Opinion
CIVIL ACTION No. 01-3289-GTV
October 23, 2002
MEMORANDUM AND ORDER
Plaintiff Samuel Weicht brings this § 1983 suit pro se against Sandy Horton, Crawford County Sheriff, and John Stus, Jail Administrator. Plaintiff alleges that when Defendants placed him in segregation without a notice or hearing, they violated his Fourteenth Amendment right to due process. Plaintiff further alleges that his placement in segregation violated his Eighth Amendment right to be free from cruel and unusual punishment. The case is before the court on Defendants' Motion to Dismiss and for Summary Judgment (Doc. 11). For the following reasons, the court grants Defendants' motion.
BACKGROUND
Defendants submitted a statement of material facts with their motion for summary judgment, as required by D. Kan. R. 56.1. Plaintiff did not properly controvert any of those facts or offer an affidavit with additional facts. Plaintiff merely submitted a brief stating his position. Despite this, the court recognizes that Plaintiff's status as a pro se litigant requires it to construe Plaintiff's response more liberally than it might construe a response filed by a licensed attorney. Hall v. Bellmon, 935 F.2d 1106, 1110 n. 3 (10th Cir. 1991) (citing Overton v. United States, 925 F.2d 1282 (10th Cir. 1990) for the proposition that the rule requiring liberal construal of pro se pleadings applies to summary judgment briefs). For this reason, and because the court does not believe that Defendants will be unduly prejudiced by a liberal construal of Plaintiff's response, the court has considered the facts contained in Plaintiff's response and verified complaint to the extent that they controvert any facts alleged by Defendants.
On August 25, 2000, Plaintiff was transferred from the Missouri Department of Corrections to the Crawford County Jail, a tobacco-free facility. Jail regulations prohibit unauthorized possession of "contraband," which includes tobacco. On August 27, 2000, jail officials found cigarettes and a lighter in Plaintiff's cell. Immediately following the discovery of the "contraband," Defendant John Stus placed Plaintiff in segregation. Plaintiff was not given formal notice indicating the reasons for his placement in segregation, nor was he given a hearing. While in segregation, Plaintiff alleges that he was denied access to the telephone and pen and paper, was unable to do his "legal work," was refused a visitor, and did not go to the recreation room. Plaintiff was then returned to the general population between fifteen and nineteen days later, despite jail regulations mandating that segregation last no longer than fourteen days.
Jail regulations provide that when disciplinary action is taken for a major rule infraction, an inmate will receive notice and a hearing. The inmate may be placed in segregation for up to fourteen days. The jail also has "pod rules," which appear to be administrative directives — i.e., "No bedding will be allowed to drape to form a tent." Failure to comply with pod rules results in a mandatory forty-eight hour period of segregation.
Defendants claim that Plaintiff violated a pod rule. According to Defendants, after Plaintiff's mandatory forty-eight hour segregation, Plaintiff then asked to remain in segregation so he could read his Bible. Plaintiff counters that possession of contraband does not violate a pod rule, and that he is an atheist. Pursuant to the Crawford County Inmate Guidebook, possession of contraband does not appear to be a violation of a pod rule. Instead, it is a violation of the general jail rules.
Defendants have moved to dismiss Plaintiff's complaint on two bases: (1) Plaintiff's complaint fails to state a claim because it does not allege that Defendants acted under color of state law, a requirement of 42 U.S.C. § 1983; and (2) Plaintiff has failed to allege any personal participation by Sheriff Sandy Horton. Alternatively, they ask the court to grant them summary judgment because they are entitled to qualified immunity.
MOTION TO DISMISS Legal Standards for Dismissing a Pro Se Plaintiff's Complaint
A complaint may be dismissed for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The issue in reviewing the sufficiency of a complaint is not whether the plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
The court must view all reasonable inferences in favor of the plaintiff and construe his pleadings liberally. Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984). As noted above, when dealing with a pro se plaintiff, the court must afford some leniency to the plaintiff. Oltremari v. Kan. Soc. Rehab. Servs., 871 F. Supp. 1331, 1333 (D.Kan. 1994). A pro se plaintiff, however, still must abide by fundamental rules of civil procedure. Hughes v. Rowe, 449 U.S. 5, 9 (1980). The court is not to act as an advocate for a pro se litigant. Hall, 935 F.2d at 1110.
