Wiggins (ID 44076) v. Sisco et al
Filing
10
NOTICE AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted to and including October 10, 2017, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why Counts I, II, III, and IV of Plaintiff's co mplaint should not be dismissed. The Clerk of the Court shall prepare waiver of service forms for Defendants Cline, Schnurr, and Langford, pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. The Clerk of the Court shall enter the Kansas Department of Corrections as an interested party on the docket for the limited purpose of preparing the Martinez report. Upon the filing of that report, the KDOC may move for termination from this action. Signed by Magistrate Judge David J. Waxse on 09/08/17. Mailed to pro se party Johnny Clint Wiggins by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHNNY CLINT WIGGINS,
Plaintiff,
v.
CASE NO.17-3080-SAC-DJW
D. SISCO, et al.,
Defendants.
NOTICE AND ORDER TO SHOW CAUSE
AND REQUIRING MARTINEZ REPORT AS TO COUNT V
Plaintiff Johnny Clint Wiggins, a state prisoner appearing
pro se, brings this 42 U.S.C. § 1983 civil rights complaint.
For the reasons discussed below, Plaintiff is ordered to show
cause to the Honorable Sam A. Crow why Counts I, II, III, and IV
of his complaint should not be dismissed.
As for Count V, the
Court finds it needs additional information and therefore orders
a Martinez report as to the claims made in that count only.
I.
Nature of the Matter before the Court
Plaintiff’s complaint (Doc. #1) contains five (5) counts
based
on
the
following
allegations.
In
October
of
2015,
Plaintiff was housed in the medium security unit at Lansing
Correctional Facility (“LCF”) and was working a minimum wage job
when another inmate, Mr. Easley, claimed he and Mr. Wiggins had
1
been using methamphetamines for the previous couple of weeks.
Mr. Easley also claimed Plaintiff gave him meth in exchange for
sexual favors.
Plaintiff was moved to the maximum security unit
at LCF on October 26, 2015, and placed on segregation pending
investigation status upon the order of Defendant Andrew Lucht, a
captain at LCF.
On October 27, 2015, Plaintiff met with Defendants Sisco
and
Bailey,
EAI
special
agents
at
LCF.
The
interview
audiotaped, and Plaintiff agreed to give a statement.
all of Mr. Easley’s allegations.
was
He denied
Plaintiff offered to provide a
urine sample, but no sample was taken.
Defendants Sisco and
Bailey checked Plaintiff for needle tracks and found none.
They
told Plaintiff that DNA had been found on Mr. Easley and that
Plaintiff would have to be held in segregation until the DNA
test results were returned.
Plaintiff remained in segregation on pending investigation
status until November 24, 2015, when a Segregation Review Board
hearing was held.
the hearing.
Plaintiff was not allowed to be present at
On November 25, 2015, Plaintiff was informed that
the Board had changed his status to Other Security Risk (“OSR”),
and he was to be transferred to Hutchinson Correctional Facility
(“HCF”) per the request of Defendants Sisco and Bailey.
On
December
1,
2015,
Plaintiff’s
transfer
to
HCF
was
cancelled by Warden Pryor on the grounds that there had been no
2
Disciplinary Report filed against Plaintiff and therefore there
was no proof he had committed an infraction.
allegedly
in
retaliation
for
Plaintiff
Two days later,
getting
his
transfer
stopped, Defendant Sisco issued a Disciplinary Report charging
Plaintiff with sexual activity in violation of KAR 44-12-1314.
This report was filed out of time per Kansas regulations.
A
disciplinary hearing was scheduled for December 29, 2015.
Prior
to
the
hearing,
Plaintiff
filed
a
request
for
witnesses, a motion for appointment of limited staff assistance,
and
a
request
for
information
on
PREA
Standard
115.787.
Plaintiff met with Defendant Wildermuth the day of the hearing
and was lead to believe he would be attending.
hearing was held without Plaintiff.
as his “proxy.”
However, the
Defendant Wildermuth acted
Plaintiff was found guilty of the charge of
sexual activity and was again scheduled for transfer to HCF.
On January 13, 2016, Plaintiff was transferred to HCF and
placed in segregation on OSR status.
