Hankins v. Anderson et al

Filing 7

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Clerk is directed to serve process on defendants Leann Crews and CO II Unknown Webb. IT IS FURTHER ORDERED that the remaining defendants are dismissed. An Order of Dismissal will be filed separately. Signed by District Judge Henry Edward Autrey on 4/12/16. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RONNIE HANKINS,

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Plaintiff,
v.
PHILLIP ANDERSON, et al.,
Defendants.

No. 4:16CV239 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on review of plaintiff’s amended complaint for
unconstitutional conditions of confinement.

After review, the Court finds that several of

plaintiff’s claims must be dismissed.
Standard of Review
Under 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted.
To state a claim for relief under § 1983, a complaint must plead more than “legal conclusions”
and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A plaintiff must

demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.”
Id. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. at 678. Determining whether a complaint states a plausible claim for relief [is] a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. Id. at 679.

The Complaint
Plaintiff is incarcerated in the Eastern Reception Diagnostic and Correctional Center
(“ERDCC”). Defendants are all officials there. For the purposes of this Order, the Court accepts
the non-conclusory factual allegations as true.
Plaintiff worked in the prison’s laundry.

Defendant Phillip Anderson’s wife asked

plaintiff’s boss to alter some of Anderson’s white shirts. Plaintiff was tasked with the job.
However, he did not have Anderson’s measurements. Plaintiff altered the shirts too small, and
Anderson accused plaintiff of altering them too small out of spite. Anderson told plaintiff’s boss
to give plaintiff a conduct violation and to fire him from the laundry. Plaintiff’s boss refused.
Anderson threatened to retaliate against plaintiff.
On December 25, 2014, plaintiff was assaulted by another inmate while he was having an
asthma attack. Plaintiff did not fight back, and he told Anderson so. Anderson then issued a
conduct violation to plaintiff for fighting and wrote that plaintiff admitted to fighting the other
inmate. Plaintiff also says that Anderson subjected him to pat downs and strip searches for the
next couple of years. But plaintiff does not say how many times he was subjected to searches or
whether they were unusual compared to other officers or prisoners.

He says he suffered

emotionally.
On January 2, 2015, defendant Melanie Hankle tried to interview plaintiff about the
conduct violation through his cell door. He tried to tell her what happened, but she could not
hear him because the unit was very noisy. She found him guilty of fighting and gave him her
report.

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Because of the conduct violation, plaintiff was confined in administrative segregation for
seventy-two days. After that, he was put in the “base line” program for 195 days, where he was
allowed three hours of recreation per week and library time.
Plaintiff asked defendant Diane Montgomery for his legal papers, which were in fifteen
folders, several times. She brought him four folders. Plaintiff told her that he needed them for a
criminal case and a civil case. On February 11, 2015, plaintiff went before the administrative
segregation committee. Montgomery chaired the meeting, and she told plaintiff he had thirty
more days of administrative segregation.
Defendant Terry Russell searched plaintiff’s cell on January 30, 2015. Russell took
plaintiff’s prednisone as well as some of his legal papers.
In April 2015 defendants Anderson, Unknown Chisko, and Unknown Hawanchak
searched plaintiff’s cell. They confiscated several items of his personal property, and they took
some of his legal papers. They dumped his other legal papers on his bed and the floor, which
mixed them up. Plaintiff was unable to get them in order afterwards.
Russell refused to give plaintiff toilet paper on two occasions in October 2015.
On October 7, 2015, plaintiff asked his cell mate to turn his television volume down or to
listen on headphones. The two then fought, and plaintiff was given a conduct violation for
fighting.
In October and November 2015 plaintiff asked defendant Leann Crews to give him his
legal papers pertaining to his ongoing cases. She brought him the wrong folders. On November
13, 2015, defendant Unknown LaPlant responded to plaintiff’s letters, telling plaintiff he had
received all of his legal files.

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Plaintiff ran out of toothpaste on October 7, 2015. His gums were infected at that time.
Plaintiff wrote to Crews requesting state-issued toothpaste. She was his caseworker, and he was
told she was the only one who could give it to him. He did not receive a response. He wrote to
her several more times, and he was told that the prison would not give him any toothpaste. He
also asked defendant Webb for it, but Webb did not provide it either. Plaintiff was without
toothpaste for about six weeks. He suffered from swollen and painful gums during that time.
On October 28, 2015, defendant Brian Camden searched plaintiff’s cell and took his legal
papers and a state-issued spoon. Plaintiff was not given a property removal form. Defendant
Justin Cavins issued plaintiff a conduct violation for having the spoon. Plaintiff says it was a
false conduct violation because Cavins stated he searched plaintiff’s cell when it was Camden
who had searched it. Defendant Webb read the conduct violation to plaintiff. Webb ordered that
plaintiff be fed only meal loaf for three days. Defendant LaPlant sanctioned plaintiff with thirty
days’ cell restriction.
Plaintiff says defendant Warden Troy Steele failed to properly train his employees with
regard to the noise in his housing unit and his cell mate’s refusal to turn down his television
volume.
Discussion
Plaintiff’s claims for deliberate indifference to his serious medical needs, with regard to
the denial of toothpaste and his infected gums, may state a plausible claim for relief. As a result,
the Court will order the Clerk to serve process on defendants Leann Crews and Unknown Webb.
Plaintiff’s other claims do not raise to the level of a constitutional violation. To succeed
on his § 1983 retaliation claim, plaintiff must prove that he engaged in protected activity and that
defendants, to retaliate for the protected activity, took adverse action against plaintiff that would