Requirements of a § 1983 Claim
Plaintiff completed a pre-printed form and filed it as his complaint in this case. Plaintiff was asked on the form whether Defendants acted under color of state law. Plaintiff marked the box labeled "No." Defendants contend that because Plaintiff responded in the negative, his § 1983 complaint fails to state a claim and should be dismissed. The court disagrees.
In order for a § 1983 claim to be actionable, the defendant(s) must have been acting under "color of state law." 42 U.S.C. § 1983. Although Plaintiff marked a box indicating that Defendants were not acting under color of state law, the claims within his complaint indicate otherwise. Plaintiff alleges that while Defendants were employed by a county jail and on duty there, they unconstitutionally placed Plaintiff in segregation using the authority granted to them by the state. The court concludes that substantively, Plaintiff has alleged that Defendants acted under color of state law.
Personal Participation
Defendants next argue that Sheriff Sandy Horton should be dismissed from the case because Plaintiff fails to allege that he personally participated in the acts at issue. Presumably, Plaintiff included Horton in the case because Horton supervises Defendant Stus, who placed Plaintiff in segregation. Though it is possible for supervisors who participate in a violation to be held liable under § 1983, there is no strict supervisor liability under the statute. Ruark v. Solano, 928 F.2d 947, 950 (10th Cir. 1990) (quoting Harris v. Greer, 750 F.2d 617, 618 (7th Cir. 1984)). The theories of "[r]espondeat superior or vicarious liability will not attach under § 1983." City of Canton v. Harris, 489 U.S. 378, 385 (1989) (citing Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 694-695 (1978)). "It is not enough for a plaintiff merely to show a defendant was in charge of other state actors who actually committed the violation." Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996). The plaintiff must show that the defendant personally participated in the violation of the plaintiff's constitutional right through a deliberate, intentional act. Id. (citing Woodward v. City of Worland, 977 F.2d 1392, 1399 (10th Cir. 1992)).
Plaintiff has failed to plead any participation by Sheriff Sandy Horton, and for this reason the court dismisses him from the case.
MOTION FOR SUMMARY JUDGMENT Legal Standards for Summary Judgment
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 of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Lack of a genuine issue of material fact means that the evidence is such that no reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. Anderson, 477 U.S. at 256. "[A] party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. The court must consider the record in the light most favorable to the nonmoving party. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984).
Qualified Immunity
Qualified immunity shields an individual government official performing discretionary functions from liability for civil damages insofar as his or her conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Butler v. City of Prairie Village, 172 F.3d 736, 745 (10th Cir. 1999). Because of the extraordinarily broad protection qualified immunity affords to government officials, the court addresses summary judgment motions that raise the defense differently from other summary judgment motions. Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001) (citation omitted). Once a defendant asserts qualified immunity as a defense, the plaintiff bears a significant burden. Hannula v. City of Lakewood, 907 F.2d 129, 130 (10th Cir. 1990). The plaintiff must show that the defendant has violated clearly established law. Id. at 131. It is only after the plaintiff has met this heavy burden that the court evaluates whether, under the normal summary judgment standard, the defendant has demonstrated that no material facts remain in dispute as to "whether his or her actions were objectively reasonable in light of the law and the information he or she possessed at the time." Martin v. Bd. of County Comm'rs, 909 F.2d 402, 405-06 (10th Cir. 1990) (quoting Zuchel v. Spinharney, 890 F.2d 273, 274 (10th Cir. 1989)) (further citations omitted); Hannula, 907 F.2d at 131 (citation omitted).
