Payne v. Herman et al

Filing 36

MEMORANDUM DECISION and Order granting 25 Motion to Dismiss for Failure to State a Claim ; denying 32 Motion to Appoint Counsel. Signed by Judge Dee Benson on 9/12/12. (jlw)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

PAUL RICHARD PAYNE,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.

Case No. 2:10-CV-684 DB

BRYANT HERMAN et al.,
District Judge Dee Benson
Defendants.

Plaintiff, Paul Richard Payne, 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 to Dismiss for Failure to State a Claim (doc. no. 25).
ANALYSIS
I. Introduction
Plaintiff’s Amended Complaint (doc. no. 11) names as defendants six Utah State Prison
officials (and several “John Does”) and asserts three claims under 42 U.S.C. § 1983. Plaintiff’s
first claim alleges that Defendant Herman subjected Plaintiff to cruel and unusual punishment
under the Eighth Amendment by making false statements about Plaintiff being a “snitch,”
thereby placing Plaintiff in jeopardy of harm from other inmates. Plaintiff’s second claim
alleges denial of due process stemming from disciplinary sanctions imposed against him for
passing items between cells (“fishing”) in violation of prison rules. Plaintiff’s third claim

alleges denial of due process regarding the imposition of ten days punitive isolation against
Plaintiff for a flooding incident. Plaintiff seeks injunctive relief, compensatory and punitive
damages, costs and “other judicious relief.”
Each of the defendants, with the exception of Defendant Herman,1 move to dismiss the
claims against them asserting that Plaintiff’s Amended Complaint fails to state a plausible claim
for relief. Defendants assert that Plaintiff either lacks any cognizable due process rights or else
was afforded the process due to him. The supervisory defendants also assert that Plaintiff’s
claims against them rely upon a respondeat superior theory of liability which is not cognizable
under Section 1983.
II. Rule 12(b)(6) Standard
A motion to dismiss under Rule 12(b)(6) requires the court to decide whether the factual
allegations made 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

