Teconchuk v. Budnick et al

Filing 37

ORDER approving and adopting, in its entirety, 8 Partial Recommended Disposition as this Court's findings in all respects; dismissing, without prejudice, Mr. Teconchuk's claims against defendants Christipher Budnick, Antwon Emsweller, Laj oya S. Norman, Audrey Wilkins, Latisha D. Davis, Justine M. Minor, Jada Lawrence, Dexter Payne, and Doe based on his failure to state a claim upon which relief may be granted; and instructing the Clerk of the Court to terminate Christipher Budnick, Antwon Emsweller, Lajoya S. Norman, Audrey Wilkins, Latisha D. Davis, Justine M. Minor, Jada Lawrence, Dexter Payne, and Doe as defendants in this matter. Signed by Judge Kristine G. Baker on 1/17/2023. (llg)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
MITCHELL D. TECONCHUK
ADC #158686
v.

PLAINTIFF

Case No. 4:21-cv-01220-KGB

CHRISTIPHER BUDNICK, et al.

DEFENDANTS
ORDER

Before the Court is the Partial Recommended Disposition submitted by United States
Magistrate Edie R. Ervin (Dkt. No. 8). Plaintiff Mitchell D. Teconchuk has filed objections to the
Partial Recommended Disposition (Dkt. No. 8).

After careful consideration of the Partial

Recommended Disposition, the objections, and a de novo review of the record, the Court concludes
that the Partial Recommended Disposition should be, and hereby is, approved and adopted in its
entirety as this Court’s findings in all respects (Dkt. No. 8).
I.

Background

Mr. Teconchuk, currently confined in the Tucker Unit of the Arkansas Division of
Correction (“ADC”), filed this action pro se pursuant to 42 U.S.C. § 1983 (Dkt. No. 2). In his
original complaint, Mr. Teconchuk sued nine defendants and one Jane Doe defendant and alleged
a wide range of unrelated claims including claims of: (1) retaliation; (2) sexual harassment; (3)
violation of equal protection rights; (4) violation of procedural due process rights; (5) failure to
conduct a proper internal investigation; (6) failure to protect; (7) unsanitary conditions of
confinement; and (8) unreasonable visual body search (Dkt. No. 2). Rather than proceed with
screening, the Court instructed Mr. Teconchuk that he could not pursue multiple unrelated claims
in one lawsuit and that several of his claims lacked sufficient support (Dkt. No. 4-1). The Court
gave Mr. Teconchuk the opportunity to file an amended complaint (Id.). Mr. Teconchuk filed an

amended complaint that removed defendants Davis and Wilkins as parties; eliminated his claim
for sexual harassment; and included claims that he described as claims involving forgery,
retaliation, and failure to follow policies and procedures (Dkt. No. 7). The Court found that for
screening purposes Mr. Teconchuk stated retaliation claims against defendant Major Tasha L.
Griffin and ordered service on Major Griffin (Dkt. No. 9).
II.

Screening The Complaint

The Prison Litigation Reform Act (“PLRA”) requires federal courts to screen prisoner
complaints seeking relief against a governmental entity, officer, or employee. 28 U.S.C. §
1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims
that: (a) are legally frivolous or malicious; (b) fail to state a claim upon which relief may be
granted; or (c) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§ 1915A(b).
An action is frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief can be
granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The factual allegations must be
weighted in favor of plaintiff. Denton v. Hernandez, 504 U.S. 25, 32 (1992). “In other words, the
§ 1915(d) frivolousness determination, frequently made sua sponte before the defendant has even
been asked to file an answer, cannot serve as a factfinding process for the resolution of disputed
facts.” Id. Whether a plaintiff is represented by counsel or is appearing pro se, his complaint must
allege specific facts sufficient to state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th
Cir. 1985).

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III.

Analysis

The Court writes separately to address Mr. Teconchuk’s objections (Dkt. No. 5). In the
Partial Recommended Disposition, Judge Ervin recommends that Mr. Teconchuk’s claims of
sexual harassment, equal protection, failure to protect, conditions of confinement, unreasonable
visual body search, and supervisory liability be dismissed without prejudice because he did not
mention the claims in his amended complaint or did not develop the claims further in his amended
complaint and merely asserted conclusory allegations.

