Davis v. Webb et al

Filing 23

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that, on or before May 7, 2012, all defendants shall answer or otherwise reply in their individual capacities to plaintiff's § 1983 First Amendment retaliation claims, as set forth in the second a mended complaint. IT IS FURTHER ORDERED that plaintiff's Fourteenth Amendment due process claims against defendant Terry Webb are DISMISSED, without prejudice. See 28 U.S.C. § 1915(e)(2)(B). IT IS FURTHER ORDERED that plaintiff's official capacity claims against all defendants are DISMISSED, without prejudice. See 28 U.S.C. § 1915(e)(2)(B). Signed by Honorable John A. Ross on 4/20/12. (LAH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FREDERICK P. DAVIS,
Plaintiff,
v.
TERRY WEBB, et al.,
Defendants.

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No. 4:11-CV-1906-JAR

MEMORANDUM AND ORDER
This matter is before the Court upon review of plaintiff’s second amended
complaint [Doc. #22].1 See 28 U.S.C. § 1915(e). For the reasons stated below, the
Court will order all defendants to reply to the second amended complaint relative to
plaintiff's 42 U.S.C. § 1983 First Amendment retaliation claims. The Court will
dismiss plaintiff’s Fourteenth Amendment due process claims against defendant Terry
Webb, as well as plaintiff’s official capacity claims against all defendants. See 28
U.S.C. § 1915(e)(2)(B).
1

In his letter to the Clerk of Court dated March 29, 2012, plaintiff states that
he is no longer pursuing a 42 U.S.C. § 1985(3) claim, but he is asserting a separate
Fourteenth Amendment due process claim against defendant Terry Webb. Plaintiff
states that he wishes to litigate the due process claim along with his retaliation
claims in this case. As such, the Court will liberally construe the second amended
complaint as attempting to assert First Amendment retaliation claims against all
three defendants and Fourteenth Amendment due process claims against defendant
Terry Webb.

28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may dismiss a complaint filed
in forma pauperis if the action is frivolous, malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief against a defendant who is immune
from such relief. An action is frivolous if "it lacks an arguable basis in either law or
in fact." Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action fails to state a
claim upon which relief can be granted if it does not plead "enough facts to state a
claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S. Ct.
1955, 1974 (2007).
In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the
complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520
(1972). The Court must also weigh all factual allegations in favor of the plaintiff,
unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32-33
(1992).
The Second Amended Complaint
Plaintiff, an inmate at the Potosi Correctional Center, has filed a second
amended complaint under 42 U.S.C. § 1983. The named defendants are Terry Webb
(Functional Unit Manager), Ian Wallace (Assistant Warden), and Timothy R.
Lancaster (Institutional Investigator).
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A. First Amendment Retaliation Claims
Plaintiff alleges that he was placed in administrative segregation on November
23, 2010, in violation of proper prison procedures. He further alleges that it was not
until December 14, 2010, that he learned during an interview with defendant
Lancaster that he, plaintiff, was being investigated for allegedly circulating a petition
against PCC correctional officer Brian Hall. Plaintiff claims that while he was
confined in ad seg, Lancaster "went through [plaintiff's] personal property and
confiscated [his] Informal Request (IRR) grievance complaint . . . explaining the
oppressive and unprofessional and racist actions of COI Brian Hall[,] [a]s well as his
racial profiling of African American prisoners in housing unit five." Lancaster also
confiscated a letter, which plaintiff states he intended to send to "various officials
explaining [Hall's] unprofessional behavior." Plaintiff claims that, on January 4, 2011,
Lancaster issued him a major conduct violation for violating Rule 9.3 (Inciting
Organized Disobedience) by "approaching offenders [and] circulating a petition (mass
IRR) against COI Brian Hall and others." Plaintiff complains that he was found guilty
of the violation on January 13, 2011, although a petition was never found, and the
documents that Lancaster did confiscate were legally permissible at PCC, and he knew
it. Plaintiff further alleges that defendant Wallace referred him to the "ad seg
committee" for attempting "to misuse [the] IRR grievance system to remove/slander
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officer." Plaintiff states that he was merely exercising his right to file a grievance
based on what he considered to be legitimate complaints against a correctional officer.
Plaintiff alleges that defendant Webb "made no attempt to investigate the alleged
evidence for himself," refused to allow plaintiff to call witnesses and obtain video
surveillance tapes for his disciplinary hearing, found him guilty of the false conduct
violation, and sanctioned plaintiff to twenty days in disciplinary segregation. In
addition, plaintiff states that he was placed in administrative segregation for “over six
months,” where his privileges allegedly were "atypical and significant."2 Plaintiff
states that "defendants very well knew that the only activity [he] was engaged in was
encouraging other prisoners similarly situated and suffering the same abuses to
exercise their right to engage the grievance system to have their complaints heard and
addressed." He also states that because he was locked up, "everyone who had a
complaint against officer Brian Hall . . . dropped them, or just no longer [had] an
issue with him." Plaintiff asserts that defendants violated his constitutional rights by
"retaliating against [him] for attempting to seek redress through the grievance system
provided by the D.O.C."