There are two steps in determining whether a plaintiff has met his burden. First, the court must decide whether the plaintiff has "`asserted a violation of a constitutional right at all.'" Moore v. City of Wynnewood, 57 F.3d 924, 931 (10th Cir. 1995) (quoting Siegert v. Gilley, 500 U.S. 226, 232 (1991)). If the plaintiff has made a valid claim, then the court must evaluate whether the asserted right was clearly established such that a reasonable person in the official's position would have known that his or her conduct violated that right. Id.; Albright v. Rodriguez, 51 F.3d 1531, 1534-35 (10th Cir. 1995) (citations omitted). In this case, the court determines that Plaintiff has not alleged a violation of a constitutional right.
Analysis of Plaintiff's Claims Due Process Violation
Plaintiff alleges that before he was put in segregation for nineteen days, he should have been given written notice and a hearing in accordance with the Crawford County Jail regulations. Defendants submit that no notice or hearing was necessary because Plaintiff was placed in mandatory segregation for two days, and then remained in segregation at his request. Although Plaintiff argues that the segregation was not voluntary, the factual dispute is irrelevant if Plaintiff has no liberty interest in being free from the segregation he experienced.
Assuming that Defendants' treatment of Plaintiff violated jail regulations, the court concludes that the regulations did not create a protected liberty interest. See, e.g., Rush v. McKune, 888 F. Supp. 123, 125 (D.Kan. 1995); Lloyd v. Suttle, 859 F. Supp. 1408, 1410 (D.Kan. 1994). States may create liberty interests that are protected under the Due Process Clause of the Fourteenth Amendment, but those interests ordinarily are limited to freedom from restraint which imposes "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). A prison official's placement of an inmate in segregation does not implicate a due process interest unless it results in an "atypical, significant deprivation." Speed v. Stotts, 941 F. Supp. 1051, 1055 (D.Kan. 1996) (citing Sandin, 515 U.S. at 486).
In Sandin, the Supreme Court held that a prisoner did not have a liberty interest protected under the Due Process Clause despite the fact that prison officials violated mandatory prison regulations when they transferred Sandin to segregation. 515 U.S. at 487. In its analysis, the Court compared the conditions imposed on inmates in disciplinary segregation with the conditions in administrative segregation and protective custody. Gaines v. Stenseng, 292 F.3d 1222, 1225 (10th Cir. 2002) (citing Sandin, 515 U.S. at 486). A court, therefore, must have evidence of the degree and duration of the plaintiff's restrictions, as compared to typical inmates, in order to adequately determine whether confinement has created an "atypical, significant" hardship. Id. at 1226.
Plaintiff alleges that, while in segregation, he was denied access to the telephone and pen and paper, was unable to do his "legal work," was refused a visitor, and did not go to the recreation room. However, he has presented no evidence from which the court could determine whether this created an "atypical, significant" hardship. Under the legal standards for qualified immunity, he is required to do so. Hannula, 907 F.2d 129, 131 (10th Cir. 1990). Defendants are entitled to qualified immunity with respect to this claim.
Cruel and Unusual Punishment
Plaintiff also appears to allege that Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment. While the court has not previously treated such an allegation as a claim in this case, the court will address it as a claim now.
The Eighth Amendment is violated when a prisoner is deprived of the "minimum civilized measure of life's necessities" by a prison official's act or omission and the prison official acts with "deliberate indifference." Speed, 941 F. Supp. at 1056 (citations omitted). "The warden can impose restrictive conditions of confinement upon [a] plaintiff without violating the Eighth Amendment, as long as those conditions do not involve the wanton and unnecessary infliction of pain or are not grossly disproportionate to the severity of the crime warranting imprisonment." Abbott v. McCotter, 13 F.3d 1439, 1441 (10th Cir. 1994) (internal quotation marks and citations omitted).
In the present case, Plaintiff has presented no evidence that his time in segregation subjected him to unnecessary pain or was grossly disproportionate to the severity of his crime. Defendants are entitled to qualified immunity, and the court grants their summary judgment motion on such basis.
IT IS, THEREFORE, BY THE COURT ORDERED that Defendants' Motion to Dismiss and for Summary Judgment (Doc. 11) is granted.
The case is closed.
Copies of this order shall be transmitted to pro se Plaintiff and counsel of record.