Gates v. Holliday et al

Filing 14

RECOMMENDED DISPOSITION recommending 10 Plaintiff's Motion to Amend be denied. Objections to R&R due by 3/9/2009. Signed by Magistrate Judge Beth Deere on 2/23/09. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS W E S T E R N DIVISION E R C I L K. GATES V. D O C HOLLIDAY, et al. CASE NO. 4:08CV04192 JMM/BD DEFENDANTS P L A IN T IF F

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 James M. Moody. Any party may serve and file written objections to this re c o m m e n d a tio n . Objections should be specific and should include the factual or legal b a sis for the objection. If the objection is to a factual finding, specifically identify that f in d in g and the evidence that supports your objection. An original and one copy of your o b je c tio n s must be received in the office of the United States District Court Clerk no later th a n eleven (11) days from the date you receive the Recommended Disposition. A copy w ill be furnished to the opposing party. Failure to file timely objections may result in w a iv e r 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: P lain tiff , a pretrial detainee at the Pulaski County Regional Detention Facility

(" P C R D F " ), brings a pro se Complaint (docket entry #2) under 42 U.S.C. § 1983, along w ith a Motion for Leave to Proceed In Forma Pauperis (#1). In his original Complaint, P la in tif f alleged that he received money to use for stamps and to make copies for legal f ilin g s . Because Plaintiff owed the county money, the received money was taken to pay P la in tif f 's debt. Plaintiff's request for stamps as an indigent inmate was then denied b e c a u s e Plaintiff had received money. As a result, Plaintiff alleges that his First A m e n d m e n t right to meaningful access to the courts was violated. Plaintiff sues D e f en d a n ts Holliday, Morgan, Smith, Paxon, Peters, and Martin ("County Defendants") f o r the alleged violation. Since filing his original Complaint, Plaintiff has filed two Amended Complaints (# 5 and #6) and a subsequent Motion for Leave to Proceed In Forma Pauperis (#7). The C o u rt addressed the claims Plaintiff raised in those Complaints and his Motions to P r o c e ed In Forma Pauperis in a previous Recommended Disposition (#8). Plaintiff has n o w filed a Motion to Amend his Complaint (#10). The Court finds that Plaintiff's M o tio n (#10) should be DENIED.

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III.

D is c u s s io n : A. S tand ard

R u le 15 of the Federal Rules of Civil Procedure provides that leave to amend a c o m p la in t "shall be freely given when justice so requires." The Eighth Circuit has sp ec ifica lly stated that under the liberal amendment policy of Rule 15 "a district court's d e n ial of leave to amend pleadings is appropriate only in those limited circumstances in w h ich undue delay, bad faith on the part of the moving party, futility of the amendment, o r unfair prejudice to the non-moving party can be demonstrated." Roberson v. Hayti P o lic e Dept., 241 F.3d 992, 995 (8th Cir. 2001). However, a district court's denial of a p la in tif f 's motion to amend has consistently been upheld when the amendment has been f u tile . See Runningbird v. Weber, 198 Fed. Appx. 576 (8th Cir. 2006) (unpublished) (per c u ria m ); Gray v. McQuilliams, 14 Fed.Appx. 726 (8th Cir. 2001) (unpublished) (per c u ria m ) ; and Holloway v Dobbs, 715 F.2d 390 (8th Cir. 1983). In Plaintiff's Motion to Amend, he seems to complain that: (1) Defendants have re ta lia te d against him; (2) his conditions of confinement violate his eighth amendment rig h ts; and (3) Defendants have violated ADC Policy. Plaintiff's allegations fail to state a n y actionable § 1983 claim. B. R e ta lia tio n

In his Motion to Amend, Plaintiff complains that on December 9, 2008, Deputy C o m ic , who is not a party to this action, acted in a hostile manner towards him in the law

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lib rary when he requested that she make certain copies for him. Based upon Plaintiff's a lle g a tio n s , it appears that he filed a grievance against Deputy Comic following the D e c em b e r 9th incident. After Plaintiff filed his grievance, Plaintiff received a d is c ip lin a ry for making a false accusation against a staff member. On December 16, 2008, Plaintiff appeared before the disciplinary board. Board m e m b e r s Bally and Wilson (not parties to this action) found Plaintiff guilty of the alleged d is c ip lin a ry. As a result of the disciplinary conviction, Plaintiff was sentenced to five d a ys in lock up. Plaintiff states that he "consider[s] this treatment as a sign of retaliation d u e to me having 4 complaints by prisoners against this jail" (#10 at p.5). 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)). He cannot merely allege that an act was re ta lia to ry. Id. (citing Benson v. Cady, 761 F.2d 335, 342 (7th Cir. 1985)). H e re , Plaintiff has simply alleged that he "considers" his treatment a sign of re ta lia tio n . Accordingly, Plaintiff's claim appears to be speculative at best. See also Earnest v. Courtney, 64 F.3d 365, 367 (8th Cir. 1995) (retaliation claim is precluded if p u n is h m e n t is imposed for actual rule violation and defendants show "some evidence"

