Brewer v. Pennington et al

Filing 3

RECOMMENDED DISPOSITION recommending that 2 Plaintiff's Complaint be dismissed with prejudice, and that his 1 motion for leave to proceed in forma pauperis be denied as moot. In addition, the Court recommends that the dismissal count as a & quot;strike" for purposes of 28 U.S.C. § 1915(g), and that the District Court certify that an in forma pauperis appeal taken from the order and judgment dismissing this action would be frivolous and not taken in good faith. Signed by Magistrate Judge Beth Deere on 10/30/09. (hph)

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IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS W E S T E R N DIVISION K E I T H D. BREWER, ADC #143434 V. C A S E NO. 4:09CV00804 WRW/BD P L A IN T IF F B R U C E PENNINGTON, et al. DEFENDANTS R E C O M M E N D E D DISPOSITION I. P r o c e d u r e s for Filing Objections: The following recommended disposition has been sent to United States District J u d g e William R. Wilson. 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 s is for the objection. If the objection is to a factual finding, specifically identify that fin 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 receipt of the recommendations. A copy will be furnished to th e opposing party. Failure to file timely objections may result in a waiver of the right to a p p e a l questions of fact. M a il your objections and/or request for a hearing to: C le rk , United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 II. I n t r o d u c t io n : P la in tiff, an inmate at the Arkansas Department of Correction ("ADC"), brings this a c tio n pro se under 42 U.S.C. 1983 (docket entry #2), along with a motion for leave to p ro c e e d in forma pauperis (#1). For the following reasons, this Court recommends that P la in tiff's Complaint (#2) be DISMISSED with prejudice, and that his motion for leave to p ro c e e d in forma pauperis (#1) be DENIED as moot. In addition, the Court recommends th a t the dismissal count as a "strike" for purposes of 28 U.S.C. 1915(g), and that the D is tric t Court certify that an in forma pauperis appeal taken from the order and judgment d is m is s in g this action would be frivolous and not taken in good faith. III. B ackground: P la in tiff alleges that various employees of the Saline County Detention Facility (" S C D F " ) violated his Due Process and Eighth Amendment rights by placing him in is o la tio n for more that thirty days. At the time of the event giving rise to the lawsuit, P la in tiff was an ADC inmate housed in the SCDF awaiting placement in an ADC facility. Plaintiff alleges that his initial placement in isolation for psychiatric reasons became p u n itiv e over time. Plaintiff previously filed a similar complaint regarding his c o n fin e m e n t. See Brewer v. Pennington, et al., 4:09CV00228 JTR (E.D. Ark. filed M a rc h 25, 2009). In his previous Complaint, Plaintiff alleged that, while he was confined in the S C D F , Defendants: (1) denied him adequate medical care for an unspecified mental illn e s s ; (2) violated his right to equal protection of the laws by refusing to provide him 2 with adequate care medical care for his mental illness while providing adequate care to in m a te s /d e ta in e e s with physical illnesses; and (3) subjected him to inhumane conditions o f confinement by keeping him on lock-down status and seizing his blanket, mattress, and s h e e ts. Brewer v. Pennington, et al., 4:09CV00228 JTR (E.D. Ark. filed March 25, 2 0 0 9 ). Plaintiff acknowledges his other lawsuit and states that it involves the "same D e fe n d a n ts , but some different facts." (#2, p. 2) The only claim raised in the present C o m p la in t that is not part of Plaintiff's other lawsuit is that his confinement violated his rig h t to Due Process. Accordingly, this Recommended Disposition only addresses P la in tiff's Due Process claim. IV. D is c u s s io n : A. S ta n d a r d F e d e ra l courts are required to screen prisoner complaints seeking relief against a g o v e rn m e n ta l entity, officer, or employee. 28 U.S.C. 1915A(a). The Court must d is m is s a complaint or portion thereof if the prisoner has raised claims that are frivolous, m a lic io u s , fail to state a claim upon which relief may be granted, or seek monetary relief fro m a defendant who is immune from such relief. 