Serrano v. Ackley et al
MEMORANDUM AND ORDER ENTERED: Defendants' motion 43 to dismiss, which the court has now converted to a motion for summary judgment, is granted. Judgment shall be granted to the defendants and against the plaintiff on all remaining claims as set forth in the foregoing memorandum. Signed by Senior District Judge Richard D. Rogers on 9/24/2013. (Mailed to pro se party Jose Eduardo Serrano by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOSE EDUARDO SERRANO,
ROBERT F. ACKLEY, et al.,
Case No. 11-3091-RDR
MEMORANDUM AND ORDER
On August 19, 2013, the court issued a memorandum and order after
considering defendants= motion to dismiss.
The court dismissed some
of plaintiff=s claims and some of the defendants and converted the
remainder of defendants= motion to a motion for summary judgment.
court allowed plaintiff until September 13, 2013 to file a response
to the motion.
This time period has passed and the court has heard
nothing from plaintiff.
The court shall now consider plaintiff=s
remaining claims under summary judgment standards.
the remaining claims, the court shall consider the earlier arguments
made by plaintiff in response to the motion to dismiss.
Plaintiff, proceeding pro se, filed his complaint on May 6,
The complaint contained three counts.
that the defendants subjected him to retaliatory conduct, deliberate
indifference, and violations of due process and equal protection.
In Count 1, he asserted that he was retaliated against for exercising
his First Amendment rights to utilize the prison grievance system.
He contended that defendants Ackley and Bedard took certain actions
to retaliate against him after he filed certain grievances.
indifference and cruel and unusual punishment in violation of the
He asserted that he told defendant Mascorro about
the threats made by defendant Ackley and, in not addressing them,
she acted with deliberate indifference because she was waiting for
the Aconsummation (sic) of threatened injury.@
In Count 3, plaintiff
alleged that defendants Schneider and Martin violated his due process
and equal protection rights under the Fourteenth Amendment.
contended that defendant Schneider failed to properly handle the
grievances that he submitted.
He asserted that defendant Martin
violated various rules in his handling of disciplinary hearings.
requested damages from each defendant in the amount of $50,000.
also sought (1) reprimands be issued to each of the defendants found
to be at fault; (2) a transfer to a more Acomfortable facility like
a minimum custody facility of my agreement,@ and (3) expungement of
disciplinary reports that occurred as a result of these events.
In the order of August 19th, the court dismissed Count 2 and a
portion of Count 3.
Thus, the following claims remain pending:
Count 1B-defendants Ackley and Bedard violated plaintiff=s First
Amendment rights by retaliating against him after he filed certain
grievances; and (2) Count 3B-defendant Martin violated his equal
protection and due process by failing to follow appropriate rules
and procedures for several disciplinary hearings.
Summary judgment is appropriate if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue of
material fact and that the moving party is entitled to judgment as
a matter of law.@
The requirement of a genuine
issue of fact means that the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.
See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
inquiry is whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.
Id. at 251-52.
The moving party bears the initial burden of demonstrating the
absence of a genuine issue of material fact. This burden may be met
by showing that there is a lack of evidence to support the nonmoving
See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Once the moving party has properly supported its motion for summary
judgment, the burden shifts to the nonmoving party to show that there
is a genuine issue of material fact left for trial.
477 U.S. at 256.
A party opposing a properly supported motion for
summary judgment may not rest on mere allegations or denials of [its]
pleading, but must set forth specific facts showing that there is
a genuine issue for trial.
Therefore, the mere existence of
some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment.
The court must consider the record in the light most favorable to
the nonmoving party.
See Bee v. Greaves, 744 F.2d 1387, 1396 (10th
Cir. 1984), cert. denied, 469 U.S. 1214 (1985).
The court notes that
summary judgment is not a Adisfavored procedural shortcut;@ rather,
it is an important procedure Adesigned to secure the just, speedy and
inexpensive determination of every action.@
Celotex, 477 U.S. at 327
(quoting Fed.R.Civ.P. 1).
The court has thoroughly examined the Martinez report that was
filed in this case.
The following facts are either uncontroverted
or viewed in the light most favorable to the plaintiff.
7, 2011, Corrections Officer Collins removed excess toilet paper from
plaintiff=s cell at HCF.
Plaintiff completed a grievance form and
submitted it to Corrections Counselor Keith Anderson but it was
returned because plaintiff had not complied with the grievance
procedure that required him to attempt to resolve the issue
informally within the unit.
On February 9, 2011, plaintiff=s cell was searched by defendant
Ackley and some of plaintiff=s property was confiscated or destroyed
pursuant to regulations.
Defendant Ackley wrote a disciplinary
During the course of the search, plaintiff contends that defendant
Ackley warned him that if he submitted another grievance defendant
Ackley would bring in Special Security and K-9's.
