Opinion
CIVIL ACTION No. 01-3335-KHV.
June 18, 2003.
MEMORANDUM AND ORDER
Joe Winston, an inmate at Lansing Correctional Facility in Lansing, Kansas, brings suit against Charles E. Simmons, Roger Bonner, Marcelle McGowan, David R. McKune, Neil McMillian, Brad Miller, Charles Nance, Mike Neve, Steve Laun, Raunika Baptiste and Rick Joyce under 42 U.S.C. § 1983, claiming that they violated his rights under the First, Fourth, Fifth, Eighth and Fourteenth Amendments to the United States Constitution. See Complaint (Doc. #1) filed August 13, 2001; Supplemental Complaint (Doc. #42) filed December 19, 2002; Supplemental Complaint With Jury Trial Demanded (Doc. #53) filed May 9, 2003. This matter comes before the Court on defendants' Motion For Summary Judgment (Doc. #43) filed January 27, 2003. For reasons stated below, the Court sustains defendants' motion in part.
The Court previously dismissed plaintiff's claims under Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510-21, and the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. See Memorandum And Order (Doc. #41) filed December 19, 2002.
I. 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 no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.; 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, 323 (1986); Hicks v. City of Watonga, Okla., 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 Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. 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.
The Court must view the record in a light most favorable to the party opposing the motion for summary judgment. See Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. See 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.
II. Facts
In support of their summary judgment motion, defendants cite various facts relating to past disciplinary convictions of plaintiff which are apparently unrelated to plaintiff's claims in this case. See Memorandum In Support Of Defendants' Motion For Summary Judgment ("Defendants' Memorandum") (Doc. #44) filed January 27, 2003 at 3-4. In addition, defendants cite portions of the Martinez report regarding surveillance of the Rastafarian group, segregation of plaintiff, and disciplinary conviction of plaintiff. Defendants do not, however, provide accurate citations to support their allegations. In response to defendants' factual allegations, plaintiff contends that he has not had a chance to conduct discovery. Because plaintiff is pro se, the Court treats the allegations in his sworn complaint as an affidavit and construes them in the light most favorable to plaintiff. See Strope v. Gibbens, No. 01-3358-KHV, 2003 WL 1906458, at *1 (D.Kan. April 17, 2003).
For example, defendants allege that beginning April 1, 2001, Lt. Roger Bonner, chief investigator, began receiving reports of unrest among the prison population and more specifically, that inmates were planning a work stoppage on May 4, 2001. See id. ¶ 5(I). In support of the allegations, defendants cite the Martinez report at page 38. The Martinez report, however, is only 8 pages long. Various exhibits are attached, but the pages are not numbered. The Martinez report does not mention Bonner or reports of unrest beginning April 1, 2001.
In ruling on defendants' motion to dismiss, the Court summarized plaintiff's allegations as follows: In December 2000, Marcelle McGowan, a correctional sergeant at LCF, accused plaintiff, an inmate who belonged to the Rastafarian religious group, of threatening and intimidating another prisoner. With the approval of David R. McKune, warden of LCF, McGowan placed plaintiff in administrative segregation for 70 days without a hearing. After plaintiff filed grievances, McKune released him back to the general population. A few days after his release, plaintiff attended a hearing on the charge of threatening or intimidating the other prisoner. The hearing officer found him guilty and sentenced him to time served in administrative segregation, a fine and privilege restrictions. Plaintiff filed another grievance, arguing that prison officials had not complied with the time limitations for disciplinary proceedings and that prison officials were merely retaliating against him for filing grievances. Because the hearing indeed was conducted outside the allowable time limitations, McKune later dismissed the charges against plaintiff. In April 2001, prisoners at LCF began to circulate rumors that they were going to participate in a general work strike to protest their conditions of confinement. McKune, McGowan and two other correctional officers, Roger Bonner and Sergeant Nance, met to discuss the rumors. They decided to investigate and target the Rastafarian religious group. In particular, they agreed to plant a tape recorder in the prison chapel to record the next regularly scheduled Rastafarian religious call-out. McMillian, another correctional officer, planted the tape recorder. Defendants did not have a warrant to place the tape recorder in the prison chapel, which is a closed area.
The complaint does not allege what time limits apply to hearings at LCF.