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th a t inmate committed the alleged rule violation) and Hartsfield v. Nichols, 511 F.3d 826, 8 3 1 (8th Cir. 2008) (stating that "a report from a correctional officer, even if disputed by th e inmate and supported by no other evidence, legally suffices as `some evidence' upon w h ic h to base a prison disciplinary violation, if the violation is found by an impartial d e c isio n maker"). Further, Plaintiff does not mention any of the individuals currently n a m e d as party Defendants in this lawsuit when describing the events giving rise to his re ta lia tio n claim. Rather, Plaintiff seems to allege that Deputies Crouch, Browley, and C o m ic are the individuals responsible for any alleged retaliation. Because these in d iv id u a ls and these allegations were not mentioned in any of Plaintiff's previous C o m p la in ts , the Court finds that Plaintiff's amendment would be futile, and that he sh o u ld not be permitted to raise this claim in the instant lawsuit.1 If Plaintiff seeks to p u rs u e this claim against these individuals, it should be done in a separate lawsuit. Plaintiff may not use this lawsuit as a vehicle to bring each and every claim that arises w h ile he is incarcerated. C. C o n d itio n s of Confinement

In order to establish that a prisoner's conditions of confinement violate the Eighth A m e n d m e n t, the prisoner must show (1) that the alleged deprivation is, "objectively,

The Court notes that Plaintiff mentions Deputy Comic in his Amended C o m p la in t filed December 23, 2008. However, in his Amended Complaint, Plaintiff s im p ly alleges that Deputy Comic "cut [his law library] hour short both times" (#7 at p.8). Plaintiff does not include any allegations regarding retaliation. 5

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su ff icien tly serious," resulting "in the denial of the minimal civilized measure of life's n e c es s itie s," and (2) that prison officials were deliberately indifferent to "an excessive ris k to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1 9 7 7 , 1980 (1994). Here, Plaintiff's allegations fall short of establishing such a claim. In his Motion to Amend, Plaintiff claims that while he was in "lock up" in D e c em b e r 2008, the air conditioning unit remained on, and his toilet stayed full for five d a ys . In addition, Plaintiff claims that he was provided unsanitized mats during the day. Such facts are insufficient to establish an eighth amendment claim. "[O]nly those d e p riv a tio n s denying `the minimal civilized measure of life's necessities' are sufficiently g ra v e to form the basis of an Eighth Amendment violation." Hudson v. McMillian, 503 U .S . 1, 9, 112 S.Ct. 995, 1000 (1992) (quoting Wilson v. Seiter, 501 U.S. 294, 298, 111 S .C t. 2321, 2324 (1991)). Further, Plaintiff has failed to allege that Defendants acted w ith "reckless disregard of a known risk" or that he suffered any injury as a result of any u n c o n s titu tio n a l conditions. Crow v. Montgomery, 403 F.3d 598, 602 (8th Cir. 2005).2 " B e c au s e a § 1983 action is a type of tort claim, general principles of tort law require that a plaintiff suffer some actual injury before he can receive compensation." Irving v.

With regard to Plaintiff's claim that Defendants provided him unsanitary mats w h ile housed in lock up, Plaintiff's claim also fails. Based upon Plaintiff's allegations, it a p p e ars that Plaintiff had the choice as to whether he should use the mats in question or g o without the mats. Either way, the Eighth Circuit has held that there is no absolute e ig h th amendment right to be placed in a cell with bedding. Williams v. Delo, 49 F.3d 4 4 2 , 446 (8th Cir. 1995). Accordingly, Plaintiff's claim fails. 6

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D o r m ir e , 519 F.3d 441, 448 (8th Cir. 2008) (citing Carey v. Piphus, 435 U.S. 247, 2 5 3 -5 5 , 98 S.Ct. 1042 (1978)). As a result, Plaintiff's claim fails and any amendment c o n ta in in g this claim would be futile. D. Violation of Prison Policy

In his Motion to Amend his Complaint, Plaintiff again complains that Defendants h a v e "broken the rules" by failing to maintain an adequate number of staff members at the P C R D F . Plaintiff's claim fails. There is no federal Constitutional liberty interest in h a v in g state officers follow state law or procedure. Kennedy v. Blankenship, 100 F.3d 6 4 0 , 643 (8th Cir. 1996) (citing Olim v. Wakinekona, 461 U.S. 238, 250, 103 S.Ct. 1741, 1 7 4 8 (1983)). Thus, even assuming that Defendants have violated any PCRDF rule or p o lic y, Plaintiff's claim fails as a matter of law. Accordingly, to allow such an a m e n d m e n t would be futile. IV . C o n c lu s io n : T h e Court hereby recommends that Plaintiff's Motion to Amend (#10) be D E N IE D . DATED this 23rd day of February, 2009.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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