Johnson v. Giles et al (INMATE 2)

Filing 11

REPORT AND RECOMMENDATION of the Magistrate Judge that Plf's complaint be DISMISSED with prejudice and prior to service of process pursuant to the provisions of 28 USC 1915(e)(2)(B)(i); Objections to R&R due by 7/6/2009. Signed by Honorable Wallace Capel, Jr on 6/23/2009. (wcl, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ____________________________ D A V ID LAMAR JOHNSON, #255 052 * Plaintiff, v. J .C . .GILES, WARDEN, et al., D e f e n d a n ts . ____________________________ * * * * 2:09-CV-339-WKW (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P lain tiff , a state inmate incarcerated at the Ventress Correctional Facility located in C la yto n , Alabama, brings this action pursuant to 42 U.S.C. § 1983 alleging that rights, p riv ile g e s, or immunities afforded him under the Constitution or laws of the United States w e re abridged by the conduct and actions of Defendants. Plaintiff names as defendants W a rd e n J. C. Giles, Lieutenant Alex Moses, Lieutenant Flowers, Lieutenant Carolyn L o n g m ire , and Correctional Officer Stocks. Plaintiff requests trial by jury and seeks d am ag es as well as declaratory and injunctive relief. Upon review of the complaint, the court c o n c lu d e s that it is due to be dismissed prior to service of process pursuant to the provisions o f 28 U.S.C. § 1915(e)(2)(B).1

A prisoner who is allowed to proceed in forma pauperis in this court will have his complaint screened in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B). This screening procedure requires the court to dismiss a prisoner's civil action prior to service of process, regardless of the payment of a filing fee, if it determines that the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

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I. DISCUSSION A . The Disciplinary Claim P lain tiff complains that on March 18, 2009 Defendants Moses and Abercrombie c o n d u c ted an illegal, unwarranted, and unreasonable search of his belongings outside of his p re se n c e . He further maintains that these defendants conspired to set him up and charge him w ith a false disciplinary infraction by planting a weapon among his belongings. Following a disciplinary hearing held on March 27, 2009, the hearing officer found Plaintiff guilty of v i o la tin g Rule #52, unauthorized possession of a weapon or device that could be used as a w e a p o n , and sanctioned him to 45 days in segregation and 30 days loss of all privileges. (D o c . No. 1 and attachment.) To the extent Plaintiff's complaint may be read to assert an allegation that he was f a lse ly charged with institutional misconduct, under the facts of this case, he does not state a violation of his constitutional rights. The filing of a false or unfounded misconduct charge a g a in st an inmate does not per se constitute a deprivation of a constitutional right where the in m a te receives appropriate procedural due process protections. See Wolff v. McDonnell, 418 U .S . 539 (1974); Freeman v. Rideout, 808 F.2d 949 (2 n d Cir. 1986); Flanagan v. Shively, 7 8 3 F. Supp. 922, 931-32 (M.D.Pa.), aff'd, 980 F.2d 722 (3 rd Cir. 1992). T o the extent Plaintiff's claim may be construed as an allegation that the sanctions im p o s e d as a result of being found guilty of violating Rule #52 violated his due process rig h ts , he is entitled to no relief on the facts alleged. The Supreme Court has identified two

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c ir c u m s ta n c e s in which a prisoner, an individual already deprived of his liberty in the o rd in a ry sense, can be further deprived of his liberty such that due process is required. "The f irst is when a change in a prisoner's conditions of confinement is so severe that it essentially e x c e e d s the sentence imposed by the court. See Sandin v. Conner, 515 U.S. 472, 484, 115 S .C t. 2293, 2300, 132 L.Ed.2d 418 (1995); see, e.g., Vitek v. Jones, 445 U.S. 480, 492-93, 1 0 0 S.Ct. 1254, 1263-64, 63 L.Ed.2d 552 (1980) (holding that a prisoner is entitled to due p ro c e ss prior to being transferred to a mental hospital). The second is when the state has c o n s is te n tly given a certain benefit to prisoners (for instance, via statute or administrative p o lic y), and the deprivation of that benefit `imposes atypical and significant hardship on the inm ate in relation to the ordinary incidents of prison life.' Sandin, 515 U.S. at 484, 115 S.Ct. a t 2300; see, e.g., Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 9 3 5 (1974) (prisoners may not be deprived of statutory `good-time credits' without due p ro c e ss ); cf. Dudley v. Stewart, 724 F.2d 1493, 1497-98 (11th Cir.1984) (explaining how the s ta te creates liberty interests). In the first situation, the liberty interest exists apart from the s ta te ; in the second situation, the liberty interest is created by the state." Bass v. Perrin, 170 F .3 d 1312, 1318 (11 th Cir. 1999). T h e Constitution itself does not give rise to a liberty interest in avoiding transfer to m o re adverse conditions of confinement. See Meachum v. Fano, 427 U.S. 215, 225 (1976) (n o liberty interest arising from Due Process Clause itself in transfer from low-to maximums e c u rity prison because "[c]onfinement in any of the State's institutions is within the normal

