Atkinson v. Sanders

Filing 67

RECOMMENDED DISPOSITION recommending that 54 Defendants' motion for summary judgment be granted. Plaintiff's claims against Defendant Norman should be dismissed without prejudice. Plaintiff's claims against Defendants Sanders, Miller, Lee, Cross, Hunter, and Wells should be dismissed with prejudice. Objections to R&R due by 1/5/2009. Signed by Magistrate Judge Beth Deere on 12/22/08. (hph)

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS EASTERN DIVISION D O N A L D ATKINSON R e g # 23588-044 v. C A S E NO.: 2:07CV00009-SWW/BD P L A IN T IF F

L IN D A SANDERS, Warden, F C I -F o r r e s t City, Arkansas

DEFENDANT

R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections: T h e following recommended disposition has been sent to United States District C o u rt Judge Susan Webber Wright. Any party may serve and file written objections to th is recommendation. Objections should be specific and should include the factual or le g a l basis for the objection. If the objection is to a factual finding, specifically identify th a t finding and the evidence that supports your objection. An original and one copy of yo u r objections must be received in the office of the United States District Court Clerk no la te r than eleven (11) days from the date you receive the Recommended Disposition. A c o p y will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact. M a il your objections and "Statement of Necessity" to: C lerk , United States District Court E a ste rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325

II.

B a c k gro u n d : On January 23, 2007, Plaintiff, a federal prisoner proceeding pro se, filed a

p e titio n for writ of habeas corpus under 28 U.S.C. § 2241 (docket entry #1) and paid the $ 5 .0 0 statutory filing fee in full. The Court converted his case to one brought under 42 U .S .C . § 1983, challenging a condition of Plaintiff's confinement (#3). On July 5, 2007, P la in tif f was granted leave to proceed in forma pauperis and was ordered to file an A m e n d e d Complaint within 30 days (#6). Plaintiff was notified that failure to comply w ith the Court's order could result in dismissal of his case. O n November 28, 2007, the Court dismissed Plaintiff's case for failing to comply w ith the Court's Order (#20). On December 5, 2007, Plaintiff filed an Amended C o m p la in t in this matter (#23). The Court then reopened the case and vacated the Order o f dismissal (#26). In his Amended Complaint, Plaintiff states that he was assigned to UNICOR as his p lac e of prison employment at all times relevant to this case. He claims that Defendants c o n sp ire d to discriminate against him based on his race and to secure his discharge from U N IC O R . Plaintiff also argues that Defendants retaliated against him in order to ter m in a te his work assignment at UNICOR. Further, Plaintiff alleges that Defendants d e p riv e d him of opportunities to work overtime, subjected him to harassment, and created a hostile work environment for Plaintiff at UNICOR. Plaintiff requests both monetary d a m a g e s and injunctive relief.

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D e f en d a n ts Linda Sanders, Matt Miller, Jim Lee, Cross, K. Norman, K. Hunter a n d Richard Wells have now filed a motion to dismiss or, in the alternative, a motion for s u m m a ry judgment (#41). The Court previously notified Plaintiff that it could construe th e motion as a motion for summary judgment and provided Plaintiff additional time to re sp o n d (#58). Plaintiff requested additional time to file his response (#64), and the C o u r t granted Plaintiff's motion (#65). Plaintiff has failed to respond to Defendants' m o tio n . In the motion, Defendants argue that Plaintiff's claims against Defendant Norman s h o u ld be dismissed because Plaintiff failed to serve Defendant Norman in accordance w ith the Federal Rules of Civil Procedure. In addition, Defendants contend that P la in tif f 's claims against Defendants Sanders, Lee, and Hunter must be dismissed b e c au s e respondeat superior is not a basis for liability in a Bivens action.1 See Bivens v. S ix Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999 (1971). Further, D e f en d a n ts contend that: (1) Plaintiff claims against Defendants in their official c a p a c itie s are barred by sovereign immunity; (2) Plaintiff has failed to state an actionable c iv il conspiracy claim; (3) Plaintiff has failed to state a claim under the Eighth A m e n d m e n t; (4) Plaintiff has failed to establish that he was discriminated against based

