Strope v. Rice et al

Filing 53

MEMORANDUM AND ORDER ENTERED: The motion 33 of defendants Galloway and Haydon for summary judgment is granted. Plaintiff's motion 35 for discovery is denied. Plaintiff's motion 37 to authenticate documents is denied as moot. Plain tiff's motion 43 for recusal is denied. Plaintiff's motion 44 to file a supplemental complaint is denied without prejudice. Signed by Senior District Judge Sam A. Crow on 2/9/2012. (Mailed to pro se party Michael Lee Strope by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MICHAEL LEE STROPE,
also known as
GORDON STROPE,
Plaintiff,
v.

CASE NO. 08-3300-SAC

JAMES B. HAYDON and
S. GALLOWAY,
Defendants.

MEMORANDUM AND ORDER
This matter, a civil rights complaint filed by a prisoner in
state custody, comes before the court on the motion of defendants
Haydon and Galloway for summary judgment. The court has reviewed the
entire record and the applicable law and enters the following
findings and order.
Motion for recusal
Plaintiff seeks recusal of the undersigned on grounds that he
has denied prisoners access to the courts and justice (Doc. 43). He
also alleges a conspiracy with the defendants to allow ex parte
communications and filings and that defendants have been allowed to
falsify evidence presented to the court.
“The Due Process Clause entitles a person to an impartial and
disinterested tribunal in both civil and criminal cases.” United
States v. Nickl, 427 F.3d 1286, 1298 (10th Cir.2005) (quoting
Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980))(internal

quotation marks omitted). “To demonstrate a violation of due process
because of judicial bias, a claimant must show either actual bias or
an appearance of bias.” Bixler v. Foster, 596 F.3d 751, 762 (10th
Cir.2010)(quoting Nickl, 427 F.3d at 1298)(internal quotation marks
omitted). And, while 28 U.S.C. § 455(a) requires a judge to recuse
himself

“in

any

proceeding

in

which

his

impartiality

might

reasonably be questioned”, “[t]he statute is not intended to give
litigants a veto power over sitting judges, or a vehicle for
obtaining a judge of their choice.” United States v. Cooley, 1 F.3d
985, 993 (10th Cir.1993).
Defendants oppose the motion, and they note that in an earlier
ruling in this action, the court summarized the requirements for a
motion to recuse under 28 U.S.C. §§ 144 and 145. The requirements
include an affidavit with a detailed factual statement alleging bias
or prejudice against the judicial officer whose recusal is sought.
The court agrees both that plaintiff has been on notice of
these requirements for some time and that he fails in the present
motion to assert more than generalized statements that fall short of
the statutory requirements, as plaintiff has failed to present
specific allegations that warrant recusal under § 144. Plaintiff has
not provided an affidavit in support, and his claims are vague and
conclusory. The motion for recusal will be denied.
Finally, the court notes that the certificate of service on the
motion states it was “[s]ent to the heathen attorney of record”. In
Strope v. McKune, 2009 WL 3052431, *10 (D. Kan. September 22, 2009),
this court advised the plaintiff that “a party proceeding pro se
2

must conduct his litigation with the same respect and courtesy this
court requires of attorneys” (citing Lopez v. U.S., 133 F.Supp.2d
1231 (D.N.M. 2000)). Plaintiff is on notice that he is obliged to
maintain an attitude of courtesy toward opposing counsel, and if he
persists in the conduct illustrated by the certificate of service,
the court will impose sanctions.
Motion to file a supplemental complaint
Also before the court is plaintiff’s motion for leave to file
supplemental complaint (Doc. 44). Plaintiff submitted this motion on
May 10, 2011, and it appears he seeks to add as defendants counsel
for the defendants and the undersigned, alleging a conspiracy and
broadly alleging malice and retaliatory conduct. Defendants oppose
the motion.
Rule 15(d) of the Federal Rules of Civil Procedure provides, in
part, “[u]pon motion of a party the court may, upon reasonable
notice and upon such terms as are just, permit the party to serve a
supplemental pleading setting forth transactions or occurrences or
events which have happened since the date of the pleading sought to
be supplemented.” A motion to supplement is addressed to the sound
discretion of the court. Gillihan v. Shillinger, 872 F.2d 935, 941
(10th Cir.1989).
The court has considered the proposed supplemental complaint
and concludes the motion must be denied. First, to the extent
plaintiff

seeks

recusal

of

the

undersigned,

the

motion

is

a

duplicate of the motion to recuse filed by the plaintiff and
addressed elsewhere in this order.
3

