Matthews v. Rice et al

Filing 5

ORDER ENTERED: Plaintiff's motion 2 to proceed without prepayment of fees is granted. This action is dismissed and all relief is denied as against defendant Hutchinson Correctional Facility and defendant Jon Graves. The clerk of the court shall prepare waiver of service forms pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. Signed by Senior District Judge Sam A. Crow on 5/2/2012. (Mailed to pro se party Gary Matthews by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

GARY L. MATTHEWS,
Plaintiff,
v.

CASE NO.

11-3221-SAC

ELIZABETH RICE,
SECRETARY OF CORRECTIONS
DESIGNEE, et al.,
Defendants.
O R D E R
This pro se civil rights complaint was filed pro se 42 U.S.C.
§

1983

by

Hutchinson,

an

inmate

Kansas

of the

(HCF).

Hutchinson
Plaintiff

Correctional Facility,

claims

violation

of

his

constitutional rights in connection with his classification as a sex
offender.
Plaintiff also filed a Motion to Proceed Without Prepayment of
Fees (Doc. 2) and has paid the initial partial filing fee assessed
by the court.

Accordingly, the court grants plaintiff’s motion and

assesses the remainder of the filing fee to be paid through payments
automatically deducted from his inmate account.

FACTUAL ALLEGATIONS AND CLAIMS
As the factual basis for his complaint, Mr. Matthews alleges as
follows.

In

1994,

he

was

aggravated kidnaping and rape.

charged

by

state

authorities

with

In 1996, he was tried by a jury in

State v. Matthews, Case. No. 95 CR 97, found guilty of aggravated
kidnaping, and acquitted of rape.
perpetrator of the rape.

DNA evidence excluded him as the

He was sentenced to prison.

On November

29, 2006, he was released from prison.

KDOC informed him that upon

his release he was required to register as a “violent offender.” In
2007, Matthews was charged with robbery in Case No. 07 CR 700.
May 28, 2008, he was sentenced to 96 months in prison.
return to prison, he was not managed as a sex offender.

On

Upon his

In December

2008 he was “notified by the Kansas Bureau of Investigation” that he
was not required to register as a sex offender because he was not
convicted of a sex crime or a crime that was determined to be
sexually motivated. On December 18, 2008, he received a letter from
Shelia Sawyer-Taylor, Administrative Office/Offender Registration
Unit, which stated:
On December 5, 2006, the KBI Offender Registration Unit
received your Kansas Offender Registration Form from the
Lansing Correctional Facility. It was determined that you
will not be required to register in the State of Kansas at
this time. . . .
“Out of the blue” late in 2010, Mr. Matthews was notified verbally
that he was managed as a sex offender and placed under sex offender
restrictions.
Mr. Matthews “filed for the post-deprivation override” under
IMPP 11-115.

This “[r]equest for relief of being managed as a sex

offender (was) denied as the sexually motivated indicator is checked
on the Journal Entry indication that the offense of conviction was
sexually motivated.”

He was not aware of this “false reason” until

after he received this decision.

He obtained a copy of the journal

entry of his conviction from the trial court and found that it did
not have the sexual motivator checked.

He also obtained a copy of

his sentencing transcripts in Case No. 95 CR 97, and found they do
not

contain

any

consideration

of

the

issue

under

K.S.A.

22-

4902(c)(14) or a finding that his crime of aggravated kidnaping was
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determined to be sexually motivated.

Policy “provides that no

additional override request shall be considered” unless there is a
new

incident

of

sexual

misconduct

or

relevant

information

is

discovered that was not reasonably available at the time the initial
request for override was submitted.

Mr. Matthews’ wife called

defendant Rice and asked why her husband was being managed as a sex
offender.

Rice “falsely stated” that he had pled guilty and

admitted to the crime.
Plaintiff alleges that he has not previously been convicted of
any sex offense or sexually motivated crime.

He claims that given

these facts, he was entitled to certain procedural protections
before he could be classified as a sex offender.
Awmiller, 354 F.3d 1211, 1218-19 (10th Cir. 2005).

See Gwinn v.
The procedural

protections to which he claims entitlement include: (1) notice of
the reasons for seeking the classification, (2) an opportunity to
refute

the

reasons,

including

presentation

of

evidence

and

witnesses, and (3) a written statement of the evidence relied upon
and the reasons for the action taken.
McDonnell, 418 U.S. 539 (1974)).

