Albright (ID 99790) v. Kansas Department of Corrections et al

Filing 6

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days in which to show good cause why this action should not be dismissed. Signed by Senior District Judge Sam A. Crow on 06/10/15. Mailed to pro se party Shannon Albright by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SHANNON ALBRIGHT,
Plaintiff,
v.

CASE NO.

12-3235-SAC

KANSAS DEPARTMENT OF
CORRECTIONS, et al.,
DefendantS.
MEMORANDUM AND ORDER
This pro se civil rights complaint was filed pursuant to 42
U.S.C. § 1983 by a state prisoner.
constitutional

rights

under

the

Mr. Albright claims that his
First,

Sixth,

and

Fourteenth

Amendments were violated during prison disciplinary proceedings.
Having examined all materials filed, the court finds that the
complaint is deficient in several ways.
cure these deficiencies.

Plaintiff is given time to

If he fails to comply within the prescribed

time this action may be dismissed without further notice.
ALLEGATIONS AND CLAIMS
In this action, plaintiff attempts to challenge his convictions
in disciplinary proceedings that arose from two distinct incidents
at the Ellsworth Correctional Facility in Ellsworth, Kansas (ECF).
However, some of his general allegations and claims fail to specify
to which incident they refer.

The court has attempted to separate
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specific allegations and discuss them under the related incident.
The exhibits attached to plaintiff’s complaint are parts of the
administrative record in the two disciplinary proceedings and are
considered a part of plaintiff’s

complaint.

As the factual

background for his complaint, plaintiff alleges the following.
At the ECF, Mr. Albright wrote a letter to his wife, which he
delivered to the institution’s mailbox for mailing.
read

in

the

ECF

mailroom,

found

to

contain

intimidating statements, and confiscated.

The letter was

threatening

and

A disciplinary report

(DR) for a “class one disciplinary infraction” was written against
Mr. Albright charging him with rules violations: Threatening and
Intimidating (44-12-306) and Mail (44-12-601).

Plaintiff received

a copy of the Disciplinary Report (DR) and notice of the hearing in
a timely manner, was advised of the possible penalty, and waived
having the reporting officer testify.

Complaint (Doc. 1-1) at 4.

He acknowledged that he understood the charges and the possible
penalties.

Plaintiff pleaded guilty to the mail charge and not

guilty to the threatening and intimidating charge.

A hearing on

these charges was conducted by CSII Beaver on November 16, 2011.
Plaintiff testified at the hearing that he made the statements in
the letters, which the hearing officer found “were threatening in
nature.”

Plaintiff testified in his defense that his wife “likes

it rough,” had said “the whole being raped and beaten thing” to him
2

in person and stuff “trying to be funny,” and that he loved his wife
and was not going to threaten her.

He argued that his statements

in his letter were taken out of context.

He also questioned how he

could rape his wife, and how his wife’s testimony was “irrelevant
if she feels threatened and intimidat[ed].”

Plaintiff also admitted

that he had stated he would “have no problem shooting a mother
fucker,” but argued that he was not threatening a particular person.
Id.

The evidence presented at the hearing was described as “copy

of letters” and Mr. Albright’s testimony.

Id. at 6.

Mr. Albright

was found guilty “based on the written report” and his own testimony
in which he admitted to making the statements.

Id.

The decision

of the hearing officer was approved by the Facility Warden, and Mr.
Albright was notified of his right to appeal.

Plaintiff exhibits

a copy of his “Disciplinary Appeal to the Secretary” dated December
7, 2011.

The reasons plaintiff provided for his appeal included that

he “did not threaten his wife, this is ridiculous” and that the
statements

were

relationship.

“the

way

we

talk

to

one

another”

and

their

He argued that while “someone may disagree with it”

they “did not have the right to tell us it’s wrong.”

He further

argued that he would protect his wife, and since he did not specify
a particular person he would hurt there was no victim and thus “no
crime.”

He complained that he asked to have his wife testify but

they would not call her, and he suggested in his appeal that she be
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contacted.

The hearing officer’s decision was approved on appeal

and found to be “based on some evidence.”

Id. at 1.

The sanctions

approved on appeal were: restriction from privileges up to 10 days,
fine not to exceed $10, extra work w/o incentive pay not more than
2 hrs/day no more than 5 days, work w/o incentive pay not to exceed
5 days, and restitution not less than $3.00 nor more than $20.00.
Id.
The pages attached to the complaint that are grouped as “Exhibit
B” pertain to the distinct disciplinary charge against plaintiff of
“44-12-902 Contraband.”

The hearing on this charge was apparently

also held on November 16, 2011.

Plaintiff’s exhibit refers to the

“evidence” in this hearing as “Piece of Emery Cloth.”
at 11.

