Perry v. Wagganer et al

Filing 11

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis is GRANTED. [ECF No. 2 ] IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $4.98 within twenty-one ( 21) days of the date of this Order. Plaintiff is instructed to make his remittance payable to Clerk, United States District Court, and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that the remi ttance is for an original proceeding. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint because the complaint is legally frivolous and fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B). IT IS FURTHER ORDERED that plaintiffs motion to appoint counsel is DENIED as moot. [ECF No. 4 ] An order of dismissal will accompany this memorandum and order. Signed by District Judge Catherine D. Perry on 5/21/2018. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BERRY PERRY,
Plaintiff,
v.
DARRELL WAGGANER, et al.,
Defendants.

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No. 4:17-CV-2748 CDP

MEMORANDUM AND ORDER
Plaintiff, a prisoner, seeks leave to proceed in forma pauperis in this civil action under 42
U.S.C. § 1983. Having reviewed plaintiff’s financial information, the Court assesses a partial
initial filing fee of $4.98, which is twenty percent of his average monthly deposit. See 28 U.S.C.
§ 1915(b).

Furthermore, based upon a review of the complaint, the Court finds that the

complaint should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
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, 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.
When reviewing a complaint under 28 U.S.C. § 1915(e), the Court accepts the well-pled
facts as true. Furthermore, the Court liberally construes the allegations.
The Complaint
Plaintiff Berry Perry, currently an inmate at South Central Correctional Center, brings
this action pursuant to 42 U.S.C. § 1983 alleging due process, equal protection, First
Amendment, Fourth Amendment, and Eighth Amendment violations arising from an order of
disciplinary segregation and administrative segregation after Perry was found guilty of a conduct
violation at Eastern Reception Diagnostic and Correctional Center (“ERDCC”). Plaintiff names
the following employees of ERDCC as defendants:

Darrell Wagganer (Investigator), Amy

Roderick (Inspector General), Joe Hoffmeister (Deputy Warden), Teri Lawson (Assistant
Warden), Stan Jackson (Deputy Warden), Troy Steele (Warden), Sean Wescott (Corrections
Lieutenant), Dennis Martin (Corrections Officer), Douglas Montgomery (Functional Unit
Manager (“FUM”)), Dale Phillips (FUM), and Derek Barker (Corrections Case Manager).
On September 2, 2015, plaintiff was accused of a Prison Rape Elimination Act (“PREA”)
crime investigated by defendant Wagganer. Another inmate, Mitchell, gave staff at ERDCC a
PREA kite that plaintiff forced another inmate, Ponticello, to have deviant sexual intercourse
with plaintiff. Defendant Wagganer obtained a DNA sample from plaintiff, interviewed plaintiff
twice, interviewed the victim, ordered a rape kit examination of the victim, and prepared an
investigator’s report.
On December 4, 2015, plaintiff had a disciplinary hearing before an Adjustment Board
Committee regarding his PREA conduct violation. Defendant Montgomery read plaintiff’s Rule

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7.1 conduct violation report, and asked plaintiff if he had a statement.

Plaintiff gave the

committee a two-page written statement with supporting documentary evidence. Plaintiff told
the committee that he had asked for videotape footage and to interview several witnesses. The
Committee had not reviewed any videotape footage, and no witnesses were called at the hearing.
The committee relied on defendant Wagganer’s investigator’s report and found plaintiff
guilty of forcible sexual misconduct. Plaintiff states he has not seen the investigator’s report,
and no evidence was presented during his disciplinary hearing that would allow for a finding of
guilt. Plaintiff was sanctioned to thirty days disciplinary segregation, referred to administrative
segregation, and referred for prosecution. Plaintiff grieved this sanction twice, but his grievances
and subsequent appeals were denied.
Plaintiff complains that the sanctions were unlawful because there was no evidence of
rape in the record. He also states his procedural due process rights were violated because the
committee failed to comply with MODOC policy. Because plaintiff was found guilty of a
PREA-related conduct violation, plaintiff is now classified as a higher risk offender, a “PREA
alpha,” and is mandated to be housed with other “alpha only” offenders, who are typically more
aggressive and violent than other offenders.

Additionally, because his custody level has

increased, he states he will not be eligible to participate in work release, vocational classes, and
will not have as much time out of his cell for other activities. Plaintiff also states he may be
denied parole eligibility during his parole board hearing, which will be held in October 2019.