Id. at 1219 (citing Wolff v.

In addition, due process requires

some evidence in the record to support the action taken.

Id.; see

Hubler v. Lander, 2010 WL 935667, *5 (D.Colo. 2010), aff’d, 413
Fed.Appx. 81 (10th Cir.)(unpublished)1, cert. denied, 131 S.Ct. 2965
(2011)(“[A]n inmate who has not previously been convicted of a sex
offense may be classified as a sex offender . . . only if the prison
affords him the procedural protections . . . set forth in [Wolff,
418 U.S. at 539]: notice of the charges, an opportunity to present
1

Unpublished opinions are not cited herein as binding precedent, but
for persuasive value. See Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.

3

witnesses and evidence in defense of those charges, and a written
statement by the factfinder of the evidence relied on and the
reasons for the disciplinary action. . . .

Additionally, in order

to comport with due process, there must be some evidence to support
the hearing panel’s decision . . . .)(citing Gwinn, 354 F.3d at
1218-19.).

Plaintiff cites Schuyler v. Roberts, 285 Kan. 677, 175

P.3d 259 (2008) as holding that the classification of one as a sex
offender without a conviction and simply by “official accusation in
the complaint” does not meet due process standards” and that the
State must afford notice, hearing and an opportunity to rebut when
intending to classify as a sex offender without a sex offense
conviction.

Under Kansas Department of Corrections (KDOC) Internal

Management Policy and Procedure (IMPP) 11-115, “inmates can be
classified as sex offenders based on their prior convictions or
their custodial behavior.”

Schuyler v. Roberts, 36 Kan.App.2d 388,

139 P.3d 781 (Kan.App. 2006).

Plaintiff claims that in this case,

as in Schuyler under IMPP 11-115, in order to find he was a sex
offender based on his aggravated kidnaping conviction, the review
panel had to have found that he was:
[a]n offender whose crime of conviction is a sex crime as
identified by an state or federal statute, an offender
with a prior conviction or juvenile adjudication of a sex
crime, or a person who has ever been convicted of a crime
that was sexually motivated. ‘Sexually motivated’ means
that one of the purposes for which the offender committed
the crimes was for the purpose of the offender's sexual
gratification. The sexual motivation of the offense may
be determined through either a judicial finding made at
the time of sentencing or by information regarding the
offense provided to the Kansas Department of Corrections.
Id.
Plaintiff further claims that the defendants’ “custom, policy
and usage” is the same as before Schuyler that “anyone charged with
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a crime, regardless of a later finding of not guilty, will be
considered a sex offender,” and that their custom/policy to not
provide a predeprivation hearing is unconstitutional.

In addition,

he claims that the “classification administrators who conducted the
initial classifications” knew plaintiff did not meet the definition
of sex offender, but deliberately and with reckless indifference to
his constitutional rights classified him “contrary to the law and
written regulation.”

Plaintiff also claims that his right to be

treated equally with all similarly-situated sex offenders who were
not convicted of sex crimes has been violated, that separation of
powers has been violated with the executive branch encroaching upon
the legislative branch, and that his reputation has been damaged.
See Schuyler, 36 Kan.App.2d at 391-93 (citing Neal v. Shimoda, 131
F.3d 818, 829 (9th Cir. 1997))(“[I]t is clear that the State’s
classification of Schuyler as a sex offender is a statement that is
derogatory enough to damage his reputation. ‘We can hardly conceive
of a state’s action bearing more ‘stigmatizing consequences’ than
the labeling of a prison inmate as a sex offender.’”).
In his prayer for relief, plaintiff seeks compensatory and
punitive damages and costs as well as injunctive and declaratory
relief.
Plaintiff

sues

most

defendants

based

upon

their

alleged

participation in the decision to classify him as a sex offender or
the override process.

The court finds that plaintiff does not

allege sufficient personal participation on the part of defendant
Jon Graves in either the decision to classify plaintiff as a sex
offender or the denial of his request for override.

The court

further finds that defendant HCF is not a “person” subject to suit
5

under

§

1983.

Franklin

Fed.Appx. 730, 734 (2005);
(10th Cir. 2005).

v.

