Fleming v. Clark et al
Filing
106
MEMORANDUM DECISION and Ordergranting 93 Motion for Judgment on the Pleadings. Case Closed. Signed by Judge Dale A. Kimball on 9/21/12. (jlw)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
CARL STANLEY FLEMING,
MEMORANDUM DECISION AND
ORDER
Plaintiff,
v.
Case No. 2:09-CV-1038 DAK
LOWELL CLARK et al.,
District Judge Dale A. Kimball
Defendants.
Plaintiff, Carl Stanley Fleming, an inmate at the Utah State Prison, filed this pro se civil
rights suit under 42 U.S.C. § 1983. See 42 U.S.C.A. § 1983 (West 2012). Plaintiff was allowed
to proceed in forma pauperis under 28 U.S.C. § 1915. See 28 id. § 1915. Before the Court is
Defendants’ Motion for Judgment on the Pleadings.
ANALYSIS
I. Legal Standard
Rule 12(c) provides that “after the pleadings are closed . . . a party may move for
judgment on the pleadings.” Fed.R.Civ.P. 12(c). A motion for judgment on the pleadings filed
by a defendant is treated as a Rule 12(b)(6) motion to dismiss for failure to state a claim upon
which relief can be granted. See Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d
1138, 1160 (10th Cir. 2000). A motion to dismiss under Rule 12(b)(6) requires the court to
decide whether the factual allegations in the complaint, if true, would entitle the plaintiff to some
sort of legal remedy. To state a viable claim “[t]he complaint must plead sufficient facts, taken
as true, to provide ‘plausible grounds’ that discovery will reveal evidence to support the
plaintiff’s allegations.” Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir. 2007) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007)). “Factual
allegations [in a complaint] must be enough to raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007). In other words, the
complaint must include “enough facts to state a claim to relief that is plausible on its face.” Id.
Additionally, “the complaint must give the court reason to believe that this plaintiff has a
reasonable likelihood of mustering factual support for [his] claims.” Ridge at Red Hawk, L.L.C.
v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). The “requirement of plausibility serves not
only to weed out claims that do not (in the absence of additional allegations) have a reasonable
prospect of success, but also to inform the defendants of the actual grounds of the claim against
them.” Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008).
When deciding a motion to dismiss the court must accept all well-plead facts as true and
draw reasonable inferences from those facts in favor of the non-moving party. Ridge at Red
Hawk, L.L.C., 493 F.3d at 1177. However, legal conclusions, deductions, and opinions couched
as facts are not presumed to be true, and the court must disregard conclusory allegations without
supporting factual averments. See, e.g., Erikson v. Pawnee County Bd. of County Comm., 263
F.3d 1151, 1154-55 (10th Cir. 2001). When a civil rights complaint contains only “bare
assertions” involving “nothing more than a formulaic recitation of the elements of a
constitutional . . . claim,” the court considers those assertions conclusory and does not afford
them the presumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (2009).
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II. Defendants’ Rule 12(c) Motion
Each of the remaining Defendants in this case, Captain Mel Coulter, Lieutenant Darwin
Johnson, and Officers Troy Kennedy, Clayton James, and Randal McConnell, move for judgment
on the pleadings under Rule 12(c).1 Plaintiff’s Complaint alleges three causes of action under 42
U.S.C. § 1983: (1) excessive force in violation of the Eighth Amendment; (2) denial of access to
the courts; and (3) retaliation. Plaintiff’s claims stem from a “kicking incident” in which
Plaintiff placed his face against the outside of the control room window and a guard kicked on
the glass from the inside allegedly injuring Plaintiff. Plaintiff asserts that this incident led to a
search of Plaintiff’s cell and the seizure of some of his legal papers. Plaintiff also alleges that
Defendants retaliated against him for filing grievances about the incident. Plaintiff seeks
compensatory and punitive damages and “all other damages and costs allowed by law.”
Defendants assert that Plaintiff’s allegations, even if accepted as true, do not state a
plausible claim for relief. Defendants also contend that Plaintiff fails to allege an affirmative
causal link between Defendants’ actions and Plaintiff’s alleged injuries. Finally, Defendants
assert that even if Plaintiff could make out a plausible claim, Defendants are entitled to qualified
immunity because at the time Plaintiff’s claims arose it was not clearly established that
Defendants’ actions were unlawful. The Court will first review the allegations in Plaintiff’s
Complaint to determine whether they are sufficient to state a plausible claim against any of the
remaining defendants before reaching Defendants other arguments.
