Cleveland v. Harvanek et al

Filing 67

OPINION AND ORDER by Judge Ronald A. White : Granting 46 Motion to Dismiss. ; granting 46 Motion for Summary Judgment. Plaintiffs unexhausted claims are DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies, pursuant to 4 2 U.S.C. § 1997e(a), and his request for injunctive relief is DENIED as moot. All other claims are DISMISSED as frivolous, pursuant to 28 U.S.C. § 1915(e)(2). This dismissal shall count as a STRIKE, pursuant to 28 U.S.C. § 1915(g). (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
CHRISTOPHER CLEVELAND,
Plaintiff,
v.
KAMERON HARVANEK, et al.,
Defendants.

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No. CIV 13-247-RAW-SPS

OPINION AND ORDER
This action is before the court on the defendants’ motion to dismiss or for summary
judgment and the court’s own motion to consider dismissal of the case as frivolous under 28
U.S.C. § 1915.

The court has before it for consideration plaintiff’s complaint, the

defendants’ motion, plaintiff’s response, the defendants’ reply, and a special report prepared
by the Oklahoma Department of Corrections (DOC) at the direction of the court, in
accordance with Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978).
Plaintiff, an inmate in the custody of the Oklahoma Department of Corrections (DOC)
who is incarcerated at Jess Dunn Correctional Center in Taft, Oklahoma, brings this action
under the authority of 42 U.S.C. § 1983, seeking relief for alleged constitutional violations
during his incarceration at John Lilley Correctional Center (JLCC) in Boley, Oklahoma. The
JLCC defendants are Warden Kameron Harvanek, Warden Doug Byrd, Law Librarian Lisa
Collins, Warden’s Assistant Alice Turner, Mailroom Officer Susan Welcher, Unit ManagerDisciplinary Officer Russell Littlejohn, and Unit Manager-Disciplinary Officer Terry
Edminsten.

Plaintiff also has named Former DOC Director Justin Jones, DOC

Administrative Review Manager Debbie Morton, and Oklahoma County Assistant District
Attorney Jaclyn Rivera.1
1

To the extent the defendants are sued in their official capacities as DOC officials, plaintiff’s
claims are barred by the Eleventh Amendment. It is well settled that a damages suit against a state
official in his official capacity is merely another way of pleading an action against the State. See

The defendants have moved the court for dismissal of this action or in the alternative
for summary judgment. Having moved for summary judgment in their favor, the movants
are required to show the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(a).
A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.
Fed. R. Civ. P. 56(c)(1).
Summary judgment is not appropriate if there exists a genuine material factual issue
such that a reasonable jury could return a verdict for the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249-51 (1986). Plaintiff, as “the nonmoving party may
not rest on [his] pleadings but must set forth specific facts showing that there is a genuine
issue for trial as to those dispositive matters for which [he] carries the burden of proof.”
Applied Genetics Int’l. v. First Affiliated Sec., Inc., 912 F.2d 1238 (10th Cir. 1990) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). In this regard, all evidence of the
nonmoving party is deemed true, and all reasonable inferences are drawn in favor of the
nonmoving party. Id. at 255 (citing Adickes v. S. H. Kress & Co., 398 U.S. 114, 158-59
(1970)). “To defeat a motion for summary judgment, evidence . . . must be based on more
than mere speculation, conjecture, or surmise.” Bones v. Honeywell Int’l, Inc., 366 F.3d
869, 875 (10th Cir. 2004). This court’s function is not “to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for trial.”
Id. at 249. With these standards in mind, the court turns to the merits of the defendants’
Kentucky v. Graham, 473 U.S. 159, 165 (1985). See also Will v. Michigan Dept. of State Police, 491
U.S. 58, 71 (1988) (state officials sued in their official capacities are not “persons” for purposes of
a § 1983 suit, because the suit is against the official’s office and not against the official).
2

motion.
Count I
Plaintiff alleges in Count I of the complaint that on October 24, 2011, he asked
Defendant Law Librarian Lisa Collins if he could receive additional hours in the law library
to respond to a motion concerning his child in an ongoing juvenile deprived action lawsuit
in Oklahoma County District Court. Plaintiff told Defendant Collins that the case, filed by
Defendant Oklahoma County Assistant District Attorney Jaclyn Rivera, involved a petition
to terminate plaintiff’s parental rights, and a telephone hearing was scheduled for October
31, 2011. Collins allegedly told plaintiff he could not work on the case in the law library,
and the only civil cases he could work on in the library were those challenging the conditions
of his confinement.
On that same day, plaintiff submitted a Request to Staff (RTS) to Warden Kameron
Harvanek, requesting that Defendant Collins be directed to allow him to research his parental
rights case. Harvanek responded, stating, “Ms. Collins is correct. She is following policy.”
On November 2, 2011, plaintiff submitted a grievance to the warden’s office, requesting
access to the courts.

