Blair v. Bowersox et al

Filing 197

ORDER granting in part and denying in part 190 Defendants' Trial Brief construed as a motion for partial judgment on the pleadings. The motion is is GRANTED as to Plaintiffs denial of due process claim against Defendant Roger Terry. In all other respects, the motion is DENIED. Signed on 1/31/2018 by District Judge Roseann Ketchmark. (Russell, Elizabeth)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
DIAMOND D. BLAIR,
)
)
Plaintiff,
)
)
v.
)
No. 6:15-03532-CV-S-RK
)
ROGER TERRY, et al.,
)
)
Defendants.
)
ORDER
Before the Court is Defendants’ Trial Brief. (Doc. 190.) Defendants challenge Plaintiff’s
denial of due process claim against Defendant Roger Terry and his retaliatory discipline claim
against Defendant Gerke. Upon consideration of the brief, Plaintiff’s response (doc. 193), and
the arguments of counsel at the outset of trial on January 29, 2018, the Court, construing
Defendants’ brief as a motion for partial judgment on the pleadings in favor of Defendants,
GRANTS said motion as to Plaintiff’s denial of due process claim. Plaintiff’s claim against
Defendant Gerke will be submitted to the jury.
Turning to the challenge to Plaintiff’s due process claim, Defendants primarily argue that
Plaintiff does not have a protected liberty interest concerning his placement in administrative
segregation. The Court agrees.
“[T]o prevail on a Fourteenth Amendment due process claim, [Plaintiff] must first
demonstrate that he was deprived of life, liberty or property by government action. Phillips v.
Norris, 320 F.3d 844, 846 (8th Cir. 2003). Because Plaintiff, as a prison inmate, alleges he was
deprived of a liberty interest (doc. 87 at ¶ 156), the Supreme Court’s decision in Sandin v.
Conner, 515 U.S. 472 (1995) controls this case.
In Sandin, the Supreme Court retreated from a line of cases in which it had
examined prison regulations in detail to determine whether the regulations created
constitutionally protected liberty interests by the use of language of an
unmistakably mandatory character such that the incursion on liberty would not
occur absent specified substantive predicates.
Kennedy v. Blankenship, 100 F.3d 640, 642 (8th Cir. 1996) (internal quotation marks omitted)
(quoting Sandin, 515 U.S. 472, 480 (1995)) (other citation omitted).

The Sandin Court reworked the relevant inquiry and set forth the following test for
determining liberty interests in a prison setting:
States may under certain circumstances create liberty interests which are protected
by the Due Process Clause. But these interests will be generally limited to
freedom from restraint which, while not exceeding the sentence in such an
unexpected manner as to give rise to protection by the Due Process Clause of its
own force, nonetheless imposes atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.
515 U.S. at 483-84 (citations omitted). Following Sandin, “to determine whether an inmate
possesses a liberty interest, we compare the conditions to which the inmate was exposed in
segregation with those he or she could ‘expect to experience as an ordinary incident of prison
life.’” Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003) (citation omitted). Specifically,
Plaintiff “must identify conditions that impose ‘atypical or significant hardship . . . in relation to
the ordinary incidents of prison life[.]’” Ballinger v. Cedar Cty., 810 F.3d 557, 562 (8th Cir.
2016) (citations omitted).
As the basis for Plaintiff’s due process claim, Plaintiff alleges that “Defendant Terry
retained [him] in administrative segregation for a prolonged period of time[;]” and that “[n]o
valid reason to retain Plaintiff in administrative segregation continued to subsist throughout the
duration of the period in which Plaintiff was in administrative segregation.” (Doc. 87 at ¶¶ 154155.) However, the Eighth Circuit has “consistently held that a demotion to [administrative]
segregation, even without cause, is not itself an atypical and significant hardship.” Id. (citations
and internal quotation marks omitted). Plaintiff concedes that he is not complaining about the
conditions of his confinement in administrative segregation. He also does not dispute that the
relevant period of his confinement to administrative segregation was approximately two months.
The Court is not aware of, and Plaintiff has not cited to, any post-Sandin authority in this circuit
which would support a protected liberty interest in absence of Plaintiff identifying conditions
that impose atypical or significant hardship in relation to the ordinary incidents of prison life.
Bound by the well-established Eighth Circuit precedent, the Court finds that Plaintiff has not
sufficiently alleged that he has a protected liberty interest.

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Therefore, it is
ORDERED Defendants’ Trial Brief (doc. 190) construed as a partial motion for judgment
on the pleadings in favor of Defendants is GRANTED in part as to Plaintiff’s denial of due
process claim against Defendant Roger Terry. In all other respects, the motion is DENIED.
IT IS SO ORDERED.
s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: January 31, 2018

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