1
The Court previously dismissed several named defendants and claims from this action.
(Doc. no. 68.)
3
A. Plaintiff’s Allegations2
Plaintiff’s Complaint alleges that on March 13, 2006,3 while confined at the Central Utah
Correctional Facility, he went to the control room to speak to officers about releasing his
cellmate from their cell. After being unable to get an officers’ attention by calling out and
tapping on the glass, which was heavily tinted to prevent inmates from seeing inside, Plaintiff
placed his face up against the glass and cupped his hands around his eyes so he could see if
anyone was inside. While Plaintiff’s face was against the glass Officer McConnell kicked the
glass from the inside right where Plaintiff’s face was located. Plaintiff alleges that this caused
his head to snap back and that he “was momentarily stunned, disoriented, and in extreme pain.”
(Compl. at 11.) Plaintiff then asked why Officer McConnell kicked the glass and McConnell
stated, “Oh, did I kick you in the face? Sorry about that.” Plaintiff then heard McConnell and
the other officers in the control room, Officers Kennedy and James, laughing. When asked what
he wanted, Plaintiff said that he needed his cell door opened so his cellmate could come out.
Officer Kennedy responded that Plaintiff’s cellmate was not allowed out until later, to which
Plaintiff replied that he had documentation to the contrary which he offered to go get it from his
cell. Officer Kennedy instructed Plaintiff to go get the paper and opened Plaintiff’s cell door so
2
These allegations are drawn directly from Plaintiff’s Complaint and the attached
exhibits. The allegations are construed liberally and are accepted as true for purposes of this
motion.
3
Plaintiff’s Complaint appears to incorrectly identify the date of this incident as March
16, 2006, however, Plaintiff’s grievances and documentation included with the Complaint
identify the correct date as March 13, 2006.
4
he could enter. Once inside, however, Officer Kennedy closed the door, locking Plaintiff inside.
Plaintiff then called the control room using the intercom in the cell and asked why he was locked
in after being told to go get the paper. Officer Kennedy responded that Plaintiff would have to
stay in his cell until “movement” when he could bring the paperwork back to the control room.
Frustrated, Plaintiff began discussing with his cellmate the problems he had experienced with the
officers and his intention to file grievances or lawsuits against them. Plaintiff states that after
overhearing this conversation via the intercom Officer Kennedy began teasing and taunting
Plaintiff, saying he wasn’t afraid of Plaintiff’s threats because nobody would believe Plaintiff
anyway. During “movement” Plaintiff again requested to be released, Officer Kennedy denied
the request stating that Plaintiff was being placed on lockdown for a “cooling off period.”
Plaintiff alleges that Officer Kennedy then placed the entire section on lockdown and,
along with Officer James, conducted a search of Plaintiff’s cell. The search took almost two
hours, during which Plaintiff and his cellmate were placed in the shower. During the search the
officers “tossed” the entire cell and confiscated some of Plaintiff’s property, including a
grievance Plaintiff was writing concerning the incident and trial transcripts Plaintiff was using to
prepare a petition for post-conviction relief. When Plaintiff asked why the officers took these
items they denied taking anything. Plaintiff was not given a property form showing that items
were taken from his cell.
Later that evening Plaintiff complained that his head hurt and requested medical attention.
Medical personnel were informed of Plaintiff’s complaints and Plaintiff was escorted to the
infirmary about thirty minutes later. (Compl. Ex. D at 3.) Plaintiff alleges that while being
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escorted by Officers Kennedy and James he was unnecessarily jostled and manhandled. Plaintiff
further states that after his medical visit Officer Kennedy grabbed Plaintiff by the back of his
neck while handcuffed, pushed his face up against a glass window, and told Plaintiff that if he
filed grievances or lawsuits about the earlier incident he would receive a major writeup. The
Complaint does not include any information regarding any medical diagnosis or treatment
Plaintiff received.
On March 14, 2006, Officer James filed a major disciplinary writeup regarding the
incident from the previous day. Plaintiff was charged with Disorderly Conduct/Reckless
Endangerment for allegedly being argumentative and making threats against officers. (Comp.