Kansas

Dept.

Of

Corrections,

160

Davis v. Bruce, 129 Fed.Appx. 406, 408

Accordingly, this action is dismissed as against

these two defendants.
Plaintiff has not provided adequate information for service of
process upon any of the unnamed defendants.
defendants cannot be served at this time.

Consequently, these

Plaintiff must provide

information sufficient to allow service upon all unnamed defendants
within the time frame set forth in Fed.R.Civ.P. Rule 4(m), or any
such defendant that has not been timely served may be dismissed.
Plaintiff alleges that he has exhausted his administrative
remedies.
The court finds that proper processing of plaintiff’s claims
cannot be achieved without additional information from appropriate
officials of the Hutchinson Correctional Facility.

See Martinez v.

Aaron, 570 F.2d 317 (10th Cir. 1978); see also Hall v. Bellmon, 935
F.2d 1106 (10th Cir. 1991).
IT IS THEREFORE BY THE COURT ORDERED that plaintiff’s Motion to
Proceed Without Prepayment of Fees (Doc. 2) is granted, and pursuant
to 28 U.S.C. §1915(b)(1), he is assessed the full filing fee less
amounts already paid in this civil action.2
IT IS FURTHER ORDERED that this action is dismissed and all

2
Being granted leave to proceed in forma pauperis entitles him to pay
the remainder of the filing fee over time through payments automatically deducted
from his inmate trust fund account as authorized by 28 U.S.C. §1915(b)(2).
Pursuant to §1915(b)(2), the Finance Office of the facility where plaintiff is
confined is directed by copy of this Order to collect twenty percent (20%) of the
prior month’s income each time the amount in plaintiff’s account exceeds ten
dollars ($10.00) until the filing fee has been paid in full.
Plaintiff is
directed to cooperate fully with his custodian in authorizing disbursements to
satisfy the filing fee, including but not limited to providing any written
authorization required by the custodian or any future custodian to disburse funds
from his account.

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relief

is

denied

as

against

defendant

Hutchinson

Correctional

Facility and defendant Jon Graves.
IT IS FURTHER ORDERED:
(1) The clerk of the court shall prepare waiver of service
forms pursuant to Rule 4(d) of the Federal Rules of Civil Procedure,
to be served by a United States Marshal or a Deputy Marshal at no
cost to plaintiff absent a finding by the court that plaintiff is
able to pay such costs.

The report required herein, shall be filed

no later than sixty (60) days from the date of this order, and the
answer shall be filed within twenty (20) days following the receipt
of that report by counsel for defendant.
(2) Officials responsible for the operation of the Hutchinson
Correctional Facility are directed to undertake a review of the
subject matter of the complaint:
(a) to ascertain the facts and circumstances;
(b) to consider whether any action can and should be
taken by the institution to resolve the subject matter of
the complaint;
(c)

to

determine

whether

other

like

complaints,

whether pending in this court or elsewhere, are related to
this complaint and should be considered together.
(3) Upon completion of the review, a written report shall be
compiled which shall be attached to and filed with the defendant’s
answer or response to the complaint.

Statements of all witnesses

shall be in affidavit form. Copies of pertinent rules, regulations,
official documents and, wherever appropriate, the reports of medical
or psychiatric examinations shall be included in the written report.

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Any tapes of the incident underlying plaintiff’s claims shall also
be included.
(4) Authorization is granted to the officials of the Kansas
Department

of

Corrections

to

interview

all

witnesses

having

knowledge of the facts, including the plaintiff.
(5) No answer or motion addressed to the complaint shall be
filed until the Martinez report requested herein has been prepared.
(6) Discovery by plaintiff shall not commence until plaintiff
has received and reviewed defendant’s answer or response to the
complaint and the report required herein.

This action is exempted

from the requirements imposed under F.R.C.P. 26(a) and 26(f).
Copies of this Order shall be transmitted to plaintiff, to
defendants, to the Secretary of Corrections, to the Attorney General
of the State of Kansas, and to the Finance Office of the facility
where plaintiff is currently incarcerated.
IT IS SO ORDERED.
Dated this 2nd day of May, 2012, at Topeka, Kansas.

s/Sam A. Crow
U. S. Senior District Judge

8