Nelder v. Bigelow et al
MEMORANDUM DECISION and ORDER granting 53 Motion for Summary Judgment; denying 57 Motion to Appoint Counsel. Signed by Judge Dee Benson on 3/26/2015. (blh)
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DfSTHicr OF UTt~lf
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
MEMORANDUM DECISION & ORDER
GRANTING DEFENDANT'S MOTION
Case No. 2:12-CV-245 DB
Judge Dee Benson
Plaintiff, an inmate at Central Utah Correctional Facility (CUCF), filed this prose civilrights complaint under 42 U.S.C.S. § 1983 (2014). The matter is before the Court on
Defendant's summary-judgment motion, which refers to witness declarations and documentary
evidence submitted as exhibits to Defendant's Martinez report. (Docket Entry# 36.) In
response, Plaintiff submitted a document styled "Motion for Summary Judgment." (Docket
Entry# 54). Having reviewed the record, the Court grants Defendant's summary-judgment
motion and dismisses this lawsuit with prejudice.
In July 2011, a stabbing at Utah State Prison (USP) involved alleged members of rival
Juggalo and Sureno gangs and resulted in the death of a Sureno gang member. To restore
security and avert retaliatory attacks, Utah Department of Corrections (UDOC) executives
The Background facts are from Defendant's sununaiy-judgment motion, (Docket Entry# 53), and incorporate
undisputed facts asserted in Declarations and Martinez Report. (See Docket Entry #s 36, 37, 38, 39, 42, & 44.)
implemented an executive "safety caution" order segregating all known and suspected Juggalo
gang inmates from general-population inmates and housing them together as a security
To facilitate the executive order, Defendant, acting in his role as a sergeant in CUCF's
Security Threat Groups Intelligence Unit (STG), interviewed several inmates, including Plaintiff,
to identify suspected and known gang members. Plaintiff denied being a gang member, but
stated that he was good friends with Juggalo gang members. Based on this discussion,
Defendant identified Plaintiff as being affiliated with the Juggalo gang and noted Plaintiffs
"suspected" gang status in USP records. Defendant had no further involvement with Plaintiff.
Having been identified as a suspected Juggalo, Plaintiff was transferred by prison
officials to Elm Unit, Section One, at CUCF, a medium-security facility that had been designated
for housing Level III Juggalo inmates under the UDOC safety-caution order. A few days later,
Plaintiff wrote a letter to his Juggalo gang member friends outside prison and, in that
correspondence, used phrases and salutations common to Juggalo gang members. DOC officials
cited this correspondence as confirming Plaintiff's suspected Juggalo affiliation.
For the first several months after the DOC gang-safety-caution order was implemented,
Plaintiff was housed in Elm Section One where the conditions of confinement were generally at
least equivalent to those available to Level III inmates in general population. While he was in
the Elm facility, however, Plaintiff was involved in and written up for several disciplinary
violations which led to his reclassification as a Level II (high security) inmate in October 2011.
That reclassification necessitated Plaintiffs transfer to the more restrictive, maximum security,
Dogwood facility where Plaintiff was housed until January 2013.
Plaintiff brought this lawsuit in 2012, asserting causes of action claiming crnel and
unusual punishment in violation of the Eighth Amendment, and violation of due process rights
under the Fifth and Fourteenth Amendments. The alleged violations resulted from the
"suspected Juggalo" designation and consequent placement of Plaintiff in segregated housing at
CUCF. Plaintiff claims Defendant is "directly responsible" for these alleged violations of his
UNDISPUTED MATERIAL FACTS 2
1. UDOC executives issued an executive "safety caution" in response to a gang-related
killing at USP in Spring 2011. (Am. Compl. iI 5; Painter Deel., Docket Entry# 44, iriI
5-6.) That incident involved a Juggalo inmate who killed a Sureno gang member.
Id. The safety-caution order housed all Juggalo-affiliated inmates together and away
from general-population inmates to protect the Juggalos from retaliatory attacks. Id.
2. Defendant was employed as a sergeant in the STG at CUCF. (Am. Compl. iI 2;
Worley Deel., Docket Entry# 37, iI 1.)
3. After the killing, Defendant interviewed several inmates, including Plaintiff, as
required to implement the UDOC safety-caution order. (Worley Deel. iii! 9, ~)
4. Plaintiff stated that he is close friends with Juggalo gang members and that he
corresponded with them. (Worley Deel. iI 14.)
5.. Defendant categorized Plaintiff as a "suspected" Juggalo gang member on prison
records. (Am. Compl. iriI 7, 2.; Worley Deel.