Ex. F(1).) A disciplinary hearing was held regarding this matter on April 19, 2006, and Plaintiff
was found not guilty. No remedial action was taken.
Plaintiff filed a grievance regarding the “kicking incident” on March 28, 2006. Plaintiff
subsequently filed a complaint with the Sanpete County Sheriff’s Office seeking criminal charges
against the officers involved. Detective Lloyd of the Sanpete County Sheriff’s Office conducted
a thorough investigation into the incident, including obtaining statements from each of the
officers involved. Based on Detective Lloyd’s investigation the Sanpete County Attorney’s
Office declined to file any charges. (Compl. Ex. E.)
On May 5, 2007, Plaintiff was transferred to the Special Management Unit at CUCF for
fighting with another inmate. An unnamed officer allowed Plaintiff’s cellmate to pack up
Plaintiff’s property for him. When Plaintiff received his property on May 10, 2007, he noticed
that some of his legal documents and materials were missing, including two books and some
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caselaw relevant to the post-conviction relief petition Plaintiff was preparing to file. Plaintiff
filed a grievance about these missing legal materials and two days later he was transferred to the
Utah State Prison. During this transfer nine of Plaintiff’s books were lost as well as a large stack
of legal materials, including the transcripts from Plaintiff’s criminal trial. Plaintiff states that he
already replaced these transcripts once following the March 2006 incident, although he was
eventually reimbursed for them by the prison based on his grievance. Plaintiff alleges that
Captain Coulter and Lieutenant Johnson were each aware these materials were lost but failed to
find or replace them, further delaying Plaintiff’s post-conviction relief petition. Plaintiff did
eventually file a post-conviction relief petition, which he alleges was dismissed as untimely.
III. Sufficiency of Plaintiff’s Complaint
A. Eighth Amendment Claim
Count One of Plaintiff’s Complaint alleges that Plaintiff was subjected to “excessive
force and cruelty” by being kicked through the glass, by being handled roughly on the way to the
infirmary, and by being forced up against the glass following his medical exam. Although
Plaintiff does not specifically reference the Eighth Amendment, his claims clearly fall under the
Cruel and Unusual Punishments Clause.
i. Legal Standard
“Whenever prison officials stand accused of using excessive physical force in violation of
the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was
applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to
cause harm.” Hudson v. McMillian, 503 U.S. 1, 7, 112 S. Ct. 995, 999 (1992). The Supreme
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Court has identified several factors relevant to the determination whether a particular use of force
can be considered “malicious or sadistic,” these include: (1) the need for application of force; (2)
the relationship between that need and the amount of force used; (3) the threat reasonably
perceived by the responsible officials; and, (4) any efforts made to temper the severity of a
forceful response. Id.
It is also well recognized that “[n]ot every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers, violates the [constitution].” Graham v. Connor,
490 U.S. 386, 396, 109 S. Ct. 1865, 1871 (1989) (citation and quotation marks omitted). “De
minimis applications of force are necessarily excluded from the cruel and unusual punishment
inquiry.” Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). Although a prisoner
need not demonstrate a significant injury to make out a constitutional claim, the lack of any
significant injury is relevant to whether the force used was de minimis. Cortez v. McCauley, 478
F.3d 1108, 1129 (10th Cir. 2007). Thus, “[a]bsent the most extraordinary circumstances, a
plaintiff cannot prevail on an Eighth Amendment excessive force claim if his injury is de
minimis.” Norman v. Taylor, 25 F.3d 1259 (4th Cir. 1994).