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Discussion
Fourteenth Amendment Due Process Claim
Plaintiff alleges that his due process rights were violated when he was issued a PREA
conduct violation because he was denied access to the videotape evidence and witness
statements, which he claims would have exonerated him at the disciplinary hearing. He also
complains that no evidence was presented during his disciplinary hearing that would allow for a
finding of guilt.
“To establish a procedural due process violation, a plaintiff need not only show a
protected interest, but must also show that he or she was deprived of that interest without
sufficient process, i.e., without due process. The due process clause ensures every individual
subject to a deprivation the opportunity to be heard at a meaningful time and in a meaningful
manner. The circumstances of the deprivation dictate what procedures are necessary to satisfy
this guarantee.” Swipies v. Kofka, 419 F.3d 709, 715 (8th Cir. 2005) (quotations and citations
omitted).
To determine whether plaintiff possesses a protected liberty interest, the Court must
compare the conditions to which plaintiff was sanctioned with those he could “expect to
experience as an ordinary incident of prison life.” Phillips v. Norris, 320 F.3d 844, 847 (8th Cir.
2003). The Supreme Court has explained that many of the restraints of prison life do not violate
the Constitution: “these [liberty] interests will be generally limited to freedom from restraint
which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). For plaintiff “to assert a
liberty interest, he must show some difference between [the] conditions in segregation and the
conditions in the general population which amounts to an atypical and significant hardship.”

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Phillips, 320 F.3d at 847. Disciplinary action taken in response to a prisoner’s misconduct “falls
within the expected parameters of the sentence.” Sandin, 515 U.S. at 485. The due process
clause does not protect every change in a prisoner’s confinement that has an adverse impact on
him—only those changes resulting in an atypical, significant deprivation. See id. Segregated
confinement does not normally “present a dramatic departure from the basic conditions” of
prison life. Id. Likewise, there is no protected liberty interest in a particular classification “[a]s
long as the [challenged] conditions or degree of confinement . . . [are] within the sentence
imposed . . . and [are] not otherwise violative of the Constitution.” Montanye v. Haymes, 427
U.S. 236, 242 (1976); see Slezak, 21 F.3d at 593-94; Nash v. Black, 781 F.2d 665, 668 (8th Cir.
1986).
As a result of the PREA conduct violation, plaintiff was sanctioned to thirty days
disciplinary segregation; referred to administrative segregation; and referred for prosecution. In
addition, plaintiff complains he has been designated an “PREA alpha” offender, which restricts
him to being double celled with other “alpha only” offenders of plaintiff’s same height, weight,
and build, or larger. He lost his eligibility for a reduced custody level, and he may be denied
parole eligibility in the future.
Plaintiff’s allegations do not indicate that he has suffered the type of atypical and
significant hardship which might conceivably create a liberty interest. Sandin, 515 U.S. at 48586 (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

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job and numerous privileges). As a result, his claim regarding disciplinary segregation and
administrative segregation fails to state a claim upon which relief can be granted. The conditions
of plaintiff’s confinement are not otherwise violative of the Constitution. As a result, plaintiff’s
claims are legally frivolous and subject to dismissal pursuant to 28 U.S.C. § 1915(e)
In addition, courts have routinely ruled that a prisoner has no due process right to call
witnesses or review prison video tapes at a conduct violation hearing. See Perry v. Crews, 2014
WL 466242, *3-4 (E.D. Mo. Feb. 5, 2014) (no constitutional violation in denying videotape
evidence at disciplinary hearing); Savory v. Moore, 2009 WL 151728, *7 (W.D. Mo. Jan. 21,
2009) (no due process right in opportunity to have relevant videotape reviewed at hearing);
Strickland v. Delo, 758 F. Supp. 1319, 1321-22 (E.D. Mo. 1991) (no due process right to call
witnesses available and necessary to the charge being reviewed).
Plaintiff’s claim to the possible loss of his parole eligibility is purely speculative, and
subject to dismissal for this reason. Even if plaintiff had shown a loss of his parole release date,
the Supreme Court held in Greenholtz v. Inmates of Nebraska Penal & Correctional Complex,
442 U.S. 1, 9-11 (1979), that inmates do not have constitutionally-protected liberty interests in
the possibility of parole. Nor do Missouri parole statutes create a liberty interest in parole. See
Adams v. Agniel, 405 F.3d 643, 645 (8th Cir. 2005). Plaintiff’s allegations challenging the
potential denial of parole eligibility do not state a claim under § 1983.
For these reasons, the Court finds that plaintiff was afforded all the due process
protections to which he was entitled arising out of his conduct violation and his due process
claims will be denied under 28 U.S.C. § 1915(e)(2).1