Next, because plaintiff attempts to name the undersigned as a
defendant to a civil action, the matter should be reviewed by
another judicial officer. Accordingly, the court will deny the
motion to supplement. This denial operates without prejudice, and
plaintiff may file the proposed supplement as a separate complaint.
If he elects to do so, such complaint would be assigned to another
judicial officer. As the supplemental complaint was filed in May
2011, plaintiff has ample time to proceed in such an action within
the limitation period.
Background
This matter is a civil rights action filed by a prisoner in
state

custody.

The

claims

have

been

limited

by

the

court

to

plaintiff’s assertions against defendants Haydon and Galloway and
set out in Counts 6, 8, 9, 10, 11 and 12, asserting the following
claims:
Count 6: Defendant Haydon violated the First and
Fourteenth Amendments by retaliation for plaintiff’s
efforts to petition the government, threats of abuse, and
by falsifying disciplinary reports in order to deter free
speech.
Count 8: Defendant Galloway violated the First and
Fourteenth Amendments by denying due process of law,
allowing
disparity
in
treatment,
retaliating
for
plaintiff’s exercise of free speech, and racketeering.
Count 9: Defendant Galloway violated the First Amendment
by falsifying a disciplinary report in retaliation for
plaintiff’s statement that he would sue him.
Count 10: Defendants Haydon and Galloway violated the
First and Fourteenth Amendments by conspiring to retaliate
against plaintiff for his exercise of free speech, by
denying him an opportunity to prepare for the hearing, by
imposing unlawful sanctions, and by preparing a false
disciplinary report.
4

Count 11: Defendant Haydon violated the First and
Fourteenth Amendments by attempting to conduct a
retaliatory cell transfer and by preparing a falsified
disciplinary report.
Count 12: Defendant Galloway violated the First Amendment
by unlawfully confining plaintiff in segregation,
falsifying a disciplinary report, denying him unspecified
rights at a disciplinary hearing, and by denying him
access to religious callouts.
Factual background
At all relevant times, plaintiff was incarcerated at the El
Dorado Corrections Facility (EDCF).

Both defendants were employed

in the position of Corrections Specialist I at the EDCF.

The

relevant events involve two disciplinary cases.
Disciplinary Case No. 08-10-059
On October 10, 2008, defendant Haydon was in the East A Unit in
the EDCF.

At around 7:40 a.m., he heard plaintiff shouting at a

control officer about being released to go to the unit dayroom.
Haydon went to the area to assist the control officer and to explain
the dayroom rules.

Plaintiff became louder and argumentative with

Haydon, and Haydon told him that if his behavior continued, he would
receive a disciplinary report.

Plaintiff continued to argue,

continued to press the button in his cell to contact facility staff,
and threatened to call the governor to have Haydon and the control
officer fired.
As

a

(Doc. 34, Ex. A., ¶ 2).

result

of

plaintiff’s

conduct,

Haydon

issued

a

disciplinary report charging him with violating K.A.R. 44-12-306,
Threatening

and

intimidating

a

person,

Insubordination or disrespect to officers.
5

and

K.A.R.

44-12-305,

(Ex. A, ¶ 3).

Plaintiff was served with a copy of the report on October 10,
2008, and the hearing was held on October 16, 2008.
officer was defendant Galloway.

The hearing

(Ex. A, ¶ 5, Ex. B, ¶ 6.)

At the hearing, plaintiff signed forms (1) acknowledging his
receipt of the disciplinary report and notice of the charge within
48 hours of the issuance of the report and the possible penalty and
(2) waiving the time limit on the summons1.
Acknowledgments form.)

