Adkins v. Schmidt et al

Filing 14

ORDER dismissing this action, and denying in forma pauperis status on appeal, by Judge Lewis T. Babcock on 11/24/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02454-GPG

CHET HARVEY ADKINS,
Plaintiff,
v.
JOE SCHMIDT, Individually and as the Commissioner of the AK Department of
Corrections,
CHRISTOPHER PAGEL, Individually and as an Employee of the Hudson Correctional
Facility and the GEO Group, and
JOE D. DRIVER, Individually and as an employee of the Hudson Correctional Facility
and the GEO Group,
Defendants.

ORDER OF DISMISSAL

Plaintiff Chet Harvey Adkins is in the custody of the Alaska Department of
Corrections and currently is incarcerated at the Palmer Correctional Center in Palmer,
Alaska. Originally, Plaintiff filed this action in the United States District Court for the
District of Alaska and paid the $400 filing fee. On September 3, 2014, the District of
Alaska ordered this action transferred to this Court pursuant to 28 U.S.C. § 1404(a).
Magistrate Judge Boyd N. Boland reviewed the Complaint and directed Plaintiff to file
his claims on a Court-approved form used in this Court to pursue 42 U.S.C. § 1983
claims. On September 26, 2014, Plaintiff complied with Magistrate Judge Boland’s
order.
The Court must construe the Complaint liberally because Plaintiff is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
1

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as
an advocate for pro se litigants. See Hall, 935 F.2d at 1110.
Pursuant to 28 U.S.C. § 1915A(b)(1), the Court must review a prisoner complaint
when a prisoner is seeking redress from officers or employees of a governmental entity
and dismiss the Complaint, or any portion of the Complaint, that is frivolous. 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. See
Neitzke v. Williams, 490 U.S. 319, 324 (1989). Under 42 U.S.C. § 1983, a plaintiff must
allege that the defendants have violated his or her rights under the Constitution and
laws of the United States while they acted under color of state law. Adickes v. S. H.
Kress & Co , 398 U.S. 144, 150 (1970).
Plaintiff asserts that he has been incarcerated and in the care and custody of the
Alaska Department of Corrections since 1988; and from November 2009 until May 2013
he was held at the Hudson Correctional Facility in Hudson, Colorado, pursuant to a
contract between the Alaska Department of Corrections and the Hudson Correctional
Facility. Plaintiff further asserts that Defendant Schmidt entered into the contract with
Hudson but failed to include in the contract an adequate process for review and
oversight of disciplinary grievances.
Plaintiff also claims that Defendant Pagel found him guilty of an infraction, which
Defendant Driver affirmed by denying Plaintiff’s disciplinary appeal, and sanctioned him
with twenty days of punitive segregation suspended for 180 days pending no further
write-ups. Plaintiff further contends that Defendant Pagel subjected him to unwritten
sanctions that prohibited his use of and access to inmate computers and removed him
from his office assistant job in the Residential Substance Abuse Treatment Program.

2

Plaintiff also claims that as a result of Defendants’ actions he was denied
Microsoft Office Systems training, practical computer technology training, and hands on
computer experience. Plaintiff further contends that as a result he was deprived of the
potential economic value of the Microsoft Systems training, increased earnings, and the
likelihood of success on release.
Plaintiff states he appealed the disciplinary decision to the superior court for the
State of Alaska and the court reversed the decision and found Plaintiff’s due process
rights were violated.1 Plaintiff seeks money damages.
“For inmates being punished for misconduct, a liberty interest exists only when
the penalty lengthens the confinement or involves an ‘atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison life.’ ” Meek v. Jordan, 534
F. App’x 762, 765 (10th Cir. 2013) (quoting Sandin v. Conner, 515 U.S. 472, 484
(1995)). The claims Plaintiff presents do not assert an increase of the length of his
sentence due to the disciplinary action. Therefore, he must assert, pursuant to Sandin
that the result of his disciplinary proceeding had an atypical and significant hardship on
him.
Relevant factors to be considered in determining whether certain conditions of
confinement impose atypical and significant hardship in relation to the ordinary incidents
of prison life include whether (1) the conditions relate to and further a legitimate
penological interest; (2) the conditions are extreme; (3) the conditions

1

The Court has reviewed the order entered by the Superior Court for the State of
Alaska, Third Judicial District at Anchorage. ECF No. 1-2. The reversal of Plaintiff’s disciplinary
decision does not address Sandin v. Conner, 515 U.S. 472, 484 (1995), or conclude that a
federal liberty interest exists under the Due Process Clause.

3

increase the duration of confinement; and (4) the conditions are indeterminate. See
DiMarco v. Wyo. Dep’t of Corr., 473 F.3d 1334, 1342 (10th Cir. 2007).
Plaintiff’s possible twenty day placement in punitive segregation was not
indeterminate, extreme, or an extension of his confinement. Furthermore, the Tenth
Circuit has found that placement in punitive segregation or on restricted privileges for a
time period longer than Plaintiff ‘s sanction did not constitute an atypical and significant
hardship. See, e.g., Grady v. Garcia, No. 12-1151, 506 F. App’x 812, 814 (10th Cir.
2013) (inmates placement on restricted privileged status for 105 days did not constitute
an atypical and significant hardship when compared to the ordinary incidents of prison
life); Meek, 534 F. App’x at 765 (finding that sixty days in punitive segregation as a
disciplinary sanction did not implicate a protected liberty interest). The punitive
segregation sanction entered against Plaintiff, therefore, did not violate his liberty
interest.
Furthermore, a denial of access to training programs and the loss of a job does
not impose an atypical and significant hardship in relation to the ordinary incidents of
prison life. Courts have not accepted the claim that an inmate has a constitutional right
to any educational programs. See Termunde v. Cook, 684 F. Supp. 255, 259 (D. Utah
1988) (citing French v. Hayne, 547 F.2d 994, 1002 (7th Cir. 1976)). Also, an inmate
does not have a federal constitutional right to rehabilitation. Sheratt v. Utah Dept. of
Corrections, 545 F. App’x 744, 748 (10th Cir. 2013) (“[T]he option to participate in a
rehabilitative program like SOTP is a privilege not a right”); see also Battle v. Anderson,
564 F.2d 388, 403 (10th Cir. 1977). Furthermore, Plaintiff does not have a federal
constitutional right to prison employment. See Penrod v. Zavaras, 94 F.3d 1399, 1407
(10th Cir. 1996); see also Williams v. Meese, 926 F.2d 994, 998 (10th Cir. 1991).

4

Therefore, the termination of a job or denial of educational/rehabilitation programs alone
are not constitutionally protected liberty interests.
Based on the above findings, Plaintiff’s claims are legally frivolous. The Court,
therefore, will dismiss the action pursuant to 28 U.S.C. § 1915A(b)(1). This Court also
certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not
be taken in good faith and therefore in forma pauperis status will be denied for the
purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Plaintiff
files a notice of appeal he must pay the full $505.00 appellate filing fee or file a motion
to proceed in forma pauperis in the United States Court of Appeals for the Tenth Circuit
within thirty days in accordance with Fed. R. App. P. 24. Accordingly, it is
ORDERED that the Amended Complaint and the action are dismissed as legally
frivolous pursuant to 28 U.S.C. § 1915A(b)(1). It is
FURTHER ORDERED that Plaintiff is denied in forma pauperis status on appeal.
DATED at Denver, Colorado, this 24th

day of

November

BY THE COURT:

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

5

, 2014.