On May 2, 2001, plaintiff and ten other inmates attended the Rastafarian religious call-out. Their discussion concerned what the Rastafarians characterized as different kinds of thought (memory and desire) and did not include a planned breach of peace. Plaintiff and the other inmates believed that their conversations, statements, oral prayers and communications were between themselves and God, and were not subject to being recorded. In fact, only Rastafarians were present at the call-out and they modulated their communications during the call-out to conceal them from uninvited ears. After the call-out, plaintiff and the other inmates returned to their cells without incident.
At approximately 9:00 a.m. the following day, plaintiff and nine other inmates who had attended the call-out were arrested and sent to administrative segregation. After three days of investigation, defendants released four of them back to the general population. Defendants told plaintiff and the five remaining inmates that they also would have been released, but that no beds were available in the general population. A week later, May 10, 2001, correctional counselor Collins told plaintiff that plaintiff and the other Rastafarians would not be getting out of administrative segregation. Collins said "someone messed up real bad by releasing the first four Rastafarians from AD SEG." See Complaint (Doc. #1) filed August 13, 2001 at 6.
On May 15, 2001, defendants placed back into administrative segregation the four inmates who initially had been released. That same day, defendants served plaintiff and the other inmates with conduct violation reports which charged them with conspiracy to incite a riot, a Class I offense under K.A.R. §§ 44-12-1101(b) and 44-12-319(b). Bonner signed all of the violation reports, which were identical. Plaintiff's violation report stated:
On April 30, 2001, an investigation was opened in [sic] information received concerning a planned breach of the peace at LCF. During that investigation it was determined that the breach of the peace was planned for May 4, 2001, to include an inmate work stoppage and refusal to participate in meals and planned activities. Information obtained from numerous C/Is, letters, interviews and staff reports indicated that inmates who attended the Rastafarian callout were involved in the planning and participation of that breach of the peace. A document was found in a member of the groups' [sic] possession that outlined the nature of the disturbance and the reasons for the breach of the peace. Two days prior to the planned date of the event, Inmate Winston attended a callout of the Rastafarians, where they discussed participating in the breach of the peace.
Complaint (Doc. #1) at 7.
On May 23, 2001, Miller, a correctional sergeant responsible for conducting disciplinary hearings, presided over plaintiff's hearing on the charge. Plaintiff requested that two inmates, Stewart and Hooker, appear as witnesses on his behalf. Plaintiff told Miller that these witnesses were willing and available to testify that prison staff had told them that defendants had investigated the Rastafarians because they complained about mistreatment by prison staff. Miller refused to call either witness. Bonner testified by speakerphone that he had obtained information from confidential informants, letters, interviews and staff reports which indicated that Rastafarians were involved in the planned breach of peace. Bonner also testified that he had instructed McMillian to plant a tape recorder in the prison chapel to record the Rastafarian call-out. Bonner had listened to the recording of the call-out and stated that he heard several members discussing the planned breach of peace. Plaintiff asked to listen to the recording and examine the written reports and interviews relating to the investigation, but Bonner denied his request. On cross-examination, Bonner admitted that during his investigation he had confiscated from non-Rastafarians certain papers which advocated the planned breach of peace. Still, defendants issued no disciplinary reports against the non-Rastafarians. Bonner also admitted that he could not recall exact statements during the Rastafarian call-out which supported the disciplinary reports.After the disciplinary hearing, Miller issued a written disposition which found plaintiff guilty as charged and sentenced him to 45 days in punitive segregation and 60 days restriction and imposed a $20 fine. Plaintiff filed an administrative grievance alleging that the evidence did not support the charge, that Miller had relied on evidence outside the record, that prison officials had violated prison policy and procedure in conducting the disciplinary proceedings, and that Miller had refused to call plaintiff's witnesses. McKune denied plaintiff's appeal. Plaintiff then appealed to Simmons, who also denied plaintiff's appeal. On June 24, 2001, plaintiff sent a request to Chaplain Pollan, asking to be placed back on the Rastafarian call-out list. Inmates are routinely allowed to attend religious call-outs when they place such requests with the Chaplain. On July 3, 2001, Neve, Deputy Warden of Support Services, sent plaintiff a letter which stated that he could not attend call-out for 90 days because of "his conduct in the Chapel with volunteers, employees or for using the Chapel stairwell as a meeting place." Complaint (Doc. #1) at 10. Memorandum And Order (Doc. #41) at 2-5.