A Segregation Review Board
hearing held on January 26, 2016, found no justifiable reason
for
continued
segregation,
and
Plaintiff
was
moved
to
the
general population.
Plaintiff complains that the cells at HCF are 5’ by 9’ with
approximately
15
confined
22.5
for
square
hours
feet
of
per
open
day.
floor
The
space.
cells
have
He
is
poor
ventilation, poor heating and cooling, and there is gray dust
3
everywhere.
As a result of these conditions, Plaintiff alleges
he
from
suffers
coughing,
and
contributes
constant
the
to
sinus
inability
to
exercise
and
bone,
back
pain
headaches,
in
sneezing,
his
muscle,
cell,
and
and
which
mental
degeneration.
Plaintiff further complains that his sister sent him a copy
of a book he wrote, which was confiscated upon receipt in the
mailroom
of
HCF
on
April
12,
2016.
Plaintiff
received
a
censorship notice stating the book was confiscated because it
contained
“information
groups.”
Doc. 1, p. 11.
pages or content.
on
staff,
weapons
and
security
threat
The notice did not identify specific
Plaintiff followed the directions on the
censorship notice and appealed.
He did not receive a response
to his appeal and has never received the book.
As Count I of his complaint, Plaintiff claims Defendants
Sisco, Bailey, and Lucht violated his Fourteenth Amendment due
process rights by failing to collect and test his urine to be
used
in
Plaintiff’s
process.
defense
during
the
disciplinary
hearing
As Count II, Plaintiff claims Defendant Hunt violated
his Fourteenth Amendment due process rights by failing to allow
Plaintiff to be present at his disciplinary hearing, to present
evidence, to testify, to call witnesses, and to cross examine
witnesses.
He claims that Defendant Sisco violated his rights
by filing a disciplinary report out of time, and that Defendants
4
Pryor and Goddard violated his due process rights by simply
rubber-stamping
Defendant
Hunt’s
decision.
As
Count
III,
Plaintiff claims Defendants Sisco, Bailey, Wildermuth, and Hunt
violated
his
Fourteenth
Amendment
due
process
rights
by
conspiring to manufacture a bogus disciplinary report for the
sole purpose of getting Plaintiff transferred from LCF to HCF.
As Count IV, Plaintiff claims Defendants Goddard, Cline, and
Schnurr violated his Eighth Amendment rights by subjecting him
to the conditions at HCF.
Defendants
Fifth,
Cline,
and
Finally, as Count V, Plaintiff claims
Schnurr,
Fourteenth
and
Langford
Amendment
confiscating Plaintiff’s book.
violated
rights
by
his
First,
censoring
and
Plaintiff’s request for relief
includes declaratory relief, compensatory damages, and punitive
damages.
II.
Statutory Screening of Prisoner Complaints
The
Court
is
required
to
screen
complaints
brought
by
prisoners seeking relief against a governmental entity or an
officer or employee of such entity to determine whether summary
dismissal is appropriate.
28 U.S.C. § 1915A(a).
Additionally,
with any litigant, such as Plaintiff, who is proceeding in forma
pauperis,
the
Court
has
determine its sufficiency.
a
duty
to
screen
the
complaint
See 28 U.S.C. § 1915(e)(2).
to
Upon
completion of this screening, the Court must dismiss any claim
that is frivolous or malicious, fails to state a claim upon
5
which relief may be granted, or seeks monetary damages from a
defendant
who
is
immune
from
such
relief.
28
U.S.C.
§§
1915A(b), 1915(e)(2)(B).
To survive this review, the plaintiff must plead “enough
facts to state a claim to relief that is plausible on its face.”
Bell
Atl.
Corp.
v.
Twombly,
550
U.S.
544,
570
(2007).
In
applying the Twombly standard, the Court must assume the truth
of all well-pleaded factual allegations in the complaint and
construe them in the light most favorable to the plaintiff.
See
Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th
Cir. 2011).
While
a
pro
se
plaintiff’s
complaint
must
be
liberally
construed, Erickson v. Pardus, 551 U.S. 89, 94 (2007), pro se
status does not relieve the plaintiff of “the burden of alleging
sufficient facts on which a recognized legal claim could be
based.”
The
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Court
need
pleaded facts.”