Harvanek’s response stated, “According to OP-030115 Sec. 1,

Subsection A, offenders are provided law libraries to assist them in cases related to
conditions of confinement and for post-conviction relief therefore you will not be allowed
use of the law library for termination of parental rights.” On November 7, 2011, plaintiff
appealed Harvanek’s denial to Defendant DOC Director Justin Jones, and on November 28,
2011, Defendant Administrative Review Manager Debbie Morton affirmed Harvanek’s
response. (Dkt. 1-5).
On November 10, 2011, plaintiff informed Oklahoma County District Court Judge
Larry Shaw in a telephone conference that he was not being allowed to work on his case in
the prison law library, and the judge advised plaintiff he would contact Defendant Warden’s
Assistant Alice Turner to advise her of plaintiff’s constitutional rights. Judge Shaw also gave
plaintiff 20 days from November 10, 2011, to file motions and to respond to the State’s
3

motions. On November 14, 2011, plaintiff sent Defendant Collins a RTS, reporting the
judge’s statements and asking to work on his parental termination case, to print his
documents, and to send them as legal mail. Ms. Collins again advised that plaintiff’s case
did not fall in a category that would permit him to work in the law library. Also, Ms. Turner
had informed Judge Shaw of the law library rules, and he understood. Plaintiff filed a
grievance on the issue to Warden Harvanek, advising that Judge Shaw had set a deadline for
filing documents. The grievance was returned unanswered, because plaintiff had failed to
include a copy of his RTS. He was given ten calendar days to correct the deficiency. (Dkt.
1-1 at 6-8).
Plaintiff further alleges that on December 7, 2011, Defendant Collins interfered with
his sending legal documents to the Oklahoma Supreme Court. She refused to make copies
of a petition for a writ of mandamus to challenge the policy regarding access to the courts,
and she said the petition could not be mailed through the legal mail system. Plaintiff then
put the petition in an envelope with postage and placed it in the mailbox. The next morning
Collins allegedly stopped the package from being mailed to the Clerk of the Appellate
Courts.

Plaintiff sent Collins a RTS, asking why she had not made copies or allowed

his mail to go out. He next filed a grievance to Warden Harvanek concerning Collins’
actions. The grievance was returned, because plaintiff had failed to include a copy of his
RTS. Plaintiff was given ten calendar days to properly submit his grievance. (Dkt. 1-1 at
9-10).
It is undisputed that access to the courts and the means to effectuate such access are
fundamental constitutional rights. Bounds v. Smith, 430 U.S. 817, 828 (1977). However,
“the constitutional obligation to provide inmates access to courts does not require states to
give inmates unlimited access to a law library, and inmates do not have the right to select the
method by which access will be provided.” Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th
Cir. 1996) (citations omitted). The Supreme Court has held that the guarantee of access to
the courts requires prisons to provide legal tools “inmates need in order to attack their
4

sentences, directly or collaterally, and in order to challenge the conditions of their
confinement. Impairment of any other litigating capacity is simply one of the incidental (and
perfectly constitutional) consequences of conviction and incarceration.” Lewis v. Casey, 518
U.S. 343, 355 (1996).
As for the alleged blocking of his mail to the Oklahoma Supreme Court, the record
shows that on December 12, 2011, five days after Collins allegedly prevented his mail from
being sent, plaintiff initiated an action concerning access to legal materials to prepare for his
parental termination case. See Cleveland v. Havanek, No. 111, 188 (Okla. Dec. 12, 2011)
(Dkt. 1-2 at 41). Plaintiff clearly has failed to show an “actual injury” from Collins’ acts by
demonstrating the denial of legal resources “hinder[ed] [his] efforts to pursue a nonfrivolous
claim” challenging the conditions of his confinement or his conviction. See Penrod, 94 F.3d
at 1403; Casey, 518 U.S. at 355. After careful review, the court finds plaintiff has failed to
show the existence of a genuine material factual issue in Count I.
Count II
Plaintiff next complains that in October 2011, his sister brought his three children,
along with the children’s original birth certificates, to visit him at JLCC. Sgt. Vance looked
at the birth certificates and asked her to mail copies of the documents to the facility, so the
children could be placed on plaintiff’s visiting card. In November 2011 plaintiff’s wife
brought the children to JLCC for another visit. The children’s birth certificates still were not
on file, but Sgt. Vance again allowed the visit. Plaintiff’s wife was advised that she needed
to mail copies of the birth certificates before they would be allowed to visit again.
Plaintiff claims his wife mailed him copies of the birth certificates in November 2011,
but he was denied his mail. He spoke with Warden Harvanek about the missing mail and
allegedly was told Harvanek “had to talk to a D.A. or Judge and he would let plaintiff know
his next step.”
On December 2, 2011, plaintiff sent Harvanek a RTS asking about their informal
conversation about plaintiff’s mail. Plaintiff also inquired why talking to a district attorney
5