III. Analysis
The following claims from plaintiff's original complaint remain in the case: (1) McKune, Bonner, Nance, McGowan and McMillian violated plaintiff's right to privacy under the First and Fourth Amendments by investigating plaintiff and the Rastafarians; (2) McKune, Bonner, Nance, McGowan and McMillian violated plaintiff's rights under the First and Fourth Amendments by retaliating against him for filing grievances and on account of his religious beliefs; (3) Simmons and McKune violated plaintiff's rights under the First and Fourth Amendments by failing to prevent prison officials from retaliating against plaintiff for filing grievances and on account of his religious beliefs; (4) Miller denied plaintiff procedural due process in violation of the Fourteenth Amendment by refusing to call plaintiff's witnesses at the disciplinary hearing and by finding him guilty based on evidence outside the hearing record; (5) Neve violated plaintiff's rights under the First Amendment by preventing him from attending Rastafarian services for 90 days; and (6) Simmons and McKune denied plaintiff procedural due process in violation of the Eighth and Fourteenth Amendments by refusing to overturn his disciplinary conviction. See Memorandum And Order (Doc. #41) at 21; Order (Doc. #55) filed May 12, 2003.
Defendants seek summary judgment on the grounds that (1) plaintiff has not shown personal participation by defendants; (2) plaintiff cannot recover prospective injunctive relief; (3) defendants are entitled to qualified immunity; (4) plaintiff cannot establish that defendants violated his rights under the First and Fourth Amendments; (5) plaintiff cannot establish that Miller violated his due process rights under the Fourteenth Amendment; and (6) plaintiff cannot establish that Simmons and McKune denied him due process in violation of the Eighth and Fourteenth Amendments.
Defendants's motion addresses only the claims in plaintiff's original complaint and not the claims in plaintiff's two supplemental complaints. The supplemental claims assert that in retaliation for his filing of inmate grievances and this lawsuit, defendants violated plaintiff's rights under the First, Fourth, Fifth, Eighth and Fourteenth Amendments by (1) holding him in administrative segregation without notice and explanation; (2) withholding two money orders worth $415.00; (3) placing false information in his inmate records; (4) terminating and/or refusing plaintiff certain job assignments; and (5) planning to have him placed in administrative confinement. See Supplemental Complaint (Doc. #42) filed December 19, 2002; Supplemental Complaint With Jury Trial Demanded (Doc. #53) filed May 9, 2003.
A. Personal Participation
Defendants contend that plaintiff cannot show that they personally participated in the alleged violations. In support of their contention, defendants make the same arguments as they made in the memorandum in support of their motion to dismiss. Compare Defendants' Memorandum (Doc. #44) at 8-10 with Memorandum In Support of Defendants' Motion To Dismiss (Doc. #36) filed May 22, 2002 at 17-19. In ruling on the motion to dismiss, the Court found that "plaintiff has adequately alleged personal participation in a manner which is sufficient to defeat defendants' vague and inspecific motion to dismiss." Memorandum And Order (Doc. #41) at 17. The same analysis applies to defendants' repeat argument in their summary judgment motion. Defendants are not entitled to summary judgment on this ground.
B. Prospective Injunctive Relief
In its previous order, the Court found that defendants are entitled to Eleventh Amendment immunity on plaintiff's official capacity claims, except those for injunctive relief. See Memorandum And Order (Doc. #41) at 14-15. Defendants assert that plaintiff "claims essentially no prospective injunctive relief." Defendants' Memorandum (Doc. #44) at 12. Plaintiff's complaint, however, clearly requests injunctive relief. See Complaint (Doc. #1) at 12 (requesting injunctive relief allowing plaintiff to attend Rastafarian call-outs, restoring plaintiff's rights and privileges to level before disciplinary conviction and expunging disciplinary conviction from plaintiff's record). The purpose of defendants' argument is not clear. It appears that defendants may be arguing that the Court cannot issue injunctive relief regarding future punishment of plaintiff. Defendants assert as follows:
Defendants clearly possess the right to punish Plaintiff in appropriate situations and in certain manners. Further, Defendants clearly possess the right to reinstate Plaintiff to normal prison life once the appropriate punishment is exhausted, as is the issue here. As Plaintiff's claims related to this action are clearly without merit, and without knowing the situations related to prospective punishment, [Plaintiff] is entitled to no prospective relief. Defendants' Memorandum (Doc. #44) at 12. Plaintiff does not appear to request injunctive relief regarding future punishment. Moreover, defendants cite no legal authority in support of their argument. Defendants are not entitled to summary judgment on this ground.
