Evans v. Farley
Filing
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Memorandum Opinion and Order: This action is dismissed pursuant to 28 U.S.C. Section 1915(e). The court certifies, pursuant to 28 U.S.C. Section 1915(a)(3) that an appeal from this decision could not be taken in good faith. Judge Sara Lioi on 10/19/2011. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
TIAYONE EVANS,
PLAINTIFF,
vs.
ROBERT L. FARLEY,
DEFENDANT.
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CASE NO. 4:11cv1226
JUDGE SARA LIOI
MEMORANDUM OPINION &
ORDER
Pro se plaintiff Tiayon Evans filed this Bivens1 action against Federal Satellite
Low-Elkton (AFSL-Elkton@) Warden Robert L. Farley. In the Complaint, plaintiff alleges that he
was deprived of a protected liberty interest without procedural due process when he was assigned
to a three-bed cubicle that is designed for only two inmates. He seeks monetary damages.
I.
BACKGROUND
On March 26, 2010, plaintiff was transferred to FSL-Elkton. He was placed in a
low security facility and assigned to a three-man cubicle. Plaintiff alleges that this cubicle is 85
square feet and is rated, under Bureau of Prisons (ABOP@) policy, for double occupancy. On
January 26, 2011, plaintiff filed an Informal Complaint, in which he complained that FSL-Elkton
had violated BOP policy by placing him in a three-bed cubicle that is designed for two inmates.
His Informal Complaint was denied.
Plaintiff thereafter filed a Request for Administrative Remedy, in which he
raised the same argument and requested an immediate transfer to another facility to Arelieve the
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In Bivens v. Six Unknown Agents, 403 U.S. 388 (1971), the Supreme Court recognized an implied private action
for damages against federal officers alleged to have violated a citizen=s constitutional rights.
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overcrowded living condition at FSL-Elkton.@ (Doc. 1 at Ex. 1B). Defendant Farley denied
plaintiff=s Request, noting that A[a]lthough we exceed our designated capacity at this time, we
manage our inmate population by providing a variety of work and program opportunities which
allows inmates to be out of their housing units approximately 12 hours per day and have the
ability to be out of their cell 24 hours a day, if so desire.@ (Doc. 1 at Ex. B). Plaintiff appealed
defendant Farley=s ruling twice, to both the Regional Director and the National Inmate Appeals
Administrator. Both appeals were denied.
Plaintiff filed his Complaint on June 14, 2011. Therein, he argues that he has a
protected liberty interest, created by BOP policy, in sharing his cubicle with one other inmate,
rather than two. He maintains that his current housing situation deprives him of this protected
liberty interest without procedural due process of law. He seeks $35,000 in compensatory
damages and $35,000 in punitive damages against defendant Farley in his individual capacity as
Warden of FSL-Elkton.
II.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. ' 1915(e)(2)(B), a complaint filed by a prisoner proceeding
in forma pauperis shall be dismissed with prejudice if it (1) is frivolous or malicious; (2) fails to
state a claim upon which relief may be granted; or (3) seeks monetary relief against a defendant
who is immune from such relief. 28 U.S.C. ' 1915(e)(2)(B).2 A complaint is frivolous Awhere it
lacks an arguable basis in either law or fact.@ Neitzke v. Williams, 490 U.S. 319, 325 (1989). A
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An in forma pauperis claim may be dismissed sua sponte, without prior notice to the plaintiff and without service
of process on the defendant, if the court explicitly states that it is invoking section 1915(e) [formerly 28 U.S.C. '
1915(d)] and is dismissing the claim for one of the reasons set forth in the statute. McGore v. Wrigglesworth, 114
F.3d 601, 608-09 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910, 91819, 166 L. Ed. 2d 798 (2007); Harris v. Johnson, 784 F.2d 222, 224 (6th Cir. 1986); Brooks v. Seiter, 779 F.2d
1177, 1179 (6th Cir. 1985).
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complaint lacks an arguable basis in law or fact if it Acontains factual allegations that are
>fantastic or delusional= or if it is based on legal theories that are indisputably meritless.@ Brown
v. Bargery, 207 F.3d 863, 866 (6th Cir. 2000) (quoting Neitzke, 490 U.S. at 327-28).
Dismissal of a complaint under ' 1915(e)(2)(B)(ii) for failure to state a claim
upon which relief may be granted Ais appropriate only if it appears beyond a doubt that the
plaintiff can prove no set of facts in support of his claim that would entitle him to relief.@ Brown,
207 F.3d at 866. See also, Thomas v. Eby, 481 F.3d 434, 437 (6th Cir. 2007). The court must
A>construe the complaint in the light most favorable to plaintiff [and] accept all well-pleaded
factual allegations as true.=@ Thomas, 481 F.3d at 437 (quoting Trzebuckowski v. City of
Cleveland, 319 F.3d 853, 855 (6th Cir. 2003)). In addition, pleadings filed by a pro se litigant are
held to Aless stringent standards than formal pleadings drafted by lawyers,@ and must be liberally
construed. Haines v. Kerner, 404 U.S. 519, 520 (1972). See also, Boag v. MacDougall, 454 U.S.