(10th Cir. 1990).
not
accept
“mere
conclusions
characterizing
Bryson v. City of Edmond, 905 F.2d 1386, 1390
“[A] plaintiff’s obligation to provide the
grounds of his entitlement to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of a
cause
of
action
will
not
do.”
(internal quotation marks omitted).
6
Twombly,
550
U.S.
at
555
“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 (1988); Northington v. Jackson, 973 F.2d
1518, 1523 (10th Cir. 1992).
In addressing a claim brought
under § 1983, the analysis begins by identifying the specific
constitutional right allegedly infringed.
U.S. 386, 393-94 (1989).
Graham v. Connor, 490
The validity of the claim then must
be judged by reference to the specific constitutional standard
which governs that right. Id.
III.
Discussion
A. Count I: Failure to Collect Evidence
Plaintiff alleges in Count I that Defendants Sisco, Bailey,
and Lucht violated his Fourteenth Amendment due process rights
by failing to collect, test, and preserve urine sample evidence
from Plaintiff and Mr. Easley.
Plaintiff claims the defendants
had a duty under IMPP 10-103, K.S.A. 75-5210, K.S.A. 75-5251,
and K.A.R. 44-13-404(d)(1) to collect and preserve all physical
evidence that could be used to prove or disprove the allegations
made by Mr. Easley.
Plaintiff alleges the defendants did not
collect the evidence because they concluded a urinalysis would
be
negative
for
meth
and
thus
innocence.
7
support
Plaintiff’s
claim
of
“The Fourteenth Amendment prohibits states from depriving
citizens of liberty without due process of law.”
Jones, 430 F.3d 1113, 1117 (10th Cir. 2005).
applies
to
prison
inmates,
but
Wilson v.
This guarantee
“[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).
The
Supreme Court has established that protected liberty interests
are
at
issue
subjected
to
in
the
(1)
prison
setting
conditions
that
only
when
“impose[
]
an
inmate
atypical
is
and
significant hardship on the inmate in relation to the ordinary
incidents
of
prison
life”
or
(2)
disciplinary
actions
“inevitably affect the duration of his sentence.”
that
Sandin v.
Conner, 515 U.S. 472, 484, 487 (1995).
The
failure
connection
with
to
investigate
a
prison
alleged
disciplinary
by
Plaintiff
proceeding.
was
in
That
disciplinary proceeding resulted in a reduction in Plaintiff’s
security classification (with the effect that he lost his prison
job), transfer to HCF, and placement in segregation for total of
approximately three months.
None of these sanctions implicates
a liberty interest; they did not “inevitably affect the duration
of his sentence,” such as where there has been a loss of good
time credits, nor “impose[ ] atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison
8
life.”
Sandin, 515 U.S. at 484, 487.
See Gee v. Pacheco, 627
F.3d 1178, 1193 (10th Cir. 2010) (noting inmate had no liberty
interest
in
Sandin,
515
discretionary
U.S.
at
486
security
(finding
classification
30
days
of
decisions);
disciplinary
segregation did not present the type of atypical, significant
deprivation in which a state might conceivably create a liberty
interest); Estate of DiMarco v. Wyo. Dept. of Corr., 473 F.3d
1334, 1344 (10th Cir. 2007) (finding placement in administrative
segregation for 14 months did not implicate liberty interest);
Marshall v. Morton,
421 F. App’x. 832, 838 (10th Cir.
2011)
(noting loss of privileges associated with reduction of security
classification did not implicate liberty interest); Penrod v.
Zavaras, 94 F.3d 1399, 1407 (10th Cir. 1996) (holding inmate has
no protected liberty interest in prison employment); Meachum v.
Fano, 427 U.S. 215, 229 (1976) (finding no liberty interest in
prisoners to be free from intrastate prison transfers).
Moreover,
Plaintiff’s
complaint
that
the
defendants
violated state regulations and prison procedures does not state
a cause of action under § 1983.
See Trujillo v. Williams, 465
F.3d 1210, 1214 n.2 (10th Cir. 2006) (to extent plaintiff “seeks
relief for alleged violations of state statutes . . . he has
stated no cognizable claim under § 1983, which establishes a
cause of action only for deprivation of rights secured by the
Constitution
or
federal
law”);
9
Cardoso
v.
