West v. Johnson et al

Filing 7

MEMORANDUM AND ORDER that Plaintiff shall file an amended complaint by September 6, 2017, that states a claim upon which relief may be granted. Failure to file an amended complaint within the time specified by the court will result in the court di smissing this case without further notice to Plaintiff. Plaintiff's claims for restoration of good time credits and damages for the deprivation of those credits are dismissed without prejudice because they are Heck-barred. To the extent Plain tiff seeks damages for his time served in disciplinary segregation, his claim is dismissed with prejudice for failure to state a claim. The clerk's office is directed to set a pro se case management deadline using the following text: September 6, 2017: check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TROY LEE WEST,
Plaintiff,

4:17CV3064

vs.
BRAD JOHNSON, Director; ROBERT
MITCHELL, C.O.; and ANDREW
TRUSLOW, Sargent;

MEMORANDUM
AND ORDER

Defendants.
Plaintiff filed a Complaint on June 5, 2017. (Filing No. 1.) He has been
given leave to proceed in forma pauperis. (Filing No. 6.) The court now conducts
an initial review of Plaintiff’s Complaint to determine whether summary dismissal
is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.
I. SUMMARY OF COMPLAINT
Plaintiff is a prisoner confined at the Lancaster County Department of
Corrections who was found guilty after a disciplinary hearing of refusal to work
and sentenced to 10 days in disciplinary segregation and deprivation of 10 days’
good-time credit. Defendant Brad Johnson, director of the facility, affirmed the
decision. Plaintiff requested that Johnson restore his 10 days’ good-time credit.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. He asserts that the
procedures used in his disciplinary hearing violated his Fourteenth Amendment
due process rights. Specifically, Plaintiff claims that the reporting officer,
Defendant Robert Mitchell, filed a false misconduct report and that the hearing
officer, Defendant Andrew Truslow, failed to call and question Plaintiff’s
requested witnesses, who would have testified that he did not refuse to work.

Plaintiff seeks restoration of his 10 days’ good-time credit, $190 for each day of
the 10 days’ good-time served, and an order to the “dept. of corrections to cease
and desist violating inmates due process, which they do on a daily basis.” (Filing
No. 1 at CM/ECF p. 5.)
II. APPLICABLE STANDARDS OF REVIEW
The court is required to review prisoner and in forma pauperis complaints
seeking relief against a governmental entity or an officer or employee of a
governmental entity to determine whether summary dismissal is appropriate. See
28 U.S.C. §§ 1915(e) and 1915A. The court must dismiss a complaint or any
portion of it that states a frivolous or malicious claim, that fails to state a claim
upon which relief may be granted, or that seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. §
1915A(b).
Pro se plaintiffs must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“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.”).
“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or
grounds for a claim, and a general indication of the type of litigation involved.’”
Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014)
(quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a]
pro se complaint must be liberally construed, and pro se litigants are held to a
lesser pleading standard than other parties.” Topchian, 760 F.3d at 849 (internal
quotation marks and citations omitted).

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Liberally construed, Plaintiff here alleges federal constitutional claims. To
state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights
protected by the United States Constitution or created by federal statute and also
must show that the alleged deprivation was caused by conduct of a person acting
under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow,
997 F.2d 494, 495 (8th Cir. 1993).
III. DISCUSSION
A.

Restoration of Good Time/Damages for Deprivation of Good Time1

The Eighth Circuit has held that the removal of a prisoner’s good time
credits in a disciplinary hearing implicates a liberty interest protected by the Due
Process Clause. Espinoza v. Peterson, 283 F.3d 949, 951 (8th Cir.2002) (citing
Wolff v. McDonnell, 418 U.S. 539, 555–58 (1974)). However, a state prisoner who
seeks restoration of good time should do so through a writ of habeas corpus, which
requires exhaustion of state remedies. Offet v. Solem, 823 F.2d 1256, 1258 (8th Cir.
1987). Where a prisoner does not seek the restoration of good time credits, but
seeks only money damages, the same rules apply. As set forth by the Eighth
Circuit:
Portley–El seeks damages for two prison disciplinary rulings that
deprived him of forty-five days of good time credits. In the district
court, he sought restoration of those credits and other relief. In
Edwards v. Balisok, 520 U.S. 641, 643–44, 117 S.Ct. 1584, 137

1

To the extent Plaintiff means to seek damages for the 10 days he served in
disciplinary segregation, he fails to state a claim. See Portley-El v. Brill, 288 F.3d
1063, 1065 (8th Cir. 2002) (upholding initial review dismissal of due process
challenge to 30 days in punitive segregation and also stating, “We have
consistently held that administrative and disciplinary segregation are not atypical
and significant hardships under Sandin.”) (collecting cases).