Undisputed facts material to the Motion for Summary Judgment are taken from the Martinez
Report (Docket Entry# 36), Declarations (Docket Entry #s 37, 38, 39, 42, 44), and documentary
exhibits to the Martinez Report (Docket Entry# 43, Exhs. A-H, filed under seal).
6. Plaintiff was then transferred to Elm facility at CUCF Section One, where other Level
ill Juggalo inmates were housed. (Worley Deel. ir 15; Martinez Report, Ex. G.)
7. Plaintiff later wrote to friends outside of prison who are Juggalo gang members.·
(Am. Compl. ir 7.) In his letter, Plaintiff used salutations and other phrases
commonly used among Juggalos and indicative of Juggalo gang affiliation. (Am.
Compl. iI 6; Worley Deel. iI 16.)
8. Before his July 2011 interview with Plaintiff, Defendant did not know Plaintiff.
Defendant was not assigned to Elm or Dogwood housing units and was not part of
Plaintiffs management team. (Worley Deel. irir 5, 22, 27.)
9. Other than gathering gang-affiliation information in his interview in July 2011,
Defendant had no role in determining Plaintiffs security classification, housing
assignment, privileges or programming, or any discipline-related issues. (Worley
Deel. i.riI 21, 22, 27.)
Summary Judgment and Qualified Immunity
Under Rule 56, the Court "shall grant summary judgment if the movant shows there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law." Fed. R. Civ. Pro. Rule 56(a). "When a defendant asserts qualified immunity at the
summary judgment stage, the initial Rule 56 burden shifts to the plaintiff to show that (1) the
defendant violated a constitutional right and (2) the constitutional right was clearly established."
Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013) (quotations omitted). "If the plaintiff
fails to satisfy either part of the two-part inquiry, the court must grant the defendant qualified
immunity." Holland ex rel. Overdorffv. Harrington, 268 F.3d 1179, 1186 (10th Cir. 2001).
Defendant is entitled to qualified immunity. As a matter oflaw, Plaintiff cannot show a
constitutional violation, or point to clearly established precedent that supports his claims.
1. Plaintiff Does Not Have a Liberty Interest in Prison Housing and Therefore
Cannot State a Due Process Violation.
In his Amended Complaint, Plaintiff alleges Defendant violated his right to due process
when Defendant "wrongfully accused" Plaintiff of being a Juggalo gang meniber, which,
Plaintiff asserts, led to his consequent placement in "unnecessary segregation." (Am. Compl.
To invoke the protections of procedural due process, however, a plaintiff must first
establish the existence of a recognized property or liberty interest. Setliff v. Mem 'l Hosp. of
Sheridan Cnty., 850 F.2d 1384, 1394 (10th Cir.1988). A transfer to harsher conditions of
confinement only gives rise to a liberty interest when an inmate faces an "atypical and
significant hardship ... in relation to the ordinary incidents of prison life." Rezaq v. Nalley, 677
F.3d 1001, 1011 (10th Cir. 2012) (quotation marks & citations omitted). And legitimate
penological interests invoked in light of an inmate's purported gang affiliation are a "relevant
[due process] consideration under settled Tenth Circuit precedent." Id.; see also Derrickv.
Ward, No. 03-6090, 2004 U.S. App. LEXIS 224, at* (10th Cir. Jan. 8, 2004).
Here, UDOC had legitimate penological reasons for determining inmates' gang status
and taking precautions to minimize risk ofretaliatory gang-related assaults after the 2011 gangrelated killing at USP. UDOC's response to that incident-ordering segregation of gangaffiliated inmates to keep them out of the general-inmate population and protect them from
retaliatory attacks-appears to have been an appropriate response, rooted in legitimate safety and
security concerns. Given the information Defendant obtained in investigating Plaintiff, it was
not unreasonable for Defendant to identify Plaintiff as a "suspected" Juggalo in prison records.
But that is where Defendant's involvement stopped. Defendant had no role in later decisions to
transfer Plaintiff to the Juggalo section in the Elm Unit, and Defendant had no involvement in
the later disciplinary write-ups and security re-classification that led to Plaintiffs transfer to
more restrictive Level II housing. Given Defendant's tangential role in Plaintiffs housing
assignments, Defendant is entitled to qualified immunity and summary judgment on Plaintiffs
Even if Plaintiff could have shown that Defendant had more of an affirmative role in the
housing decisions, the general rule in the Tenth Circuit, is that inmates do not have a protected
liberty interest in a particular housing assignment or security classification. Absent such liberty
interest, due process beyond the very basic procedures is not triggered. Levoy v. Mills, 78 8 F .2d
1437, 1440 (10th Cir. 1986) ("The Constitution does not, in and of itself, create any protected
liberty interest in a particular confinement status."). Even changing an inmate's security
classification "ordinarily does not deprive him of liberty, because he is not entitled to a particular
degree of liberty in prison" and an inmate has no liberty interest in remaining in general
population. See Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994); see also Anderson v.
