Trober v. Kline

Filing 3

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is granted. This matter is dismissed pursuant to 28 U.S.C. 1915A(b)(1) for failure to state a claim upon which relief may be granted. Signed by Senior District Judge Sam A. Crow on 4/27/2012. (Mailed to pro se party Brian Lee Trober, Jr. by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRIAN L. TROBER, JR.,
Plaintiff,
v.

CASE NO. 12-3074-SAC

RICHARD KLINE,
Defendant.

MEMORANDUM AND ORDER
This matter is a civil rights action filed pursuant to 42
U.S.C. § 1983. Plaintiff, a pretrial detainee in the Shawnee County
Jail, Topeka, Kansas, proceeds pro se. The court grants leave to
proceed in forma pauperis.1
Screening
This matter is governed by the Prison Litigation Reform Act
(PLRA). Enacted in 1995, the PLRA allows the court to conduct a
preliminary review of an action filed by a prisoner seeking relief

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Because plaintiff’s financial records shows a negative
balance, the court does not impose an initial partial filing
fee. Plaintiff is advised that he remains obligated to pay
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.

against an employee of a governmental entity and to dismiss the
complaint, or any portion of it, if it is frivolous or malicious,
fails to state a claim upon which relief may be granted, or seeks
monetary damages from a defendant who is immune from such relief. 28
U.S.C. §1915A.
Because plaintiff proceeds pro se, the court must liberally
construe his complaint. See Haines v. Kerner, 404 U.S. 519, 520-21
(1972). However, plaintiff still must present “sufficient facts on
which a recognized legal claim could be based.” Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991).
Plaintiff claims that he was sanctioned improperly with a
denial of outdoor recreation following disciplinary action at the
jail. The materials attached to the complaint show that plaintiff
was found guilty of violating jail rules by committing battery on a
corrections officer. He waived his right to a hearing and pled no
contest to throwing pills and water at an officer. The explanation
for the sanctions imposed reads:
You have built an extensive and violent disciplinary
history. A sanction of 60 days disciplinary segregation,
loss of all jail privileges, consecutive to current
sanctioned time, loss of 14 days outdoor court privilege,
and a 10-dollar fine will be imposed. (Doc. 1, Attach.
“DISCIPLINARY HEARING DECISION”.)
The notice provided advised plaintiff of his right to file an
appeal, but it is unclear whether he did so.
Plaintiff challenges the loss of outdoor recreation as a
violation

of

the

Eighth

Amendment.

This

claim

concerns

the

conditions of his confinement. Because plaintiff is a pretrial

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detainee, his claims are governed by the Due Process Clause. See
Olsen v. Layton Hills Mall, 312 F.3d 1304, 1315 (10th Cir. 2002).
However, while plaintiff’s rights are secured by the Fourteenth
Amendment, the courts apply the identical analysis used in cases
arising

under

the

Eighth

Amendment

for

evaluating

claims

of

unconstitutional conditions of confinement. See Craig v. Eberly, 164
F.3d 490, 495 (10th Cir. 1998)(“Although the Due Process Clause [of
the Fourteenth Amendment] governs a pretrial detainee's claim of
unconstitutional conditions of confinement, the Eighth Amendment
standard provides the benchmark for such claims.” 164 F.3d 490, 495
(10th Cir.1998)(internal citations omitted)).
Plaintiff appears to contend that the 14-day restriction on
outdoor recreation violates the Constitution because it was not
specifically identified as an available sanction and because he
already was in administrative segregation, a classification that
required him to be in his cell for 23 hours a day.
The

Fourteenth

Amendment

“protects

against

governmental

deprivations of life, liberty, or property without due process
of law.” Farthing v. City of Shawnee, Kan., 39 F.3d 1131, 1135 (10th
Cir. 1994). To state a claim alleging a denial of due process,
plaintiff must allege first, a protected liberty interest, and
second, that he was deprived of that interest by governmental
action. Bartell v. Aurora Pub. Schs., 263 F.3d 1143, 1149 (10th Cir.
2001).
Because plaintiff is a prisoner, his due process rights are
somewhat more narrow, and a protected liberty interest is implicated
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only when he is subjected to conditions of confinement that “impose
atypical and significant hardship ... in relation to the ordinary
incidents of prison life” or when he is subjected to a disciplinary
action that will “inevitably affect the duration of his sentence.”
Sandin v. Conner, 515 U.S. 472, 484, 487 (1995).
Here, plaintiff is a pretrial detainee, and the disciplinary
action could have no impact on the duration of a sentence. Next, the
court finds no allegations that suggest that any departure from jail
policy resulted in an atypical and significant hardship on the
plaintiff. Rather, the 10-day restriction from outdoor recreation
was a brief limitation that arose from misconduct that plaintiff did
not contest. Compare Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir.
2006)(concluding that a prisoner’s three-year classification in
administrative segregation during which he was confined in his cell
for

all

but

recreation

five

was

hours

arguably

per
an

week

and

atypical

was

denied

condition

of

all

outdoor

confinement

implicating due process). Also see Oakley v. Zavaras, 2012 WL
1044591, *3 (D. Colo. 2012)(noting that “outdoor recreation could be
withheld for some limited period of time based upon disciplinary
violations”).

Therefore,

while

the

restriction

no

doubt

was

unpleasant, it was not sufficiently harsh to state a claim for
relief under the Due Process Clause.
Conclusion
The imposition of a brief restriction on outdoor recreation as
a disciplinary sanction does not state an atypical and significant

4

hardship that implicates the Due Process Clause. This matter does
not state a claim for relief.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion for
leave to proceed in forma pauperis (Doc. 2) is granted. Collection
action shall commence pursuant to 28 U.S.C. § 1915(b)(2) and
continue until plaintiff satisfies the $350.00 filing fee.
IT IS FURTHER ORDERED this matter is dismissed pursuant to 28
U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief
may be granted.
Copies of this order shall be transmitted to the plaintiff and
to the finance office of the Shawnee County Jail.
IT IS SO ORDERED.
DATED:

This 27th day of April, 2012, at Topeka, Kansas.

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

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