Ackley has stated
that he was unaware of plaintiff=s prior grievance when he conducted
the search of plaintiff=s cell on February 9th.
another grievance to the Warden as an emergency grievance on February
Plaintiff=s mother contacted Corrections Counselor Anderson on
February 10th, and questioned him about plaintiff=s grievances and
On February 18, 2011, a disciplinary hearing was held regarding
the property seized from plaintiff by defendant Ackley.
officer was defendant Martin.
After reviewing ownership records
that would not have been available to defendant Ackley at the time
of the seizure, plaintiff was found not guilty.
The property seized
was returned to plaintiff.
On March 26, 2011, during the noon meal, defendant Bedard
observed plaintiff eating a regular meal after he had eaten a
vegetarian meal on the prior day.
After reviewing the special diet
list and noting that plaintiff was listed as a vegetarian, defendant
Bedard questioned plaintiff about the discrepancy.
that the food service personnel had given him that meal.
Bedard issued plaintiff a disciplinary report for taking the wrong
type of meal.
On March 27, 2011, plaintiff was directed by defendant Ackley
to leave the cell house for the noon meal.
Plaintiff failed to do
Defendant Ackley issued him a disciplinary report for
During the same exchange, plaintiff told
defendant Ackley that he had received the regular tray the day before
because the food service supervisor checked his identification card
and determined that he was not on the vegetarian list.
Ackley consulted the food service supervisor and learned that
plaintiff another disciplinary report for lying about the incident.
Plaintiff was added to the vegetarian diet list on October 26,
He signed a request on March 20, 2011 to be removed from the
vegetarian diet list and be returned to the regular diet.
implementation of this request takes approximately 10 days.
food service company in charge of meals at HCF, Aramark, sent an
e-mail to an administrative assistant at HCF on March 29, 2011
indicating that plaintiff would be removed from the vegetarian diet
effective March 30, 2011.
The disciplinary hearings arising from the aforementioned
disciplinary reports were eventually held on April 12, 2011.
were continued due to the illness of an officer.
the disciplinary hearing officer, considered the evidence and
determined that plaintiff was not guilty of the report initiated by
defendant Ackley for disobeying orders.
He, however, determined
that plaintiff was guilty of taking the wrong meal and lying about
He was sentenced to fourteen days of disciplinary
segregation, thirty days loss of privileges and $15.00 for each
Plaintiff appealed the findings of defendant Martin,
but the findings were upheld.
Plaintiff and his family contacted KDOC staff and complained
about defendant Ackley=s search of his cell and his disciplinary
These complaints were reviewed by Mark Mora, a member of
the Enforcement, Apprehensions and Investigations Unit.
with plaintiff and defendant Ackley, interviewed other inmates and
staff, and reviewed records of searches that had been undertaken by
He determined that plaintiff=s complaints of
Donald McKenna, a security officer at HCF, reviewed the searches
defendant Ackley conducted from January 2011 through February 2011.
He found that defendant Ackley had conducted 35 searches between
January 27, 2011 and February 24, 2011 which resulted in some property
The only time during that period that defendant Ackley
searched plaintiff or his cell and seized property was February 9,
A. Count 1
In Count 1, plaintiff makes three allegations.
contends that defendant Ackley retaliated against him by searching
his cell and seizing certain property on February 8, 2011, after he
filed a grievance on February 7, 2011.
Second, plaintiff contends
that defendant Ackley wrote disciplinary reports after he filed a
grievance on March 27, 2011.
Third, he alleges that defendant Bedard
conspired with defendant Ackley to testify at a disciplinary hearing
on April 12, 2011 that he did not write a disciplinary report based
upon defendant Ackley=s instruction.
APrison 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
Fogle v. Pierson, 435 F.3d 1252, 1263B64
(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.
v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998).
Retaliatory conduct against a party for the exercise of First
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
An action is adverse if it Awould chill a person of
ordinary firmness from engaging in protected activity in the future.@
2010)(quoting Mallard v. Tomlinson, 206 Fed.Appx. 732, 737 (10th
The causal connection element requires a prisoner to
Ashow that a retaliatory motive was the but-for cause of the
challenged adverse action.@
Peterson, 149 F.3d at 1144).
Strope, 382 Fed. Appx. at 710 (citing
To prevail on a retaliation claim, a
convicted person Amust allege specific facts showing retaliation
because of the exercise of the prisoner=s constitutional rights.@
Peterson, 149 F.3d at 1144 (emphasis in original).
of constitutional retaliation will not suffice.
Frazier v. Dubois,
922 F.2d 560, 562 n. 1 (10th Cir. 1990).
The record simply fails to support plaintiff=s First Amendment
Initially, plaintiff has failed to show that defendant
Ackley=s retaliation was the but-for cause of the seizure of the
property from his cell on February 9th.
AWhere the nonmovant will bear
the burden of proof at trial on a dispositive issue,. . .he must go
beyond the pleadings and designate specific facts so as to make a
showing sufficient to establish the existence, as a triable issue,
of an element essential to that party=s case in order to survive
Lopez v. LeMaster, 172 F.3d 756, 759 (10th Cir.
1999). Plaintiff has failed to meet his burden in this case.
plaintiff has not shown a triable issue with respect to the fact that
retaliation, and he bears the burden of proof at trial on this
element, summary judgment is appropriate.
