Matson v. Kansas, State of et al

Filing 65

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 57 to alter or amend judgment is denied. The court also denies defendant's motion 63 to stay as moot. Defendant has filed a motion 54 for extension of time to respond to plaintiff� 39;s discovery requests until a scheduling order is completed and deadlines for discovery are determined in this case. This motion shall be granted and the court refers this case to U.S. Magistrate Judge Sebelius for supervision of the discovery and pretrial process. The court also refers plaintiff's motion 62 for appointment of counsel to Magistrate Judge Sebelius for decision. Signed by Senior District Judge Richard D. Rogers on 03/21/13. (Mailed to pro se party Mike C. Matson by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MIKE C. MATSON,

)
)
)
)
)
)
)
)
)
_

Plaintiff,
v.
JOEL HRABE, DEPUTY WARDEN, NCF,
Defendant.

Case No. 11-3192-RDR

MEMORANDUM AND ORDER

Plaintiff, proceeding pro se, has brought an action under
42 U.S.C. § 1983 alleging that defendant, a deputy warden at the
Norton

Correctional

constitutional

rights

Facility
by

(“NCF”),

impeding

violated

plaintiff’s

plaintiff’s

access

to

the

courts and by retaliating against plaintiff for exercising his
constitutional rights.
2013

upon

defendant’s

The court issued an order on January 9,
motion

to

dismiss

which

dismissed

plaintiff’s access to the courts claim in its entirety and which
dismissed

plaintiff’s

retaliation

claims

in

part.

As

to

plaintiff’s retaliation claims, the court held that plaintiff
could proceed with a claim that he was given a different cell
assignment
plaintiff

in
had

retaliation

for

not

facts

alleged

protected
which

activity,

plausibly

but

that

supported

a

claim that searches and property audits conducted in September
2011

constituted

actionable

retaliation.

This

case

is

now

before the court upon plaintiff’s motion to alter or amend the
court’s January 9, 2013 order.
below,

the

court

shall

deny

Doc. No. 57.

plaintiff’s

As explained

motion

to

alter

or

amend, but permit plaintiff to argue that defendant engaged in a
“campaign” of harassment or retaliation.

At the conclusion of

this order, the court shall refer this case to Magistrate Judge
Sebelius and address other pending motions.
The parties agree that the court may grant a motion to
alter

or

amend

judgment

when

there

has

been

an

intervening

change in controlling law, when there is new evidence which was
not previously available, and when there is a need to correct
clear error or prevent manifest injustice.

Butler v. Boeing

Co., 175 F.Supp.2d 1307, 1308 (D.Kan. 2001).
Plaintiff’s

first

argument

in

support

of

his

motion

to

alter or amend is that the court misconstrued the facts relating
to plaintiff’s access to the courts claim “in finding that the
defendant took possession of [an Accounting Withdrawal Request]
which was being returned to plaintiff for signature.”

Doc. No.

57,

this

p.

2

of

memorandum.

Plaintiff

asserts

that

is

incorrect and that, instead, defendant took possession of an
envelope and a stamp which belonged to plaintiff.

The court’s

statement of facts seems consistent with the statement of facts
and responses thereto made by the parties in connection with the
motion to dismiss.

But, the court shall accept the correction
2

set

forth

in

plaintiff’s

motion

to

alter

or

amend.

This,

however, does not revive plaintiff’s access to the courts claim.
Plaintiff’s access to the courts claim was dismissed on the
grounds

that

plaintiff

did

not

allege

facts

prejudice to plaintiff’s filing a court action.

showing

any

The factual

correction urged by plaintiff does not relate to the issue of
whether plaintiff suffered an actual injury which hindered his
right

to

pursue

a

legal

claim.

Therefore,

while

the

court

accepts plaintiff’s version of the facts, the court shall not
alter or amend the decision to dismiss plaintiff’s access to the
courts claim.
Defendant’s second argument in support of the motion to
alter

or

Plaintiff

amend

relates

asserts

that

to

plaintiff’s

defendant

engaged

retaliation
in

or

claim.

ordered

cell

searches and property audits to retaliate against plaintiff’s
exercise of his constitutional rights.

Plaintiff alleges that

in 2011 his cell was searched on September 1, September 11 and
September

28

September

1

appear

to

and
and

claim

that

property

twice

on

that

the

audits

September
cell

September 28 were retaliatory.

14.

searches

were

conducted

Plaintiff
on

does

September

11

on
not
and

The court held that plaintiff

did not allege facts which, accepted as true, would establish
that the cell searches and property audits would chill a person
of ordinary firmness from engaging in constitutionally protected
3

activity.

The court cited six cases in support of this ruling

and one case which was contradictory authority.
Plaintiff’s motion to alter or amend and the reply brief to
defendant’s response make additional arguments relating to the
factual

and

legal

components

of

the

court’s

ruling.