or judge was involved in the issue. The response about the mail containing the birth
certificates stated, “I’m getting clarification concerning the context of the letters. You will
receive what is allowable.” (Dkt. 1-1 at 11).
Shortly after these events, plaintiff learned of a November 30, 2011, letter from
Defendant Assistant District Attorney Rivera, that stated:
Mr. Cleveland’s parental rights have been terminated to four children
previously and two children, not biological [sic] his, were removed from his
home. He is also pending a termination trial on his fifth biological child in our
custody.” . . . [I]t is not proper for him to be receiving visits from these
children.
(Dkt. 1-1 at 13-14). Three of the children named in the letter were those previously brought
to the prison for visitation.
On December 15, 2011, plaintiff sent a grievance to Harvanek, asking for legal
authority to prohibit plaintiff from seeing and visiting with his children for no good cause.
Harvanek’s response stated:
Per OP-30118, Section 1, A, states in part: “Visiting is a privilege, not a
right.” Therefore I have the authority to suspend visits when I deem it is in the
best interest of all parties. I have received information from Oklahoma County
District Attorney’s office advising your parental rights have been terminated
on the following children: [names four children]. Additionally [names two
children] were removed from your home. Also you have pending litigation for
the termination of parental rights for [names one child]. Therefore I deem it
in the best interest for all parties that you are not to visit any of the children
named in this grievance.2
(Dkt. 1-1 at 15-16). Plaintiff contends Harvanek’s decision was an act of retaliation and
harassment with no legitimate penological reason to restrict visits. He filed a grievance
appeal, but it was returned unanswered as untimely. (Dkt. 1-1 at 18).
“Correspondence between a prisoner and an outsider implicates the guarantee of
freedom of speech under the First Amendment and a qualified liberty interest under the
Fourteenth Amendment.” Treff v. Galetka, 74 F.3d 191, 194 (10th Cir. 1996). The Supreme
2

Because plaintiff’s complaint and certain attachment to the complaint contain personal
identifiers for the children, the Court Clerk has been directed to maintain those documents under
seal. See Local Civil Rule 5.3.
6

Court, however, has recognized that the control of mail to and from prisoners is a necessary
adjunct to penal administration. See Thornburgh v. Abbott, 490 U.S. 401, 407-08 (1989)
(acknowledging that prison officials are better equipped than the judiciary to deal with the
security implications of interactions between prisoners and the outside world). “[T]he
relevant inquiry is whether the actions of prison officials were ‘reasonably related to
legitimate penological interests.’” (quoting Turner, 482 U.S. at 79). “Prison regulations
which restrict a prisoner’s First Amendment rights are ‘permissible if they are reasonably
related to legitimate penological interests and are not an exaggerated response to those
concerns.’” Wardell v. Duncan, 470 F.3d 954, 960 (2006) (quoting Beard v. Banks, 548 U.S.
521, 528 (2006)). It is the prisoner’s burden to disprove the validity of prison regulations.
Overton v. Bazzetta, 539 U.S. 126, 132 (2003).
The record shows that on November 29, 2011, plaintiff received a Mail Room Notice
from Defendant Welcher stating plaintiff had received four letters from his wife, and prison
officials were reviewing the material. (Dkt. 1-1 at 25). The next day, JLCC officials
received the letter from Rivera, advising that plaintiff’s parental rights had been terminated,
but the letter did not state plaintiff was restricted from corresponding with family members.
(Dkt. 1-1 at 13-14). Plaintiff admits the letters from his family were given to him shortly
afterward, when prison officials learned he was not prohibited from receiving mail from his
wife. (Dkt. 1 at 16-17). He has not presented any evidence that the delay in receiving the
letters from his wife resulted from improper motive. Consequently, this “isolated incident”
does not amount to a constitutional violation. See Smith v. Maschner, 899 F.2d 940, 944
(10th Cir. 1990).
As for plaintiff’s visitation claim, the defendants assert it is unexhausted. “No action
shall be brought with respect to prison conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Inmates are
required to exhaust available administrative remedies, and suits filed before the exhaustion
7