(Ex. B, ¶ 6, Ex. D,

Plaintiff did not request assistance at the

hearing, and defendant Galloway determined plaintiff did not require
assistance.

(Ex. B, ¶ 7; Ex. E, Staff Assistance form.)

1

Plaintiff asserts that Ex. C to the Martinez report and Ex.
D of the summary judgment motion are falsified documents
submitted to the court by the defendants, and he filed a
motion to authenticate the documents (Doc. 37). These
exhibits are copies of the same document, namely, an
acknowledgment form showing that plaintiff stated that he
did not receive 24-hour notice prior to the hearing but
waiving the limits on that summons. The plaintiff contends
the areas for inmate signature and inmate initials on the
form do not contain his signature and initials. In response
to that request, the defendants submitted an affidavit by
defendant Galloway that states he watched plaintiff initial
and sign the form (Doc. 49, Ex. 1), an affidavit by Dennis
McPhail, a document examiner at the Kansas Bureau of
Investigation, who states he examined the document and other
documents known to bear plaintiff’s signature and considers
it highly probable that the document in question contains
plaintiff’s initials and signature, a copy of the document
and McPhail’s report (Ex. 2), an affidavit by James S.
Evans, Technical Support Consultant III in the Information
Technology Division of the Kansas Department of Corrections
explaining the Department’s retention policy for original
documents (Ex. 3), and a copy of an internal memorandum
explaining the scanning and disposal procedures (Ex. 3,
Attach. A.) and Internal Management Policy and Procedure 05103 concerning the processing of offender records (Attach.
B.) The court finds that this response is thorough and is
sufficient to authenticate the document. Plaintiff’s motion
will be denied as moot.
6

Plaintiff submitted a motion to dismiss, which Galloway denied,
and he then presented both written and oral testimony and questioned
the reporting officer, defendant Haydon.

(Ex. B, ¶ 8, Ex. F.)

Defendant Haydon testified that he issued the disciplinary
report after plaintiff became argumentative first with the control
officer and then with him. He testified that plaintiff continued to
ring the intercom and threatened to call the governor.

(Ex. B, ¶ 9,

Ex. F.)
After

considering

the

evidence,

defendant

Galloway

found

plaintiff guilty of violating both K.A.R. 44-12-306, Threatening or
intimidating any person, and K.A.R. 44-12-305, Insubordination or
disrespect

to

officers.

He

imposed

14

days

of

disciplinary

segregation and a $10.00 fine for violating K.A.R. 44-12-306 and 7
days in disciplinary segregation and a $10.00 fine for violating
K.A.R. 44-12-305.

(Ex. B. ¶ 11, Ex. G.)

Galloway also advised

plaintiff of his right to appeal the decision.

(Ex. B, ¶ 12, Ex.

E.)
As plaintiff left the disciplinary hearing office, he called
defendant Galloway a “piece of shit”.

Galloway called him back to

address that behavior, and plaintiff became argumentative. Galloway
advised plaintiff that K.S.A. 44-12-306 requires a prisoner to be
respectful to staff.

Plaintiff, in turn, accused Galloway of

violating his First Amendment rights and told him that he would “see
[his] ass in federal court.”

(Ex. B, ¶ 13.)

On November 2, 2008, Deputy Warden Susan Gibreal dismissed
disciplinary action 08-10-059; as a result, the sanctions identified
7

at the hearing were not imposed.

(Ex. G.)

Disciplinary case 08-10-103.
Defendant Galloway issued a disciplinary report based on the
plaintiff’s misconduct after the hearing in 08-10-059, charging him
with Insubordination or Disrespect in violation of 44-12-305.

(Ex.

B, ¶ 14, Ex. H.)
The hearing was conducted on October 21, 2008, before Hearing
Officer M. Bos.

At the hearing, plaintiff submitted a motion to

dismiss, which was denied, and then gave an oral statement and
questioned defendant Galloway. Defendant Galloway testified that he
heard plaintiff call him a “piece of shit” as he left the hearing
room and that this occurred prior to plaintiff’s statement that he
would see him in federal court.