364, 365 (1982) (per curiam); Thomas, 481 F.3d at 437.
For the reasons stated below, plaintiff=s Complaint is dismissed pursuant to
'1915(e).
III.
LAW AND ANALYSIS
Plaintiff maintains that the mandatory language contained in BOP Program
Statement 1060.11 provides him with a protected liberty interest in sharing his cell with one
other inmate as opposed to two. The BOP policy at issue provides, in pertinent part, that cubicles
in low security areas that are between 65 and 120 square feet Ashall be rated for double
occupancy.@ Plaintiff alleges that his cubicle is 85 square feet and, therefore, defendant Farley
was required to assign only two inmates to that cubicle. He further argues that defendant=s failure
to do so deprived him of a protected liberty interest in violation of the Due Process Clause.
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The Due Process Clause of the Fourteenth Amendment provides, in relevant part,
that no state shall Adeprive any person of life, liberty or property, without due process of law.@
U.S. Const. Amend. XIV. In addition to setting the procedural minimum for deprivations of life,
liberty or property, the Due Process Clause bars Acertain government actions regardless of the
fairness of the procedures used to implement them.@ Daniels v. Williams, 474 U.S. 327, 331
(1986). It does not prohibit, however, every deprivation by the state of a person=s life, liberty or
property. Harris v. City of Akron, 20 F.3d 1396, 1401 (6th Cir. 1994). Only those deprivations of
constitutionally protected interests that are conducted without due process are subject to suit. Id.
Prisoners have narrower liberty interests than other citizens as Alawful
incarceration brings about the necessary withdrawal or limitation of many privileges or rights, a
retraction justified by the considerations underlying our penal system.@ Sandin v. Conner, 515
U.S. 472, 485 (1995). The question of what process is due is answered only if the inmate
establishes a deprivation of a constitutionally protected liberty interest. Wilkinson v. Austin, 545
U.S. 209, 221 (2005). In and of themselves, language in state laws or prison regulations do not
create a liberty interest protected by the Due Process Clause. Rimmer-Bey v. Brown, 62 F.3d 789,
790 (6th Cir. 1995). Rather, conditions of confinement implicate a liberty interest only if they
impose an Aatypical and significant hardship in relation to the ordinary incidents of prison life.@
Sandin, 515 U.S. at 483.
Under the circumstances, the Court finds that plaintiff=s claims are without merit.
As an initial matter, plaintiff relies solely upon the mandatory language of BOP Program
Statement 1060.11 to support his claim of a liberty interest. However, as set forth above, the
BOP policy upon which plaintiff relies does not itself create a protected liberty interest. See
Rimmer-Bey, 62 F.3d at 790. See also, Sandin, 515 U.S. at 482 (noting that A[prison] regulations
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[are] not designed to confer rights on inmates@). Moreover, an agency=s failure to follow it=s own
regulations does not constitute a per se due process violation. See Perez v. Rios, No. 7:08-171,
2009 WL 499141, at * 2 (E.D. Ky. Feb. 27, 2009) (holding a prison=s failure to follow BOP
prison regulation did not constitute per se due process violation).
Apart from any mandatory language in a regulation, a plaintiff must also prove
that the regulation Aimposed an atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.@ Sandin, 515 U.S. at 483. In the instant case, the Court finds that
plaintiff=s assignment to a three-man cubicle that was designed for two inmates was not such an
Aatypical and significant hardship.@ Plaintiff has not alleged that his housing situation has led to
the deprivation of any other basic need or constitutional right. Rather, it is the triple-celling, in
and of itself, that forms the basis of plaintiff=s due process claim. Under the circumstances, the
Court finds that plaintiff has failed to allege sufficient facts to support his claim that sharing his
cell with two other inmates, standing alone, rises to the level of an atypical and significant
hardship under Sandin, supra.
Accordingly, plaintiff=s Complaint is dismissed with prejudice for failure to state
a claim upon which relief can be granted pursuant to ' 1915(e).
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IV.
CONCLUSION
For all the foregoing reasons, this action is dismissed pursuant to 28 U.S.C. '
1915(e). The court certifies, pursuant to 28 U.S.C. ' 1915(a)(3) that an appeal from this decision
could not be taken in good faith.3
IT IS SO ORDERED.
Dated: October 19, 2011
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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28 U.S.C. ' 1915(a)(3) provides, in pertinent part, that “An appeal may not be taken in forma pauperis if the trial
court certifies that it is not taken in good faith.”
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