Washington v. Walmsley et al

Filing 10

MEMORANDUM AND ORDER ENTERED: This matter is dismissed for failure to state a claim upon which relief may be granted. Plaintiff's motion 2 for leave to proceed in forma pauperis is granted. Plaintiff's motions 5 , 7 & 9 for extension of time are denied as moot. Signed by Senior District Judge Sam A. Crow on 3/26/2013. (Mailed to pro se party Marcus B. Washington by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MARCUS B. WASHINGTON,
Plaintiff,
v.

CASE NO. 12-3014-SAC

BRANDON WALMSLEY, et al.,
Defendants.

MEMORANDUM AND ORDER

This matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff, a prisoner in state custody, proceeds pro se. He
submitted the initial partial filing fee as directed, and the court
grants leave to proceed in forma pauperis.1
Factual background
The

complaint

Walmsley,

Unit

identifies

Team

six

Manager;

defendants,
Gary

Wilson,

namely,

Brandon

Classification

Administrator; Raymond Roberts, former Warden and current Secretary
of the Kansas Department of Corrections; Jarris Perkins, Corrections
Counselor II; Payton, Corrections Officer I; and

Carrol, Corrections

Officer I.
At all relevant times, plaintiff was incarcerated in the El
Dorado Correctional Facility (EDCF). In September 2009, he sought
1

Plaintiff is advised that he remains obligated to pay the balance of the statutory
filing fee of $350.00 in this action. The Finance Office of the facility where he
is incarcerated will be directed by a copy of this order to collect from plaintiff’s
account and pay to the clerk of the court 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
providing any written authorization required by the custodian or any future
custodian to disburse funds from his account.

employment with Century Manufacturing (“Century”), a private business
that maintains a site on the prison grounds and pays prisoners the
minimum wage. His employment required the approval of the EDCF Program
Management Committee (PMC).
In

late

September

and

early

October,

plaintiff

sent

correspondence to defendant Roberts, then Warden of the EDCF,
inquiring of the status of the PMC decision. In mid-October, Roberts
replied that under policy, those inmates with less than 60 months
remaining on their sentences were given preference. Plaintiff, who
does not meet that criterion, sought an override of this decision.
In November, then-Secretary Simmons replied that the decision was a
facility-level matter and not a departmental policy.
Approximately a year later, on August 1, 2010, plaintiff asked
Deputy Warden Paul Snyder whether he could support his placement at
Century, but Snyder declined, citing plaintiff’s disciplinary history
and sentence. On August 4, plaintiff asked defendant Walmsley, a Unit
Team Manager, about whether Walmsley had spoken to PMC members
concerning

plaintiff’s

placement

at

Century.

Walmsley

advised

plaintiff that it was not a good time to approach PMC members.
Plaintiff asked for an explanation, and Walmsley replied, “your name
is always ringing up front … whether it’s this lawsuit…or some
grievance….” (Doc. 1, p. 6.) During their conversation, defendant
Walmsley stated that plaintiff might “choose [his] battles more
wisely….” Id.
Plaintiff states that although defendant Perkins was present
during this conversation, she failed to report this matter as a
dereliction of duty and did not respond to his request that she report
the matter to defendants Wilson and Roberts.

On August 20, 2010, plaintiff spoke to defendant Roberts about
the remarks made by defendant Walmsley. Roberts advised plaintiff that
he had reviewed a request for plaintiff some time earlier but there
had been an issue of undue familiarity at the time. He assured
plaintiff that each request is reviewed on the merits.
Plaintiff then commenced a grievance against defendant Walmsley
concerning his remarks. On September 24, 2010, Walmsley met with
plaintiff and advised him that the Warden had denied his placement
with Century due to the length of his sentence and information
contained in plaintiff’s Enforcement, Apprehension and Investigation
(EAI) file.
Plaintiff spoke with Lt. Hermreck of the EAI department, but
Hermreck said he was unaware of anything in the file that would prevent
his placement with Century. Plaintiff also spoke with defendant
Roberts, who advised him that while no formal policy consideration
prevented his placement with Century, he wanted to maintain a balance
of prisoners working there. Roberts advised plaintiff that he was on
the right track.
On September 27, 2010, plaintiff sought a specific explanation
for the denial of placement at Century. Walmsley advised him that some
of the matters considered were confidential but would not prevent the
placement

he

sought.