(Ex. I.)

The hearing officer found plaintiff guilty of the charge and
imposed disciplinary segregation and a fine.
Warden

Gibreal

approved

the

decision,

Corrections upheld the decision on appeal.
Plaintiff

was

housed

in

and

(Ex. J.)
the

Deputy

Secretary

of

(Exs. J and K.)

disciplinary

segregation

between

October 28, 2008 and November 7, 2008. (Doc. 24, Martinez report,
Ex. Q.)
Discussion
Standard for summary judgment
Summary judgment is proper when the pleadings, depositions, and
other materials before the court show that no genuine issue of
material fact exists and that the moving parties are entitled to a

8

judgment as a matter of law. See Fed.R.Civ.P. 56(c); accord Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
A factual question is “material” if it “might affect the
outcome of the suit under the governing law.” Anderson, 477 U.S. at
248. “Under the summary judgment standard, a mere factual dispute
will not preclude summary judgment; instead there must be a genuine
issue of material fact.” Cooperman v. David, 214 F.3d 1162, 1164
(10th Cir. 2000).
The moving party has the initial burden of showing there is no
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). When that burden is met, the party opposing summary
judgment may not rely upon bare claims or denials but must advance
specific facts showing both the existence of a genuine issue of
material

fact

and

significant

probative

evidence.

Anderson

v.

Liberty Lobby, 477 U.S. at 256.
In

considering

a

motion

for

summary

judgment,

the

court

considers the evidence and draws all reasonable inferences in the
light most favorable to the nonmoving party. Kendrick v. Penske
Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000).
Summary judgment is not a “disfavored procedural shortcut.”
Celotex Corp. V. Catrett, 477 U.S. 317, 327 (1986). Rather, it is
a procedural means to “secure the just, speedy and inexpensive
determination of every action.” Id. A core purpose of the summary
judgment rule is to allow the efficient resolution of factually
unsupported claims or legal issues. Id.

9

Due Process
Plaintiff alleges that defendant Galloway denied his right to
due process in the administrative disciplinary hearing.
Generally, a prison disciplinary hearing complies with due
process where the prisoner receives: 1) written notice of the
violation at least 24 hours before the hearing; 2) the opportunity
to call witnesses and present documentary evidence, where this is
consistent with institutional safety, to an impartial decisionmaker;

and

decision,

3)
the

a

written

statement

supporting

evidence,

by

the

and

fact-finder

the

reasons

of

the

for

the

disciplinary action. Wolff v. McDonnell, 418 U.S. 539, 563–66, 571
(1974). Due process also requires that the decision be supported by
“some evidence” in the record. Superintendent, Mass. Corr. Inst.,
Walpole v. Hill, 472 U.S. 445, 455 (1985).
The materials attached to the complaint (Doc. 1) and the
Martinez report (Doc. 24) reflect that the disciplinary report was
executed on October 10, 2008, and served on the evening of the same
day (Doc. 1, Ex. 20). On October 12, 2008, plaintiff prepared a
motion to dismiss (Ex. 21), and on October 17, 2008, he completed
an Inmate Request for Witness (Ex. 22)2.
The hearing was conducted on October 16, 2008, and plaintiff
submitted the motion to dismiss. The hearing officer prepared a form
“Acknowledgements/Inmate Waiver of Rights” (Doc. 24, Ex. C) which

2

Because the hearing was conducted on October 16, 2008, the
date on the form appears to be incorrect.
10

plaintiff

initialed.

