Lindsey v. John Doe

Filing 32

ORDER to Dismiss in Part and to Draw Case to a District Judge and a Magistrate Judge. FURTHER ORDERED that claim three and the case are drawn to a district judge and magistrate judge. FURTHER ORDERED that claims one and two are dismissed as legally frivolous. FURTHER ORDERED that Defendants S. True, Potes, Mittadge, Anthony, Dixson, and A. Bialek are dismissed as parties to this action. The only remaining Defendant is Carter, by Judge Lewis T. Babcock on 5/7/12. (lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02924-BNB
MAURICE E. LINDSEY,
Plaintiff,
v.
S. TRUE, Duty as Correction Officer,
POTES, Duty DHO Secretary,
MITTADGE, Duty DHO Discipline Hearing Officer,
ANTHONY, Duty Special Housing Unit Lieutenant,
DIXSON, Duty Special Housing Unite Leiutenant,
A. BIALEK, Duty Correction Officers, and
CARTER, Duty Doctor Psychologist,
Defendants.

ORDER TO DISMISS IN PART AND TO DRAW CASE
TO A DISTRICT JUDGE AND A MAGISTRATE JUDGE

Plaintiff, Maurice E. Lindsey, is a prisoner in the custody of the United States
Bureau of Prisons (BOP) who currently is incarcerated at the United States Penitentiary
in Florence, Colorado. Mr. Lindsey filed pro se a second amended prisoner complaint
(ECF No. 28) pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 288 (1971), and 28 U.S.C. § 1331. He asks for habeas corpus
relief, money damages, and injunctive relief. He was granted leave to proceed pursuant
to 28 U.S.C. § 1915 without payment of an initial partial filing fee.
Subsection (e)(2)(B) of § 1915 requires a court to dismiss sua sponte an action
at any time if the action is frivolous, malicious, or seeks monetary relief against a
defendant who is immune from such relief. A legally frivolous claim is one in which the

plaintiff asserts the violation of a legal interest that clearly does not exist or asserts facts
that do not support an arguable claim. Neitzke v. Williams, 490 U.S. 319, 324 (1989).
The Court must construe Mr. Lindsey’s filings liberally because he is a pro se
litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). However, the Court should not act as a pro se litigant’s
advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, the second
amended complaint and the action will be drawn in part and dismissed in part pursuant
to § 1915(e)(2)(B) as legally frivolous.
Mr. Lindsey asserts three claims. In his first claim, he contends that on October
24, 2011, Correctional Officer S. True fabricated an incident report accusing him of
“Engaging in a Sexual Act”; on October 25-26, 2011, Denver Hearing Officer (DHO)
Potes violated a BOP program statement by failing to schedule him for the next
available discipline hearing; and on January 6, 2012, DHO Mittadge violated a BOP
program statement by conducting an out-of-time hearing on the incident report, found
Mr. Lindsey guilty as charged, and sanctioned him with twenty-days of lost goodconduct-time credits, thirty days in the Special Housing Unit (SHU), sixty days’ loss of
canteen, and sixty days’ loss of telephone. Mr. Lindsey also complains that DHO
Mittadge and DHO Potes failed to provide him with a copy of the DHO hearing decision
report. Mr. Lindsey asserts a due process claim based on these allegations.
Mr. Lindsey’s first claim fails to the extent it is based on an allegedfailure to
comply with BOP program statements. “[A] failure to adhere to administrative
regulations does not equate to a constitutional violation.” See Hovater v. Robinson, 1
F.3d 1063, 1068 n.4 (10th Cir. 1993) (citing Davis v. Scherer, 468 U.S. 183, 194
2