Plaintiff

pursued

an

appeal.

Ultimately,

defendant Roberts gave the response that he made the decision to
disapprove placement at Century based upon plaintiff’s face sheet and
input from the EAI department. Plaintiff unsuccessfully appealed from
that response.
Several months later, on March 2, 2011, plaintiff submitted a
grievance alleging that KDOC had placed similarly-situated prisoners

in Century while denying him placement. He spoke with defendant
Walmsley, who said he had no information about that but stated he would
investigate the matter. Later that day, Walmsley advised that
plaintiff had been denied the

placement because he had previously

worked at Century but had given up the position to transfer to a
facility closer to family and because he had received a disciplinary
report while working for another private industry.
On

March

3,

2011,

plaintiff

filed

a

grievance

alleging

discrimination. Walmsley responded explaining that there was a hiring
policy with a preference for those who had less than 60 months
remaining but this was subject to override and that there was a need
to balance short- and long-term inmates in the workplace.
On March 4, 2011, plaintiff submitted another grievance, this
time

alleging

discrimination

and

retaliation.

He

alleged

that

defendant Walmsley had attempted to present new information to support
the decision not to place him in Century. Plaintiff alleged this was
due to his race and to his pursuit of legal remedies in the state court.
Defendant Wilson, the Classification Administrator, responded
to this grievance and stated that plaintiff’s last two applications
for employment at Century had been disapproved by two different sets
of PMC members. The response found no evidence of any improper basis
for those decisions.
On March 17, 2011, plaintiff filed an appeal from that grievance.
The earlier response was upheld, and the Secretary of Corrections
affirmed that response.
Additional facts are incorporated elsewhere in this order.

Screening

A federal court must conduct a preliminary screening of a case
in which a prisoner seeks relief from a governmental entity or an
officer or employee of such an entity. 28 U.S.C. § 1915A(a). At this
stage, the court must identify any cognizable claim and must dismiss
any portion of the complaint that is frivolous, malicious, fails to
state a claim for relief, or seeks monetary damages from a defendant
who is immune from such relief. 28 U.S.C. § 1915A(b).
To avoid dismissal, a plaintiff must present factual allegations
that “raise a right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint
must present “enough facts to state a claim to relief that is plausible
on its face.” Id. at 570.
The court accepts as true the well-pleaded allegations in the
complaint, and will construe the allegations in the light most
favorable to the plaintiff. Id. at 555. But “when the allegations in
a complaint, however true, could not raise a [plausible] claim of
entitlement to relief,” the matter should be dismissed. Id. at 558.
Plaintiff’s

complaint

asserts

three

claims,

first,

that

defendants retaliated against him due to his pursuit of relief through
grievances and a lawsuit filed in state court; second, that he was
subjected to discrimination and the denial of equal protection in the
assignment of prisoners to private industry employment; and third,
that he suffered harassment and retaliation by the issuance of
disciplinary reports and was denied due process in the related
disciplinary proceedings.
Denial of private industry placement
It is settled that prison officials “may not retaliate against
or

harass

an

inmate

because

of

the

inmate’s

exercise

of

his

constitutional rights…even where the action taken in retaliation
would be otherwise permissible.” Peterson v. Shanks, 149 F.3d 1140,
1144 (10th Cir. 1998)(internal citation omitted).
However, a prisoner is not “inoculated from the normal conditions
of confinement … merely because he has engaged in protected activity.”
Id. The federal courts are not “to scrutinize and interfere with the
daily operations of a state prison”. Id.
To state a claim for relief, “[a]n inmate claiming retaliation
must allege specific facts showing retaliation because of the exercise
of the prisoner’s constitutional rights.” Id. (internal citation
omitted). “[A] plaintiff must prove that but for the retaliatory
motive, the incidents to which he refers … would not have taken place.”
Id.
In a First Amendment retaliation claim, an inference of a
retaliatory motive may be undermined by evidence of intervening
events. Deschenie v. Board of Education of Central Consolidated School
District No. 22, 473 F.3d 1271, 1278 (10th Cir. 2007). The analysis
of a claim of retaliatory conduct must be “undertaken in light of the
general tenor of Sandin, which specifically expressed its disapproval
of excessive judicial involvement in day-to-day prison management.”
Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996)(internal citation
omitted).
While plaintiff claims the denial of private industry placement
was retaliatory and discriminatory, neither his complaint nor any of
the supporting grievances reflects any specific factual allegation
that supports these bare claims. While plaintiff claims defendant
Walmsley’s