The

hearing

officer

determined

that

the

assistance of staff was not necessary (Ex. D). Plaintiff testified
at the hearing and questioned the reporting officer. He also gave
a closing statement.
The hearing officer found plaintiff guilty and provided a
statement of the evidence supporting the decision (Ex. E).
The court concludes plaintiff received adequate due process
protections in the hearing. In any event, because the disciplinary
action was overturned on appeal, no sanctions were imposed, and the
court finds no infringement of plaintiff’s rights occurred.
Retaliation
The majority of plaintiff’s claims against defendants Haydon
and Galloway assert retaliatory action in response to plaintiff’s
threats to contact the Governor of Kansas or to commence a federal
lawsuit.
“Prison officials may not retaliate against or harass an inmate
because of the inmate's exercise of his constitutional rights....
However, an inmate claiming retaliation must allege specific facts
showing retaliation because of the exercise of the prisoner's
constitutional rights.” Fogle v. Pierson, 435 F.3d 1252, 1263–64
(10th Cir.2006)(quotations and citations omitted). Likewise, a
prisoner is not free from the normal conditions of confinement
merely because the prisoner has engaged in protected activity.
Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998).
Retaliatory conduct against a party for the exercise of First

11

Amendment rights is shown by proving: (1) the plaintiff was engaged
in constitutionally protected conduct; (2) the defendant’s acts
caused the plaintiff to suffer an injury that would chill a person
of ordinary firmness from continuing that conduct; and (3) the
defendant’s action was substantially motivated by the plaintiff’s
protected conduct. Shero v. City of Grove, 510 F.3d 1196, 1203 (10th
Cir. 2007). The causal connection requires a showing that “a
retaliatory motive was the but-for cause of the challenged adverse
action.” Strope v. McKune, 382 F.App’x 705, 710 n. 4 (10th Cir.
2010)(citing Peterson v. Shanks, 149 F.3d at 1144).
Defendant Haydon
Plaintiff’s claims against defendant Haydon allege retaliation
for petitioning the government and assert that Haydon falsified a
disciplinary

report.

The

record

shows

that

Haydon

prepared

a

disciplinary report against plaintiff after he became disruptive and
refused to comply with Haydon’s instructions to him. He also claims
that Haydon attempted to transfer him to a different housing area
after plaintiff threatened to contact the governor.
After considering the record, the court concludes defendant
Haydon is entitled to summary judgment. First, the record discloses
a factual basis for the disciplinary report, namely, plaintiff’s
disruptive behavior. Next, plaintiff received due process at the
disciplinary hearing, and the disciplinary action, in fact, was
overturned upon appeal. Third, the court’s review of the record
shows that while Haydon said that plaintiff would be transferred to
another housing area, that transfer did not occur. In short,
12

plaintiff ultimately suffered no adverse effect as a result of his
statement that he would contact the governor regarding Haydon’s
actions.
Certainly, the incident did not chill plaintiff’s willingness
to assert his intention to seek relief from the federal courts or
the governor, as the materials he subsequently filed with the KDOC
include similar language. See, e.g., Doc. 1, Ex. 19 (“I am also
sending a copy to the Governors’ Office to assure some corrective
actions”)(dated 10/10/08); Ex. 25 (“a copy of this appeal/response
if

any

will

be

used

for/attached

to

my

federal

civil

rights

complaint filed under 42 U.S.C. 1983 immediately”)(dated 10/16/08);
Ex. 27 (“both of these staff will be sued immediately if not
properly redressed”)(dated 10/18/08); and Ex. 29 (“and you will be
sued immediately”)(11/7/08).
Finally, the court finds merit in defendant’s assertion of
qualified immunity. Where a defendant asserts qualified immunity in
a motion for summary judgment, the burden shifts to the plaintiff
to show that: (1) the defendant violated a constitutional right and
(2) the constitutional right was clearly established at the time of
the defendant’s conduct. Martinez v. Beggs, 563 F.3d 1082, 1088 (10th
Cir. 2009)(citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)).
To reach the question of whether a defendant official is
entitled to qualified immunity, a court must first ascertain whether
the plaintiff has adequately alleged a constitutional violation.
Martinez, 563 F.3d at 1091; Romero v. Fay, 45 F.3d 1472, 1475 (10th
Cir.1995).
13