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L.Ed.2d 906 (1997), the Court applied Heck to a § 1983 damage
action in which the inmate did not seek restoration of good time
credits to avoid being out of court under Preiser [v. Rodriguez, 411
U.S. 475, 488-92, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)]. Thus,
Edwards confirms that Portley–El’s due process damage claim would
be Heck-barred even if he had never requested restoration of his good
time credits. Under Heck, “we disregard the form of relief sought and
instead look to the essence of the plaintiff's claims.” Sheldon [v.
Hundley], 83 F.3d [231,] 233 [8th Cir.1996]. Because Portley–El
seeks damages for the imposition of discipline that included the loss
of good time credits, his damage claim challenges “harm caused by
actions whose unlawfulness would render a conviction or sentence
invalid” and is Heck-barred.
Portley-El v. Brill, 288 F.3d 1063, 1067 (8th Cir. 2002).
Plaintiff seeks restoration of good time credits and damages for the
deprivation of those credits. Plaintiff has not shown that this disciplinary action has
been invalidated. Accordingly, Plaintiff’s claims for restoration of good time
credits and damages for the deprivation of those credits are Heck-barred. See, e.g.,
Cooper v. Schriro, 189 F.3d 781, 784 (8th Cir. 1999); see also Scott v. Coleman,
493 F. Appx 810, 811 (8th Cir. 2012) (unpublished); Cincoski v. Richard, 418 F.
Appx 571, 572 (8th Cir. 2011) (unpublished).2 In other words, Plaintiff must first

2

In Edwards, respondent claimed that he was completely denied the
opportunity to put on a defense through specifically identified witnesses who
possessed exculpatory evidence, and that the cause of the exclusion was the deceit
and bias of the hearing officer, who lied about the nonexistence of the witness
statements. Edwards, 520 U.S. at 646-47. Here, Plaintiff similarly alleges that the
hearing officer failed to call his two requested witnesses who possessed
exculpatory evidence, and his allegations further suggest that the cause of the
exclusion was the deceit and bias of the hearing officer. (See Filing No. 1 at
CM/ECF pp. 13-14, 17) (stating that no one ever spoke to Defendant Mitchell
although Plaintiff called him as a witness; that Defendant Truslow expressed a
conflict of interest to Plaintiff when he stated “I hear you have been harassing my
staff”; and that Plaintiff’s girlfriend received an alert prior to the hearing that he
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have the disciplinary action invalidated by a state court or he may file a petition for
writ of habeas corpus in this court after fully exhausting his state court remedies.
See 28 U.S.C. § 2254(b)(1). He may seek damages for the deprivation of good time
credits in a future § 1983 action if, and only if, the disciplinary action is
invalidated.
B.

Prospective Injunctive Relief

Plaintiff also seeks prospective injunctive relief – an order to the “dept. of
corrections to cease and desist violating inmates due process, which they do on a
daily basis.” Because such relief does not necessarily call into question Plaintiff’s
underlying punishment, it is not Heck-barred. See Cooper, 189 F.3d at 784 (citing
Edwards, 520 U.S. at 648).
Plaintiff’s claims against three employees of the Lancaster County
Department of Corrections in their official capacities3 shall be construed as against
Lancaster County. “A suit against a public employee in his or her official capacity
is merely a suit against the public employer.” Johnson v. Outboard Marine Corp.,
172 F.3d 531, 535 (8th Cir. 1999); see also Parsons v. McCann, 138 F. Supp. 3d
1086, 1097 (D. Neb. 2015) (Nebraska law allows counties to sue and be sued, but
the same is not true of county offices and departments).
A county may only be liable under section 1983 if its “policy” or “custom”
caused a violation of Plaintiff's constitutional rights. Doe By and Through Doe v.
Washington County, 150 F.3d 920, 922 (8th Cir. 1998) (citing Monell v.
Department of Soc. Servs., 436 U.S. 658, 694 (1978)). An “official policy”
was being moved to a different housing area and that his visits were cancelled,
evidencing a premature finding of guilt).
3