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Plaintiff summarily states that he "had a state-created liberty interest in
avoiding this hardship."
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The Court finds that plaintiff's allegations state actionable First Amendment
retaliation claims against all three defendants under § 1983. See Williams v. Silvey,
375 Fed.Appx. 648 (8th Cir. 2010)(plaintiff stated § 1983 retaliation claim in action
claiming defendants initiated false disciplinary proceedings in retaliation for filing
grievances and complaining to prison officials); Haynes v. Stephenson, 588 F.3d 1152,
1155-56 (8th Cir. 2009)(prisoner must show he exercised protected right and suffered
discipline, and that exercise of protected right was motivation for discipline; filing
disciplinary charge is actionable under § 1983 if done in retaliation for inmate filing
grievance, because retaliatory disciplinary charge strikes at heart of constitutional
right to seek redress of grievances); Lewis v. Jacks, 486 F.3d 1025, 1028 (8th Cir.
2007)(alleged retaliatory action must be such that it would chill person of ordinary
firmness from engaging in protected activity); cf. Burgess v. Moore, 39 F.3d 216, 218
(8th Cir. 1994)(threat of retaliation is sufficient injury if made in retaliation for
inmate's use of prison grievance procedure). The Court will, therefore, order
defendants to reply to plaintiff's § 1983 First Amendment retaliation claims.

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B. Fourteenth Amendment Due Process Claims
1. Procedural Due Process
Plaintiff alleges that defendant Terry Webb’s actions, as set forth above, also
violated his Fourteenth Amendment procedural due process rights in that he was not
allowed to call witnesses and obtain video surveillance tapes for his disciplinary
hearing. He claims that the conditions of his administrative segregation confinement
were atypical and significant in comparison to those in general population. In
administrative segregation, for example, plaintiff states he was in his cell twenty-four
hours a day, he showered three times a week, he got one hour of outside fresh air three
times a week, visitation was “no contact” and was restricted to two hours, cell
cleaning occurred once a week, and he could use the telephone once every sixty days.
In general population, he states, for instance, that he could be out of his cell fourteen
hours a day, he got ten hours of recreation every week, he enjoyed full canteen
privileges, he could have contact visits and daily telephone privileges, there was a dog
training program, and he had a job in a metal chair factory.
For Fourteenth Amendment procedural due process to be implicated, an inmate
must be subjected to "atypical and significant hardship . . . in relation to the ordinary
incidents of prison life." Sandin v. Conner, 515 U.S. 472 (1995). As set forth in the
second amended complaint, plaintiff's allegations do not indicate that he has suffered
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this type of atypical and significant hardship in which the state might conceivably
create a liberty interest. Cf. id. at 485-86 (no atypical and significant hardship where
inmate spent thirty days in solitary confinement); Hemphill v. Delo, 124 F.3d 208 (8th
Cir. 1997)(same; four days locked in housing unit, thirty days in disciplinary
segregation, and approximately 290 days in administrative segregation); Freitas v.
Ault, 109 F.3d 1335, 1337-38 (8th Cir. 1997)(same; ten days administrative
segregation and thirty days on "on-call" status, as well as loss of higher paying job and
numerous privileges); Wycoff v. Nichols, 94 F.3d 1187, 1190 (8th Cir. 1996)(same;
ten days disciplinary detention and 100 days in maximum-security cell). For these
reasons, the Court will dismiss, without prejudice, plaintiff’s Fourteenth Amendment
procedural due process claims against defendant Terry Webb.
2. Substantive Due Process
Plaintiff alleges that defendant Terry Webb violated his substantive due process
rights, in addition to his First Amendment rights, by placing him in administrative
segregation in retaliation for plaintiff’s attempt to seek redress through the PCC
grievance system.
At this point, it is important to note the difference between constitutional
retaliation claims arising under the Due Process Clause of the Fourteenth Amendment
and those arising under a more specific provision of the Constitution, such as the First
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Amendment. United States Supreme Court precedent suggests that these two types
of claims should not be conflated. See Graham v. Connor, 490 U.S. 386 (1989). In
Graham, the Supreme Court rejected various lower courts’ reliance on substantive due
process standards in evaluating an excessive-use-of-force claim against a “free
citizen,” where such claims were covered by explicit provisions in the Constitution,
namely the Fourth Amendment. Id. at 392-95.3 Later, in Albright v. Oliver, 510 U.S.
266 (1994), the Supreme Court explained that “[w]here a particular Amendment
‘provides an explicit textual source of constitutional protection’ against a particular
sort of government behavior, ‘that Amendment, not the more generalized notion of
substantive due process, must be the guide for analyzing these claims.’” Albright, 510
U.S. at 273(quoting Graham, 490 U.S. at 395); see also, Thaddeus-X v. Blatter, 175
F.3d 378, 387 (6th Cir. 1999)(applying analytical framework of First Amendment to
plaintiffs’ claims they were retaliated against for engaging in the constitutionallyprotected activity of accessing the courts; abrogating the Circuit’s prior decisions
imposing Fourteenth Amendment substantive due process test to prisoners’ claims of
retaliation in violation of an enumerated constitutional right).