Here, the court has found no clear case law that guides a
decision

concerning

whether

the

plaintiff’s

statement

that

he

threats

or

planned to contact the governor is protected speech.
Some

courts

have

viewed

such

comments

as

disrespectful language that is not constitutionally protected. For
example, in Owens v. Leavins, 2007 WL 1141505 (N.D. Fla. 2007), the
prisoner-plaintiff was disciplined for a spoken threat after he
asked a food service employee for her full name, the name of her
supervisor, and the address of her company. When asked why he needed
that information, the prisoner responded that if he should fall or
be injured due to faulty equipment, he would sue and would need
contact information. The court found that the prison disciplinary
team reasonably considered that prisoner’s conduct to be a threat,
and

it

concluded

that

the

statement

was

not

constitutionally

protected speech.
Likewise, in Freeman v. Texas Dept. of Criminal Justice, 369
F.3d 854 (5th Cir. 2004), the Fifth Circuit Court of Appeals upheld
the dismissal of an inmate’s claim that he was transferred in
retaliation for protected activity. The prisoner, Freeman, had
circulated

a

statement

asserting

that

a

prison

chaplain

had

“departed from the faith”. In the statement, Freeman also announced
that he and others were withdrawing their “spiritual fellowship”
from the chaplain. Freeman, 369 F.3d at 858. Freeman was granted
permission to read the statement during a prison service; however,
at some point after he began reading, the chaplain ordered him to
stop. Plaintiff was cooperative, but he was escorted from the
14

service and was followed by approximately 50 other prisoners.
Shortly after these events, Freeman was transferred to a highsecurity housing unit. He later filed a claim of retaliation
pursuant to §1983. The district court held that the defendant prison
officials were entitled to qualified immunity.
On appeal, the Fifth Circuit held that the transfer did not
violate Freeman’s constitutional right to free speech. The court
recognized that prisoners do not forfeit all constitutional rights
upon

incarceration,

institutional

but

correction,

it

noted
the

“the

inherent

deference

owed

demands
to

of

prison

administrators, and the subjugation of individual liberty that
lawful incarceration necessarily entails.” Freeman, 369 F.3d at 863
(citing Jones v. N.C. Prisoners’ Labor Union, 433 U.S. 119,132
(1977).
And, while the court recognized a prisoner “does retain, in a
general sense, a right to criticize prison officials”, id at. 864
(citations omitted), it held that the prisoner plaintiff may not
rest upon the existence of such a right, but “must also establish
that he exercised that right in a manner consistent with his status
as a prisoner.” Id., (emphasis in original).
Other courts have reached different conclusions. See Crisst v.
Phelps, ___ F.Supp. 2d, 2011 WL 4336631 (D. Del. 2011)(assuming but
not

deciding

that

a

prisoner’s

letters

to

a

prison

official

constitute protected speech); Lindell v. O’Donnell, 2005 WL 2740999
(W.D. Wis. 2005)(finding that a prisoner’s threats to file a lawsuit
were protected speech but noting that neither the United States
15

Supreme Court nor the Seventh Circuit had ruled on this issue); and
Rogers v. Garcia, 2010 WL 3547432 (D.Colo. 2010)(collecting cases
involving oral complaints).
However, even if the plaintiff’s statements in this matter are
viewed as protected speech, the Tenth Circuit requires the contours
of the right to have been sufficiently established that a reasonable
government official would understand that his actions violated that
right. See Watson v. University of Utah Med. Ctr., 75 F.3d 569, 577
(10th Cir.1996). “[F]or a right to be ‘particularized,’ there must
ordinarily be a Supreme Court or Tenth Circuit decision on point,
or ‘clearly established weight of authority’ from other courts.”
Wilson v. Meeks, 52 F.3d 1547, 1552 (10th Cir. 1995).
The court has found no such decision or weight of authority in
the Tenth Circuit. Accordingly, because the court cannot find from
the record that defendant Haydon violated a clearly established
right, the court concludes that defendant is entitled to qualified
immunity.
Defendant Galloway
Plaintiff’s claims of retaliation against defendant Galloway
are similar to those against defendant Haydon, namely, that due to
plaintiff’s

protected

speech,

defendant

Galloway

prepared

a

falsified disciplinary report.
After careful consideration of the record, the court concludes
defendant Galloway also is entitled to summary judgment. First, the
plaintiff’s conduct against defendant Galloway was disrespectful and
provided a sound factual basis for the issuance of a disciplinary
16

