Gonzalez v. Berg et al
ORDER DIRECTING SERVICE. Signed by U.S. District Judge Karen E. Schreier on 3/29/16. (DJP)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
MAR 29 2016
ORDER DIRECTING SERVICE
J. BERG, R. BENDT, TODD DUNCAN,
GREGORY A. KIZZIAH, M. SMITH,
Plaintiff, Guadalupe Gonzalez, is an inmate at FCI-Sandstone in
Sandstone, Minnesota. He filed a pro se civil rights lawsuit under 42 U.S.C.
§ 1983 and paid his filing fee. Docket 1; Docket 3. The court has now screened
Gonzalez's complaint pursuant to 28 U.S.C. § 1915A. For the reasons stated
below, Gonzalez's claims survive screening.
Gonzalez was arrested in Texas for possession with intent to distribute,
and he pleaded guilty. Docket 1 at 3 ii 1. He was transferred from a federal
prison in Texas to FCI Loretto in Pennsylvania, a lower security prison, and
finally to FPC Yankton, South Dakota, in 2012. Id. at 4 ii 2. When Gonzalez
arrived at Yankton, prison officials refused to let him bring in a book called
FAR/ AIM, which outlines federal aviation rules and regulations. Id. FCI Loretto
had allowed him to keep the book. Id.
Gonzalez filed grievances through the prison administrative remedy
system and argued that the book was not prohibited under prison rules. Id. at
4 ii 3. He also pointed out that white inmates were allowed to have FAR/ AIM
and similar books, and the library at FPC Yankton made pilot training manuals
available to inmates. Id. at 5-6 iii! 6-7, 12 ii 9. Prison officials told Gonzalez he
could not have the book because it contained a correspondence course, id. at
11 ii 7, and posed a security risk to the prison. Id. at 13 ii 10.
After Gonzalez filed numerous grievances, prison officials allegedly took
action against him. R. Bendt, counselor at FPC Yankton, refused to give
Gonzalez forms to file more grievances. Id. at 7 ii 10, 8 ii 11. Gonzalez
eventually went over Bendt's head to Warden Willis, who forced Bendt to relent
and give Gonzalez grievance forms. Id. Prison officials took away Gonzalez's job
without reason or justification. Id. Defendants wrote numerous incident reports
against Gonzalez for allegedly fictitious charges, all of which were expunged
from his record because there was no evidence to support them. Id. at 8 iii! 1112. After all of this, Gregory A. Kizziah transferred Gonzalez to FCI Sandstone
based on these fictitious incident reports. Id. at 21 ii 1.
On March 17, 2016, Gonzalez filed this complaint. Docket 1. In his
complaint, he alleges that defendants violated his equal protection rights and
retaliated against him for exercising his constitutionally protected right to file
grievances. Id. at 20-21 ii 1. Gonzalez seeks damages for his "mental anguish"
and states he suffered injuries including "tension headaches, sleep difficulties,
decreased energy, and a depressed mood." Id. at 21
twenty-five million dollars. Id. at 21-22
1. For relief, he requests
The court must accept the well-pleaded allegations in the complaint as
true and draw all reasonable inferences in favor of the non-moving party.
Schriener v. Quicken Loans, Inc., 774 F.3d 442, 444 (8th Cir. 2014). Civil rights
and pro se complaints must be liberally construed. Erickson v. Pardus, 551
U.S. 89, 94 (2007) (citation omitted); Bediako v. Stein Mart, Inc., 354 F.3d 835,
839 (8th Cir. 2004). Even with this construction, "a prose complaint must
contain specific facts supporting its conclusions." Martin v. Sargent, 780 F.2d
1334, 1337 (8th Cir. 1985); Ellis v. City of Minneapolis, 518 F. App'x 502, 504
(8th Cir. 2013). Civil rights complaints cannot be merely conclusory. Davis v.
Hall, 992 F.2d 151, 152 (8th Cir. 1993); Parker v. Porter, 221 F. App'x 481, 482
(8th Cir. 2007).
A complaint "does not need detailed factual allegations ... [but] requires
more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). "If a plaintiff cannot make the requisite showing, dismissal is
appropriate." Abdullah v. Minnesota, 261 F. App'x 926, 927 (8th Cir. 2008);
Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985).
Under 28 U.S.C. § 1915A, this court must screen prisoner claims and
determine whether they are ( 1) frivolous, malicious, or fail to state a claim on
which relief may be granted; or (2) seek monetary relief from a defendant who
is immune. See Onstad v. Wilkinson, 534 F. App'x 581, 582 (8th Cir. 2013).
Gonzalez raises two claims in his complaint. He alleges that defendants
Bendt and Duncan violated his equal protection rights by discriminating
against him because of his race. Docket 1 at 20 ii 1. He also alleges that
defendants Berg, Smith, Mertens, and Kizziah retaliated against him for
exercising his constitutional rights. Id. at 20-21 ii 1.
Gonzalez States an Equal Protection Claim
Gonzalez claims that defendants violated his rights under the Equal
Protection Clause. "The heart of an equal protection claim is that similarly
situated classes of inmates are treated differently, and that this difference in
treatment bears no rational relation to any legitimate penal interest." Weiler v.
