Waller v. Byers et al

Filing 41

ORDER denying 30 Motion for Summary Judgment; granting 33 Motion for Summary Judgment and dismissing the complaint with prejudice. The Court certifies that an ifp appeal would not be taken in good faith. Signed by Magistrate Judge Joe J. Volpe on 6/12/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
ROMARIO WALLER
ADC #108263
v.

PLAINTIFF

5:12-cv-00081-DPM-JJV

JARED BYERS; et al.

DEFENDANTS
MEMORANDUM AND ORDER

Plaintiff, Romario Waller, a prisoner at the Varner Supermax Unit of the Arkansas
Department of Correction (ADC), filed this action pro se pursuant to 42 U.S.C. § 1983, alleging his
constitutional rights were violated when he was given a major disciplinary without due process.
Now before the Court are the parties’ cross-Motions for Summary Judgment (Doc. Nos. 30, 33).
The Court has carefully reviewed the documents submitted by the parties and makes the following
findings.
I.

STANDARD OF REVIEW
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper “if

the pleadings, depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex v. Catrett, 477 U.S.
317, 321 (1986); Janis v. Bresheuvel, 428 F.3d 795, 798-99 (8th Cir. 2005). Although the evidence
is viewed in a light most favorable to the nonmoving party, Nooner v. Norris, 594 F.3d 592, 600
(8th Cir. 2010), the nonmoving party has the burden of going beyond the pleadings and by affidavit
or otherwise, producing specific facts that show that there is a genuine issue for trial. Janis, 428
F.3d at 799. A genuine issue of fact exists if the evidence is such that it could cause a reasonable

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jury to return a verdict for either party; a fact is material when it might affect the outcome of the
case. Rakes v. Life Investors Ins. Co. of Am., 582 F.3d 886, 894 (8th Cir. 2009).
When confronted with cross-motions for summary judgment, courts evaluate each motion
independently to determine whether a genuine issue of material fact exists and whether the moving
party is entitled to judgment as a matter of law. “The filing of cross-motions for summary judgment
does not necessarily indicate that there is no dispute as to a material fact, or have the effect of
submitting the case to plenary determination on the merits.” Wermager v. Cormorant Twp. Bd., 716
F.2d 1211, 1214 (8th Cir. 1983). In such instances, courts are bound to deny both motions if it finds
that there is actually a genuine issue of material fact. Jacobson v. Maryland Cas. Co., 336 F.2d 72,
75 (8th Cir. 1964).
II.

UNDISPUTED FACTS
On August 24, 2011, Plaintiff provided a urine sample for random drug screening. (Docs.

No. 32 & 35 at 1.) Testing revealed low levels of creatinine, leading the lab to conclude Plaintiff’s
urine sample was diluted.1 (Doc. No. 31 at 18.)
Based on the lab results, Capt. Malone charged Plaintiff with a two-count major disciplinary.

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Creatinine is a by-product of muscle metabolism that is excreted in the urine. Its
measurement is routinely used clinically to evaluate kidney function. Additionally,
urinary creatinine determination is an important parameter for evaluating the validity
of a urine specimen for drugs of abuse detection. Because of the potential
consequences of a positive drug test, an individual may be motivated to beat the drug
test by various techniques. One of the most common practices used to avoid a
positive drug test is the intentional consumption of excess fluid in a relatively short
period of time in an effort to flush their system. This is commonly referred to as
water-loading or dilution and can result in the drug being below the positive cut-off
concentration. Thus, even though an individual may have recently used drugs,
intentional dilution can lower the drug concentration, resulting in a false negative
drug test.

See http://www.redwoodtoxicology.com/resources/documents/creatine_interpretation.pdf.
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(Doc. Nos. 32 at 16; 35 at 8.) Defendant Jared Byers reviewed the disciplinary and referred it to a
hearing officer. (Doc. Nos. 32 at 24; 35 at 9-10.) Defendant Kelvin Stewart served Plaintiff with
a copy of the disciplinary. (Doc. Nos. 32 at 27; 35 at 11.)
Plaintiff appeared at his disciplinary hearing on September 1, 2011. Hearing Officer Lorie
Taylor had authority to obtain any witnesses that Plaintiff requested (Doc. Nos. 32 at 29; 35 at 1315) but Plaintiff alleges he was denied the witnesses he requested. (Doc. No. 2 at 22-23.) Plaintiff
read a prepared statement into the record and said, “I request that the F-1 Report be dismissed or I
am going to show out and you’ll [sic] are going to have to beat my ass and fuck that bitch, I am not
finished with my statement.” (Doc. Nos. 31 at 25; 34 at 36.) Ms. Taylor stopped the statement and
had Plaintiff removed from the hearing. (Doc. Nos. 32 at 48; 35 at 2.) Ms. Taylor found Plaintiff
guilty on both counts and sentenced him to thirty days in punitive isolation and reduction from Class
III to Class IV. (Doc. Nos. 32; 34 at 58; 35 at 21.)
III.