As

a

factual matter, plaintiff has filed an affidavit stating that
cell searches and property audits have a chilling effect because
inmates

fear

that

the

searches

or

audits

will

lead

to

disciplinary action or that property will be removed and either
damaged, lost, or never returned.

Plaintiff does not allege

that this happened in his case, only that he feared it would
happen.

To establish a claim of retaliation, plaintiff must

prove, among other things, that defendant’s actions would cause
him to suffer an injury that would chill a person of ordinary
firmness from continuing to engage in constitutionally protected
activity – in this case, filing grievances.
F.3d 1178, 1189 (10th Cir. 2010).

Gee v. Pacheco, 627

The court does not believe

that the fear of receiving a disciplinary report or the fear of
losing property as a result of a cell search or property audit
is an “injury” sufficient to chill a person of ordinary firmness
from

continuing

to

file

grievances.

In

support

of

this

conclusion, the court would again refer to the cases the court
cited in our original order.

Doc. No. 53, p. 10.

4

Plaintiff’s

effort to distinguish or otherwise argue against those cases is
not persuasive to the court.
The court would also make reference to two Tenth Circuit
cases.

In

Crosby

10/11/2012),
could

not

the

v.

Tenth

demonstrate

Heil,

2012

Circuit

held

that

low

a

WL

(10th

4820745

Cir.

that

an

inmate-plaintiff

score

on

a

sex

offender

treatment program evaluation would deter a person of ordinary
firmness

from

filing

administrative

complaints

because

he

identified no negative consequences flowing from the evaluation.
One might expect that a failed performance in a sex offender
treatment

program

consequences.
evaluation

could

potentially

lead

to

negative

But, the Tenth Circuit held that “[e]ven if the

was

negative

and

was

entirely

motivated

by

retaliation, it would not deter someone of ordinary firmness
from

filing

administrative

complaints

because

[plaintiff]

identifies no negative consequences from this evaluation.”
at *2.

Id.

In other words, the mental anguish or worry caused by

the potential for negative effects was not sufficient to support
a retaliation claim.
Also, in Rocha v. Zavaras, 443 Fed.Appx. 316 (10th Cir.
9/26/2011), the inmate-plaintiff alleged that for retaliatory
reasons

he

restricted

was

given

privilege

a

low

status

work
which

evaluation
reduced

and
his

placed

on

recreation

opportunities, placed him in segregated housing, made him wait
5

until last to eat, restricted him from making some purchases
from the canteen, prohibited him from communicating with other
inmates, and required him to wear distinct identifying clothing.
The

plaintiff

also

asserted

that

the

prohibition

from

communicating with other inmates led to a work injury.

The

Tenth Circuit held that these alleged facts failed “to support
the element that any defendant’s actions ‘would chill a person
of

ordinary

firmness

from

continuing

exercise a constitutional right.”

to’

file

alleged

plaintiff
audits.

in

retaliation
this

case

in
from

or

Id. at 319 (quoting Worrell

v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000).
the

grievances

Rocha
the

exceeds
cell

The impact of

that

searches

alleged
and

by

property

Therefore, the court shall not alter our holding that

the searches and property audits by themselves are insufficient
to state a claim of retaliation.
Plaintiff further contends, however, that the court should
permit

evidence

of

cell

searches

and

property

audits

to

be

considered as part of an alleged “campaign” of harassment or
retaliation,
reassignment.

together

with

an

alleged

retaliatory

cell

The court did not rule in our prior order that

the cell searches and property audits could not be considered
together with other actions to determine whether the alleged
retaliation
firmness.

was

sufficient

to

chill

a

person

of

ordinary

At this stage, the court shall not preclude plaintiff
6

from making such a claim.
cell

searches

and

The court shall simply hold that the

property

audits

alone

are

an

insufficient

above

discussion,

basis for a claim of retaliation.
In

conclusion,

consistent

with

the

plaintiff’s motion to alter or amend (Doc. No. 57) shall be
denied.
(Doc.

The court shall also deny defendant’s motion to stay

No.

extension

63)
of

as

moot.

time

(Doc.

Defendant
No.

54)

has

to

filed

respond

a
to

motion

for

plaintiff’s

discovery requests until a scheduling order is completed and
deadlines

for

discovery

are

determined

in

this

case.

This

motion shall be granted and the court shall refer this case to
U.S. Magistrate Judge Sebelius for supervision of the discovery
and pretrial process.

The court also shall refer plaintiff’s

motion for appointment of counsel (Doc. No. 62) to Magistrate
Judge Sebelius for decision.
IT IS SO ORDERED.
Dated this 21st day of March, 2013, at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge

7