C. Qualified Immunity
In support of their qualified immunity assertion, defendants re-assert the arguments which they made in support of their motion to dismiss. Compare Defendants' Memorandum (Doc. #44) at 12-14 with Memorandum In Support of Defendants' Motion To Dismiss (Doc. #36) at 15-17. In ruling on the motion to dismiss, the Court found that "defendants' broad assertion of qualified immunity contains no analysis or mention of any individual defendant or facts involved in this case." Memorandum And Order (Doc. #41) at 15. Because defendants did not explain their qualified immunity defense as to plaintiff's specific claims, the Court rejected their blanket assertion of qualified immunity. See id. at 16. For the same reasons, the Court rejects their current assertion.
In that regard, the Court noted that defendants had mistakenly relied on summary judgment standards, which are different from the standards on a motion to dismiss. See id. at 15-16. Under summary judgment standards, however, defendants still must explain the basis of their qualified immunity argument with respect to the specific facts involving each claim against each defendant. Nicol v. Auburn-Washburn USD 437, 231 F. Supp.2d 1107, 1118 n. 4 (D.Kan. 2002); Jackson v. Simmons, No. 99-3363-KHV, 2001 WL 951008, at *7 (D.Kan. July 26, 2001).
D. Whether Plaintiff Can Establish That Defendants Violated His Rights Under The First And Fourth Amendments
Defendants argue that based on penological interests, they had a right to restrict plaintiff from attending Rastafarian call-outs during the time he was in administrative segregation. This argument misses the mark. As an initial matter, it does not address plaintiff's claim that Neve refused to allow him to attend call-outs after he was released from segregation. Moreover, plaintiff does not assert that defendants violated his rights by refusing to let him attend call-outs while he was in segregation. Rather, he asserts that in retaliation for complaints about mistreatment by prison staff, defendants investigated the Rastafarians, segregated them and found them guilty of planning a breach of peace based on fabricated evidence. Because defendants' argument does not address plaintiff's claims, the Court does not consider it. Defendants are not entitled to summary judgment on plaintiffs First and Fourth Amendment claims.
Plaintiff also contends that defendants treated non-Rastafarians more favorably, in that they found papers regarding the planned breach of peace in the possession of non-Rastafarians but did not take any action against them. The Court previously dismissed plaintiff's equal protection claims because plaintiff did not oppose the motion to dismiss those claims. See Memorandum And Order (Doc. #41) at 11.
E. Whether Plaintiff Can Establish That Miller Violated His Due Process Rights Under The Fourteenth Amendment
Plaintiff claims that Miller denied him due process in violation of the Fourteenth Amendment by refusing to call his witnesses at the disciplinary hearing and by finding him guilty based on evidence outside the hearing record. Defendants maintain that plaintiff cannot show that Miller acted with malicious intent, as opposed to negligently. In support of their argument, defendants cite Davidson v. Cannon, 474 U.S. 344 (1986). In that case, the evidence established that prison officials had negligently, but without malicious intent, failed to protect plaintiff from another inmate. The United States Supreme Court found that a government official's negligence cannot support a due process violation under the Fourteenth Amendment. See id. at 347 (citing Daniels v. Williams, 474 U.S. 327 (1986)).
Because prison disciplinary proceedings are not part of a criminal prosecution procedure, the "full panoply of rights due a defendant" does not apply. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Nevertheless, due process requires a certain degree of procedural protections before a prison inmate can be deprived of a protected interest. See id. In order to provide adequate due process in a prison disciplinary setting, the prisoner must receive (1) advance written notice of the disciplinary charges; (2) an opportunity to call witnesses and present documentary evidence in his defense, and (3) a written statement by the fact finder of the evidence relied on and the reasons for the disciplinary action. Mitchell v. Maynard, 80 F.3d 1433, 1445 (10th Cir. 1996).