requirement is met must be dismissed. Booth v. Churner, 532 U.S. 731, 740-41 (2001);
Yousef v. Reno, 254 F.3d 1214, 1216 n.1 (10th Cir. 2001). “An inmate who begins the
grievance process but does not complete it is barred from pursuing a § 1983 claim under
PLRA for failure to exhaust his administrative remedies.” Jernigan v. Stuchell, 304 F.3d
1030, 1032 (10th Cir. 2002) (citation omitted). In deciding a motion to dismiss based on
nonexhaustion, the court can consider the administrative materials submitted by the parties.
See Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1212 (10th Cir. 2003), abrogated in
part on other grounds, Jones v. Bock, 549 U.S. 199 (2007).
According to the DOC Offender Grievance Process, OP-090124, an inmate first must
attempt to resolve his complaint informally by communicating with staff within three days
of the incident. If that is unsuccessful, he may submit a Request to Staff (RTS) within seven
calendar days of the incident, alleging only one issue per form. If the offender does not
receive a response to his RTS within 30 calendar days of submission, he may submit a
grievance to the Review Authority (warden’s office), asserting only the issue of the lack of
response to the RTS. If the complaint is not resolved after the response to the RTS, the
offender then may file a grievance. If the grievance also does not resolve the issue, the
inmate may appeal to the Administrative Review Authority or the Chief Medical Officer.
The administrative process is exhausted only after all of these steps have been taken.
The record clearly shows that plaintiff began the grievance policy but failed to
complete it. His grievance appeal to the Administrative Review Authority was returned
unanswered because it was out of time, and he did not file an application to appeal out of
time. (Dkt. 1-1 at 18-19). Therefore, plaintiff’s visitation claim must be dismissed for
failure to exhaust administrative remedies.
Count III
Plaintiff alleges he was denied his First Amendment right of access to the courts
through his attorney. In December 2011 he received a brief from his direct appeal counsel
in Oklahoma Court of Criminal Appeals Case No. F-2011-482. Plaintiff was not satisfied
8

with the brief and wanted to raise more propositions. On December 28, 2011, he sent a RTS
to Defendant Collins, asking her to let him type a supplemental brief in the case and send it
to his appellate lawyer through the legal mail. Collins advised plaintiff that pursuant to OP030115 Section V A 3, an inmate who is represented by counsel is not entitled to access to
the law library to obtain information for his case. (Dkt. 1-1 at 20).
Plaintiff sent a grievance to Warden Harvanek on January 3, 2012, asking him for
access to the courts and explaining that the Rules of the Oklahoma Court of Criminal
Appeals allow him to file a pro se brief. Harvanek’s response was that plaintiff would not
be allowed access to the law library, because he had appointed counsel for his appeal.
Plaintiff’s grievance appeal also was denied. (Dkt. 1-1 at 21-24).
The Tenth Circuit has held that when an inmate is represented by counsel, he has no
viable claim for right to access the law library, regardless of the type of case he is pursuing.
Love v. Summit County, 776 F.2d 914-15 (10th Cir. 1985), cert. denied, 479 U.S. 814 (1986).
Furthermore, as discussed above, to state a valid claim for denial of access to the courts, an
inmate must show an “actual injury” by demonstrating the denial of legal resources hindered
his efforts to pursue a nonfrivolous claim challenging his conditions of confinement or his
conviction. Penrod, 94 F.3d at 1403; Casey, 518 U.S. at 355. Count III also fails.
Count IV
Plaintiff next complains that on November 29, 2011, he received a Mail Room Notice
from Defendant Susan Welcher, concerning four letters from plaintiff’s wife that were being
reviewed. (These were the same letters discussed in Count II.) Plaintiff was informed that
he would be notified in 15 days of the outcome of the review. (Dkt. 1-1 at 25). Plaintiff
admits he was given the letters after prison officials determined he was not prohibited from
receiving mail from his wife. (Dkt. 1 at 16-17). The court finds there is no evidence that this
short delay in receiving the letters arose from improper motive, and such an “isolated
incident” does not give rise to a constitutional violation. See Smith v. Maschner, 899 F.2d
940, 944 (10th Cir. 1990).
9