Plaintiff brings this action against Defendants Brad Johnson, Robert
Mitchell, and Andrew Truslow solely in their official capacities. (See Filing No. 1
at CM/ECF pp. 2-3.)
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involves a deliberate choice to follow a course of action made from among various
alternatives by an official who has the final authority to establish governmental
policy. Jane Doe A By and Through Jane Doe B v. Special School Dist. of St. Louis
County, 901 F.2d 642, 645 (8th Cir.1990) (citing Pembaur v. City of Cincinnati,
475 U.S. 469, 483 (1986)).
To establish the existence of a governmental custom, a plaintiff must prove:
1) The existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entity’s employees;
2) Deliberate indifference to or tacit authorization of such conduct by
the governmental entity’s policymaking officials after notice to the
officials of that misconduct; and
3) That plaintiff was injured by acts pursuant to the governmental
entity’s custom, i.e., that the custom was the moving force behind the
constitutional violation.
Jane Doe, 901 F.2d at 646. Plaintiff has failed to allege sufficient facts to “nudge”
his claim against Lancaster County across the line from conceivable to plausible
under the Jane Doe standard with his general and conclusory allegation that the
“dept. of corrections” violates “inmates due process . . . on a daily basis.”
With that said, the court cannot consider the merits of Plaintiff’s claim for
prospective injunctive relief unless and until he also overcomes two procedural
hurdles. He must establish standing to seek injunctive relief and meet the
requirements for injunctive relief. See Edwards, 520 U.S. at 648. A plaintiff
seeking injunctive relief must show that he “will again be wronged in a similar
way.” Buckley v. Ray, 848 F.3d 855, 867 n.10 (8th Cir. 2017) (quoting City of Los
Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). The
“threatened injury must be certainly impending to constitute injury in fact.” Id.
(citing Clapper v. Amnesty Int’l USA, ––– U.S. ––––, 133 S.Ct. 1138, 1147, 185
L.Ed.2d 264 (2013) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct.
6

1717, 109 L.Ed.2d 135 (1990)). Plaintiff fails to show that future harm to him is
certainly impending. His general and conclusory allegation that the “dept. of
corrections” violates “inmates due process . . . on a daily basis” is not enough to
establish standing to sue for prospective injunctive relief from Lancaster County.
In order to obtain a permanent injunction,
[a] plaintiff must demonstrate: (1) that it has suffered an irreparable
injury; (2) that remedies available at law, such as monetary damages,
are inadequate to compensate for that injury, (3) that, considering the
balance of hardships between the plaintiff and defendant, a remedy in
equity is warranted; and (4) that the public interest would not be
disserved by a permanent injunction.
Monsanto Co. v. Geerston Seed Farms, 561 U.S. 139, 156-57 (2010) (citing eBay,
Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)). The burden of proving
the need for an injunction rests with the plaintiff. Id. at 158. It is well-established
that monetary damages are available under § 1983 for the denial of procedural due
process rights during prison disciplinary hearings. See Wolff, 418 U.S. at 554-55.
Accordingly, monetary damages, rather than injunctive relief, is the proper remedy
for such an injury.
On its own motion, the court will provide Plaintiff an opportunity to file an
amended complaint that states a claim upon which relief may be granted. Plaintiff
shall file an amended complaint no later than September 6, 2017. Failure to file an
amended complaint within the time specified by the court will result in the court
dismissing this case without further notice to Plaintiff.
IT IS THEREFORE ORDERED that:
1.
Plaintiff shall file an amended complaint by September 6, 2017, that
states a claim upon which relief may be granted. Failure to file an amended

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complaint within the time specified by the court will result in the court dismissing
this case without further notice to Plaintiff.
2.
Plaintiff’s claims for restoration of good time credits and damages for
the deprivation of those credits are dismissed without prejudice because they are
Heck-barred. To the extent Plaintiff seeks damages for his time served in
disciplinary segregation, his claim is dismissed with prejudice for failure to state a
claim.
3.
The clerk’s office is directed to set a pro se case management deadline
using the following text: September 6, 2017: check for amended complaint.
Dated this 7th day of August, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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