28 U.S.C 1915A(b). To state a cognizable claim under 42 U.S.C. 1983, a plaintiff must allege that the c o n d u c t of a defendant acting under color of state law deprived him of a right, privilege, o r immunity secured by the federal Constitution or laws of the United States. 42 U.S.C. 1983. The Court must accept the factual allegations in the complaint as true and hold a 3 plaintiff's pro se complaint "to less stringent standards than formal pleadings drafted by la w y e rs ." Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). Even so, a p la in tiff must plead facts with enough specificity so as "to raise a right to relief above the s p e c u la tiv e level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1 9 6 5 (2007)(citations omitted). A complaint cannot simply "[leave] open the possibility th a t a plaintiff might later establish some `set of undisclosed facts' to support recovery." Id. at 1968 (citation omitted). Rather, the facts set forth in the complaint must be s u ffic ie n t to "nudge the[ ] claims across the line from conceivable to plausible." Id. at 1 9 7 4 . Even construing the Complaint in this case liberally, it fails to state a claim upon w h ic h relief may be granted. B. D u e Process T o prevail on a due process claim, Plaintiff must demonstrate that he was deprived o f life, liberty or property by government action. Phillips v. Norris, 320 F.3d 844, 846 (8 th Cir. 2003). The only cognizable interest claimed in this case is a liberty interest. Plaintiff's liberty interest is limited to freedom from restraint which imposes a ty p ic a l and significant hardship in relation to the ordinary incidents of prison life. Sandin v. Conner, 515 U.S. 472, 483-486, 115 S.Ct. 2293 (1995). Plaintiff alleges that h is placement in isolation for approximately thirty days violated this interest. The Eighth C irc u it, however, has consistently held that administrative and disciplinary segregation are not the kind of "atypical and significant" deprivations that create a liberty interest u n d e r Sandin. See, e.g., Philllips, 320 F.3d at 847-848 (holding that thirty-seven days in 4 isolation for a disciplinary charge that was later dismissed was not an atypical and s ig n ific a n t hardship under Sandin); Portley-El v. Brill, 288 F.3d 1063, 1065-66 (8th Cir. 2 0 0 2 ) (holding that thirty days in punitive segregation was not an atypical and significant h a rd s h ip under Sandin); Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997) (holding that th irty days in punitive isolation resulting in the loss of working, mailing, commissary, a n d telephone privileges was not an atypical and significant hardship under Sandin); W y c o ff v. Nichols, 94 F.3d 1187, 1189-90 (8th Cir. 1996) (no liberty interest arising w h e re prisoner served forty-five days in administrative segregation before disciplinary d e c is io n was reversed); Hemphill v. Delo, Case No. 95-3357, 1997 WL 581079 (8th Cir. S e p t. 22, 1997) (unpublished decision) (finding that four days of lock-down, thirty days in d is c ip lin a ry segregation, and 290 days in administrative segregation did not rise to the le v e l of an "atypical and significant hardship" when compared to the burdens of ordinary p riso n life); Driscoll v. Youngman, Case No. 95-4037, 1997 WL 581072 (8th Cir. Sept. 2 2 , 1997) (unpublished decision) (finding that 135 days in disciplinary and administrative s e g re g a tio n without "meaningful exercise, natural light or adequate time in the lib ra ry " w a s not an atypical and significant hardship). Accordingly, Plaintiff has failed to s ta te a due process claim. V. C o n c lu s io n : T h e Court recommends that Plaintiff's Complaint (#2) be DISMISSED WITH P R E J U D IC E , and that his motion for leave to proceed in forma pauperis (#1) be D E N IE D as moot. In addition, the Court recommends that the dismissal count as a 5 "strike" for purposes of 28 U.S.C. 1915(g), and that the District Court certify that an in fo r m a pauperis appeal taken from the order and judgment dismissing this action would be friv o lo u s and not taken in good faith. D A T E D this 30th day of October, 2009. ____________________________________ U N IT E D STATES MAGISTRATE JUDGE 6

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