Jackson/Rahman X v. Franklin et al

Filing 6

RECOMMENDED DISPOSITION recommending that 2 Plaintiff's Complaint and 5 Amended Complaint be dismissed with prejudice. In addition, the Court recommends that the dismissal count as a 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. Objections to R&R due by 9/11/2009. Signed by Magistrate Judge Beth Deere on 8/28/09. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION A L V I N JACKSON/RAHMAN X A D C #SK-941 V. C A S E NO. 5:09CV00186 SWW/BD DEFENDANTS P L A IN T IF F

S E D R I C T. FRANKLIN, et al. 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 Susan Webber Wright. 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 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"), filed the

C o m p la in t in this case pro se under 42 U.S.C. § 1983 (docket entry #2), along with a m o tio n for leave to proceed in forma pauperis (#1). This Court granted Plaintiff leave to p ro c e e d in forma pauperis and ordered him to file an amended complaint specifically s ta tin g his grounds for relief (#3). Plaintiff has now amended his complaint (#5). In the C o m p la in t and Amended Complaint, Plaintiff alleges that Defendants violated his Eighth, N in th , and Fourteenth Amendment right to Due Process by failing to comply with prison p o lic y . For the following reasons, this Court recommends that Plaintiff's Complaint (#2) a n d Amended Complaint (#5) be DISMISSED with PREJUDICE for failure to state a c la im for relief. In addition, the Court recommends that the dismissal count as a "strike" fo r purposes of 28 U.S.C. § 1915(g), and that the District Court certify that an in forma p a u p e ris appeal taken from the order and judgment dismissing this action would be friv o lo u s and not taken in good faith. III. B ackground In 1993, Plaintiff legally changed his name from Alvin Jackson to Rahman X. On A u g u s t 7, 2008, Plaintiff received a major disciplinary. On August 8, 2008, Defendant F ra n k lin gave Plaintiff a copy of the major disciplinary and provided notice of his d is c ip lin a ry hearing. On August 13, 2008, Defendant Franklin re-served Plaintiff with a c o p y of the August 7, 2008 major disciplinary. On August 14, 2008, Plaintiff appeared 2

for his disciplinary hearing, was found guilty, and was given thirty (30) days' punitive s e g re g a tio n . The August 8, 2008 major disciplinary notice allegedly did not identify Plaintiff by h is legal name, i.e., Rahman X. Plaintiff alleges that Defendant Franklin's re-serving the m a jo r disciplinary violated his Due Process rights because the action violated prison p o lic y AD 08-41. Plaintiff also alleges that Defendants Harris, Gibson, and Norris failed to investigate his disciplinary appeal. 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 p la in tiff'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 3

speculative 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 Fourteenth Amendment Due Process claim, Plaintiff must d e m o n s tra te that he was deprived of life, liberty, or property by government action. Phillips v. Norris, 320 F.3d 844, 846 (8th Cir. 2003). The only cognizable interest c la im e d in this case is a liberty interest. Plaintiff, however, has no "federal constitutional lib e rty interest in having . . . prison officials follow prison regulations." Id. at 847; K e n n e d y v. Blankenship, 100 F.3d 640, 643 (8th Cir. 1996). Accordingly, Defendants' a lle g e d failure to follow prison policy is not actionable under 42 U.S.C. § 1983. Furthermore, as a general matter, a plaintiff has no liberty interest in remaining out o f punitive segregation. Whether the Plaintiff in this case had such a liberty interest d e p e n d s on whether he suffered an atypical and significant deprivation in relation to o rd in a ry incidents of prison life. Sandin v. Conner, 515 U.S. 472, 483-87, 115 S.Ct. 2293 (1 9 9 5 ). Plaintiff's thirty-day placement in punitive segregation was not an atypical or s ig n ific a n t hardship. Id. at 486; see also Phillips, 320 F.3d at 847 (demotion to 4

segregation, even without cause, is not itself an atypical and significant hardship); R a h m a n X v. Morgan, 300 F.3d 970 (8th Cir. 2002). The Plaintiff is a death-row inmate. Thus, his disciplinary conviction did not affect the length of his confinement so as to im p lic a te Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364 (1994). He does not h a v e a protected liberty interest in the disciplinary procedure that would entitle him to the p ro c e d u ra l protections in Wolff v. McDonnell, 418 U.S. 539, 563-67, 94 S.Ct. 2963 (1 9 7 4 ) (providing minimal Due Process for inmates when a disciplinary conviction would im p lic a te a protected liberty interest). Plaintiff's allegation that Defendants Harris, Gibson, and Norris failed to in v e s tig a te his disciplinary appeal does not raise an actionable claim. Failure to follow s ta te law and conduct an independent investigation does not implicate Plaintiff's federal D u e Process rights. Cass v. Clark, 206 Fed.Appx. 608 (8th Cir. 2006) (per curiam) (c itin g Phillips, 320 F.3d at 847). Plaintiff has failed to state a claim, even if Defendants failed to follow prison p o lic y , as alleged. Accordingly, his complaint (#2) and amended complaint (#5) should b e dismissed with prejudice. V. C o n c lu s io n T h e Court recommends that Plaintiff's Complaint (#2) and Amended Complaint (# 5 ) be DISMISSED WITH PREJUDICE. In addition, the Court recommends that the d is m is s a l count as a "strike" for purposes of 28 U.S.C. § 1915(g), and that the District

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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. D A T E D this 28th day of August, 2009. ____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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