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chill a person of ordinary firmness from engaging in that activity. See Revels v. Vincenz, 382
F.3d 870, 876 (8th Cir. 2004), cert. denied, 546 U.S. 860 (2005). Plaintiff alleges that Anderson
retaliated against him for botching the alteration of Anderson’s shirts. He does not allege that
defendants retaliated against him for engaging in protected speech. Therefore, his retaliation
claims are dismissed.
Plaintiff’s claims that defendants gave him false conduct violations are not actionable
under § 1983. See Glick v. Sargent, 696 F.2d 413, 414 (8th Cir. 1983) (per curiam). So, these
claims are dismissed.
For the Due Process Clause to be implicated, an inmate subjected to segregation must
have been subjected to “atypical and significant hardship . . . in relation to the ordinary incidents
of prison life.” Sandin v. Conner, 515 U.S. 472 (1995). Plaintiff’s allegations do not indicate
that he has suffered the type of atypical and significant hardship which might conceivably create
a liberty interest. 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) (unpublished)
(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). As a result, his claim regarding
administrative segregation fails to state a claim upon which relief can be granted.
“To state a claim [for denial of meaningful access to the courts], inmates must assert that
they suffered an actual injury to pending or contemplated legal claims.” Myers v. Hundley, 101
F.3d 542, 544 (8th Cir. 1996). Plaintiff has not alleged that he suffered an actual injury to his
legal claims, such as a missed deadline. Therefore, these claims are dismissed.

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The due process clause may be implicated when a prisoner suffers a loss of property. If
the taking of property by prison officials is intentional, however, and the state provides an
adequate postdeprivation remedy, there is no violation of due process. Hudson v. Palmer, 468
U.S. 517 (1984); Parratt v. Taylor, 451 U.S. 527 (1981), overruled on other grounds, Daniels v.
Williams, 474 U.S. 327, 328 (1986); Orebaugh v. Caspari, 910 F.2d 526, 527 (8th Cir. 1990)
(taking did not violate due process because Missouri prisoner had adequate postdeprivation
remedy).

Plaintiff does not allege that he lacks an adequate postdeprivation remedy.

Furthermore, regardless of the existence of a state postdeprivation remedy, no due process claim
exists if the loss of plaintiff's property was the result of negligence. See Daniels v. Williams, 474
U.S. 327, 328 (1986); accord Davidson v. Cannon, 474 U.S. 344, 347 (1986); Morton v. Becker,
793 F.2d 185, 188 n.3 (8th Cir. 1986) (Fourteenth Amendment due process clause is not
implicated by state official's negligent act causing unintended loss of or injury to life, liberty, or
property). As a result, his allegations that defendants took his spoon and other personal property
does not state a viable claim for relief.
Plaintiff’s allegation that Terry Russell took his prednisone does not state a claim for
deliberate indifference because plaintiff has not alleged he was denied his medications by
medical staff. Plaintiff’s claim that Russell refused to provide him with toilet paper does not rise
to the level of a constitutional violation. Plaintiff has not alleged that he was without toilet paper
or that he suffered any injuries.
“Liability under § 1983 requires a causal link to, and direct responsibility for, the alleged
deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990); see Ashcroft
v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to Bivens and
§ 1983 suits, a plaintiff must plead that each Government-official defendant, through the

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official’s own individual actions, has violated the Constitution.”). Plaintiff’s allegation that
Steele failed to properly train his employees regarding noise pollution is wholly conclusory.
Moreover, wardens are not liable simply because they oversee prison operations. See Camberos
v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995) (“a general responsibility for supervising the
operations of a prison is insufficient to establish the personal involvement required to support
liability.”). Additionally, plaintiff’s claim regarding the noise pollution does not state a viable
claim under § 1983.
Accordingly,
IT IS HEREBY ORDERED that the Clerk is directed to serve process on defendants
Leann Crews and CO II Unknown Webb.
IT IS FURTHER ORDERED that the remaining defendants are dismissed.
An Order of Dismissal will be filed separately.
Dated this 12th day of April, 2016.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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