report. Next, the plaintiff received a constitutionally adequate
administrative hearing on the disciplinary report, and sanctions
were imposed in accordance with due process. Finally, the plaintiff
has not presented evidence that suggests that but for a retaliatory
motive, the defendant would not have issued the disciplinary report.
Rather, plaintiff’s allegations are conclusory and insufficient to
withstand summary judgment.
Racketeering
Plaintiff also alleges that defendant Galloway violated the
Racketeer Influenced and Corrupt Organizations Act (RICO) by the
“illegal extortion of prisoner funds by abusing the d.r. process
with unlawful proceedings.” (Doc. 1, pp. 12-13.)
To state a RICO claim under 18 U.S.C. § 1962(c), plaintiff must
plead “(1) conduct (2) of an enterprise (3) through a pattern (4)
of racketeering activity.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S.
479, 496 (1985). Racketeering claims alleging fraud must satisfy the
heightened pleading standard of Fed. R. Civ. P. 9(b). Cayman
Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1362
(10th Cir. 1989).
Racketeering activity commonly is described as a “predicate
act” consisting of the state and federal crimes identified in 18
U.S.C. § 1961(1). The court liberally construes the plaintiff’s
allegation as an attack on the imposition of a disciplinary fine but
concludes the plaintiff’s bare claim, even so construed, is not
alleged with sufficient particularity to support a claim under RICO

17

or any predicate act identified in the statute.
Plaintiff

does

not

assert

specific

facts

to

allege

any

fraudulent activity, nor does he dispute that defendant Galloway,
as a hearing officer, had the authority to impose a fine as a
disciplinary sanction upon a finding of guilt.
Next,

a

“pattern

of

racketeering

activity

must

include

commission of at least two predicate acts.” Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 838 (10th Cir. 2005).

Plaintiff makes

no specific allegations of continuing acts.
Finally, to plead the existence of an “enterprise” under RICO,
plaintiff must prove “(1) [an] ongoing organization with a decisionmaking framework or mechanism for controlling the group, (2) that
the various associates function as a continuing unit, and (3) that
the enterprise exists separate and apart from the pattern of
racketeering activity.” Ferluga v. Eickhoff, 408 F.Supp.2d 1153,
1161-62 (D. Kan. 2006)(citing U.S. v. Smith, 413 F.3d 1253, 1266-67
(10th Cir. 2005)). Plaintiff has not asserted the existence of such
an entity.
The court therefore concludes plaintiff fails to assert a claim
under RICO and thus, defendant Galloway is entitled to summary
judgment on this claim.
Finally, the court notes there is unpublished authority in this
circuit that a plaintiff may not assert a retaliation claim alleging
a false disciplinary action where the prisoner has been convicted
of the disciplinary report and there is evidence to support that
decision. Allmon v. Wiley, 2011 WL 4501941, *8 (D. Colo.)(citing
18

O’Bryant v. Finch, 637 F.3d 1207, 1215 (11th Cir. 2011)). Under this
view, plaintiff’s claim arising from his conduct against defendant
Galloway that resulted in Disciplinary Report 08-10-103 must fail.
Conclusion
For the reasons set forth, the court concludes the defendants
are entitled to summary judgment.
IT IS, THEREFORE, BY THE COURT ORDERED the motion of defendants
Galloway and Haydon for summary judgement (Doc. 33) is granted.
IT IS FURTHER ORDERED plaintiff’s motion for discovery (Doc. 35
is denied.
IT

IS

FURTHER

ORDERED

plaintiff’s

motion

to

authenticate

documents (Doc. 37) is denied as moot.
IT IS FURTHER ORDERED plaintiff’s motion for recusal (Doc. 43)
is denied.
IT IS FURTHER ORDERED plaintiff’s motion to file a supplemental
complaint (Doc. 44) is denied without prejudice.
Copies of this Memorandum and Order shall be transmitted to the
parties.
IT IS SO ORDERED.
DATED:

This 9th day of February, 2012, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge

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