Settles v. Kostzewa et al

Filing 7

MEMORANDUM AND ORDER - Plaintiff will have 30 days in which to file an amended complaint that states a claim upon which relief may be granted. The court will dismiss this case without further notice to Plaintiff if he fails to file an amended complaint in accordance with this order. Ordered by Judge John M. Gerrard. ***Pro Se Case Management Deadline set for 8/5/2015: check for amended complaint. (Copy mailed to pro se party)(SLP)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DEANGELO DUPREE SETTLES
SR.,
Plaintiff,
v.
UNKNOWN KOSTZEWA, CPL,
UNKNOWN REIMERS, S/S,
UNKNOWN PLASEK, VCW,
UNKNOWN FLEURY, SGT,
UNKNOWN DODDS, UM,
BARBARA LEWIEN, Warden,
NEBRASKA DEPARTMENT OF
CORRECTIONAL SERVICES, and
MIKE KENNEY,
Defendants.

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8:15CV82

MEMORANDUM
AND ORDER

This action was filed by DeAngelo Dupree Settles (“Plaintiff”), a pro se litigant
incarcerated at the Omaha Correctional Center (“OCC”) in Omaha, Nebraska. The
court previously granted Plaintiff permission to proceed in forma pauperis in this
action. The court now conducts an initial review of the Complaint (Filing No. 1) to
determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and
1915A.
I. SUMMARY OF COMPLAINT
This is a prison discipline case brought pursuant to 42 U.S.C. § 1983. Plaintiff
seeks damages against prison officials, claiming they violated his right to due process
and equal protection.

On November 23, 2014, Defendant Plasek, a guard, issued a misconduct report.
She alleged she saw Plaintiff drop a piece of paper. She confiscated the paper and
determined it contained “suspected synthetic THC.” (Filing No. 1 at CM/ECF pp. 78.) On December 4, 2014, following a hearing, an institutional disciplinary committee
found Plaintiff guilty of drug or intoxicant abuse and sentenced him to 30 days’ room
restriction and a one-month loss of good time. (Id. at CM/ECF p. 9.)
Plaintiff appealed the committee’s decision on December 10, 2014. On
December 30, 2014, the Nebraska Department of Correctional Services Appeals Board
reversed the committee’s decision, finding there was insufficient evidence presented
at the hearing to establish drug or intoxicant abuse. (Id. at CM/ECF pp. 9, 27.) On
January 14, 2015, OCC officials placed Plaintiff on drug offender classification status,
which resulted in a 30-day suspension of visiting and telephone privileges. (Id. at
CM/ECF p. 9.)
Plaintiff complains that (1) he was found guilty of conduct that was not
prohibited by the relevant jail rules and regulations, (2) the lab technician who tested
the suspected THC also served on the institutional disciplinary committee, which
created a conflict of interest, (3) he was denied the opportunity to present
documentary evidence at his hearing before the institutional disciplinary committee,
(4) the individuals he called as witnesses were not present in person at the hearing, (5)
he was denied the opportunity to inspect the lab reports and other materials, and (6)
his hearing before the institutional disciplinary committee was held eight days after
he was found with the suspected THC, but jail rules require that such a hearing occur
within seven days. (Id. at CM/ECF pp. 10-14.) For relief, Plaintiff asks for
compensatory damages in the amount of $250,000, and punitive damages in the
amount of $250,000. (Id. at CM/ECF p. 17.)

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II. APPLICABLE LEGAL STANDARDS ON INITIAL 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).
Liberally construed, the 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
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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
Plaintiff alleges a violation of his right to due process under the Fourteenth
Amendment. As discussed above, an appellate board reversed the decision of the
disciplinary committee. But it did so after Plaintiff had served 25 days of his 30-day
sentence to room restriction. Thus, the initial question before the court is whether
Plaintiff is entitled to damages for the 25 days he spent in room restriction prior to the
appellate board’s reversal of the case against him.
To prevail on his due process claim, Plaintiff must establish that he was
deprived of a protected liberty interest. Sandin v. Conner, 515 U.S. 472, 487 (1995).
To show he was deprived of a protected liberty interest, Plaintiff must identify
conditions that impose “atypical and significant hardship . . . in relation to the
ordinary incidents of prison life.” Id. at 484. An inmate has no protected liberty
interest in remaining in the general prison population absent a showing of discipline
in segregated confinement that amounts to an atypical, significant deprivation. Id.
Plaintiff’s 25 days of room restriction plainly does not rise to the level of
atypical and significant. See Orr v. Larkins, 610 F.3d 1032, 1034 (8th Cir. 2010) (per
curiam) (inmate was not deprived of liberty interest during nine months in
administrative segregation). Indeed, even placement in segregation without cause is
not itself an atypical or significant hardship. Id.; see also Freitas v. Ault, 109 F.3d
1335, 1338 (8th Cir. 1997) (finding that a prisoner had no constitutionally protected
liberty interest in remaining in less restrictive prison environment); Kennedy v.
Blankenship, 100 F.3d 640, 642 n. 2, 643 (8th Cir. 1996) (stating that punitive
isolation is not an atypical and significant deprivation). Plaintiff’s 30-day suspension
of visiting and telephone privileges also plainly does not rise to the level of atypical
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and significant. See Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003) (finding
denial of visitation, exercise privileges, and religious services during 37-day
segregation did not give rise to a protected liberty interest); Kennedy v. Blankenship,
100 F.3d 640, 642-43 (8th Cir. 1996) (holding that 30 days in punitive segregation,
which included the suspension of mail, telephone, visitation, and commissary
privileges, was not an atypical and significant hardship under Sandin and there is no
federal constitutional liberty interest in having prison officials follow prison
regulations).
In sum, none of the challenged sanctions constitute an atypical and significant
hardship in relation to the ordinary incidents of prison life so as to give rise to a
constitutionally protected liberty interest. While Plaintiff also claims OCC officials’
actions deprived him of equal protection, his argument fails because he did not allege
he was treated differently than similarly situated individuals. See Klinger v.
Department of Corrections, 31 F.3d 727, 731 (8th Cir. 1994) (for equal protection
claim, plaintiff must allege different treatment of similarly situated individuals).
For the reasons discussed above, Plaintiff’s claims may not proceed to service
of process against any of the named defendants. On the court’s own motion, Plaintiff
will be given an opportunity to file an amended complaint that states a claim upon
which relief may be granted.
IT IS THEREFORE ORDERED that:
1.
Plaintiff will have 30 days in which to file an amended complaint that
states a claim upon which relief may be granted. The court will dismiss this case
without further notice to Plaintiff if he fails to file an amended complaint in
accordance with this order.

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2.
The clerk of the court is directed to set the following pro se case
management deadline: August 5, 2015: check for amended complaint.
DATED this 6th day of July, 2015.
BY THE COURT:
s/ John M. Gerrard
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District
of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The
court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases
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