Calbone,
490
F.3d
1194, 1197 (10th Cir. 2007), quoting Stanko v. Maher, 419 F.3d
1107, 1117 (10th Cir. 2005)(“An action under § 1983, however,
cannot be maintained on the basis of alleged violations of state
law.”).
Because no liberty interest was implicated in connection
with the disciplinary proceeding and conviction, Plaintiff was
not entitled to Fourteenth Amendment due process protections.
Count I is subject to dismissal.
B. Count II: Defects with Disciplinary Hearing Process
In Count II, Plaintiff alleges various procedural defects
with the disciplinary hearing conducted at LCF on December 29,
2015.
Plaintiff claims Defendant Hunt, LCF disciplinary hearing
officer, violated his Fourteenth Amendment due process rights
and several Kansas regulations and KDOC procedures by failing to
allow Plaintiff to be present at his disciplinary hearing, to
present evidence, to testify, to call witnesses, and to crossexamine
witnesses.
He
claims
that
Defendant
Sisco
violated
Kansas law by filing the disciplinary report out of time, and
that Defendants Pryor (Warden of LCF) and Goddard (Secretary of
the Kansas Department of Corrections (KDOC)) violated his due
process
rights
by
simply
rubber-stamping
Defendant
Hunt’s
decision.
Under the same analysis applied above, Count II is also
subject to dismissal because Plaintiff has not stated a claim
10
for a constitutional violation.
No protected liberty interest
entitling Plaintiff to due process was implicated.
The fact
that Defendants may have violated state regulations does not
raise Plaintiff’s complaint to the level of a constitutional
violation.
Prison
disciplinary
procedures
do
not
create
constitutionally protected liberty interests. Crowder v. True,
74 F.3d 812, 814-15 (7th Cir. 1996)(citing Sandin, 515 U.S. at
484).
Plaintiff
enforcement
designed
of
to
has
prison
ensure
no
liberty
interest
regulations.
the
safe
in
“Prison
and
secure
the
proper
regulations
are
administration
of
prisons, not to confer rights, and they create liberty interests
only when they protect inmates from ‘atypical or significant
hardship ... in relation to the ordinary incidents of prison
life.’”
Mendoza v. Tamez, 451 F. App'x 715, 717–18 (10th Cir.
2011), quoting Sandin, 515 U.S. at 484.
disciplinary
action
here
was
an
Where the result of the
additional
two
weeks
in
segregation, transfer to another facility, and a reduction in
security
classification,
the
late
issuance
of
a
disciplinary
report, the “rubber-stamping” of the hearing officer’s decision,
and
the
witnesses
failure
at
the
to
allow
Plaintiff
disciplinary
hearing
“atypical or significant hardship.”
11
to
be
do
present
not
or
call
represent
an
C. Count III: False Disciplinary Report
In
Count
III,
Plaintiff
claims
that
Defendants
Sisco,
Bailey, Wildermuth, and Hunt violated his Fourteenth Amendment
due process rights by conspiring to influence Defendant Hunt’s
decision and to manufacture a bogus disciplinary report for the
sole purpose of getting Plaintiff transferred from LCF to HCF.
Mr. Wiggins has not alleged “specific facts showing an agreement
and concerted action amongst the defendants.”
Kan.
Bd.
of
Regents,
159
F.3d
504,
533
See Tonkovich v.
(10th
Cir.
1998).
Consequently, his conclusory and unsubstantiated allegations of
a conspiracy are insufficient to state a § 1983 claim.
See id.;
see also Cardoso, 490 F.3d at 199.
Further, as discussed above, a due process violation occurs
in the context of prison discipline only when the punishment
imposes an atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life or when it
will inevitably affect the duration of a sentence.
515 U.S. at 484, 487.
See Sandin,
As the Court concluded above, Plaintiff’s
allegations show that the alleged false disciplinary charge did
not cause him to suffer an atypical and significant hardship in
relation to the ordinary incidents of prison life.
Reading
Plaintiff’s
complaint
liberally,
claiming retaliation under the First Amendment.
he
could
be
An improper
motive for disciplining a prisoner may give rise to a cause of
12
action under
§
1983.
Maschner,
899
claiming
retaliation
retaliation
F.2d
See
940,
Gee, 627 F.3d
must
because
of
constitutional rights.”