According to the Special Report, plaintiff and his wife had a history of attaching
postage stamps so far below the right upper edge of the envelope that the stamps could not
be cancelled. Plaintiff and his wife were instructed to affix the postage properly on the
envelope, so the stamps could be postmarked. Despite this warning, on January 4, 2012,
prison officials received three letters from plaintiff with the stamps improperly placed on the
envelopes, in an attempt to avoid cancellation of the stamps. (Dkt. 46-14 at 37). That same
day, Harvanek sent plaintiff an Interoffice Memorandum, advising as follows:
I previously instructed you and your wife Huyen Cleveland not to place stamps
on letters where they could not be cancelled. Three (3) letters were received
on January 4, 2012, from your wife where this practice has continued.
Therefore I am restricting you from either writing or receiving mail from her
for 90 days from the date of this letter nor will you receive the letters received
this date. I am granted this authority through OP-030117 Section I Subsection
G 3 and 4. Any further violation of my instructions will further result in mail
restriction. Corresponding with individuals is a privilege not a right thus it can
be restricted or taken away.
(Dkt. 1-1 at 26).
Plaintiff filed a RTS with Harvanek on January 6, 2012, stating the DOC procedures
do not address where stamps should be placed on envelopes, and it is the job of the United
States Postal Service to postmark letters. Harvanek’s response stated, “I instructed you &
your wife to place all stamps on letters where they may be cancelled you and your wife
failed to do so thus I suspended you [sic] mail privileges.” (Dkt. 1-1 at 27-28).
On January 13, 2012, plaintiff sent a grievance to Harvanek, requesting relief from
the RTS decision, because the letters in question did not pose a threat to the public,
institutional order, or security. Harvanek denied relief, so plaintiff appealed and received the
following response:
Before January 4, 2012, I advised you and your wife to place stamps on letters
where they could be cancelled. On January 4, 2012, you received three (3)
letters from your wife where she had placed stamps on the envelopes in an area
where they could [not] be cancelled. In accordance with OP-030117 Section
I Subsection G 3 and 4 grants me the authority to restrict writing privileges
thus I did so for 90 days from your wife.
(Dkt. 1-1 at 29-30, Dkt. 1-2 at 1). Plaintiff’s appeal to the Administrative Review Authority
10

was denied on January 25, 2012. (Dkt. 1-2 at 2-3).
On January 10, 2011, Defendant Welcher sent plaintiff a Return to Sender
Notification regarding unauthorized correspondence. Plaintiff sent Welcher a RTS on
January 11, 2012, asking who sent the unauthorized correspondence. Welcher’s response
stated the correspondence was from plaintiff’s wife and children, but plaintiff had been
advised that he could not correspond with his wife for 90 days. (Dkt. 1-2 at 4-5). Welcher
also allegedly returned mail that purported to be from plaintiff’s mother, but the handwriting
matched plaintiff’s wife’s handwriting. Plaintiff claims he was denied his constitutional right
to communicate with his children when the letters were returned.
Prisons have a legitimate penological interest in crime deterrence. See Turner v.
Safley, 482 U.S. 78, 91-92 (1987). In this instance, plaintiff was attempting to violate the
following statute:
Whoever uses or attempts to use in payment of postage, any canceled postage
stamp, whether the same has been used or not, or removes, attempts to remove,
or assists in removing, the canceling or defacing marks from any postage
stamp, or the superscription from any stamped envelope, or postal card, that
has once been used in payment of postage, with the intent to use the same for
a like purpose, or to sell or offer to sell the same, or knowingly possesses any
such postage stamp, stamped envelope, or postal card, with intent to use the
same or knowingly sells or offers to sell any such postage stamp, stamped
envelope, or postal card, or uses or attempts to use the same in payment of
postage; or
Whoever unlawfully and willfully removes from any mail matter any stamp
attached thereto in payment of postage; or
Whoever knowingly uses in payment of postage, any postage stamp, postal
card, or stamped envelope, issued in pursuance of law, which has already been
used for a like purpose-Shall be fined under this title or imprisoned not more than one year, or both;
but if he is a person employed in the Postal Service, he shall be fined under
this title or imprisoned not more than three years, or both.
Title 18 U.S.C. § 1720.
Furthermore, the United States Postal Service Domestic Manual sets forth the proper
method to affix postage in Title 604, “Postage Payment Methods.” Pursuant to Section 1.7,
11