See Doc. 1-1

Mr. Albright testified at his hearing that he had only been

in the cell for a week when they shook it down and found “the stuff”
between the top and bottom bunks, that he had not seen the emery cloth
which he stated was like sand paper, that he did not put it there,
he did not see his cellmate put it there, and someone else put it
there.

The summary of “FMS Hawks” testimony is not at all clear,

but it appears he testified that the cable outlet “in between the
two” had the paint and screws “chipped away,” the seal around the
outlet had been broken, and there was none of the usual dust inside.
He further testified that the only person that worked in the cable
boxes would have had no conceivable need for an emery cloth.
4

Plaintiff was found guilty of this charge “based on the written report
and testimony.”

“G.O. 09-114” was cited for the proposition that

when contraband was found in a common area in a cell, all inmates
assigned to the cell will be held responsible.

The same sanctions

were imposed as in plaintiff’s other disciplinary proceeding.
Doc. 1-1, at 8, 11.

See

In his exhibited appeal, plaintiff repeated his

statement that he had only been in the cell for a week and did not
know about the contraband.

He made several arguments including that

he did not have any implement with which to unscrew the outlet and
thus had no access to it and had no use for an emery cloth.

The

decision and sanctions were approved on appeal.
Plaintiff claims as follows.

Defendants violated his right to

Freedom of Speech by attempting “to regulate the way (he) speaks to
and engages in humor with his wife.”

Defendant Roberts violated due

process “by failing to adhere to K.A.R. 44-13-105,1 by not allowing
(plaintiff) to have a fair and impartial hearing officer.”

As a

result, “the hearing officer failed to consider that there was no
evidence suggesting (plaintiff) knew anything about the contraband”
and failed to consider plaintiff’s cellmate’s testimony.

Defendant

Roberts violated due process by failing to train officers to shake
down cells before an inmate moved in and “allowing the hearing officer
to ignore this oversight.”

Defendants violated due process “by

1

This statute currently requires the warden at an institution to appoint a
disciplinary administrator and “impartial hearing officers.”

5

failing to adhere to” other specific provisions of cited Kansas
Administrative Regulations and Kansas statutes.2

Defendants did not

evaluate the evidence fairly and abused their authority.
Plaintiff sues the Kansas Department of Corrections (KDOC) and
Secretary of Corrections Raymond Roberts.

Based upon the foregoing

allegations and claims, he asserts that these defendants violated
his right to Due Process under the Fourteenth Amendment, right to
legal counsel under the Sixth Amendment, and Freedom of Speech under
the First Amendment.

The only relief sought by Mr. Albright is

$1,800.00.
LEGAL STANDARDS
A.

Screening
Because plaintiff is a prisoner suing government officials, the

court is required by statute to screen his complaint and to dismiss
the complaint or any portion thereof that is frivolous, fails to state
a claim on which relief may be granted, or seeks relief from a
defendant immune from such relief. 28 U.S.C. § 1915A(a),(b) and 28
U.S.C. § 1915(e)(2)(B).

“To state a claim under § 1983, a plaintiff

must allege the violation of a right secured by the Constitution and
laws of the United States, and must show that the alleged deprivation
was committed by a person acting under color of state law.”

West

v. Atkins, 487 U.S. 42, 48-49 (1988)(citations omitted); Northington
2

Plaintiff does not provide the content of any of these provisions.
he describe the acts of defendants that did not adhere to each.

6

Nor does

v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992).

A court liberally

construes a pro se complaint and applies “less stringent standards
than formal pleadings drafted by lawyers.”
U.S. 89, 94 (2007).

Erickson v. Pardus, 551

Nonetheless, “when the allegations in a

complaint, however true, could not raise a claim of entitlement to
relief,” dismissal is appropriate.
550

U.S.

544,

558

(2007).

A

Bell Atlantic Corp. v. Twombly,
pro

se

litigant’s

“conclusory

allegations without supporting factual averments are insufficient
to state a claim upon which relief can be based.”
935 F.2d 1106, 1110 (10th Cir. 1991).

Hall v. Bellmon,

The court “will not supply

additional factual allegations to round out a plaintiff’s complaint
or construct a legal theory on plaintiff’s behalf.”

Whitney v. New

Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
B.

Due Process Challenges to Prison Disciplinary Proceedings
“The Fourteenth Amendment prohibits states from depriving

citizens of liberty without due process of law.”
430 F.3d 1113, 1117 (10th Cir. 2005).
prison inmates.

Wilson v. Jones,

This guarantee applies to

Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

“Due

process requires procedural protections before a prison inmate can
be deprived of a protected liberty interest in earned good time
credits.”

Abdulhaseeb v. Ward, 173 Fed.Appx. 658, 661 (10th Cir.