ii. Sufficiency of Eighth Amendment Allegations
The allegations in Plaintiff’s Complaint are not sufficient to assert a plausible claim of
cruel and unusual punishment under the Eighth Amendment. Regarding the kicking incident,
Plaintiff’s allegations do not support the conclusion that Defendant McConnell acted maliciously
or sadistically, or that he actually intended to harm Plaintiff. Instead, the circumstances alleged
support the conclusion that McConnell merely intended to stop Plaintiff from looking into the
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control room. If McConnell truly intended to injure Plaintiff it is unlikely he would try to do so
through a window. Moreover, Plaintiff has not alleged any facts showing that he suffered any
actual injury as a result of the kick that was more than de minimis. Despite Plaintiff’s bare
allegations that the kick caused his head to “snap back” and that he was “momentarily stunned,
disoriented, and in extreme pain,” the allegations in the Complaint show that Plaintiff essentially
continued interacting with Defendants as he had previously. Plaintiff did not immediately
complain of any injury, instead he continued speaking and acting normally. According to the
Complaint it was only much later, after the other events occurred, that Plaintiff first complained
about having a headache. Moreover, although Plaintiff alleges that he went to the infirmary he
does not state what diagnosis was made or what treatment he received. Even accepting
Plaintiff’s bald assertion that his headache resulted from the kicking incident, such an injury is
clearly de minimis.4
Similarly, Plaintiff’s allegations about being manhandled and forced against a window are
insufficient to state an Eighth Amendment claim. Plaintiff does not allege any physical injury
resulting from these actions. In fact, Plaintiff’s descriptions of the force used show that it
amounted to little more than jostling or manhandling. While Plaintiff may have been handled
more roughly than usual there is no indication that he was harmed or that he was placed in
significant danger. Moreover, Plaintiff’s allegations show that officers had reason to suspect
4
In the Injury section of his Complaint Plaintiff states that his “migraine headaches have
become aggravated and are more frequent” and that he “suffers from cervical spinal problems
including nerve entrapment.” (Compl. at 20.) However, there are no facts in the Complaint at all
to support these allegations.
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Plaintiff might act out based on his earlier frustration and statements to his cellmate, which
would also explain the more forceful handling.
Thus, the Court concludes that Plaintiff’s allegations are insufficient to state a plausible
claim under the Eighth Amendment.
B. Legal Access
Plaintiff’s Complaint alleges denial of access to the courts based on Defendants’ loss or
confiscation of legal materials from Plaintiff’s cell, including transcripts of Plaintiff’s criminal
trial. Plaintiff alleges that he needed the trial transcripts to prepare a petition for post-conviction
relief (“Petition”) which he intended to file in state court. Plaintiff further asserts that the loss of
the transcripts delayed the filing of his Petition, causing it to be dismissed as untimely.
Although Plaintiff’s allegations appear sufficient on their face to state a claim for denial
of access to the courts, the Court has already determined that the dismissal of Plaintiff’s state
court Petition does not support a legal access claim. In its Memorandum Decision and Order
granting Defendant Otto’s motion for summary judgment, entered in this case on March 14, 2011
(doc. no. 68), the Court concluded that the Petition was not dismissed as untimely or on any other
technical grounds; instead, each of Plaintiff’s claims were addressed and dismissed by the state
court on the merits. (Id. at 16-17.) Thus, the dismissal of the Petition does not show that
Plaintiff was significantly hindered from pursuing a non-frivolous “habeas corpus or civil rights
action[] regarding [his] current confinement.” Carper v. Deland, 54 F.3d 613, 616 (10th Cir.
1995). This determination precludes Plaintiff from pursuing a legal access claim based on the
dismissal of his state court Petition.
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Thus, the Court concludes that Plaintiff’s allegations are insufficient to state a claim for
denial of access to the courts.
C. Retaliation
Plaintiff’s Complaint alleges that Defendants retaliated against Plaintiff for filing
grievances, in violation of the First Amendment, by “deriding and provoking” Plaintiff after he
stated his intention to grieve the kicking incident, and by searching his cell, confiscating his
papers and repeatedly placing him on lockdown. Plaintiff does not specifically state how this
impacted his ability to file grievances or exercise any other constitutionally protected activity.
The Tenth Circuit has held that “[p]rison officials may not retaliate against or harass an
inmate because of the inmate’s exercise of his constitutional rights,” Fogle v. Pierson, 435 F.3d
1252, 1263-64 (10th Cir. 2006), it has also noted that “[s]everal circuits have held that a
prisoner's first amendment right to petition the government for redress of grievances
encompasses the filing of inmate administrative appeals,” id. at 1264. To state a viable
retaliation claim a plaintiff must allege facts showing: “(1) he was engaged in constitutionally
protected activity, (2) the government’s actions caused him injury that would chill a person of
ordinary firmness from continuing to engage in that activity, and (3) the government’s actions
were substantially motivated as a response to his constitutionally protected conduct.” Howards
v. McLaughlin, 634 F.3d 1131, 1144 (10th Cir. 2011) (quoting Nielander v. Bd. of Cnty.
