Cowherd v. Larson et al
Filing
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ORDER granting 13 Motion to Amend and Dismissing Case. Signed by U.S. District Judge Karen E. Schreier on 6/6/19. (CLR)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
RANDY COWHERD,
4:18-CV-04068-KES
Plaintiff,
vs.
JERAMME LARSON, CORRECTION
OFFICER, MDSP; BRITTANY ULMER,
UNIT STAFF, MDSP; BOB DOOLEY,
WARDEN, SDSP; AND UNKNOWN
ASSISTANT WARDEN, SDSP;
ORDER GRANTING MOTION TO
AMEND AND DISMISSING CASE
Defendants.
INTRODUCTION
Plaintiff, Randy Cowherd, is an inmate at the Rapid City Community
Work Center (RCCWC) in South Dakota. Cowherd filed a pro se civil rights
lawsuit under 42 U.S.C. § 1983 and requested leave to proceed in forma
pauperis under 28 U.S.C. § 1915. Docket 1; Docket 2. On December 19, 2018,
Cowherd’s motion to proceed in forma pauperis was granted and his amended
complaint was dismissed without prejudice for failure to state a claim upon
which relief could be granted. Docket 11. Cowherd now moves for leave to file a
second amended complaint. Docket 13. The court now screens Cowherd’s
second amended complaint under 28 U.S.C. § 1915A, and for the reasons
stated below, the court dismisses Cowherd’s second amended complaint.
FACTUAL BACKGROUND
Cowherd’s complaint alleges violations of his right to due process during
a prison disciplinary matter. Cowherd was on work release at the RCCWC
when he was charged with escape and transferred to the Mike Durfee State
Prison (MDSP). The facts as Cowherd alleges are as follows:
On July 8, 2017, Cowherd was placed in segregated confinement at
RCCWC without written notice of any violation or a disciplinary hearing.
Docket 13-1 at 2. He later learned he was accused of not returning to the unit
directly after work. Id. at 3.
In his Memorandum and Affidavit in Support of Second Amended
Complaint, Cowherd describes the conditions in segregated confinement at the
RCCWC. Docket 14 at 4. Inmates in segregation do not have access to radios,
books, or legal materials. Id. Inmates are in their cells 24 hours a day with the
lights always on. Id. During the twenty days in confinement, he was permitted
to shower three times. Id.
On July 10, 2017, Cowherd had an initial appearance in state court and
the judge informed Cowherd that he was charged with second degree escape
on July 8, 2017. Docket 13-1 at 3. On July 26, 2018, these charges were
dropped. Id.
After the state charges were dropped, the defendants pursued internal
discipline. Id. On Friday, July 28, 2017, at 8:30 a.m., Brittany Ulmer,
Cowherd’s assigned staff representative, told Cowherd his disciplinary hearing
would be Monday to allow her to collect evidence. Docket 13-1 at 2. An hour
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later, Ulmer returned with the Disciplinary Hearing Officer Jeramme Larson to
hold the disciplinary hearing. Id.
At 9:30 a.m. on July 28, 2017, Larson held a disciplinary hearing. Id.
Cowherd did not receive notice twenty-four-hours in advance of the hearing.
Id. Cowherd was not allowed to present evidence or call witnesses. Id. Ulmer
perjured details of witnesses and evidence. Id.
Cowherd believes Larson was biased against him due to a previous
disciplinary matter. Id. at 4. Cowherd was previously charged with a rule
violation. Id. Cowherd was found not guilty of the rule violation because he
was incorrectly written up. Id. As a result, Larson had to go to the warden to
have the disciplinary action removed from Cowherd’s record. Id.
After the July 28, 2017 hearing, the wardens failed to investigate this
incident and were indifferent to Cowherd’s claims. Id. at 3. Wardens also failed
to train their subordinates to follow procedures. Id.
As a result, Cowherd was deprived of liberty and property. Cowherd’s
security status was heightened, and he lost his initial parole date for noncompliance with his Individual Program Directive (IPD). Id. at 4. Cowherd
suffered “stress, dejection, hopelessness, and ire.” Id. At MDSP, Cowherd’s
“issues with PTSD were exacerbated from living in an atmosphere with violent
offenders and sexual predators.” Id.
LEGAL STANDARD
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.
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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). As a pro se plaintiff, the court lowers the pleading
standards, but the court “ ‘will not supply additional facts, nor will [it]
construct a legal theory for plaintiff that assumes facts that have not been
pleaded.’ ” Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004) (quoting Dunn v.
White, 880 F.2d 1188, 1197 (10th Cir. 1989)). Even with this construction, “a
pro se 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. Parker v. Porter, 221 F. App’x 481, 482 (8th Cir. 2007); Davis v.
Hall, 992 F.2d 151, 152 (8th Cir. 1993).
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) (per
curiam); Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985). Under
28 U.S.C. § 1915A, the court must screen prisoner complaints and dismiss
them if they are “(1) frivolous, malicious, or fail[] to state a claim upon which
relief may be granted; or (2) seek[] monetary relief from a defendant who is
immune from such relief.” 28 U.S.C. § 1915A(b).
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DISCUSSION
“The Fourteenth Amendment's Due Process Clause protects persons
against deprivations of life, liberty, or property; and those who seek to invoke
its procedural protection must establish that one of these interests is at stake.”
Wilkinson v. Austin, 545 U.S. 209, 221 (2005). To state a due process claim
arising out of prison discipline, a prisoner must establish either (1) that he has
a liberty interest protected by the due process clause itself or (2) that he has a
liberty interest created by state law and that the prison action “imposes
atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995).
“[T]here is no constitutionally based liberty interest in participating in a
work release program[.]” Mahfouz v. Lockhart, 826 F.2d 791, 792 (8th Cir.