Next, plaintiff has failed to demonstrate that defendant Ackley
wrote the disciplinary reports on March 27, 2011 in retaliation for
plaintiff=s filing of a grievance on the prior day.
not shown that he filed any grievance on March 26, 2011 or March 27,
There is no record of any grievance filed by plaintiff on or
about the dates of the disciplinary reports filed by defendant Ackley
on March 27, 2011.
Accordingly, plaintiff has failed to show that
he engaged in any constitutionally protected activity in a time
period reasonably near to the time of the alleged retaliatory
Moreover, with regard to the first disciplinary report,
the court finds that plaintiff suffered no adverse action since he
was found not guilty of disobeying orders.
See Horstkotte v. N.H.
Dept. of Corrs., 2010 WL 1416790 at * 4 (D.N.H. 2010)(inmate found
not guilty of disciplinary charge did not suffer adverse action for
purposes of ' 1983 retaliation claim under the First Amendment). With
respect to the second disciplinary report, plaintiff has failed to
establish that a causal connection exists between the adverse action
and his protected conduct, as plaintiff was found guilty of lying
about the meal he had obtained the prior day.
See Walker v. Campbell,
2011 WL 6153104, at *7 (W.D.Pa. Oct. 31, 2011)(AThe filing of a prison
disciplinary report is not actionable under 42 U.S.C. ' 1983 as
prohibited >retaliation= unless the report is, in fact, false. In other
words, the finding of guilt of the underlying misconduct charge
satisfies a defendant=s burden of showing that he would have brought
the misconduct charge even if plaintiff had not [engaged in protected
Hynes v, Squillace, 143 F.3d 653,
657 (2nd Cir.
1998)(affirming summary judgment where record demonstrated that the
prisoner in fact committed the most serious, if not all, of the
prohibited conduct charged in the misbehavior report, and thus the
defendants met their burden of demonstrating proper, non-retaliatory
reasons for filing the misbehavior report); Henderson v. Baird, 29
F.3d 464, 469 (8th Cir.1994) (a finding of guilty of a prison rule
violation based on some evidence Aessentially checkmates [the]
entitled to summary judgment on this claim.
Finally, the court turns to final First Amendment claim asserted
He contends that defendant Bedard conspired with
defendant Ackley to testify at the disciplinary hearing that he did
not issue the disciplinary report at the direction of defendant
There is no evidence in the record to support plaintiff=s
claim of a conspiracy between defendant Bedard and defendant Ackley.
Moreover, plaintiff has made no showing that the disciplinary reports
issued by either defendant Bedard or Ackley were false.
as well as the subsequent findings of guilt demonstrate that the
disciplinary reports were proper.
B. Count 3
disciplinary hearings, specifically those where he was found guilty.
Defendant Martin argues that he is entitled summary judgment on this
claim because the record shows that plaintiff was given due process
and because this claim is barred by Heck v. Humphrey, 512 U.S. 477
(1994) and Edwards v. Balisok, 520 U.S. 641 (1997).
counters that Heck and Edwards do not apply here due to the
application of Muhammad v. Close, 540 U.S. 749 (2004).
The court initially finds that the record demonstrates that
plaintiff received due process during the disciplinary hearings.
Plaintiff has failed to show that any defects in the hearings
constituted denial of due process.
Nevertheless, even if a due
process claim remained, we would find that it is barred by Heck and
In Heck, the Supreme Court recognized that damages may not be
conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid@ unless
the plaintiff first proves Athat the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination,
or called into question by a federal court=s issuance of a writ of
habeas corpus, 28 U.S.C. ' 2254.@
Heck, 512 U.S. at 487.
principle allies when a prisoner raises ' 1983 claims challenging the
validity of a disciplinary conviction.
Edwards, 520 U.S. at 643.
Plaintiff argues, however, that Heck does not bar his claim in
light of Muhammad.
But, plaintiff has misinterpreted Muhammad.
Muhammad held Heck is inapplicable only when a prisoner=s ' 1983 action
does not threaten his Aconviction or the duration of his conviction.@
Muhammad, 540 U.S. at 751.
Plaintiff has suggested that his claim
does not threaten the validity of his disciplinary convictions.
disciplinary convictions are barred by Heck because the grant of this
relief would necessarily invalidate the disciplinary convictions .
See Walters v. Guilfoyle, 68 Fed.Appx. 939, 940-41 (10th Cir. 2003);
see also Johnson v. Livingston, 360 Fed.Appx. 531, 532 (5th Cir. 2010).
Accordingly, defendant Martin is entitled to summary judgment on this
IT IS THEREFORE ORDERED that defendants’ motion to dismiss (Doc.
# 43), which the court has now converted to a motion for summary
judgment, be hereby granted.
Judgment shall be granted to the
defendants and against the plaintiff on all remaining claims as set
forth in the foregoing memorandum.
IT IS SO ORDERED.
Dated this 24th day of September, 2013, at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge
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