In his Amended Complaint, Plaintiff alleges that Defendants Sanders, Lee, and H u n te r either were personally involved in, or aware of, the alleged constitutional v io la tio n s . Accordingly, Plaintiff is not attempting to hold these Defendants liable based u p o n respondeat superior and the Court finds that Defendants are not entitled to summary ju d g m e n t on that basis. 3

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u p o n his race; (5) Plaintiff has failed to establish that he was subjected to a hostile work e n v iro n m e n t; (6) Plaintiff's retaliation claim is time-barred; and (7) Plaintiff failed to fu lly exhaust his administrative remedies as required by the Prison Litigation Reform A c t.2 III. D is c u s s io n : A. D e fe n d a n t Norman

D e f e n d a n ts argue that Defendant Norman has not been served in accordance with th e Federal Rules of Civil Procedure and that Plaintiff's claims against Defendant N o r m a n should be dismissed. The Court agrees. O n January 4, 2008, the Court ordered that summons be issued for each of the D e f en d a n ts and that the U.S. Marshal serve copies of Plaintiff's Petition for Writ of H ab ea s Corpus and that the Amended Complaint upon each Defendant (#28).

Because the Court finds that Defendants are entitled to summary judgment on th e merits of Plaintiff's claims, it will not provide a full analysis of Defendants' statute of lim ita tio n s or exhaustion argument. However, the Court notes that in his Amended C o m p la in t, Plaintiff repeatedly alleges that Defendants did not respond to his grievances in a timely fashion rendering exhaustion impossible. As a result, Plaintiff created a g e n u in e issue of material fact on exhaustion precluding summary judgment on that basis. See Jackson v. Rouse, 2008 WL 4102662 (E.D. Ark. 2008) ("[a]n administrative remedy th a t is not `available' need not be exhausted prior to filing a lawsuit"). Further, with re g a rd to Defendants' argument that Plaintiff's claims are time-barred, the attachments to D e f en d a n ts ' motion indicate that Plaintiff received responses to his administrative a p p e a ls as late as February 16, 2006. Plaintiff filed this action on January 23, 2007. Accordingly, it falls well within the three-year statute of limitations. See Board of R e g e n ts v. Tomanio, 446 U.S. 478, 484, 100 S.Ct. 1790 (1980); Morton v. City of Little R o c k , 934 F.2d 180, 182 (8th Cir. 1991). 4

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D e f en d a n t K. Norman has not been served with the Amended Complaint and summons (# 3 9 ), even though the Court has provided Plaintiff additional time to serve Defendant N o rm a n (#46). At this time, more than 120 days have passed since service was returned u n ex ec u ted for Defendant Norman and the extension granted for service has expired. It is the responsibility of a prisoner proceeding pro se and in forma pauperis to provide the C o u rt and the U.S. Marshal Service with proper service addresses for defendants. Lee v. A r m o n tr o u t, 991 F.2d 487, 489 (8th Cir. 1993). See also FED. R. CIV. P. 4(m) (providing th a t a Court may sua sponte dismiss a defendant if he or she is not served within 120 days o f the filing of the complaint). As a result, all claims against Defendant Norman should b e dismissed without prejudice. B. 1. D e fen d a n ts Sanders, Miller, Lee, Cross, Hunter, and Wells S u m m ary Judgment Standard

S u m m a r y judgment is appropriate when the evidence, viewed in the light most f a v o ra b le to the nonmoving party, presents no genuine issue of material fact. FED. R. C IV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 246 (1986). Once the moving party has successfully carried its b u rd e n under Rule 56(c), the nonmoving party has an affirmative burden to go beyond the p le a d in g s and by depositions, affidavits, or otherwise, designate "specific facts showing th a t there is a genuine issue for trial." FED. R. CIV. P. 56(e); Mosley v. City of