remarks

concerning

the

timing

of

his

request

were

retaliation for his pursuit of legal and administrative remedies,

there is no factual support for that claim. The record shows that
Walmsley in fact signed the recommendation drafted by defendant
Perkins and delivered it to defendant Roberts for review. (Doc. 1,
Ex. P. 14). There is no evidence that Walmsley took any action that
was adverse to plaintiff’s placement in Century.
Rather, the materials before the court suggest that the decision
concerning plaintiff’s placement request was based upon factors
including the length of time remaining to be served on his sentence
and his disciplinary history. These are neutral factors. Finally,
because there is no evidence that Walmsley made the decision to deny
placement, there is no nexus between Walmsley’s remarks and the
adverse decision. No claim of retaliatory conduct is stated.
Likewise, to the extent plaintiff alleges there was a conspiracy
among the defendants to deny his rights, his bare claim is insufficient
to state a claim for relief. “Conclusory allegations of conspiracy
are insufficient to state a valid § 1983 claims.” Hunt v. Bennett,
17 F.3d 1263, 1266 (10th Cir. 1994). A plaintiff must present specific
factual allegations that show agreement and concerted action among
the defendants, id., and the complaint does not satisfy this standard.
An equal protection violation occurs when government officials
treat a prisoner differently than those who are similarly situated.
See generally City of Cleburne v. Cleburne Living Center, Inc., 473
U.S. 432, 439-40 (1985)(describing the Equal Protection Clause as
“essentially a direction that all persons similarly situated should
be treated alike.”) To prevail on such a claim, a plaintiff must show
that there was different treatment and, when such treatment is not
based upon a suspect classification, the plaintiff must allege
sufficient facts to demonstrate “the distinction between himself and

other

inmates

was

not

reasonably

related

to

some

legitimate

penological purpose.” Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir.
1994)(citations omitted). However, where “bare equal protection
claims are simply too conclusory to permit a proper legal analysis”,
the plaintiff fails “to raise any plausible equal protection claims.”
See Straley v. Utah Bd. Of Pardons, 582 F.3d 1208, 1215 (10th Cir. 2009).
Plaintiff claims similarly-situated prisoners were allowed to
work for Century while he was denied that placement. The materials
before the court show that defendant Perkins submitted plaintiff’s
application to the PMC (Doc. 1, Ex., p. 11), that the narrative she
prepared supported placement in Century, and that defendant Walmsley
signed

that

document.

Id.,

p.

14.

However,

defendant

Roberts

disapproved that employment placement based upon plaintiff’s face
sheet and upon information from the EAI department. Id.
Plaintiff does not allege any specific facts that support a claim
of an equal protection violation. He states only that similarlysituated prisoners were given placement in Century. There is no
allegation of a suspect classification, nor is there any factual
support that suggests that the placement of other, unidentified
prisoners in private industry was not a distinction supported by a
reasonable penological goal.
Administrative disciplinary action
Plaintiff also contends he was issued retaliatory disciplinary
reports and was denied due process in two administrative disciplinary
hearings. The underlying disciplinary reports are not related. The
first arose from a November 28, 2010, incident in which plaintiff
jogged through a metal detector in order to catch up to another inmate
(Doc. 1, pp. 16-20), and a second incident in January 2011, arose from