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lim its or range of custody which the conviction has authorized the State to impose"); Olim v . Wakinekona, 461 U.S. 238, 245-246 (1983) (a prisoner has no constitutional right to be c o n f in e d in a particular institution and may be subjected to an interstate transfer without im p lic a tin g the Constitution). Moreover, an inmate in the Alabama prison system has no c o n stitu tio n a lly protected interest in the procedure affecting his classification level, the p riv ile g e s bestowed upon him, or confinement in the least restrictive prison environment b e c au s e the resulting restraints are not so severe that they exceed the sentence imposed upon h im . Sandin, 515 U.S. at 485 ("Discipline by prison officials in response to a wide range of m isco n d u ct falls within the expected parameters of the sentence imposed by a court of law."). Thus, the deprivations about which Plaintiff complains, without more, do not "exceed the se n ten c e [imposed by the trial court] in such an unexpected manner as to give rise to p r o t e c tio n by the Due Process Clause of its own force." Id. at 484. This court must, th e re f o r e , determine whether the actions about which Plaintiff complains involve the d e p riv a tio n of a state-created liberty interest as defined by the standard set forth in Sandin. As the Supreme Court recently noted, S a n d in involved prisoners' claims to procedural due process protection b e f o re placement in segregated confinement for 30 days, imposed as discipline f o r disruptive behavior. Sandin observed that some of our earlier cases, Hewitt v . Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), in particular, h a d employed a methodology for identifying state-created liberty interests that e m p h a s iz e d "the language of a particular [prison] regulation" instead of "the n a t u re of the deprivation." Sandin, 515 U.S., at 481, 115 S.Ct. 2293. In S a n d in , we criticized this methodology as creating a disincentive for States to p ro m u lg a te procedures for prison management, and as involving the federal c o u rts in the day-to-day management of prisons. Id., at 482-483, 115 S.Ct. -4-

2 2 9 3 . For these reasons, we abrogated the methodology of parsing the la n g u a g e of particular regulations. "[T]he search for a negative implication from mandatory language in p riso n e r regulations has strayed from the real concerns undergirding the liberty p ro te c te d by the Due Process Clause. The time has come to return to the due p ro c e ss principles we believe were correctly established in and applied in W o lff and Meachum. Following Wolff, we recognize that States may under c e rta in circumstances create liberty interests which are protected by the Due P r o c e ss Clause. But these interests will generally be limited to freedom from re stra in t which, while not exceeding the sentence in such an unexpected m an n e r as to give rise to protection by the Due Process Clause of its own f o rc e , nonetheless imposes atypical and significant hardship on the inmate in re la tio n to the ordinary incidents of prison life." Id., at 483-484, 115 S.Ct. 2 2 9 3 (citations and footnote omitted). After Sandin, it is clear that the touchstone of the inquiry into the e x is t e n c e of a protected, state-created liberty interest in avoiding restrictive c o n d i tio n s of confinement is not the language of regulations regarding those c o n d itio n s but the nature of those conditions themselves "in relation to the o rd in a ry incidents of prison life." Id., at 484, 115 S.Ct. 2293. W ilkin so n v. Austin, 545 U.S. 209, 222-23 (2005). Applying the Sandin inquiry, the court concludes that Plaintiff's temporary assignment to segregation and loss of privileges "though concededly punitive, do[] not represent a d ra m a tic departure from the basic conditions" of the sentence imposed upon him. Id. at 485. P la in tif f does not allege much less indicate that his temporary confinement on segregation o r loss of privileges subjected him to "atypical and significant hardship . . . in relation to the o rd in a ry incidents of prison life." Id. at 484. Because Plaintiff has not alleged deprivation o f a protected liberty interest, his complaints in relation thereto fail to state a due process c la im . See id. at 487; Griffin v. Vaughn, 112 F.3d 703, 706 (3 r d Cir. 1997). B . The Visitation Claim