7

2006)(citing Mitchell v. Maynard, 80 F.3d 1433, 1444 (10th Cir.
1996)).3
However, due process is not implicated by every disciplinary
sanction imposed upon a prison inmate.

Instead, the Supreme Court

has held that protected liberty interests are at issue in the prison
setting only when an inmate is subjected to (1) conditions that
“impose[ ] atypical and significant hardship on the inmate in
relation

to

the

ordinary

incidents

of

prison

life”

or

(2)

disciplinary actions that “inevitably affect the duration of his
sentence.”

Harrison v. Morton, 490 Fed.Appx. 988, 992 (10th Cir.

2012)(quoting Sandin v. Conner, 515 U.S. 472, 484, 487 (1995)).
Punishments of fines and restrictions for a certain number of days
only, for example, generally “fail to implicate a protected liberty
interest.”

Id. (citing Sandin, 515 U.S. at 483B84, 487).

It follows

that the procedural protections afforded by Wolff v. McDonnell simply
do not apply to these “hardly atypical” disciplinary measures, which
“do not rise to the level of disciplinary measures that ‘inevitably
3

Challenges to prison disciplinary proceedings in which good-time credits
have been forfeited and restoration is sought must be raised in federal court by
petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 because the
a decision restoring credit would impact the length of confinement. Abdulhaseeb,
173 Fed.Appx. at 659 n.1 (citing see McIntosh v. United States Parole Comm’n, 115
F.3d 809, 811 (10th Cir. 1997)(petitions under § 2241 are used to attack the
execution of a sentence, including the deprivation of good-time credits and other
prison disciplinary matters); Brown v. Smith, 828 F.2d 1493, 1495 (10th Cir.
1987)(“If [the petitioner] can show that his due process rights were violated in
the subject disciplinary proceedings, then § 2241 would be the appropriate remedy
to use to restore his good time credits.”)).
The petitioner in a § 2241 petition
must show that prior to filing in federal court he exhausted all remedies available
in the state including state court remedies.

8

affect the duration of (the inmate’s) sentence.’”

Hornsby v. Jones,

392 Fed.Appx. 653, 655 (10th Cir. 2010).4
If a protected liberty interest is implicated, the following
procedures must be provided in a prison disciplinary hearing:
(1) advance written notice of the disciplinary charges;
(2) an opportunity, when consistent with institutional
safety and correctional goals, to call witnesses and
present documentary evidence in his defense; and (3) a
written statement by the factfinder of the evidence relied
on and the reasons for the disciplinary action.
Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455–56
(1985).5

Furthermore, the results of the disciplinary hearing must

be supported by “some evidence in the record.” Id.
C.

Personal Participation

4

The Tenth Circuit considered and rejected arguments regarding the alleged
adverse impact of a disciplinary record upon a petitioner’s security
classification and eligibility for parole. Harrison, 490 Fed.Appx. at 993 (citing
see Marshall v. Morton, 421 Fed.Appx. 832, 837–38 (10th Cir. 2011)). In Marshall,
the Circuit concluded that a reduction in an inmate’s security classification does
not implicate a liberty interest and that the other privileges lost with such a
reduction, such as reduced pay or restrictions on recreational privileges, do not
impose an atypical hardship compared to the normal incidents of prison life. Id.
at 838; see also Penrod v. Zavaras, 94 F.3d 1399, 1407 (10th Cir. 1996)(holding
an inmate has no protected liberty interest in prison employment). Moreover, the
possibility that a disciplinary conviction will negatively impact an inmate’s
parole consideration is “too attenuated” and based on too many other considerations
to constitute a protected liberty interest.
Marshall, 421 Fed.Appx. at 838
(citing Sandin, 515 U.S. at 487).
5

“Prison disciplinary proceedings are not part of a criminal prosecution,
and the full panoply of rights due a defendant in such proceedings does not apply.”
They “take place in a closed, tightly controlled environment peopled by those who
have chosen to violate the criminal law and who have been lawfully incarcerated
for doing so.” Id. (citing Wolff, 418 U.S. at 556, 561). “Ascertaining whether
(the due process) standard is satisfied does not require examination of the entire
record, independent assessment of the credibility of witnesses or weighing of the
evidence. Instead, the relevant inquiry is whether there is any evidence that
could
support
the
conclusion
reached
by
the
disciplinary
board.”
Superintendent,, 472 U.S at 455–56. The decision can be upheld even if the
evidence supporting the decision is “meager”. Id. at 457.

9

“[P]ersonal

participation

in

the

violation complained of is essential.”

specific

constitutional

Henry v. Storey, 658 F.3d

1235, 1241 (10th Cir. 2011)(citation omitted).

The Tenth Circuit

has previously held that the mere affirmance of the denial of a
grievance is inadequate for personal participation.

See Stewart v.