Comm’rs, 582 F.3d 1155, 1165 (10th Cir.2009))(further citations and quotations omitted).
Under this standard the plaintiff bears the burden of proving that he was engaging in
constitutionally protected activity. A plaintiff cannot satisfy the first element if his alleged
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protest was frivolous or if he had no right to engage in the alleged activity. See, e.g., Lewis v.
Casey, 518 U.S. 343, 352–53 (1996) (holding prisoners’ constitutional right to access courts not
violated if claim interfered with was frivolous). Regarding the second element, it is not
sufficient that the plaintiff prove that he would be chilled by the conduct; instead, the test is
objective: Would a person of “ordinary firmness” be chilled. This test also specific to the type of
“person” involved—a citizen, employee, or prisoner. See Hemphill v. New York, 380 F.3d 680,
688 (2d Cir. 2004) (noting test encompasses “similarly situated” person of ordinary firmness);
Lewis v. Jacks, 486 F.3d 1025, 1028 (8th Cir. 2007) (articulating test as “inmate of ordinary
firmness”); Perkins v. Clayton Twp., No. 2:08-CV-14033, 2009 WL 3498815 (E.D. Mich. Oct.
23, 2009) (unpublished) (“[P]risoners may be required to tolerate more than public employees,
who may be required to tolerate more than average citizens before an action taken against them is
considered adverse.” (citations and quotations omitted)). Finally, a plaintiff must allege facts
howing but-for causation—that the retaliatory purpose is the “decisive factor” in the adverse
action. Strope v. McKune, No. 09-3283, 2010 WL 23332079 (10th Cir. June 11, 2010)
(unpublished).
Even accepting that Plaintiff’s grievances were not frivolous, making them
constitutionally protected conduct, Plaintiff has not alleged sufficient facts to state a plausible
retaliation claim. Plaintiff allegations do not show that Defendants did anything that would chill
an inmate of ordinary firmness from continuing to file grievances or lawsuits. There is certainly
no indication that Defendants’ conduct had such an effect on Plaintiff, as he allegedly continued
to file numerous grievances regarding both the kicking incident and the loss of his legal
12
materials. Moreover, the Court’s own experience indicates that prisoners are ordinarily not
easily dissuaded from filing grievances based on mere taunting or harassment by guards. In fact,
the Court routinely receives lawsuits from prisoners challenging such behavior.
While Defendant Kennedy’s alleged threat to give Plaintiff a major write-up might have
had a more chilling effect, Plaintiff’s conclusory allegations regarding this incident do not “give
the Court reason to believe that [Plaintiff] has a reasonable likelihood of mustering factual
support for [this] claim[].” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th
Cir. 2007). As other courts have noted, “[b]ecause prisoner retaliation claims are ‘easily
fabricated and pose a substantial risk of unwarranted judicial intrusion into matters of general
prison administration,’ courts must insist that such claims are bound up in facts, not in the
gossamer strands of speculation and surmise.” Hannon v. Beard, 645 F.3d 45, 58 (1st Cir. 2011)
(quoting Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003) (internal alterations omitted)).
Here, Plaintiff offers nothing more than his own brief account of the incident and does not
include sufficient details to show a factual basis for a retaliation claim.
Thus, the Court concludes that Plaintiff’s allegations are insufficient to state a plausible
claim for retaliation in violation of the First Amendment.
D. Conclusion
Having concluded that Plaintiff’s allegations are insufficient to state a claim on which
relief can be granted, the Court will not address Defendants’ “affirmative link” and qualified
immunity arguments. Moreover, given the fact Plaintiff has already filed a thorough twenty-two
page Complaint with an additional thirty-seven pages of exhibits, the Court believes it would be
13
futile to allow Plaintiff an opportunity to amend his pleading at this late stage. Perkins v. Kan.
Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999). This is clearly not a case where Plaintiff
simply forgot “some important element that may not have occurred to him.” Reynoldson v.
Shillinger, 907 F.2d 124, 126-27 (10th Cir. 1990).
ORDER
Accordingly, IT IS HEREBY ORDERED that:
(1) Defendants’ Motion for Judgment on the Pleadings (doc. no. 93) is GRANTED; and,
(2) this case is CLOSED.
DATED this 21st day of September, 2012.
BY THE COURT:
____________________________
DALE A. KIMBALL
United States District Judge
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