(1984)). A review of a disciplinary proceeding is "limited to whether the three steps
mandated by Wolff [v. McDonnell, 418 U.S. 539, 556 (1974),] were followed and
whether there was some evidence to support the disciplinary committee's findings."
Mitchell v. Maynard, 80 F.3d 1433, 1445 (10th Cir. 1996); see also Diaz v. McGuire, 154
F. App'x 81, 84-85 (10th Cir. 2005) (stating that prison regulations are not designed to
confer rights on inmates, and the process which is due is measured by the due process
clause), cert. denied, 546 U.S. 1221 (2006). Wolff only requires that Mr. Lindsey be
provided with a notice of the charges against him within twenty-four hours prior to the
disciplinary hearing, an opportunity to call witnesses and present documentary evidence
in his defense if doing so would not be unduly hazardous to institutional safety or
correctional goals, and a written statement by the facfinders of the reasons for the
decision and the evidence on which they relied. Id. at 563-66. Mr. Lindsey does not
allege that these Wolff requirements were not met.
Mr. Lindsey must file a habeas corpus application after exhaustion of
administrative remedies insofar as he seeks to expunge the disciplinary conviction from
his prison record and restore his lost good-conduct-time credits. See Preiser v.
Rodriguez, 411 U.S. 475, 490 (1973) (habeas corpus proper remedy for prisoner
seeking relief resulting in reinstatement of good-time credits); Brown v. Smith, 828 F.2d
1493, 1495 (10th Cir. 1987) (per curiam) (same). An inmate may not pursue a Bivens
damages claim alleging due process violations occurring during a prison disciplinary
proceeding if granting relief would imply the invalidity of the resulting disciplinary
conviction, unless that conviction has been invalidated. See Edwards v. Balisok, 520

3

U.S. 641, 643, 648 (1997). Therefore, Mr. Lindsey’s first claim asserted against
Defendants S. True, Potes, and Mittage is meritless, and will be dismissed.
Mr. Lindsey’s second claim is comprised of four subclaims alleging equal
protection or due process violations. Subclaims one, two, and three are asserted
against Lieutenant Anthony. In his first subclaim, Mr. Lindsey complains that Lieutenant
Anthony violated his equal protection rights by forcing him to be double celled with a
violent inmate from October 24, 2011, to January 20, 2012. He also alleges a violation
of his equal protection rights because he currently is double celled with another violent
inmate. He does not allege that he was injured by either inmate. In his second
subclaim, Mr. Lindsay complains that despite numerous requests to Lieutenant
Anthony, his personal property still has not been returned in violation of his due process
rights. In his third subclaim, Mr. Lindsay asserts that despite numerous requests to
Lieutenant Anthony, he was denied placement in protective custody in violation of his
due process rights. As his fourth and final subclaim, Mr. Lindsey alleges that Lieutenant
Dixon and Officer Bialek violated his due process rights by ordering him from protective
custody into the general population and issuing him an incident report for refusing to
comply. He further contends that the incident report has been dismissed and expunged
from his prison record.
Mr. Lindsey fails to allege facts to support an equal protection claim based on
double celling. He fails to allege that he is similarly situated to other inmates or that he
has not been treated the same as similarly situated inmates. He does not specifically
identify any similarly situated individuals; rather, he generally complains that he is being
treated differently because of double celling. Therefore, it is not clear that Mr. Lindsey
4

has been treated differently than any similarly situated individual. See City of Cleburne,
Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); Penrod v. Zavaras, 94 F.3d
1399, 1406 (10th Cir. 1996).
Even liberally construing Mr. Lindsey’s double-celling allegations to assert a
claim of cruel and unusual punishment, the first subclaim fails. Prison officials must
“provide humane conditions of confinement by ensuring inmates receive the basic
necessities of adequate food, clothing, shelter, and medical care and by taking
reasonable measures to guarantee the inmates’ safety.” Craig v. Eberly, 164 F.3d 490,
495 (10th Cir. 1998). Double celling does not constitute a per se violation of a
prisoner’s right to humane conditions of confinement, Rhodes v. Chapman, 452 U.S.
337 (1981), and Mr. Lindsey fails to allege an injury based upon double celling. The
United States Constitution requires that a party seeking to invoke the jurisdiction of the
federal courts must demonstrate that he has suffered some actual or threatened injury,
that the injury was caused by the defendants, and that a favorable judicial decision is
likely to redress the injury. Valley Forge Christian College v. Americans United for
Separation of Church & State, Inc., 454 U.S. 464, 472 (1982); Hackford v. Babbitt, 14
F.3d 1457, 1464 (10th Cir. 1994). Because Mr. Lindsey fails to demonstrate any actual
or threatened injury as a result of his double celling, he lacks standing to assert claims
concerning those conditions. See Citizens Concerned for Separation of Church & State
v. City & County of Denver, 628 F.2d 1289, 1295-96 (10th Cir. 1980).
Mr. Lindsey’s second subclaim concerning the loss of his personal property in
violation of his due-process rights also is without merit. The United States Constitution
guarantees due process when a person is deprived of life, liberty, or property. See
5

Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994). “[T]he Due Process Clause
simply is not implicated by a negligent act of an official causing unintended loss of or
injury to life, liberty or property.” Daniels v. Williams, 474 U.S. 327, 328 (1986)
(emphasis in original); see also Wilson v. United States, 29 F. App’x, 495, 496 (10th Cir.
2002) (same). Even construing Mr. Lindsey’s complaint as asserting that Mr. Anthony
intentionally deprived him of his property, he cannot state a constitutional violation. See
Hudson v. Palmer, 468 U.S. 517, 533 (1984) (finding that an unauthorized intentional
deprivation of property does not violate due process if an adequate postdeprivation
remedy for the loss is available); see also Wilson, 29 F. App’x at 496-97 (same). A
prison grievance procedure is an adequate postdeprivation remedy if the grievance
procedure provides a meaningful remedy. See Hudson, 468 at 536 n.15; Wilson, 29 F.
App’x at 497. Mr. Lindsey does not allege that the prison grievance procedure was
unavailable to him because he alleges that he exhausted the procedure. The fact that
his administrative grievances were not successful, by itself, does not mean that the
grievance procedure was not an adequate remedy.
Mr. Lindsey’s third and fourth subclaims concerning his placement also are
without merit. As previously stated, the United States Constitution guarantees due
process when a person is deprived of life, liberty, or property. See Templeman, 16 F.3d
at 369. Mr. Lindsey does not allege that he was deprived of life or property by his
placement in the general population instead of protective custody. The existence of a
constitutionally protected liberty interest depends upon the nature of the interest
asserted. See Sandin v. Conner, 515 U.S. 472, 480 (1995). Generally, a liberty
interest may arise from the Constitution itself or under prison regulations. Id. at 483-84.
6

Prison regulations may create a liberty interest if they impose an “atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life.”
See id. at 480.
Mr. Lindsey’s placement in the general population instead of in protective
custody does not impose an atypical and significant hardship on him in relation to the
ordinary incidents of prison life, nor does it implicate a liberty interest that arises directly
under the Constitution because prisoners are not entitled to any particular degree of
liberty. See Meachum v. Fano, 427 U.S. 215, 225 (1976); Templeman, 16 F.3d at 369.
The Constitution itself does not provide a prison inmate with any liberty interest in his
classification or placement. Meachum, 427 U.S. at 225; Templeman, 16 F.3d at 369. In
short, the Due Process Clause does not protect every change in the conditions of
confinement that has a substantial adverse impact on the prisoner. See Meachum, 427
U.S. at 224. Since Mr. Lindsey alleges that the incident report has been dismissed and
expunged from his prison record, he fails to allege any injury resulting from the report.
Subclaims one, two, and three of claim two asserted against Lieutenant Anthony and
subclaim four of claim two asserted against Lieutenant Dixon and Officer Bialek are
meritless, and will be dismissed.
As his third and final claim, Mr. Lindsey contends he was on drugs used to treat
depression, and Dr. Carter denied him mental health treatment, causing him increased
depression, thoughts of suicide, among other psychological effects. This claim will be
drawn to a district judge and magistrate judge.
Accordingly, it is

7

ORDERED that the second amended complaint (ECF No. 28) is drawn in part
and dismissed in part. It is
FURTHER ORDERED that claim three and the case are drawn to a district judge
and magistrate judge. It is
FURTHER ORDERED that claims one and two are dismissed as legally frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B). It is
FURTHER ORDERED that Defendants S. True, Potes, Mittadge, Anthony,
Dixson, and A. Bialek are dismissed as parties to this action. The only remaining
Defendant is Carter.
DATED at Denver, Colorado, this

7th

day of

May

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

8