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The present motion to dismiss does not address the Eighth Amendment claim against
Defendant Herman, who has filed an Answer (doc. no. 24) and stated his intention to file a
separate motion to dismiss at a later time. Thus, any reference to “Defendants” in this order does
not include Defendant Herman.
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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) (quoting
Twombly, 550 U.S. at 554-55).
III. Motion to Dismiss
A. Legal Standard for Due Process Claims
The Fourteenth Amendment’s procedural due process guarantee “ensures that a state will
not deprive a person of life, liberty or property unless fair procedures are used in making that
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decision.” Kirkland v. St. Vrain Valley Sch. Dist., 464 F.3d 1182, 1189 (10th Cir. 2006). To
state a procedural due process claim a plaintiff must allege: (1) that he has a constitutionally
protected liberty or property interest that has been interfered with by the state; and, (2) that he
was not afforded an appropriate level of process. Couture v. Board of Educ. of Albuquerque
Pub. Sch., 535 F.3d 1243, 1256 (10th Cir. 2008). The Supreme Court has recognized that in the
prison context “states may under certain circumstances create liberty interests which are
protected by the Due Process Clause.” Sandin v. Conner, 515 U.S. 472, 483, 115 S. Ct. 2293,
2300 (1995). However, “a deprivation occasioned by prison conditions or a prison regulation
does not reach protected liberty interest status and require procedural due process protection
unless it imposes an ‘atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.’” Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006) (quoting
Sandin, 515 U.S. at 484).
The Supreme Court has held that “[p]rison disciplinary proceedings are not part of a
criminal prosecution, and the full panoply of rights due a Defendant in such proceedings does
not apply.” Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963, 2975 (1974). Only when a
disciplinary proceeding threatens a constitutionally protected liberty interest is a prisoner
guaranteed due process under the Federal Constitution. Id. And, even where protected liberty
interests are implicated, prisoners are only entitled to “the minimal safeguards afforded by the
Due Process Clause of the Fourteenth Amendment.” Mitchell v. Maynard, 80 F.3d 1433, 1444
(10th Cir. 1996) (quotation marks and citations omitted.) These minimal safeguards require that
a prisoner receive advance written notice of the charges against him, the right to call witnesses
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and present evidence in his own defense if doing so does not jeopardize institutional safety or
correctional goals, and a written statement indicating the evidence relied on and the reasons
supporting the disciplinary action.” Caserta v. Kaiser, No. 00-6108, 2000 WL 1616248, at *2
(10th Cir. Oct. 30, 2000) (Emphasis added). Although prison rules may include additional
procedural guidelines for disciplinary hearings, an inmate cannot rely upon those rules to state a
due process claim under the Federal Constitution because “state procedures do not define what is
required under federal due process.” Glatz v. Kort, 807 F.2d 1514, 1517 n. 4 (10th Cir. 1986).
Finally, it is well settled that Section 1983 does not create a cause of action for denial of
property without due process where an alternative state remedy provides due process. See
Hudson v. Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194, 3204 (1984). Thus, in a § 1983 action
for damages caused by the unauthorized or random deprivation of property without procedural
due process, the plaintiff has the burden of pleading and proving that state processes, including
state damage remedies, are inadequate to redress the claimed wrong. See Gillihan v. Shillenger,
872 F.2d 935, 940 (10th Cir. 1989); Vicory v. Walton, 721 F.2d 1062, 1063 (6th Cir. 1983).
B. Sufficiency of Count Two
Count Two of Plaintiff’s Amended Complaint alleges that Captain Herman and Deputy
Warden Blake Nielsen held an Offender Management Review hearing (OMR) with Payne and
imposed disciplinary sanctions against him for “fishing” (passing food items between cells using
a string). Plaintiff asserts that he was denied due process during this hearing because he was not
allowed to present evidence or call witnesses, nor was he given a written account of the findings.
Plaintiff states that the sanctions included loss of his “shoe contract” which allowed him to have
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special shoes, confiscation of his special shoes without compensation, and loss of other
privileges including commissary, phone access, and regular meals. Plaintiff also vaguely asserts
that the sanctions were imposed in retaliation for his filing lawsuits, grievances and complaints
with government agencies and the media. Finally, Plaintiff states that he appealed this action to
Defendant Tom Anderson who rejected the appeal in violation of Plaintiff’s First Amendment
right to petition the government for redress.
Plaintiff’s allegations in Count Two are not sufficient to state a plausible claim for relief
under Section 1983. First, aside from the taking of Plaintiff’s shoes without compensation,
Plaintiff has not alleged that Defendants deprived him of any constitutionally protected liberty or
property interest through the challenged OMR proceeding. Instead, each of the deprivations
Plaintiff alleges involve mere inconveniences which are ordinary incidents of prison life.
Plaintiff cannot state a viable due process claim based on the denial of special shoes, commissary
and phone privileges or special meals. As other courts have recognized, where a prison
deprivation does not implicate protected liberty or property interests “the state is free to use any
procedures it chooses, or no procedures at all” when restricting them. Montgomery v. Anderson,
262 F.3d 641, 644 (7th Cir. 2001).
Regarding the failure to return Plaintiff’s shoes or provide him compensation, Plaintiff
does not allege specific facts showing what happened to the shoes after they were taken from
him.2 It appears that the shoes were either thrown out or somehow lost in the property
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In the “Injury” section of his Amended Complaint Plaintiff states that the shoes were
“stolen,” although he provides no facts to support this conclusory assertion. (Am. Compl. at 12.)
Regardless, such a loss would amount to an unauthorized intentional deprivation of property for
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disposition process. However, Plaintiff cannot make out a due process claim based on the
unauthorized or random deprivation of property without alleging that state post-deprivation
processes, including state damage remedies, are inadequate to redress his loss. See Gillihan v.
Shillenger, 872 F.2d 935, 940 (10th Cir. 1989). Plaintiff has not made such a showing here.
Finally, even assuming that Plaintiff could show a constitutionally cognizable liberty or
property interest, he has not alleged specific facts showing that he was denied minimal due
process in the OMR hearing. Plaintiff does not deny receiving prior notice of the hearing.
Although Plaintiff states that he was not allowed to present evidence or call witnesses, he does
not allege facts showing that prison officials could have allowed him to do so in an OMR setting
without jeopardizing institutional safety or correctional goals. Moreover, although Plaintiff
denies receiving “a written account of the findings” such records are not required for an informal
management review hearing.
Thus, the Court concludes that Plaintiff’s allegations in Count Two of the Amended
Complaint are insufficient to state a plausible claim for relief.
B. Sufficiency of Count Three
Count Three of Plaintiff’s Amended Complaint alleges that Defendant Brown denied
Plaintiff due process in a disciplinary hearing by not allowing Plaintiff to present evidence or
call witnesses. The disciplinary hearing stemmed from an incident in which the shower Plaintiff
was using overflowed. Plaintiff was found guilty of intentionally causing the flooding and
sentenced to ten days punitive isolation. Plaintiff asserts that he was denied due process because
which state processes provide a remedy.
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Defendant Brown refused to speak to Plaintiff’s witnesses, including other guards and inmates
who allegedly had exculpatory information regarding the incident. Plaintiff also asserts that
Defendant Anderson denied Plaintiff due process by refusing to hear Plaintiff’s disciplinary
appeal. Finally, Plaintiff alleges that Defendants’ actions were retaliation for filing grievances.
Once again, Plaintiff’s allegations are not sufficient to state a plausible due process
claim. Although this claim involves a formal disciplinary hearing resulting in punitive isolation,
which does create a cognizable liberty interest, Plaintiff’s allegations do not support the
conclusion that he was denied minimal due process. Plaintiff does not deny receiving prior
notice of the hearing on this matter or written notice of the findings. In addition, Plaintiff admits
that he was present at the hearing and was allowed to offer testimony and present some evidence
in his defense. Plaintiff’s assertion that Defendant Brown should have investigated the matter
more thoroughly, or spoken to each of Plaintiff’s proposed witnesses, does not show a denial of
due process. While Plaintiff undoubtedly would have preferred a full criminal trial-like
proceeding, such elaborate procedures are not required in the prison disciplinary setting.
Moreover, although Plaintiff asserts that significant exculpatory evidence was available, he does
not deny that there was also “some evidence” to support the guilty finding, which is all that was
required here. See Superintendent Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455-57, 105 S. Ct.
2768 (1985).
Plaintiff’s conclusory allegation of retaliation is also insufficient to state a claim for
relief. To state a plausible retaliation claim Plaintiff must allege facts showing: “(1) he was
engaged in constitutionally protected activity, (2) the government’s actions caused him injury
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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). Although Plaintiff vaguely alleges that the disciplinary action was
retaliation for filing grievances and lawsuits he does not allege any facts showing that “‘but for’
the retaliatory motive . . . the disciplinary action would not have taken place.” Peterson v.
Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998)(quoting Smith v. Maschner, 899 F.2d 940, 949-50
(10th Cir. 1990.)).
Thus, the Court concludes that Count Three of Plaintiff’s Amended Complaint fails to
state a claim on which relief can be granted.
IV. Motion to Appoint Counsel
Plaintiff requests appointment of “stand-by” counsel to assist him with this case.
Plaintiff asserts that appointed counsel is warranted based on his limited legal expertise, lack of
access to a law library and the limited assistance provided from the prison contract attorneys.