an incident in which plaintiff failed to obey an order (Id., pp.
20-22).
The plaintiff’s allegations simply do not support a claim of
retaliatory conduct. His claims establish that the first report was
issued in November 2010, after he jogged through a metal detector,
was called back by defendant Payton, the officer on duty, and was
uncooperative after his request to go to the captain’s office was
refused. (Doc. 1, pp. 16-17).
First, to the extent plaintiff alleges the issuance of the
disciplinary reports was retaliatory, the court finds he fails to
state a claim for relief. “Retaliation claims in a prison context are
viewed with ‘skepticism because ‘[e]very act of discipline by prison
officials is by definition ‘retaliatory’ in the sense that it responds
directly to prisoner misconduct.’” Barksdale v. Connaghan, 2012 WL
6770883, *5 (D. Colo. 2012)(quoting Cochran v. Morris, 73 F.3d 1310,
13137 (4th Cir. 2006)). Here, the facts alleged by plaintiff show that
the reports were issued after contacts with defendants in which
plaintiff’s conduct, jogging through a metal detector and failing to
cooperate, reasonably support that action. Plaintiff advances no more
than a vague claim of retaliation.
Plaintiff also claims he was denied due process in the
administrative disciplinary proceedings. He claims that in the
disciplinary proceeding that arose from the metal detector incident,
he was not allowed to question or call witnesses (Doc. 1, p. 19). He
claims that in the second proceeding, he was not allowed to call
witnesses from the EAI Unit and another officer to address his concerns
about defendant Payton (Id., pp. 21-22).
The Constitution requires due process when a person is to be

deprived of life, liberty, or property. See Templeman v. Gunter, 16
F.3d

367,

369

(10th

Cir.

1994.)

Accordingly,

where

a

prison

disciplinary hearing may result in the loss of good time credits, the
prisoner is entitled to advance written notice of the charges; an
opportunity to call witnesses and present documentary evidence, where
that is consistent with institutional safety concerns; and a written
statement of the reason for the decision and the evidence supporting
that finding. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445,
454 (1985). A disciplinary hearing must be upheld if it is supported
by “some evidence”. Id.
However, “[p]rison disciplinary proceedings are not part of a
criminal prosecution, and the full panoply of rights due a defendant
in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539,
556 (1974). While plaintiff complains he was not allowed to call
witnesses, that right is not absolute; instead, the administrative
tribunal is allowed considerable flexibility on this point. See Wolff,
418 U.S. at 563-70 (setting out due process requirements and
discretion vested in prison authorities who may refuse to call
witnesses, “whether it be for irrelevance, lack of necessity, or the
hazards presented in individual cases”).
In Sandin v. Conner, 515 U.S. 472, 484 (1995), the Supreme Court
expanded upon its analysis in Wolff in considering the procedural due
process protections that applied where a prisoner was subjected to
30 days in disciplinary segregation.

The Sandin Court determined

that the courts must look not to prison rules or regulations but to
whether the prisoner was subjected to “restraint that imposes an
atypical and significant hardship on the inmate in relation to
ordinary incidents of prison life.” Id.

Here, the record reflects that the sanctions imposed involved
brief

placement

in

disciplinary

segregation,

restriction

from

privileges, and small fines (Doc. 1, p. 20, par. 100 and p. 22, par.
116.) Because the disciplinary actions against plaintiff did not
result in “a major disruption in [his] environment” or “inevitably
affect the duration of his sentence,” he did not suffer the sort of
atypical hardship that would trigger Due Process protections under
Sandin. There is no basis for relief.
Conclusion
For the reasons set forth, the court concludes this matter may
be summarily dismissed. Plaintiff’s allegations do not state a
plausible claim for relief under the standard set forth in Twombley.
IT IS, THEREFORE, BY THE COURT ORDERED this matter is dismissed
for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED plaintiff’s motion for leave to proceed
in forma pauperis (Doc. 2) is granted. Collection action shall
continue pursuant to 28 U.S.C. § 1915(b)(2) until plaintiff satisfies
the $350.00 filing fee.
IT IS FURTHER ORDERED plaintiff’s motions for extension of time
(Docs. 5, 7, and 9) are denied as moot.
Copies of this order shall be transmitted to the plaintiff and
to the Finance Office of the facility where he is incarcerated.
IT IS SO ORDERED.
DATED:

This 26th day of March, 2013, at Topeka, Kansas.

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