“[s]tamps must be affixed firmly in the upper right corner of the address side of the mail
cover.” See United States Postal Service Domestic Manual, Title 604, “Postage Payment
Methods” at http://pe.usps.gov/text/dmm300/604.htm#1170762. In addition, DOC Policy
OP-030117(I)(G) not only prohibits violation of the United States Postal regulations, but also
provides that an offender in violation of those regulations may be “placed on restricted
correspondence status” for up to 90 days.
Here, the court finds the imposition of a temporary restriction on plaintiff’s
correspondence with his wife because of his violation of federal law advanced the legitimate
interest in deterring plaintiff from continuing to commit crimes. Defendants Welcher and
Harvanek did not violate plaintiff’s First Amendment rights by enforcing a reasonable policy
to prevent the violation of federal law.
Count V
Plaintiff claims that on February 2, 2012, he received four Class X misconducts from
Defendant Welcher for postal violations. (Dkt. 1-2 at 10-17). Welcher had filed an Incident
Report, stating she previously had placed distinctive marks on uncancelled stamps on letters
plaintiff had received. (Dkt. 1-2 at 18). Plaintiff reused those stamps on letters he sent to his
wife, and the wife also reused the stamps to mail a letter to plaintiff. Plaintiff contested
Welcher’s statement and received a disciplinary hearing that resulted in 30 days in SHU, 90
days at Level 1, and the loss of 365 earned credits. Plaintiff appealed, and Harvanek ordered
a rehearing. Before the hearing began, Defendant Edminsten allegedly told plaintiff that “he
needs to work real hard on his appeal, because [Edminsten] could not do anything for
plaintiff, and Defendant Byrd had instructed [Edminsten] to find plaintiff guilty of a Law
Violation.” (Dkt. 1 at 23). Plaintiff claims he said that Edminsten was part of the conspiracy
and would be sued in the future. Edminsten told plaintiff that it was all right, because he had
been sued before.
Plaintiff received copies of all documents, including the Incident Report, a copy of
the envelope with the misused stamps, and the Witness Discretionary Action Record
12

explaining that Welcher completed a written report documenting the incident and would not
appear as a witness. (Dkt. 46-10 at 1-14). Plaintiff received the Disciplinary Hearing Report,
and he filed an appeal for a rehearing. (Dkt. 46-11-12). Warden Harvanek dismissed three
of the Offense Reports and granted a rehearing. (Dkt. 46-13). Plaintiff was found guilty in
the second disciplinary hearing, based on Welcher’s statement and the physical evidence of
used stamps. (Dkt. 46-14 at 30).
Four days later plaintiff received a copy of the Disciplinary Report, and on March 21,
2012, prison officials conducted a due process review of plaintiff’s disciplinary hearing and
affirmed the findings and conclusions of the hearing. (Dkt. 46-12). On April 6, 2012,
plaintiff received a written explanation of the evidence used in the hearing and the reason
Welcher did not appear at the hearing. (Dkt. 46-13).
After concluding the prison appeals process, plaintiff filed a Petition for Judicial
Review, pursuant to Okla. Stat. tit. 57, § 564.1. (Dkt. 46-14 at 1-9). The Oklahoma County
District Court denied the petition on November 20, 2012, in Case No. CV-12-1428, and the
Oklahoma Court of Criminal Appeals affirmed on May 1, 2013, in Case No. REC-20121141. (Dkt. 46-8).
Plaintiff alleges there was no evidence at the disciplinary hearing to support a finding
of guilt of a law violation, but Edminsten made a written statement about the evidence relied
upon, which was Welcher’s statement about the marked stamps. Plaintiff contends that if the
stamps were improper, the U.S. Postal Service would not have accepted them for postage.
He also asserts this conviction and resulting inability to correspond or visit with his wife and
children damaged his relationship with them.
The Supreme Court has held that constitutional due process is satisfied in a prison
disciplinary proceeding if an inmate is provided the following: at least 24 hours’ advance
written notice of the claimed violation; unless good cause exists, an opportunity to call
witnesses and to present documentary evidence in his defense; and a written statement by the
factfinders giving the evidence upon which they relied and the reasons for the disciplinary
13