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More specifically, the Court pointed to the Second Circuit’s four-factor substantive due
process test in Johnson v. Glick, 481 F.2d 1028, cert. denied, 414 U.S. 1033 (1973), as an
illustration of what should not be used when an enumerated constitutional right is available as a
source of protection.
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Applying these precepts to the case at bar, the Court concludes that because
plaintiff’s retaliation claims arose out of his attempts to petition for redress of
grievances under PCC’s prison grievance system, it is the First Amendment that must
be the exclusive guide for analyzing plaintiff’s retaliation claims. In other words, it
is this particular amendment that provides the explicit textual source of constitutional
protection, and therefore, the more generalized notion of Fourteenth Amendment
substantive due process should not be used. See, e.g., Cornell v. Woods, 69 F.3d
1383, 1387-90 (8th Cir. 1995)(analyzing claim of retaliatory discipline exclusively
under First Amendment). Thus, because the First Amendment properly covers
plaintiff’s retaliation claims against all three defendants, the Court will dismiss,
without prejudice, plaintiff’s Fourteenth Amendment substantive due process claims
against Terry Webb.
C. Individual and Official Capacity Claims
Plaintiff brings this action against the three defendant PCC employees in both
their individual and official capacities.
Naming a government official in his or her official capacity is the equivalent
of naming the government entity that employs the official, in this case the State of
Missouri. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).
“[N]either a State nor its officials acting in their official capacity are ‘persons’ under
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§ 1983.” Id. As a result, the complaint is legally frivolous and fails to state a claim
upon which relief can be granted as to all three defendants in their official capacities.
The Court will, however, allow this action to proceed against all defendants as to their
individual capacities, as more fully discussed, supra.
Accordingly,
IT IS HEREBY ORDERED that, on or before May 7, 2012, all defendants
shall answer or otherwise reply in their individual capacities to plaintiff's § 1983 First
Amendment retaliation claims, as set forth in the second amended complaint.
IT IS FURTHER ORDERED that plaintiff’s Fourteenth Amendment due
process claims against defendant Terry Webb are DISMISSED, without prejudice.
See 28 U.S.C. § 1915(e)(2)(B).
IT IS FURTHER ORDERED that plaintiff's official capacity claims against
all defendants are DISMISSED, without prejudice. See 28 U.S.C. § 1915(e)(2)(B).
A separate Order of Partial Claim Dismissal shall accompany this Memorandum
and Order.
Dated this 20th day of April, 2012.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
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