Beach, 701 F.3d 1322, 1328 (10th Cir. 2012).
D.

42 U.S.C. § 1997e(e)
42 U.S.C. § 1997e(e)provides, in pertinent part:
No Federal civil action may be brought by a prisoner
confined in a jail, prison, or other correctional
facility, for mental or emotional injury suffered while
in custody without a prior showing of physical injury.

Id.

Section 1997e(e) applies regardless of the nature of the

underlying substantive violation asserted.

Searles v. Van Bebber,

251 F.3d 869, 876 (10th Cir. 2001)(applying § 1997e(e) to the
plaintiff’s First Amendment claim for free exercise of religion).
DISCUSSION
Having considered all the materials filed by plaintiff, the
court finds that the complaint is subject to dismissal for the
following reasons.
A.

Defendants
The only defendants named in the caption of the complaint are

the KDOC and Secretary of Corrections Ray Roberts.6

6

As noted, in

Plaintiff’s reference in his complaint to “[a]ny John Doe or Jane Doe that
may be discoverable” does not properly designate an additional defendant. Nor

10

order to state a claim under § 1983, the plaintiff must show that
the alleged deprivation was committed by a “person” acting under
color of state law.
§ 1983.

The KDOC is not a “person” amenable to suit under

Furthermore, the State and its agencies are immune to suit

for money damages.
The only “person” named as a defendant in the caption is
Secretary Roberts.

However, plaintiff alleges no facts showing that

defendant Roberts personally participated in any manner in either
of the prison disciplinary proceedings under challenge.

As noted,

personal participation of the defendant is an essential element of
a civil rights claim.

Secretary Roberts cannot be held liable based

solely on his supervisory capacity.

Nor may his liability be based

upon his having affirmed the denial of a grievance or administrative
appeal.

Furthermore, plaintiff does not adequately describe any

policy promulgated by defendant Roberts and show that the policy was
the cause of the alleged constitutional violations.7

In addition,

even if defendant Roberts violated state regulations or statutes,
the violation of state laws does not state a claim under § 1983.

All

does plaintiff provide any information that would allow a Doe defendant to be
identified or served. The court finds that plaintiff has failed to properly name
any John or Jane Doe defendant.
7

Plaintiff’s allegation that “defendant Roberts failed to train officers”
to shake down cells before an inmate moved in is not supported by facts showing
it was Secretary Roberts’ responsibility to train ECF officers to do cell shake
downs or that the shake down of plaintiff’s cell was unconstitutional.
Furthermore, plaintiff does not allege facts showing that Secretary Roberts wrote
the DR against him based on his letter to his wife or determined that the content
of that letter was threatening and intimidating.

11

of plaintiff’s claims in this § 1983 complaint are subject to
dismissal because of his failure to allege facts demonstrating the
personal participation of Secretary Roberts, the sole “person” named
as a defendant, in the alleged constitutional violations.8
B.

Due Process Claims
Mr. Albright was sanctioned only with fines and restrictions

after being found guilty of all charges.
imposed.

No loss of good time was

As noted, punishments of fines and restrictions fail to

implicate a protected liberty interest.

As a consequence, plaintiff

was not entitled to the procedural protections afforded by Wolff v.
McDonnell in either of the disciplinary proceedings challenged in
this case.

It follows that plaintiff’s claims, including denial of

a witness and the insufficiency or disregard of the evidence, are
subject to dismissal with prejudice for failure to state a claim.
C.

Claim for Damages
The only relief sought by Mr. Albright in his complaint is money

damages.

He filed this action while a prisoner confined in a

correctional facility.

Nowhere in his complaint does he allege

facts showing a physical injury.

It follows that his claim for

damages is barred by 42 U.S.C. § 1997e(e).

8

Plaintiff’s assertion of a claim under the Sixth Amendment is nothing but
a formulaic recitation supported by no facts whatsoever.
In any event, a
disciplinary proceeding is not a criminal prosecution and, given the sanctions
imposed, he had no constitutional right to produce witnesses. Plaintiff does not
suggest that he was prevented from presenting a written statement from his wife.

12

For all the foregoing reasons, the court finds that plaintiff’s
§ 1983 complaint is subject to dismissal as frivolous and for failure
to state a claim pursuant to 28 U.S.C. §§ 1915A, 1915(e)(2)(B)(ii),
and as barred by 42 U.S.C. § 1997e(e).

Plaintiff is given time to

show good cause why this action should not be dismissed for the
reasons stated herein.

If he does not show good cause within the

time allotted, this action may be dismissed without further notice.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff is granted
thirty (30) days in which to show good cause why this action should
not be dismissed for the reasons stated herein.
IT IS SO ORDERED.
Dated this 10th day of June, 2015, at Topeka, Kansas.

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

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