, 1998). If plaintiff wishes to assert such a new claim, he must seek leave to file an amended complaint.
To the extent that plaintiff is attempting to assert a retaliation claim based on freedom to associate with a prison gang, however, it is clear that this activity is not a protected First Amendment right. Prison authorities may restrict an inmates' right to freedom of association. See Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 132 (1977) (First Amendment associational rights give way to reasonable considerations of penal management) and Canty v. Booker, Jr., No. 97-3435-RDR, 2000 WL 134455, at *3 (D.Kan. Jan. 27, 2000) (inmates' speech and associational rights necessarily subject to major restrictions to accommodate needs and objectives of prisons). Furthermore, prison authorities need not treat all inmate groups alike. See Maberry v. McKune, 24 F. Supp.2d 1222, 1229 (D.Kan. 1998) (prison authorities not required to treat Thelemic group like other religious groups). Furthermore, plaintiff has no constitutional right to associate with an unsanctioned prison group suspected of gang activity. See White v. Barnes, No. 93-3473-GTV, 1997 WL 298401 (D.Kan. May 1, 1997).
A. Equal Protection Claim (Count I)
In order to receive heightened scrutiny under the equal protection clause, plaintiff must allege that he is a member of a constitutionally protected class or that he has been denied a fundamental right. See Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996). Plaintiff does not argue that he is part of a protected class, but he does assert that placement in administrative segregation violated his rights to equal protection under the law.
Plaintiff contends that his freedom is constrained in administrative segregation. He does not explain how his placement in administrative segregation constitutes a more significant deprivation of freedom than the typical placement in segregation, and inmates do not have a fundamental right to be free of administrative segregation. See id. Relief cannot be justified on this theory.
Plaintiff also contends that he suffers a significant hardship because placement in administrative segregation is a key factor in determining eligibility for parole. Inmates, however, do not have a constitutionally protected interest in parole status. See Bohanon v. Nelson, 145 F.3d 1345, 1998 WL 174881, at *1 (10th Cir. Apr. 15, 1998) (citing Hundley v. McKune, 23 Kan. App. 2d 187, 929 P.2d 1382, 1386 (1996). This reason is therefore also insufficient to grant plaintiff relief.
Because plaintiff is not in a protected class and a fundamental right has not been violated, his placement in administrative segregation "must only bear a rational relation to a legitimate state purpose." See Penrod, 94 F.3d at 1406-07 (neither equal protection nor due process denied when prison placed unassigned inmates in administrative segregation). The elimination of unsanctioned prison groups is a legitimate peniological interest. See Ware v. Nelson, No. 95-3470-GTV, 1998 WL 154585, at *3 (D.Kan. Mar. 20, 1998). No equal protection violation has occurred in this case because defendants' action in holding plaintiff in administrative segregation due to suspected gang activity is rationally related to their legitimate purpose of eliminating unsanctioned prison groups. See Watson v. Stotts, No. 92-3398-DES, 1994 WL 414003, at *3 (D.Kan. July 20, 1994) (placement in administrative segregation due to suspected involvement with unsanctioned prison group not constitutional violation). Plaintiff presents no evidence that defendants' belief that he is involved in an unsanctioned prison group is pretextual for discrimination. Plaintiff argues that defendants fail to provide the Court with any records that he perpetrated acts of violence or that he is the leader of an unsanctioned prison group. In his response to defendants' statement of facts, however, plaintiff fails to controvert that he is a member of an unsanctioned prison group. Plaintiff also fails to controvert that the unsanctioned prison group has been responsible for outbreaks of violence at EDCF and LCF. The placement of mere members, as well as leaders, of an unsanctioned prison group responsible for prison violence in administrative segregation is rationally related to the legitimate goal of ensuring prison security. See White, 1997 WL 298401, at *1 (defendants' belief that inmate was gang member who helped plan prison melee sufficient for administrative segregation); See Watson, 1994 WL 414003, at *3 (suspected gang involvement and disciplinary violations sufficient to warrant segregation).
In his argument, plaintiff states that even if defendants can prove that he "is indeed a member or even assumed a leadership role in a group calling itself `FOLKS'" that defendants have not proven that the group is undeserving of First Amendment protection." Plaintiff's Response To Summary Judgment Motion (Doc. #40) filed November 15, 2001 at 5. Under D. Kan. Rule 56.1(b), if plaintiff wishes to dispute one of defendants' factual contentions, he must do so in his statement of facts. Plaintiff was clearly aware of this rule since his opposition to defendants' summary judgment motion did indeed contain a statement of facts. Plaintiff's failure to dispute that he was a member of an unsanctioned prison group means that fact is deemed admitted for the purposes of summary judgment.
B. Due Process Claim (Count II)
In the Tenth Circuit it is established that "the transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence." Penrod, 94 F.3d at 1406 (quoting Hewitt v. Helms, 459 U.S. 460, 468 (1983)); see also Everson v. Nelson, 941 F. Supp. 1048, 1050 (D.Kan. 1996) (placement of inmate in segregation for allegedly requesting sexual favors from other inmates not violation). Administrative detention implicates constitutional due process concerns only if the confinement is "the type of atypical, significant deprivation in which a state might conceivably create a liberty interest." McDiffett v. Stotts, 902 F. Supp. 1419, 1426 (D.Kan. 1995) (quoting Sandin v. Connor, 515 U.S. 472, 485 (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). Aside from plaintiff's allegations that his freedom is constrained in administrative segregation and that his chance of parole is lessened, the record contains no evidence that the deprivations alleged in this case rose to the level of atypical or significant hardship, such that they involve a protected liberty interest rather than a normally expected incident of confinement. Thus, with respect to his due process claim, plaintiff has not identified an infringement of any liberty interest which the Constitution protects.
As discussed above, a restraint on plaintiff's freedom while he is in prison and a lessened chance of parole are not significant hardships for the purposes of due process or equal protection analysis.
II. Loaner Program Claims (Count III)
Plaintiff also asserts that defendants have denied his constitutional rights to equal protection and due process by not treating him the same as other inmates with regard to the Television Loaner Program. Plaintiff fails to allege that he is in a protected class, however, and it is also clear that he does not have a fundamental right to participate in the loaner program. See, e.g., Elliott v. Brooks, 188 F.3d 518, 1999 WL 525909, at *1 (10th Cir. 1999) (no constitutional right to watch television in prison); James v. Milwaukee Cty., 956 F.2d 696, 699 (7th Cir. 1992) (no constitutional right to television in prison). Therefore, defendants' decision to deny plaintiff a loaner television must only bear a rational relationship to a legitimate state purpose. See Penrod, 94 F.3d at 1406-07. Defendants assert that the loaner program only provides televisions to inmates who are financially unable to procure them independently. Defendants allege that plaintiff was able to purchase his own television and plaintiff does not dispute this fact. This stated reason for denying plaintiff a loaner television bears a rational relationship to a legitimate purpose of allocating scarce state resources.
IT IS THEREFORE ORDERED that defendants' Motion For Summary Judgment (Doc. #23) filed July 30, 2001 be and hereby is SUSTAINED.