(10th
947
Cir.
allege
the
at
1189;
1990).
specific
exercise
of
Smith v.
“An
inmate
facts
the
showing
prisoner's
Peterson v. Shanks, 149 F.3d 1140, 1144
(10th Cir. 1998)(quotation omitted).
A plaintiff must show that
but for the retaliatory motive, the incidents to which he refers
would not have taken place.
Plaintiff’s
only
Id.
references
to
a
potential
retaliatory
motive on the part of any defendant are that Defendant Sisco
issued
the
[Plaintiff]
late
disciplinary
for
being
able
report
to
get
“in
retaliation
the
requested
against
transfer
stopped” initially (Doc. 1, p. 7), and that Defendant Wildermuth
“was the subject of several grievances filed against her by the
plaintiff on unrelated incidents” (Doc. 1, p. 21).
Plaintiff
claims Defendants Sisco and Bailey were the driving force behind
his discipline and transfer, but he provides no motive for why
Defendants Sisco and Bailey would have wanted him transferred to
HCF in the first place.
As for Defendant Wildermuth, Plaintiff
does not allege that she caused his discipline and transfer, and
his complaint contains nothing about when his grievances against
her occurred, the result of the grievances, or why Defendant
Wildermuth
would
be
previous grievances.
retaliating
against
him
now
for
these
If Plaintiff was attempting to make a
13
claim for retaliation, he has failed to state a plausible claim.
Count III of Plaintiff’s complaint is subject to dismissal.
D.
Count IV: Conditions at HCF
Plaintiff alleges that the conditions at HCF violate the
Eighth Amendment to the United States Constitution.
Amendment
prohibits
punishment.
violate
the
infliction
of
“cruel
See U.S. Const. amend. VIII.
the
Eighth
disproportionate
Amendment
to
the
where
severity
and
unusual”
Prison conditions may
they:
of
The Eighth
the
1)
are
crime
grossly
warranting
punishment; 2) involve the wanton and unnecessary infliction of
pain; or 3) deprive an inmate of the minimal civilized measure
of life's necessities.
346-47 (1981).
See Rhodes v. Chapman, 452 U.S. 337,
Under the Eighth Amendment, prisons are required
“to provide humane conditions of confinement by ensuring inmates
receive
the
basic
necessities
of
adequate
food,
clothing,
shelter, and medical care and by taking reasonable measures to
guarantee the inmates' safety.”
Barney v. Pulsipher, 143 F.3d
1299, 1310 (10th Cir. 1998); see also Tafoya v. Salazar, 516 F.3d
912, 916 (10th Cir. 2008).
“An
inmate
constitutionally
making
inadequate
an
Eighth
Amendment
conditions
of
claim
confinement
for
must
allege and prove an objective component and subjective component
associated with the deficiency” claimed.
F.3d
1164,
1168
(10th
Cir.
2001).
14
Shannon v. Graves, 257
“The
objective
component
requires
conditions
inmates
of
necessities.’”
prisoner
must
uncomfortable.”
sufficiently
the
minimal
Id.
(quoting
show
serious
civilized
Rhodes,
that
so
as
to
measure
452
U.S.
“conditions
‘deprive
of
at
were
life's
347).
more
A
than
Despain v. Uphoff, 264 F.3d 965, 973 (10th Cir.
2001) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
The
Eighth Amendment's prohibition on cruel and unusual punishment
“‘does not mandate comfortable prisons,’ and conditions imposed
may be ‘restrictive and even harsh.’”
Barney, 143 F.3d at 1311
(quoting Rhodes, 452 U.S. at 347). Alternatively, a condition
must be sufficiently serious so as to constitute a substantial
risk of serious harm.
Helling v. McKinney, 509 U.S. 25, 33–35
(1993).
Plaintiff complains of a list of conditions he endures at
HCF.
Starting from the position that “restrictive and even
harsh”
conditions
Plaintiff
has
the
are
not
burden
of
unconstitutional,
alleging
see
conditions
Rhodes,
sufficiently
serious so as to deprive him of the minimal civilized measure of
life's necessities or to subject him to a substantial risk of
serious harm.
Plaintiff has not met this burden.