action taken. Wolff v. McDonnell, 418 U.S. 539, 564-66 (1974). Further, procedural due
process requires only that there be “some evidence” to support disciplinary sanctions within
a correctional facility. Superintendent v. Hill, 472 U.S. 445, 455 (1985). A review of the
record indicates the requirements of Wolff were met in plaintiff’s case. In addition, the court
is satisfied there exists some evidence in the record to support the conclusion that resulted
from the disciplinary hearing. This ground for relief is meritless.
Count VI
Finally, plaintiff alleges the following acts by the defendants show they conspired and
retaliated against him:
•

Warden Harvanek sent his January 4, 2012, Interoffice Memorandum
regarding the placement of postage stamps and the temporary restriction on
plaintiff’s correspondence with his wife.

•

Plaintiff received Class X misconducts for improper stamp placement.

•

Defendant Welcher warned plaintiff that if he continued to file Requests to
Staff about his correspondence suspension, it would be considered Menacing.

•

Plaintiff was denied use of the law library for his custody case.

•

Plaintiff speculates that Welcher did not send some of his personal mail.

The defendants allege plaintiff’s conspiracy and retaliation claims are unexhausted.
As discussed in Count II, 42 U.S.C. § 1997e(a) requires plaintiff to exhaust his administrative
remedies before he can present any civil rights claims concerning prison conditions to the
federal courts. Prisoners must exhaust his remedies, even if “the “available” remedies would
appear to be futile at providing the kind of remedy sought.” Jernigan, 304 F.3d at 1032.
Plaintiff must complete the exhaustion procedure, or the claim is unexhausted. Id.
The record shows that plaintiff filed no grievances alleging a conspiracy or a
retaliation claim. Instead, he pursued the grievance process only for the complained-of
actions resulting from the alleged conspiracy and retaliation. Because he failed to exhaust
his administrative remedies for the conspiracy and retaliation claims, those claims must be
dismissed.
14

Injunctive Relief
Plaintiff’s claim for injunctive relief to access the John Lilley Correctional Center law
library is moot, because he no longer is incarcerated at JLCC. See Green v. Branson, 108
F.3d 1296, 1299-1300 (10th Cir. 1997) (citing Cox v. Phelps Dodge Corp., 43 F.3d 1345
(10th Cir. 1994)).

Based on the foregoing reasons the court finds the allegations in plaintiff’s complaint
are vague and conclusory, and the allegations do not rise to the level of a constitutional
violation. The Tenth Circuit Court of Appeals consistently has held that bald conclusions,
unsupported by allegations of fact, are legally insufficient, and pleadings containing only
such conclusory language may be summarily dismissed or stricken without a hearing. Dunn
v. White, 880 F.2d 1188, 1197 (10th Cir. 1989), cert. denied, 493 U.S. 1059 (1990); Lorraine
v. United States, 444 F.2d 1 (10th Cir. 1971). “Constitutional rights allegedly invaded,
warranting an award of damages, must be specifically identified. Conclusory allegations will
not suffice.” Wise v. Bravo, 666 F.2d 1328, 1333 (10th Cir. 1981) (citing Brice v. Day, 604
F.2d 664 (10th Cir. 1979), cert. denied, 444 U.S. 1086 (1980)).
The court authorized commencement of this action in forma pauperis under the
authority of 28 U.S.C. § 1915. Subsection (e) of that statute permits the dismissal of a case
when the court is satisfied that the complaint is without merit in that it lacks an arguable basis
either in law or fact. Nietzke v. Williams, 490 U.S. 319 (1989); Yellen v. Cooper, 828 F.2d
1471, 1475 (10th Cir. 1987).
ACCORDINGLY, plaintiff’s unexhausted claims are DISMISSED WITHOUT
PREJUDICE for failure to exhaust administrative remedies, pursuant to 42 U.S.C. §
1997e(a), and his request for injunctive relief is DENIED as moot. All other claims are
DISMISSED as frivolous, pursuant to 28 U.S.C. § 1915(e)(2). This dismissal shall count as
a STRIKE, pursuant to 28 U.S.C. § 1915(g).

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DATED this 29 th day of September, 2014.

Dated this 29 th day of September, 2014.
J4h4i0

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