Furthermore, “[d]ue process requirements are satisfied if some evidence—that is, any evidence
in the record—supports the disciplinary decision.” Rudd v. Sargent, 866 F.2d 260, 262 (8th Cir.
1989) (citing Superintendent v. Hill, 472 U.S. 445, 455-56 (1985)). Plaintiff’s complaint shows
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Due Process—Failing to Comply with MODOC’s Policies
Plaintiff’s allegations challenging defendants’ failure to follow MODOC or internal
prison regulations in the issuance of the PREA conduct violation also fail to set forth a liberty
interest protected by due process. There is no federal constitutional liberty interest in having
prison officials follow prison regulations. See Kennedy v. Blankenship, 100 F.3d 640, 643 (8th
Cir. 1996) (“Due Process Clause does not federalize state law procedural requirements.”).
Plaintiff’s liberty interest must be in that nature of his confinement, and not in the procedures
used to determine his confinement. Id. These allegations will be dismissed under 28 U.S.C. §
1915(e)(2).
Fourth Amendment Violation
Plaintiff alleges his Fourth Amendment rights were violated when defendant Wagganer
filed “false statements” in his affidavit to the Court to obtain plaintiff’s DNA sample. Plaintiff
alleges defendant Wagganer falsified that he “had received a complaint from Ponticello that he
was forced to have deviant sexual intercourse with plaintiff.” Plaintiff argues this statement is
false because that the first complaint about the PREA assault came from another inmate,
Mitchell, and not Ponticello.

According to plaintiff’s complaint, however, Wagganer

interviewed Ponticello and Ponticello made a PREA allegation against plaintiff. Additionally,
plaintiff argues defendant Wagganer over-exaggerated the facts in the affidavit when he said
Ponticello had bruises and marks on his body consistent with a sexual assault. Plaintiff argues
that Ponticello had only one mark on his body. Neither of the alleged falsified statements
plaintiff complains of are false or material to the affidavit.
there was “some evidence” to support plaintiff’s disciplinary action. See Brown v. Frey, 807
F.2d 1407, 1412-13 (8th Cir. 1986). Ponticello made PREA allegations against plaintiff;
Ponticello had at least one mark on his neck indicating an assault; and plaintiff failed a
Computerized Voice Stress Analysis test.
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The Court finds plaintiff’s factual allegations regarding a Fourth Amendment violation
based on defendant Wagganer’s falsified statements to be frivolous. The Court will dismiss this
claim under 28 U.S.C. § 1915.
First Amendment Retaliation
Plaintiff alleges defendant Wagganer retaliated against him after he filed two grievances
related to Wagganer’s investigation of plaintiff’s PREA conduct violation.

The retaliatory

conduct plaintiff complains of took place at a follow-up interrogation by defendant Wagganer on
January 12, 2016. Plaintiff states defendant Wagganer “berated plaintiff for allegations made
against him in the grievances” and yelled at him during this meeting.
To state a prima facie case for First Amendment retaliation under 42 U.S.C. § 1983,
plaintiff must allege that he engaged in protected activity and that defendants, to retaliate for the
protected activity, took adverse action against him that would chill a person of ordinary firmness
from engaging in that activity. See Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004).
Liberally construed, the Court cannot find that defendant Wagganer’s “berating of” and
yelling at plaintiff during one meeting would chill a person of ordinary firmness from engaging
in protected activity. See, e.g., Burton v. Livingston, 791 F.2d 97, 99 (8th Cir. 1986) (“[I]n the
usual case mere words, without more, do not invade a federally protected right”). For this
reason, the Court will dismiss plaintiff’s retaliation claims.
Eighth Amendment and Equal Protection Claims
Plaintiff makes passing reference to his Eighth Amendment rights being violated, and
states, at times, that defendants’ actions deprived him of his Fourteenth Amendment right “to be
free from disparate and dissimilar treatment” These allegations are not fleshed out, and are
conclusory in nature. “Civil rights pleadings should be construed liberally. At the very least,

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however, the complaint must contain facts which state a claim as a matter of law and must not be
conclusory.” Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995). Plaintiff’s
allegations of Eighth Amendment and equal protection violations will be dismissed as frivolous
because the complaint contains only conclusory allegations and fails to allege any facts, which if
proved, would afford a basis for the granting of relief.
State Law Claims
Plaintiff claims his statutory rights under Missouri Revised Statute § 217.075 have been
violated. Because only state law claims remain in this matter, the Court declines to exercise
supplemental jurisdiction and will dismiss these claims without prejudice. See 28 U.S.C. §
1367(c)(3).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis is
GRANTED. [ECF No. 2]
IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $4.98 within
twenty-one (21) days of the date of this Order. Plaintiff is instructed to make his remittance
payable to “Clerk, United States District Court,” and to include upon it: (1) his name; (2) his
prison registration number; (3) the case number; and (4) that the remittance is for an original
proceeding.2

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Prisoners must pay the full amount of the $350 filing fee. After payment of the initial partial
filing fee, the prisoner is required to make monthly payments of 20 percent of the preceding
month’s income credited to the prisoner’s account. The agency having custody of the prisoner
will deduct the payments and forward them to the Court each time the amount in the account
exceeds $10. 28 U.S.C. § 1915(b)(2).
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IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to
issue upon the complaint because the complaint is legally frivolous and fails to state a claim
upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B).
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel is DENIED as
moot. [ECF No. 4]
An order of dismissal will accompany this memorandum and order.
Dated this 21st day of May, 2018.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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