Here, plaintiff maintains that Miller did not let him call his witnesses. In Wolff, the Supreme Court stated: "the inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." 418 U.S. at 566. Defendants provide no reason for Miller's refusal to call plaintiff's witnesses. See Ramer v. Kerby, 936 F.2d 1102, 1104-05 (10th Cir. 1991) (before prohibiting inmate from calling witnesses prison officials must determine on individual basis whether permitting inmate to call or confront witness would threaten institutional safety or correctional goals). Construed in a light most favorable to plaintiff, the record supports an inference that in not allowing plaintiff to call witnesses, Miller denied him due process in violation of the Fourteenth Amendment. Plaintiff also claims that Miller found him guilty based on evidence outside the record. The disciplinary finding must be supported by "some evidence" in the record. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985). This standard does not require that the Court examine the entire record, independently assess the credibility of witnesses or weigh the evidence. Id. Rather, the Court must merely determine whether any evidence in the record could support the fact-finder's conclusion. Id. at 455-56. In support of summary judgment, defendants make no factual assertions regarding record evidence which supports Miller's finding. See Defendants' Memorandum (Doc. #44) at 3-5. The Court therefore overrules their motion for summary judgment on plaintiff's claims that Miller denied him due process.
F. Whether Plaintiff Can Establish That Simmons And McKune Denied Him Due Process In Violation Of The Eighth And Fourteenth Amendments By Refusing To Overturn His Disciplinary Conviction
Defendants argue that because Miller did not violate plaintiff's due process rights, Simmons and McKune did not deny him due process in refusing to overturn the conviction. As discussed above, the record supports an inference that Miller denied plaintiff due process. Accordingly, Simmons and McKune are not entitled to summary judgment on the Fourteenth Amendment claim. Defendants also assert that plaintiff cannot show that Simmons and McKune violated the Eighth Amendment. Plaintiff's Eighth Amendment claim — that Simmons and McKune refused to overturn his conviction — is merely a reinstatement of his procedural due process claim. See, e.g., Calhoun v. Hargrove, 312 F.2d 730, 735 (5th Cir. 2002) (finding that inmate's substantive due process claim was merely reinstatement of his Eighth Amendment claim). It does not allege an Eighth Amendment violation. See Farmer v. Brennan, 511 U.S. 825, 832-33 (1994) ( Eighth Amendment prohibits excessive force against prisoners and requires that prison officials provide humane conditions of confinement including adequate food, clothing, shelter, medical care and reasonable measures of safety). The Court therefore grants summary judgment in favor of defendants on plaintiff's claim that Simmons and McKune violated his rights under the Eighth Amendment.
IT IS THEREFORE ORDERED that defendants' Motion For Summary Judgment (Doc. #43) filed January 27, 2003 be and hereby is SUSTAINED IN PART. The Court grants summary judgment in favor of defendants on plaintiff's claim that Simmons and McKune violated his rights under the Eighth Amendment. All other claims remain in the case.
IT IS FURTHER ORDERED that the Magistrate conduct a scheduling conference in this case no later than July 16, 2003 and that the parties proceed with discovery on a schedule which will permit dispositive motions to be filed no later than December 16, 2003. The case is hereby set for trial on the docket which begins April 20, 2004.
IT IS FURTHER ORDERED that no later than June 30, 2003, the Magistrate appoint counsel to represent plaintiff in this case.
In determining whether to appoint counsel under 28 U.S.C. § 1915(e)(1), the Court considers several factors including (1) the merits of plaintiff's claims; (2) the nature of the factual issues raised in the claims; (3) plaintiff's ability to present his claims; and (4) the complexity of the claims involved. Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991). Although the claims in this case are not tremendously complex factually, the Court has previously determined that there may be substantial merit to at least some of them. The Court also finds that appointment of counsel will greatly enhance plaintiff's ability to proceed with discovery and present his claims and will assist the Court in resolving the case in a fair and orderly manner. Should plaintiff wish to proceed pro se at trial, the Court will consider a motion to withdraw by counsel.