Plaintiff
alleges that he is housed in a 5’ by 9’ cell, he is in his cell
without enough space for in-cell exercise 22.5 hours a day, he
is subjected to “extremely” hot and cold conditions, and there
is
poor
ventilation
and
gray
dust
15
covering
everything.
He
claims the poor ventilation has resulted in harm he describes as
“coughing and respiratory problems, stopped up sinuses, sinus
headaches on a daily basis” and the lack of exercise has caused
“severe back pain, physical muscle degeneration, weight loss due
to loss of appetite.”
Doc. 1, p. 24.
These conditions do not constitute the types of conditions
that
violate
required.”
Strope
the
Eighth
Amendment;
“extreme
deprivations
Hudson v. McMillian, 503 U.S. 1, 9 (1992).
v.
Sebelius,
189
F.
App'x
763,
766
(10th
Cir.
are
See
2006)
(finding plaintiff’s allegation of inadequate ventilation at HCF
does not state a claim for violation of 8th Amendment); Martin v.
Luebbers, No. 4:07-CV-1565-JCH, 2007 WL 3352354, at *2 (E.D. Mo.
Nov. 7, 2007) (finding claims of inhalation of dust mites, dust,
and
lint
particles
fail
to
state
a
claim
and
are
legally
frivolous); Hunnewell v. Warden, Maine State Prison, 19 F.3d 7,
at
*3
(1st
Cir.
1994)(Table)(finding
complaint
of
inadequate
ventilation does not allege deprivation sufficiently extreme to
establish
a
cognizable
Eighth
Amendment
claim);
Johnson
v.
Gusman, No. CV 15-4224, 2016 WL 3199085, at *4 (E.D. La. May 6,
2016), report and recommendation adopted, No. CV 15-4224, 2016
WL 3186506 (E.D. La. June 8, 2016) (finding federal courts have
recognized
mold,
and
that
certain
stale
air
institutional
do
not
problems
amount
to
a
such
as
dust,
constitutional
violation); Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir.
16
1999) (holding that an inmate failed to state a claim under the
Eighth
Amendment
since
his
complaints
of
breathing
problems,
chest pains, dizziness, sinus problems, headaches, and fatigue
were
“objectively
speaking,
relatively
minor”);
King
v.
Berghuis, 2010 WL 565373, at *3 (W.D. Mich. 2010) (“[A]bsent
such
extreme
health,
the
concerning
Amendment
conditions
courts
routinely
ventilation
claim.”);
raising
were
Rhodes,
serious
have
risks
determined
insufficient
to
452
352
U.S.
at
to
prisoner
that
state
claims
an
Eighth
(finding
double
celling of prisoners in cells of 63 square feet did not violate
Eighth Amendment; decided after Ramos v. Lamm, 639 F.2d 539 (10th
Cir. 1980), where Tenth Circuit relied on standard set in Battle
v. Anderson, 564 F.2d 388 (10th Cir. 1977), of 60 square feet for
single
occupancy
cells);
Dunann
v.
Hickenlooper,
No.
13-CV-
02295-BNB, 2014 WL 26395, at *2 (D. Colo. Jan. 2, 2014) (finding
complaint about size of cell legally frivolous).
Plaintiff has failed to allege that he has been deprived of
any of life’s basic necessities, i.e., adequate food, clothing,
shelter, or medical care.
See Barney, 143 F.3d at 1310.
In the
absence of allegations “of a specific deprivation of a human
need, an Eighth Amendment claim based on prison conditions must
fail.”
Shifrin v. Fields, 39 F.3d 1112, 1114 (10th Cir. 1994)
(internal quotation marks omitted).
Although the conditions Mr.
Wiggins complains about are undoubtedly uncomfortable, the Court
17
concludes his allegations are insufficient to state a claim for
a violation of the Eighth Amendment.
E.
Count V: Censorship and Confiscation of Book
In Count V, Plaintiff claims Defendants Cline, Schnurr, and
Langford
rights
violated
by
his
censoring
First,
and
Fifth,
and
confiscating
Fourteenth
a
book,
Amendment
authored
by
Plaintiff, titled Guilty but Innocent, From a Teen to a Con,
“describing plaintiff’s life, of growing up from the age of 14
years old, in one of America’s most corrupt and violent adult
prisons,
the
Oklahoma.”