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N o r th w o o d s , 415 F.3d 908, 910-11 (8th Cir. 2005) ("The nonmoving party may not rest o n mere allegations or denials, but must demonstrate on the record the existence of sp ec ific facts which create a genuine issue for trial.") If the opposing party fails to carry th a t burden or fails to establish the existence of an essential element of its case on which th a t party will bear the burden of proof at trial, summary judgment should be granted. See Celotex, 477 U.S. at 322. "Although it is to be construed liberally, a pro se complaint m u s t contain specific facts supporting its conclusions." Martin v. Sargent, 780 F.2d 1 3 3 4 , 1337 (8th Cir. 1985). 2. O f f ic ia l Capacity Claims

P lain tiff has requested monetary damages and injunctive relief against Defendants in their official capacities. Defendants correctly state that an action against a federal e m p lo ye e in his official capacity is a suit against the United States. FDIC v. Meyer, 510 U .S . 471, 475, 114 S.Ct 996 (1994). It is well settled that the United States is immune f ro m suit for damages unless it has consented to suit. United States v. Sherwood, 312 U .S . 584, 586-87 (1941). Plaintiff has not pleaded, nor can he prove that the United State h a v e waived its sovereign immunity in this case. As a result, Plaintiffs claims for m o n e ta ry damages against Defendants in their official capacities should be dismissed. F u rth e r, although a plaintiff may bring suit against a federal employee in his o f f ic ia l capacity for injunctive relief, here Plaintiff's request for injunctive relief is now m o o t. In his Amended Complaint, Plaintiff requests that his employment at UNICOR be

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re in sta ted . However, Plaintiff is no longer incarcerated at Forrest City Low. Plaintiff is n o w housed at FPC Millington in Millington, Tennessee (#61). As a result, Plaintiff's c la im s for injunctive relief against Defendants in their official capacities also should be d is m is s e d . 3. E q u a l Protection

P la in tif f 's race discrimination claim is premised on the equal protection c o m p o n e n t of the Fifth Amendment which prohibits the government from invidiously d is c rim in a tin g between individuals or groups. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 6 9 3 (1954). "Although the fifth amendment does not contain an express `equal p ro te c tio n ' clause, it is [] settled that the concept of due process of law prohibits the f e d era l government from discriminating against any person on such irrelevant and in v id io u s grounds as race, color, religion, or national origin." Johnson v. Alexander, 572 F .2 d 1219, 1220 (8th Cir. 1978)(relying upon Washington v. Davis, 426 U.S. 229, 96 S .C t. 2040 (1976)). "Proof of discriminatory racial purpose is required to establish an e q u a l protection violation; an official act is not unconstitutional solely because it has a ra c ia lly disproportionate impact." Foster v. Wyrick, 823 F.2d 218, 221 (8th Cir. 1987) (c itin g Washington v. Davis, supra, and Village of Arlington Heights v. Metropolitan H o u s in g Development Corp., 429 U.S. 252, 265-66, 97 S.Ct. 555 (1977)). "The heart of a n equal protection claim is that similarly situated classes of inmates are treated d if f ere n tly, and that this difference in treatment bears no rational relation to any