Purkett, 137 F.3d 1047, 1051 (8th Cir. 1998) (citation omitted). To establish "an
equal protection claim, a prisoner must show that he is treated differently from
similarly-situated inmates and that the different treatment is based upon
either a suspect classification or a 'fundamental right.'" Patel v. U.S. Bureau of
Prisons, 515 F.3d 807, 815-16 (8th Cir. 2008) (quoting Weems v. Little Rock
Police Dep't, 453 F.3d 1010, 1016 (8th Cir. 2006)). Race is a suspect
classification. Knapp v. Hanson, 183 F.3d 786, 789 (8th Cir. 1999); see also
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).
Gonzalez states a viable equal protection claim. According to his
complaint, a white inmate was allowed to keep a handbook similar to
FAR/ AIM, the book he was denied. Docket 1 at 5 ii 6. Another white inmate
received FAR/ AIM through the mail room at FPC Yankton in December 2011.
Id. at 6
ii 7. Most importantly, Bendt, one of the prison officials that denied
Gonzalez's request, authorized a white inmate to purchase the same book. Id.
Gonzalez also alleges that defendants told him that they denied his request for
FAR/ AIM because it posed a security risk to the institution. Id. at 13 ii 10. But
neither the book, the information in the book, nor Gonzalez was deemed a
security threat in any other situation. Training manuals for pilots are available
in the library at FPC Yankton, id. at 12 ii 9, and, as detailed above, white
inmates are allowed FAR/ AIM and similar books. Also, Gonzalez was allegedly
transferred to FCP Yankton without a security escort. Id. at 13 ii 10. Gonzalez
claims that he is treated differently than other inmates because of his race. Id.
at 12 ii 10. Therefore, he states a viable equal protection claim.
Gonzalez States Retaliation Claims
Gonzalez's complaint states viable retaliation claims.
In order to demonstrate retaliation in violation of the First
Amendment under 42 U.S.C. § 1983, [Gonzalez] must show (1) he
engaged in a protected activity, (2) the government official took
adverse action against him that would chill a person of ordinary
firmness from continuing in the activity, and (3) the adverse action
was motivated at least in part by the exercise of the protected
Spencer v. Jackson Cty. Mo., 738 F.3d 907, 911 (8th Cir. 2013) (quotations
omitted). "The retaliatory conduct itself need not be a constitutional violation;
the violation is acting in retaliation for 'the exercise of a constitutionally
protected right.'" Id. (quoting Cody v. Weber, 256 F.3d 764, 771 (8th Cir.
Retaliation for Engaging In Protected Activity
Gonzalez alleges that he filed grievances against defendants. Docket 1 at
17 ii 3. Filing a prison grievance is protected First Amendment activity.
Haynes v. Stephenson, 588 F.3d 1152, 1155-56 (8th Cir. 2009) (citing Lewis v.
Jacks, 486 F.3d 1025, 1029 (8th Cir. 2007)). In retaliation, Gonzalez claims
that defendants denied him further administrative remedy forms, Docket 1 at
17 ii 3, and removed him from his job. Id. at 17 ii 4. Gonzalez states a viable
Gonzalez also claims that defendants wrote false incident reports
against him because he filed grievances. "A prisoner has a cause of action
when the prisoner alleges that prison officials filed disciplinary charges based
upon false allegations against the prisoner in retaliation for the prisoner's
participation in grievances against prison officials." Santiago v. Blair, 707 F.3d
984, 993 (8th Cir. 2013) (quoting Henderson v. Baird, 29 F.3d 464, 469 (8th
Cir. 1994)). Gonzalez claims that defendants Berg, Smith, and Mertens filed
"fictitious incident reports" against him because he filed grievances against
prison staff. Docket 1 at 20-21 ii 1. He alleges that there were numerous
incident reports filed against him after he grieved the FAR/ AIM issue, that
there was no legitimate reason for these reports, and that the reports were all
expunged because they were baseless. Id. at 18
Gonzalez raises a viable claim for retaliatory discipline.
C. Retaliatory Transfer
Gonzalez's claims he was transferred from FPC Yankton in retaliation for
filing grievances concerning FAR/ AIM. The prohibition against disciplining
inmates in retaliation for exercising their constitutional rights applies to
transfers. Beaulieu v. Ludeman, 690 F.3d 1017, 1025 (8th Cir. 2012); Sisneros
v. Nix, 95 F.3d 749, 751 (8th Cir. 1996). Gonzalez alleges that Kizziah
authorized his transfer from FPC Yankton based on fictitious incident reports.
Docket 1 at 21
1. Gonzalez raises a viable claim for retaliatory transfer.
For the reasons explained above, Gonzalez's complaint states viable
equal protection and retaliation claims. Therefore, it is ORDERED
1. Gonzalez's claims survive screening under 28 U.S.C. § 1915A.
2. The Clerk shall send blank summons forms to Gonzalez so he may
cause the summons and complaint to be served upon the
3. The United States Marshal shall serve a copy of the complaint
(Docket 1), Summons, and this Order upon defendants as directed by
Gonzalez. All costs of service shall be advanced by the United States.
4. Defendants will serve and file an answer or responsive pleading to
the remaining claims in the complaint on or before 21 days following
the date of service.
5. Gonzalez will serve upon defendants, or, if appearance has been
entered by counsel, upon their counsel, a copy of every further
pleading or other document submitted for consideration by the court.
He will include with the original paper to be filed with the clerk of
court a certificate stating the date and that a true and correct copy of
any document was mailed to defendants or their counsel.
6. Gonzalez will keep the court informed of his current address at all
times. All parties are bound by the Federal Rules of Civil Procedure
and by the court's Local Rules while this case is pending.
Dated March 29, 2016.
BY THE COURT:
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