ANALYSIS
Plaintiff claims he was denied due process during the disciplinary proceedings. (Doc. No.

2.) He states he was denied the right to 1) call a witness, 2) present evidence on his behalf, 3) give
a statement on his behalf, and 4) his conviction was based on false evidence. Id. at 2-5.
The Due Process Clause protects an individual’s life, liberty, and property interests. See
McIntyre Mach., Ltd. v. Nicastro,

U.S. , 131 S.Ct. 2780, 2786 (2011); Wilkinson v. Austin, 545

U.S. 209, 221 (2005). Prisoners retain due process protection against arbitrary action by the
government. Wolff v. McDonnell, 418 U.S. 539, 555 (1974); Goff v. Dailey, 991 F.2d 1437, 1440
(8th Cir. 1993). However, “the fact that prisoners retain rights under the Due Process Clause in no
way implies that these rights are not subject to restrictions imposed by the nature of the regime to
which they have been lawfully committed.” Wolff, 418 U.S. at 556; Garland v. Polley, 594 F.2d
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1220, 1221 (8th Cir. 1979).
Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply
of rights due a defendant in a criminal proceeding do not apply in disciplinary proceedings. Wolff,
418 U.S. at 556; Henderson v. U.S. Parole Comm’n, 13 F.3d 1073, 1077 (8th Cir. 1994). Due
process does not entitle prison inmates to a hearing to which they are on equal footing with prison
officials. Goff, 991 F.2d at 1441. However, “[t]he disciplinary hearing must offer the inmate an
opportunity to explain his actions or otherwise defend himself before the disciplinary authority[.]”
Id. at 1442. In Wolff v. McDonnell, 418 U.S. 539, the Supreme Court set forth the following
procedural protections that are to be afforded inmates during disciplinary proceedings: (1) at least
twenty-four hours advanced written notice of the claimed violation; (2) a written statement by the
fact-finders as to the evidence relied on and the reasons for the disciplinary action taken; and (3) the
right to call witnesses and present documentary evidence in defense when to do so would not be
unduly hazardous to institutional safety or correctional goals. Id. at 558-572; Espinoza v. Peterson,
283 F.3d 949, 952 (8th Cir. 2002); Jensen v. Satran, 651 F.2d 605, 607 (8th Cir. 1981). But,
importantly, the protections afforded by Wolff will come into play only when a protected liberty
interest is implicated. Sandin v. Conner, 515 U.S. 472, 477-88 (1995); Espinoza, 283 F.3d at 951.
Therefore, before addressing whether Plaintiff was afforded the protections set forth in Wolff,
the Court must first address whether Plaintiff was deprived of a protected liberty interest. See
Swarthout v. Cooke, 131 U.S. 859 (2011); Senty-Haugen v. Goodno, 462 F.3d 876, 886 (8th Cir.
2006). Whether a prisoner has a protected liberty interest will depend on whether the prisoner has
suffered an atypical, significant deprivation in relation to the ordinary incidents of prison life. See
Sandin, 515 U.S. at 484–486; Portley–El, 288 F.3d at 1065. Here, Plaintiff’s reduction in class and
thirty days of punitive isolation are not “atypical and significant hardship[s].” See e.g. Sandin, 515
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U.S. at 486 (thirty days in disciplinary segregation not atypical hardship); Portley-El, 288 F.3d at
1065-66 (thirty days in punitive segregation not an atypical and significant hardship); Kennedy v.
Blankenship, 100 F.3d 640, 642 (8th Cir. 1996) (demotion from administrative segregation to thirty
days punitive isolation was not an atypical and significant hardship); Freitas v. Ault, 109 F.3d 1335,
1338 (8th Cir. 1997) (thirty days of punitive isolation and loss of privileges not an atypical and
significant hardship under Sandin); Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006)
(demotion to segregation, even without cause, is not itself an atypical and significant hardship). And
Plaintiff did not lose any good time credits as a result of his conviction. (Doc. No. 33 at 5.) So there
is no liberty interest at stake in this case. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963 (1974).
Although Plaintiff raises an interesting question about being given the opportunity to call a
witness from the testing lab by telephone, he simply fails to identify the implication of a liberty
interest entitling him to the protections of the Due Process Clause. For this reason, the Court finds
that the Defendants are entitled to summary judgment as a matter of law.
IV.

CONCLUSION
IT IS, THEREFORE, ORDERED that:
1.

Plaintiff’s Motion for Summary Judgment (Doc. No. 18) is DENIED.

2.

Defendants’ Counter Motion for Summary Judgment is GRANTED (Doc. No. 30).

3.

The Complaint (Doc. No. 2) is DISMISSED with prejudice.

4.

The Court certifies, pursuant to 28 U.S.C. § 1915(A)(3), that an in forma pauperis

appeal from this Order would not be taken in good faith.
DATED this 12th day of June, 2012.

___________________________________
JOE J. VOLPE
UNITED STATES MAGISTRATE JUDGE
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