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P lain tiff alleges that Defendants Stocks and Flowers deprived him of visitation with h i s wife on March 21, 2009. Plaintiff regards this as actionable conduct because, he argues, h e was not subject to a loss of privileges at the time and his wife had been cleared for v is ita tio n . (Doc. No. 1.) Neither prisoners nor their would-be visitors have a constitutional right to prison v is i t a ti o n . Kentucky Department of Corrections v. Thompson, 490 U.S. 454 (1989). The v iability of claims regarding visitation privileges is even more suspect under Sandin, 515 U .S . 472. As noted, a prison occurrence may amount to a deprivation of a liberty interest e n titled to procedural protection under the Due Process Clause of the Constitution if (1) state s ta tu te s or regulations narrowly restrict the power of prison officials to impose the d e p riv a tio n , and (2) the liberty interest in question is one of real substance. Id. at 483-84. T h e issue of real substance is limited to freedom from restraint that imposes "atypical and sig n if ica n t hardship on the inmate in relation to the ordinary incidents of prison life," or state a c tio n that "will inevitably affect the duration of [a] sentence." Id. Here, the court finds that the restriction on visitation privileges about which Plaintiff c o m p la in s , without more, is not an atypical and significant hardship on an inmate in relation to the ordinary incidents of prison life. Consequently, the court concludes that this claim is d u e to be dismissed under the provisions of 28 U.S.C. § 1915(e)(i). See Neitzke, 490 U.S. 319. C . The Conspiracy Claim

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W ith regard to Plaintiff's contention that Defendants Abercrombie and Longmire c o n sp ire d to bring a false disciplinary charge against him, Plaintiff is entitled to no relief. A conspiracy claim justifiably may be dismissed because of the conclusory, vague, and g e n e ra l nature of the allegations of a conspiracy. Fullman v. Graddick, 739 F.2d 553, 5565 5 7 (11 th Cir. 1984). T h e court has carefully reviewed Plaintiff's complaint. At best, his assertions are selfse rv in g , purely conclusory allegations that fail to assert those material facts necessary to e sta b lis h a conspiracy between Defendants Longmire and Abercrombie. Other than his selfs e rv i n g allegations, Plaintiff presents nothing to this court which indicates that these d e f en d a n ts entered into a conspiracy to bring a false disciplinary charge against him. In light o f the foregoing, the court concludes that Plaintiff's bare allegations of a conspiracy are in s u f f ic ie n t to support a claim for relief under 42 U.S.C. § 1983. Fullman, 739 F.2d at 556557. D. Defendant Giles P la in tif f names Warden Giles as a defendant to this cause of action but asserts no s p e c if ic claims against him. To the extent Plaintiff files suit against Defendant Giles based o n his supervisory role, such claim is subject to dismissal. The law is settled that a defendant cannot be held liable in an action brought pursuant to 42 U.S.C. § 1983 under the theory of respondeat superior or on the basis of vicarious lia b ility. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 692 (1978); Belcher v. City of Foley,

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3 0 F.3d 1390, 1396 (11 th Cir. 1994) (42 U.S.C. § 1983 does not allow a plaintiff to hold s u p e rv is o ry officials liable for the actions of their subordinates under either a theory of re sp o n d e a t superior or vicarious liability); see also Cottone v. Jenne, 326 F.3d 1352, 1360 (1 1 th Cir. 2003) (holding that a supervisory official is liable only if he "personally p a rtic ip a te [ d ] in the alleged unconstitutional conduct or [if] there is a causal connection b e tw e e n [his] actions ... and the alleged constitutional deprivation."). Plaintiff's complaint a g a in s t Defendant Giles on the basis of respondeat superior is, therefore, subject to dismissal u n d er 28 U.S.C. § 1915(e)(2)(B)(i). I I . CONCLUSION A cc o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that Plaintiff's c o m p la in t be DISMISSED with prejudice and prior to service of process pursuant to the p ro v is io n s of 28 U.S.C. § 1915(e)(2)(B)(i). It is further ORDERED that on or before July 6, 2009 the parties may file objections to this R e c o m m e n d a ti o n . Any objections filed must specifically identify the findings in the

M a g is tra te Judge's Recommendation to which a party objects. Frivolous, conclusive or g e n e ra l objections will not be considered by the District Court. The parties are advised that th is Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and advisements in the M a g is tra te Judge's Recommendation shall bar the party from a de novo determination by the

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D is tric t Court of issues covered in the Recommendation and shall bar the party from a tta c k in g on appeal factual findings in the Recommendation accepted or adopted by the D is tric t Court except upon grounds of plain error or manifest injustice. Nettles v.

W a in w r ig h t, 677 F.2d 404 (5 th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11 th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11 th Cir. 1981) (en b a n c ), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. D o n e this 23rd day of June, 2009.

/s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. UNITED STATES MAGISTRATE JUDGE

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