Ross v. Aramark Correctional Services, Inc. et al

Filing 6

MEMORANDUM AND ORDER ENTERED: This matter is dismissed. Signed by Senior District Judge Sam A. Crow on 10/25/2011. (Mailed to pro se party Lisa Renee Ross by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

LISA RENEE ROSS,
Plaintiff,
CIVIL ACTION
No. 09-3117-SAC

vs.

ARAMARK CORRECTIONAL SERVICES, INC.,
et al.,

Defendants.

MEMORANDUM AND ORDER
This matter is a civil rights action filed pursuant to 42
U.S.C. § 1983 by a prisoner in state custody.1

By its earlier

order, the court directed plaintiff to show cause why this
action should not be dismissed.

Plaintiff filed a timely reply.

Having considered the record, the court enters the following
findings and order.
Background
Plaintiff challenges the issuance of a disciplinary report
against her for work performance on the grounds of discrimination and retaliation.

The record shows she wrote a grievance

against a food service contractor supervisor on February 12,

1

Plaintiff has since been released from custody.

2009, and was issued a disciplinary report on or about March 17,
2009.

The record also shows that on the day the disciplinary

report was issued, staff at the correctional facility discovered
approximately 400 pieces of sausage were missing.

The subse-

quent investigation located videotape showing the plaintiff
loading a large pan of sausage into the garbage disposal.
At

the

disciplinary

hearing,

plaintiff

acknowledged that she threw out the sausage.
food was burned.

testified

and

She claimed the

Other witnesses testified that the food was

not burned.
Discussion
Plaintiff commenced this action alleging the defendants
“violated

her

constitutional

rights

by

discrimination

and

retaliation causing her to receive a disciplinary report which
led to improper disciplinary actions.”

(Doc. 1, p. 2.)

Following its screening of this matter, the court issued a
Memorandum and Order (Doc. 4) which advised plaintiff that (1)
any claim challenging the validity of the disciplinary conviction for work performance must be presented in a petition under
28 U.S.C. § 2241 after exhaustion of state court remedies; (2)
because her claims of discrimination and retaliation appeared to
be related to the validity of the disciplinary action, her
challenges were premature under Heck v. Humprhey, 512 U.S. 477
2

(1994) and Edwards v. Balisok, 520 U.S. 641 (1997); and (3) the
bare allegation of retaliatory conduct was insufficient to
establish

a

claim

for

relief

where

plaintiff

admitted

the

factual basis for the disciplinary action and where there was a
one-month gap between the plaintiff’s grievance and the disciplinary report.
Plaintiff filed a timely response to the order to show
cause (Doc. 5), and the court has carefully considered that
pleading.

However, after a thorough review of the record, the

court concludes this matter should be dismissed.
First, plaintiff has not demonstrated that she has obtained
relief from the disciplinary action before beginning this action
seeking damages, as contemplated by Heck v. Humphrey and Edwards
v. Balisok.

As set forth in the court’s earlier order, this

failure renders plaintiff’s civil action for damages premature.
Next, plaintiff has not presented any persuasive argument
concerning the claim of retaliation.

The one-month gap between

her filing of a grievance and the disciplinary action is not
sufficient to prove that but for a retaliatory motive, she would
not have been received the disciplinary report.

Indeed, it is

apparent that plaintiff was disciplined after authorities viewed
videotape showing her surreptitious disposal of a large quantity
of food.
3

“[P]rison officials may not retaliate against or harass an
inmate because of the inmate's exercise of his constitutional
rights.... [However], [a]n inmate claiming retaliation must
allege

specific

facts

showing

retaliation

because

exercise of the prisoner's constitutional rights.”
Pierson,

435

F.3d

1252,

1263–64

(10th

Cir.

of

the

Fogle v.

2006)(quoting

Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998))
(quotations omitted, emphasis in original), cert. denied, 549
U.S. 1059 (2006).

Plaintiff has failed to sustain this burden.

IT IS, THEREFORE, BY THE COURT ORDERED this matter is
dismissed.
A copy of this order shall be transmitted to the plaintiff.
IT IS SO ORDERED.
Dated at Topeka, Kansas, this 25th day of October, 2011.

S/ Sam A. Crow
SAM A. CROW
United States Senior District Judge

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