Mr. Teconchuk’s objections do not

reference specifically most of these claims. Mr. Teconchuk’s objections focus on officers’ failure
to follow “poli[cies] and procedures” when searching his “rack,” finding contraband, charging him
with a disciplinary, and his failure to protect claim (Dkt. No. 11). After reviewing the record, the
Court concludes that Mr. Teconchuk’s claims of sexual harassment, equal protection, conditions
of confinement, unreasonable visual body search, and supervisory liability claims should be
dismissed without prejudice.
As the Court understands Mr. Teconchuk’s objections, he asserts that officers have not
conducted an internal investigation into his allegations of forgery, that officers have failed to
follow ADC policies and procedures in investigating, and that he requests an outside investigator
to investigate his allegations of corruption (Id., at 4-5). Mr. Teconchuk also claims that defendants
failed to follow Administrative Directive 17-16 related to an internal investigation and
computerized voice stress analysis examination.
To the extent that Mr. Teconchuk alleges that defendants are violating ADC policies and
procedures, Judge Ervin points out that prisoners do not have a constitutional right to enforce
compliance with internal prison rules or regulations, and Mr. Teconchuk’s objections point the
Court to no contrary authority (Dkt. No. 8, at 7 (citing Phillips v. Norris, 320 F.3d 844, 847 (8th

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Cir. 2003); Gardner v. Howard, 109 F.3d 427, 430 (8th Cir. 1997); Kennedy v. Blankenship, 100
F.3d 640, 643 (8th Cir. 1996)). Further, as Judge Ervin recognizes, Mr. Teconchuk does not have
a statutory or constitutional right to an internal investigation (Id. (citing Vinyard v. Wilson, 311
F.3d 1340, 1356 (11th Cir. 2002); Womack v. Bell, 2010 WL 3803011, *2 (E.D. Ark. 2010)). The
Court overrules Mr. Teconchuk’s objections to Judge Ervin’s Partial Recommended Disposition
as to his forgery, failure to follow policy, and failure to conduct a proper internal investigation
claims.
Judge Ervin concludes that Mr. Teconchuk has failed to provide information or mention
his failure to protect claim in his amended complaint and recommends that it be dismissed. In his
objections, Mr. Teconchuk states:
Captain Wilkins notified me I should learn how to close my mouth and due to how
Lt. Norman, Major Griffin and Captain Audrey Wilkins conducted their
investigation on me calling me to the security office and then locking me in the
library holding me there making me look like a [snitch] to the rest of general
population and removing me from 5B and forcing me to immediately pack my
property and remove me from the [barracks] and trying to move me to another
[barracks] immediately after sucking up someone [else’s] property trying to place
me in 7B not protecting me when I notified security I looked like a [snitch] due to
the allotted contraband did not belong to me.
(Dkt. No. 11, at 3). Mr. Teconchuk states “staff were aware of what these intentions were on
getting me hurt and I notified security of polic[ies] [and] procedures were not being followed.”
(Dkt. No. 11, at 3).
As Judge Ervin notes, to state a claim for failure to protect, an inmate must allege that: (1)
objectively, there was a substantial risk of serious harm; and (2) subjectively, the defendant knew
of and disregarded a substantial risk of serious harm (Dkt. No. 8, at 8 (citing Holden v. Hirner,
663 F.3d 336 341 (8th Cir. 2011); Young v. Selk, 508 F.3d 868, 872 (8th Cir. 2007); Lenz v. Wade,
490 F.3d 991, 995-96 (8th Cir. 2007)). Mr. Teconchuk asserts in his objections that he “notified

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security” that he looked like “a snitch,” but he does not assert that any of the defendants knew of
and disregarded a substantial risk of serious harm in order to state a claim for failure to protect
him. To the extent that Mr. Teconchuk argues that the defendants did not follow ADC policies
and procedures in transferring him, as set forth above, that claim does not assert a constitutional
or statutory violation. The Court overrules Mr. Teconchuk’s objection to Judge Ervin’s Partial
Recommended Disposition on his failure to protect claim.
Upon a de novo review of the record, including the Partial Recommended Disposition, the
Court finds that Mr. Teconchuk’s objections break no new ground and fail to rebut the Partial
Recommended Disposition. Thus, the Court agrees with the Partial Recommended Disposition
and adopts it in its entirety as this Court’s findings in all respects (Dkt. No. 8).
V.

Conclusion

For these reasons, the Court adopts the Partial Recommended Disposition in its entirety as
this Court’s findings in all respects (Dkt. No. 8). Therefore, it is ordered that:
1.

The Court dismisses without prejudice Mr. Teconchuk’s claims against defendants

Christipher Budnick, Antwon Emsweller, Lajoya S. Norman, Audrey Wilkins, Latisha D. Davis,
Justine M. Minor, Jada Lawrence, Dexter Payne, and Doe based on his failure to state a claim upon
which relief may be granted (Dkt. No. 8);
2.

The Clerk of the Court is instructed to terminate Christipher Budnick, Antwon

Emsweller, Lajoya S. Norman, Audrey Wilkins, Latisha D. Davis, Justine M. Minor, Jada
Lawrence, Dexter Payne, and Doe as defendants in this matter.
So ordered, this 17th day of January, 2023.
_________________________
Kristine G. Baker
United States District Judge

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