Oklahoma
State
Doc. 1, pp. 25-26.
Penitentiary,
at
McAlester,
Plaintiff also complains that
the defendants failed to respond to his appeal of the censorship
or
to
his
inquiries
about
the
censorship
and
apparent
confiscation of the book.
The Court finds that the proper processing of Plaintiff’s
claims
in
Count
V
cannot
be
achieved
without
information from appropriate officials of HCF.
Aaron, 570 F.2d 317 (10th Cir. 1978).
additional
See Martinez v.
Accordingly, the Court
orders the appropriate officials to prepare and file a Martinez
report.
Once
the
report
and
Defendants’
answers
have
been
received, the Court can properly screen the claims in Count V of
the complaint under 28 U.S.C. § 1915.
18
IV.
Response Required
For the reasons stated herein, it appears that Counts I,
II,
III,
and
IV
of
Plaintiff’s
complaint
are
subject
to
dismissal under 28 U.S.C. §§ 1915A(b) for failure to state a
claim upon which relief may be granted.
Plaintiff is therefore
required to show good cause why this portion of his complaint
should not be dismissed.
The failure to file a timely, specific
response waives de novo review by the District Judge, see Thomas
v. Arn, 474 U.S. 140, 148-53 (1985), and also waives appellate
review of both factual and legal questions.
Makin v. Colo.
Dept. of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999).
Plaintiff
is warned that his failure to file a timely response may result
in Counts I through IV of the complaint being dismissed for the
reasons stated herein without further notice.
IT IS THEREFORE ORDERED that Plaintiff is granted to and
including October 10, 2017, in which to show good cause, in
writing, to the Honorable Sam A. Crow, United States District
Judge, why Counts I, II, III, and IV of Plaintiff’s complaint
should not be dismissed for the reasons stated herein.
IT IS FURTHER ORDERED:
(1)
The Clerk of the Court shall prepare waiver of service
forms for Defendants Cline, Schnurr, and Langford, pursuant to
Rule 4(d) of the Federal Rules of Civil Procedure, to be served
19
at no cost to Plaintiff absent a finding by the Court that
Plaintiff is able to pay such costs.
(2)
The report required herein shall be filed no later
than thirty (30) days from the date of this order, and the
answers
of
Defendants
Cline,
Schnurr,
and
Langford
shall
be
filed within twenty (20) days following receipt of that report
by counsel for Defendants.
(3)
Officials
Hutchinson
responsible
Correction
Facility
for
are
the
operation
directed
to
of
the
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; and
c.
To
determine
whether
other
like
complaints,
whether pending in this Court or elsewhere, are related to
this complaint and should be considered together.
(4)
Upon completion of the review, a written report shall
be compiled which shall be filed with the Court.
all witnesses shall be in affidavit form.
rules,
regulations,
official
Statements of
Copies of pertinent
documents,
and,
wherever
appropriate, the reports of medical or psychiatric examinations
shall be included in the written report.
In addition, either
the book that was allegedly seized or a copy of the pages that
20
are alleged to violate the facility’s rules shall be included
with the report.
(5)
to
Authorization is granted to the officials of the KDOC
interview
all
witnesses
having
knowledge
of
the
facts,
including the plaintiff.
(6)
No answer or motion addressed to the complaint shall
be filed until the
Martinez
report required herein has been
prepared and filed.
(7)
Plaintiff
Discovery
has
by
received
Plaintiff
and
shall
reviewed
not
commence
Defendants’
until
answers
responses to the complaint and the report ordered herein.
or
This
action is exempted from the requirements imposed under Fed. R.
Civ. P. 26(a) and 26(f).
IT IS FURTHER ORDERED that the Clerk of the Court shall
enter
the
Kansas
Department
of
Corrections
as
an
interested
party on the docket for the limited purpose of preparing the
Martinez report ordered herein.
Upon the filing of that report,
the KDOC may move for termination from this action.
Copies of this order shall be transmitted to Plaintiff, to
Defendants, and to the Attorney General for the State of Kansas.
21
IT IS SO ORDERED.
DATED:
This 8th day of September, 2017, at Kansas City,
Kansas.
DAVID J. WAXSE
U.S. Magistrate Judge
22
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?