Wiggins (ID 44076) v. Sisco et al
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,
D. SISCO, et al.,
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.
Nature of the Matter before the Court
Plaintiff’s complaint (Doc. #1) contains five (5) counts
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
been using methamphetamines for the previous couple of weeks.
Mr. Easley also claimed Plaintiff gave him meth in exchange for
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
audiotaped, and Plaintiff agreed to give a statement.
all of Mr. Easley’s allegations.
Plaintiff offered to provide a
urine sample, but no sample was taken.
Defendants Sisco and
Bailey checked Plaintiff for needle tracks and found none.
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.
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.
cancelled by Warden Pryor on the grounds that there had been no
Disciplinary Report filed against Plaintiff and therefore there
was no proof he had committed an infraction.
Two days later,
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.
disciplinary hearing was scheduled for December 29, 2015.
witnesses, a motion for appointment of limited staff assistance,
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.”
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
Plaintiff complains that the cells at HCF are 5’ by 9’ with
ventilation, poor heating and cooling, and there is gray dust
As a result of these conditions, Plaintiff alleges
Plaintiff further complains that his sister sent him a copy
of a book he wrote, which was confiscated upon receipt in the
censorship notice stating the book was confiscated because it
Doc. 1, p. 11.
pages or content.
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
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
He claims that Defendant Sisco violated his rights
by filing a disciplinary report out of time, and that Defendants
Pryor and Goddard violated his due process rights by simply
Plaintiff claims Defendants Sisco, Bailey, Wildermuth, and Hunt
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.
Finally, as Count V, Plaintiff claims
confiscating Plaintiff’s book.
Plaintiff’s request for relief
includes declaratory relief, compensatory damages, and punitive
Statutory Screening of Prisoner Complaints
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).
with any litigant, such as Plaintiff, who is proceeding in forma
determine its sufficiency.
See 28 U.S.C. § 1915(e)(2).
completion of this screening, the Court must dismiss any claim
that is frivolous or malicious, fails to state a claim upon
which relief may be granted, or seeks monetary damages from a
To survive this review, the plaintiff must plead “enough
facts to state a claim to relief that is plausible on its face.”
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.
Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th
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
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
(10th Cir. 1990).
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
(internal quotation marks omitted).
“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.”
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.
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
“The Fourteenth Amendment prohibits states from depriving
citizens of liberty without due process of law.”
Jones, 430 F.3d 1113, 1117 (10th Cir. 2005).
proceedings are not part of a criminal prosecution, and the full
panoply of rights due a defendant in such proceedings does not
Wolff v. McDonnell, 418 U.S. 539, 556 (1974).
Supreme Court has established that protected liberty interests
significant hardship on the inmate in relation to the ordinary
“inevitably affect the duration of his sentence.”
Conner, 515 U.S. 472, 484, 487 (1995).
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
Sandin, 515 U.S. at 484, 487.
See Gee v. Pacheco, 627
F.3d 1178, 1193 (10th Cir. 2010) (noting inmate had no liberty
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.
(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).
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
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
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,
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
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
Under the same analysis applied above, Count II is also
subject to dismissal because Plaintiff has not stated a claim
for a constitutional violation.
No protected liberty interest
entitling Plaintiff to due process was implicated.
that Defendants may have violated state regulations does not
raise Plaintiff’s complaint to the level of a constitutional
constitutionally protected liberty interests. Crowder v. True,
74 F.3d 812, 814-15 (7th Cir. 1996)(citing Sandin, 515 U.S. at
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
Mendoza v. Tamez, 451 F. App'x 715, 717–18 (10th Cir.
2011), quoting Sandin, 515 U.S. at 484.
Where the result of the
segregation, transfer to another facility, and a reduction in
report, the “rubber-stamping” of the hearing officer’s decision,
“atypical or significant hardship.”
C. Count III: False Disciplinary Report
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.”
See Tonkovich v.
Consequently, his conclusory and unsubstantiated allegations of
a conspiracy are insufficient to state a § 1983 claim.
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.
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.
claiming retaliation under the First Amendment.
motive for disciplining a prisoner may give rise to a cause of
Gee, 627 F.3d
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.
motive on the part of any defendant are that Defendant Sisco
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).
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
If Plaintiff was attempting to make a
claim for retaliation, he has failed to state a plausible claim.
Count III of Plaintiff’s complaint is subject to dismissal.
Count IV: Conditions at HCF
Plaintiff alleges that the conditions at HCF violate the
Eighth Amendment to the United States Constitution.
See U.S. Const. amend. VIII.
Prison conditions may
punishment; 2) involve the wanton and unnecessary infliction of
pain; or 3) deprive an inmate of the minimal civilized measure
of life's necessities.
See Rhodes v. Chapman, 452 U.S. 337,
Under the Eighth Amendment, prisons are required
“to provide humane conditions of confinement by ensuring inmates
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).
allege and prove an objective component and subjective component
associated with the deficiency” claimed.
Shannon v. Graves, 257
Despain v. Uphoff, 264 F.3d 965, 973 (10th Cir.
2001) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
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
Plaintiff complains of a list of conditions he endures at
Starting from the position that “restrictive and even
serious so as to deprive him of the minimal civilized measure of
life's necessities or to subject him to a substantial risk of
Plaintiff has not met this burden.
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
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
Hudson v. McMillian, 503 U.S. 1, 9 (1992).
(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,
frivolous); Hunnewell v. Warden, Maine State Prison, 19 F.3d 7,
ventilation does not allege deprivation sufficiently extreme to
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
violation); Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir.
1999) (holding that an inmate failed to state a claim under the
chest pains, dizziness, sinus problems, headaches, and fatigue
Berghuis, 2010 WL 565373, at *3 (W.D. Mich. 2010) (“[A]bsent
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
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.
absence of allegations “of a specific deprivation of a human
need, an Eighth Amendment claim based on prison conditions must
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
concludes his allegations are insufficient to state a claim for
a violation of the Eighth Amendment.
Count V: Censorship and Confiscation of Book
In Count V, Plaintiff claims Defendants Cline, Schnurr, and
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
Doc. 1, pp. 25-26.
Plaintiff also complains that
the defendants failed to respond to his appeal of the censorship
confiscation of the book.
The Court finds that the proper processing of Plaintiff’s
information from appropriate officials of HCF.
Aaron, 570 F.2d 317 (10th Cir. 1978).
See Martinez v.
Accordingly, the Court
orders the appropriate officials to prepare and file a Martinez
received, the Court can properly screen the claims in Count V of
the complaint under 28 U.S.C. § 1915.
For the reasons stated herein, it appears that Counts I,
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).
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:
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
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 thirty (30) days from the date of this order, and the
filed within twenty (20) days following receipt of that report
by counsel for Defendants.
review of the subject matter of the complaint:
To ascertain the facts and circumstances;
To consider whether any action can and should be
taken by the institution to resolve the subject matter of
the complaint; and
whether pending in this Court or elsewhere, are related to
this complaint and should be considered together.
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.
Copies of pertinent
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
are alleged to violate the facility’s rules shall be included
with the report.
Authorization is granted to the officials of the KDOC
including the plaintiff.
No answer or motion addressed to the complaint shall
be filed until the
report required herein has been
prepared and filed.
responses to the complaint and the report ordered herein.
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
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.
IT IS SO ORDERED.
This 8th day of September, 2017, at Kansas City,
DAVID J. WAXSE
U.S. Magistrate Judge
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