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le g itim a te penal interest." Weiler v. Purkett, 137 F.3d 1047, 1051 (8th Cir. 1998) (citing T im m v. Gunter, 917 F.2d 1093, 1103 (8th Cir. 1990)). In his Amended Complaint, Plaintiff states that Defendants Cross and Lee "created a hostile work environment by practicing racial discrimination in job assignments and o v e rtim e work assignments" (#23 at p.3). However, Plaintiff fails to include any specific f a ctu a l allegations to support such a statement. Although Plaintiff alleges that Defendant L ee denied Plaintiff's request to be removed from Defendant Cross's work detail after a w h ite inmate was permitted to transfer, Plaintiff fails to state whether Defendant Lee was th e individual who permitted the white inmate's transfer or whether the white inmate was s im ila rly situated to Plaintiff. See Rouse v. Benson, 193 F.3d 936, 942 (8th Cir. 1999) (h o ld in g that equal protection analysis begins by asking whether inmate has shown that he h a s been treated differently from others similarly situated). To survive summary judgment, Plaintiff must identify affirmative evidence from w h ic h a jury could find proof of a racially discriminatory motive. Lewis v. Jacks, 486 F .3 d 1025, 1028 (8th Cir. 2007) (citing Crawford-El v. Britton, 523 U.S. 574, 600, 118 S .C t. 1584 (1998)). Here, Plaintiff has failed to provide such proof. Accordingly, D e f en d a n ts are entitled to judgment as a matter of law on Plaintiff's equal protection c la im .

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4.

C o n s p ira c y

P la in tif f claims that Defendants conspired to secure Plaintiff's discharge from U N IC O R . However, his conclusory allegations of conspiracy fail to state a cognizable c o n s titu t io n a l claim as a matter of law. The Eighth Circuit has held that a party must p lea d conspiracy allegations with sufficient specificity and factual support to suggest a m e e tin g of the minds. Manis v. Sterling, 862 F.2d 679, 681 (8th Cir. 1988). Here, P la in tif f has not set forth specific facts suggesting that the Defendants had a meeting of th e minds and acted in concert to deprive him of such constitutional rights. Instead, he m e re ly makes conclusory allegations without any factual support.3 F u rth e r, there is no evidence that the alleged conspiracy violated any of Plaintiff's c o n s titu tio n a l rights. See, e.g., Askew v. Millerd, 191 F.3d 953, 957 (8th Cir.1999) (re q u irin g a plaintiff to show that a constitutional deprivation occurred in order to prove a § 1983 conspiracy claim). Although Plaintiff claims that Defendants conspired against h im in order to either force Plaintiff to quit his employment at UNICOR or to have P la in tif f terminated, an inmate does not have a constitutional right to a particular job a s s ig n m e n t in prison. Lomholt v. Holder, 287 F.3d 683, 684 (8th Cir. 2002); Mitchell v. K ir k , 20 F.3d 936, 938 (8th Cir. 1994). In addition, as the Court previously addressed,

Plaintiff seems to rely upon Defendants' alleged failure to process Plaintiff's g rie v a n ce s in a timely fashion to support his conspiracy claim. However, such allegations fa ll short of establishing a meeting of the minds among the alleged conspirators to secure P la in tif f 's termination from UNICOR. 9

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a lth o u g h Plaintiff mentions racial discrimination in his Amended Complaint, his A m e n d e d Complaint is void of any facts to support an equal protection claim. Because Plaintiff cannot show that a constitutional deprivation occurred, he cannot prove an a c tio n a b le conspiracy against him. 5. R e ta lia tio n

T o establish a prima facie case for retaliation, Plaintiff must show that: (1) he e x e rc is e d a constitutionally protected right; (2) prison officials disciplined him; and (3) h is exercise of a protected right was the motivation for the discipline. Meuir v. Greene C o u n ty Jail Employees, 487 F.3d 1115, 1119 (8th Cir. 2007). Plaintiff bears a heavy e v id e n tia ry burden to establish a prima facie case. Id. (citing Murphy v. Mo. Dept. of C o r r ., 769 F.2d 502, 503 n. 1 (8th Cir. 1985)). Plaintiff cannot withstand a motion for s u m m a ry judgment merely by alleging that an act was retaliatory. Id. (citing Benson v. C a d y , 761 F.2d 335, 342 (7th Cir. 1985)). Plaintiff claims that Defendants retaliated against him for filing administrative g rie v a n c e s by charging him with a false disciplinary; however, Defendants have shown th a t the disciplinary measures in question were supported by officer reports (#55 at p.222 3 ). Plaintiff does little more than deny Defendants' assertions and allege that the d is c ip lin e was, in fact, retaliatory. A retaliation claim is precluded if punishment was im p o s e d based on an actual violation of prison rules and Defendants show "some e v id e n c e " that the inmate actually committed the alleged rule violation. Earnest v.