1987) (per curiam) (citing Johnson v. Stark, 717 F.2d 1550 (8th Cir. 1983) (per
curiam)). Nor has the Eighth Circuit found a constitutionally based liberty
interest in continued participation in a work release program. See Hake v.
Gunter, 824 F.2d 610, 613-14 (8th Cir. 1987); Callender v. Sioux City
Residential Treatment Facility, 88 F.3d 666, 668 (8th Cir. 1996).
Cowherd may claim that South Dakota’s statutes, rules, and regulations
create a constitutionally-protected liberty interest. Cowherd must then also
allege that defendants’ actions caused an “atypical and significant hardship.”
Sandin, 515 U.S. at 484. The court will first consider whether Cowherd alleges
any facts that could constitute an “atypical and significant hardship.”
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The Eighth Circuit instructed courts to “compare the conditions to which
the inmate was exposed in segregation with those he or she could ‘expect to
experience as an ordinary incident of prison life.’ ” Phillips v. Norris, 320 F.3d
844, 847 (8th Cir. 2003) (quoting Beverati v. Smith, 120 F.3d 500, 503 (4th Cir.
1997)). The “procedures used to confine the inmate in segregation” are not
considered. Phillips, 320 F.3d at 847 (citing Kennedy v. Blankenship, 100 F.3d
640, 643 (8th Cir. 1996)).
The Eighth Circuit considered whether the revocation of a prisoner’s
work release status was an atypical or significant deprivation in Callender v.
Sioux City Residential Treatment Facility, 88 F.3d 666, 669 (8th Cir. 1996). The
court reasoned that the plaintiff had not suffered an atypical or significant
deprivation when the plaintiff was returned to his prior institutional placement,
had not yet participated in work release, and received no additional time on his
sentence. Id. In so holding, the court relied on Dominique v. Weld, 73 F.3d 1156
(1st Cir. 1996). The plaintiff in Dominique had participated in work release for
four years when his status was revoked, and he was transferred to a medium
security prison. Id. (citing Dominique, 73 F.3d at 1157). The Eighth Circuit
noted:
On appeal, the First Circuit applied Sandin v. Conner and concluded
that, because the conditions at the medium security facility were
similar to those ordinarily experienced by a large number of inmates
on a daily basis, placement in such a facility was not an atypical
hardship. The Court noted that the change between the ‘quasifreedom’ of work release and a medium security facility may have
been a significant deprivation but, nonetheless, it was not an
atypical deprivation.
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Id. (citing Dominique, 73 F.3d at 1160). In this case, Cowherd spent twenty
days in segregated confinement and then transferred to a medium security
prison.
During the twenty days in segregated confinement, Cowherd argues that
he was deprived of access to radios, books, regular showers, and recreation
time. Docket 14 at 4. Given the duration of his time in segregated confinement,
these are all conditions Cowherd could expect to experience as an incident of
prison life.
The Eighth Circuit has held that segregated confinement does "not
constitute an ‘atypical and significant’ hardship when compared to the burdens
of ordinary prison life." Freitas v. Ault, 109 F.3d 1335, 1337 (8th Cir. 1997)
(internal quotation omitted). In Freitas, the plaintiff complained his due process
rights were violated when he was disciplined and transferred to a different
facility and placed in "on-call" status for thirty days. These disciplinary
measures meant the prisoner was: placed in "lock-up" (i.e. was allowed out of
his cell for only one or two hours per day), allowed fewer visitors and no phone
calls, not allowed to work at a prison job, restricted in his ability to keep
personal items in his cell, and restricted in his ability to earn good time credits.
Frietas, 109 F.3d at 1337. Here, Cowherd spent even less time in segregated
confinement. As a matter of law, this does not amount to an atypical or
significant deprivation that is necessary to state a due process claim.
In light of Sandin, Callender and Freitas, the court finds that Cowherd
fails to allege an atypical and significant hardship that is necessary to state a
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due process claim. As such, Cowherd fails to state a claim upon which relief
may be granted, and his claims are dismissed without prejudice under 28
U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
Even if Cowherd adequately alleged an atypical and significant hardship
necessary to state a due process claim, Cowherd fails to identify a liberty
interest created by South Dakota law. Cowherd claims two sources of liberty.
First, Cowherd claims SDCL § 24-8-1 creates a liberty interest. SDCL § 24-8-1
states,
The Department of Corrections may conditionally release selected
inmates and may extend the limits of the place of confinement of
such inmates of the state penitentiary. If the warden determines that
the character and attitude of an inmate reasonably indicate that the
inmate may be so trusted, the warden may release and provide for
continued supervision of such an inmate to work at paid
employment, to seek employment, or to participate in vocational
training or other educational programs in the community after such
employment or program has been investigated and approved
pursuant to rules promulgated by the Department of Corrections.
The warden may, with or without cause, terminate or suspend any
such release.
Cowherd argues that, because the warden did not terminate or suspend his
release, he had a liberty interest in continued work release. Docket 13-1 at 3.
SDCL § 24-8-1 does not create a liberty interest. The statute gives the
Department of Corrections discretion to conditionally release inmates. And the
statute does not state that the warden is the exclusive means to revoke such
release.
Second, Cowherd claims that the contract he signed with the Department
of Corrections stated that he would not be removed from work release status
unless he committed a rule violation. Docket 13-1 at 3. Such a contract is not
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a source of liberty necessary to support a Due Process claim. See Sandin v.
Conner, 515 U.S. 472, 484 (1995).
Thus, it is ORDERED
1. Cowherd’s motion for leave to file a second amended complaint (Docket
13) is granted.
2. Cowherd fails to state a claim upon which relief can be granted, and his
second amended complaint is dismissed without prejudice under
28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
DATED June 6, 2019.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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