It is well established that plaintiffs in civil cases do not have a constitutional right to
counsel. See Carper v. Deland, 54 F.3d 613, 616 (10th Cir. 1995); Bee v. Utah State Prison, 823
F.2d 397, 399 (10th Cir. 1987). However, a district court may, in its discretion, appoint counsel
for indigent inmates under 28 U.S.C. § 1915(e)(1). See 28 U.S.C.A. § 1915(e)(1) (West 2012);
Carper, 54 F.3d at 617; Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991). When deciding
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whether to appoint counsel, the court considers a variety of factors “including ‘the merits of the
litigant’s claims, the nature of the factual issues raised in the claims, the litigant’s ability to
present his claims, and the complexity of the legal issues raised by the claims.’” Rucks v.
Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (quoting Williams, 926 F.2d at 996). “The
burden is upon the applicant to convince the court that there is sufficient merit to his claim to
warrant the appointment of counsel.” McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir.
1985).
Weighing the above factors, the court concludes that appointed counsel is not warranted.
At this point the only claim remaining in this case is Plaintiff’s Eighth Amendment claim against
Defendant Herman. It does not appear that the legal or factual issues related to that claim are
especially complex or that Plaintiff is unable to adequately pursue this claim on his own. In fact,
Plaintiff’s extensive litigation history shows that he is capable of doing so. Plaintiff’s motion for
appointed counsel is denied.
ORDER
Accordingly, IT IS HEREBY ORDERED that:
(1) Defendants’ Motion to Dismiss (doc. no. 25) is GRANTED; and,
(2) Plaintiff’s Motion to Appoint Counsel (doc. no. 32) is DENIED.
Dated this 12th day of September, 2012.
BY THE COURT:

___________________________
DEE BENSON
10

United States District Judge

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