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C o u r tn e y , 64 F.3d 365, 367 (8th Cir. 1995) (per curiam). Plaintiff has failed to present a n y triable issue of fact regarding his discipline. Accordingly, this claim should be d is m is s e d . 6. E ig h th Amendment Claim

T h e Eighth Amendment prohibits the infliction of cruel and unusual punishment. In his Amended Complaint, Plaintiff states that Defendants did "conspire . . . to deprive P la in tif f [] of rights secured to him under the Fifth and Eighth Amendments to the C o n stitu tio n of the United States of America" (#23 at p.3). However, beyond this sta tem e n t, Plaintiff fails to make any specific allegations as to how any of the Defendants a c te d to violate his Eighth Amendment rights. As a result, Plaintiff's claim fails as a m atte r of law. 7. H o s tile Work Environment

P la in tif f uses the phrase "hostile work environment" throughout his Amended C o m p lain t. However, he does not assert a claim under Title VII of the Civil Rights Act, 4 2 U.S.C. § 2000e et seq. Plaintiff's "hostile work environment" claim essentially rests o n his allegation that Defendants "engaged in horseplay, and encouraged and permitted o th e r inmates . . . to engage in horseplay at Plaintiff's expense . . . for the purpose of e m b a r ra ss in g and humiliating the Plaintiff" (#23 at p.3).4 Defendants have moved for

Plaintiff also claims that Defendants spread false rumors about Plaintiff e n g a g in g in "deviant sexual activity," assigned him to "undesirable jobs," and locked him o u tsid e during cold weather (#23 at p.3 and p.7). 11

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s u m m a ry judgment on this claim on the basis that Plaintiff has failed to allege that D e f en d a n ts ' conduct was "sufficiently severe or pervasive to alter the conditions of the [ P la in tif f 's ] employment and create an abusive working environment." Tuggle v. M a n g a n , 348 F.3d 714, 720 (8th Cir. 2003). Because Plaintiff has not sufficiently alleged a Title VII claim in his Complaint, nor has Plaintiff established that he is an "employee" f o r purposes of Title VII, an analysis of Plaintiff's "hostile work environment claim" is n o t necessary.5 See Battle v. Minnesota Dept. Of Corrections, 40 Fed Appx. 308, 310 (8 th Cir. 2002) (unpublished) (per curiam) (relying upon Williams v. Meese, 926 F.2d 994 (1 0 th Cir. 1991)). Further, although Plaintiff may bring a claim for invidious d iscrim inatio n under the equal protection component of the Fifth Amendment, the Court p re v io u s ly found that Plaintiff has failed to state an actionable equal protection claim. IV . C o n c lu s io n : T h e Court recommends that Defendants' motion for summary judgment (#54) be G R A N T E D . Plaintiff's claims against Defendant Norman should be dismissed without

"The elements of a prima facie hostile-work-environment claim are: 1) the e m p lo ye e is a member of a protected group; 2) [ ]he was subject to unwelcome h a ra ss m e n t; 3) there was a causal nexus between the harassment and [his] membership in th e protected group; 4) the harassment affected a term, condition, or privilege of e m p lo ym e n t; and, in a case alleging harassment by non-supervisory employees, 5) the e m p lo ye r knew or should have known of the harassment and failed to take prompt and e f f e c tiv e remedial action." Turner v. Gonzales, 421 F.3d 688, 695 (8th Cir. 2005) (citing C a r te r v. Chrysler Corp., 173 F.3d 693, 700 (8th Cir. 1999)). 12

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p re ju d ic e . Plaintiff's claims against Defendants Sanders, Miller, Lee, Cross, Hunter, and W e lls should be dismissed with prejudice. D A T E D this 22nd day of December, 2008.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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