Cunningham, No. 08-1349, 2009 U.S. LEXIS 6840, at *12 (10th Cir. March 30, 2009) (holding
confinement to housing unit for 45 days with alleged loss of access to exercise facilities asserted
no liberty interest); Jackson v. Ward, No. 05-5004, 2005 U.S. App. LEXIS 28070, at *5 (10th
Cir. Dec. 19, 2005) (stating inmate has no liberty interest in any particular classification or
assignment); Harris v. Chabries, No. 04-4139, 2004 U.S. App. LEXIS 22462, at *3 (10th Cir.,
No. 04-4139, Oct. 28, 2004) (concluding inmate failed to allege an atypical and significant
hardship related to change in housing assignment).
Plaintiff also contends that he "has been denied the programming and mapping that is
required for him to qualify for a parole date from the Board of Pardons." (Am. Compl.
But, as with housing and security classification, inmates do not have a constitutionally protected
liberty interest in programming or rehabilitation. See Paige v. Okla. Dep 't of Corrs., No. 076101, 2007 U.S. App. LEXIS 21558, at *5 (10th Cir. Sept. 7, 2007) (unpublished) (holding no
constitutional right to rehabilitation and "no protected property or liberty interest in accessing
the parole process"). Accordingly, Plaintiff has no constitutional right to programming or parole
and cannot argue any lack of access to these privileges rises to the level of a due-process
violation. As a matter oflaw, Plaintiff has not stated a liberty interest that would trigger a dueprocess right and has failed to show that Defendant violated any such right. Accordingly,
Defendant is entitled to qualified immunity.
2. Qualified Immunity Also Bars Plaintiffs Eighth Amendment Claim.
"[T]o succeed on an Eighth Amendment claim, a prisoner must show: (1) he is
incarcer"!-ted under conditions posing a substantial risk of serious harm; and (2) the prison
official was deliberately indifferent to his safety." Murphy v. Colo. Dep't of Corrs., No. 091443, 2010 U.S. App. LEXIS 11418, at **15-16 (10th Cir. June 4, 2010) (unpublished) (citing
Verdecia v. Adams, 327 F.3d 1171, 1175 (10th Cir. 2003)). And, "the inmate must do more than
show prison officials should have known of the risk of harm." Id. at * 16. Instead, the prisoner
"'must present evidence supporting an inference that [the individual defendants] actually knew
about a substantial risk of serious harm to his safety."' Id. (quotation marks & citations omitted).
Here, there is no allegation-let alone evidence-of any substantial risk of serious harm
to Plaintiff, or any knowing, deliberate indifference by Defendant. Rather, Plaintiffs placement
in Elm was to protect him from a perceived risk of harm due to his suspected gang affiliation.
And while he remained a Level III inmate and was housed in Elm, his living conditions were
arguably better than had he been in general population at that time, so any assertion of a
substantial risk of harm is tenuous at best. (See Defendant's Motion for Summary Judgment,
Docket Entry# 53, pp. 7-9 (indicating various privileges Plaintiff received while in Elm Section
One as Level III inmate).)
Nor has Plaintiff shown that Defendant was deliberately indifferent. First, Defendant had
nothing to do with--no affirmative link to--the DOC decision to segregate Juggalo inmates from
other general population inmates. Instead, as a gang intelligence officer, Defendant simply
interviewed Plaintiff and, based on the information Plaintiff gave him, identified Plaintiff as a
suspected Juggalo. All events that followed (Plaintiffs housing assignment) were decided and
implemented by others over whom Defendant had no control or authority. (Worley Deel.
Even so, as a matter oflaw, an inmate's transfer to administrative segregation resulting,
in part, from gang affiliation does not necessarily mean that prison administrators were
deliberately indifferent to conditions with a substantial risk of serious harm. See Farmer v.
Brennan, 511 U.S. 825, 834 (1994). Nor is it, per se, "'atypical [of] ... the ordinary incidents of
prison life."' See Adams v. Negron, No. 03-1110, 2004 U.S App. LEXIS 3558, at *4 (10th Cir.
Feb. 25, 2004) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995) (unpublished) (holding
placement in highly stmctured, restrictive prison housing unit not deliberate indifference).
Rather, "[a]dministrative segregation is the sort of confinement that inmates should reasonably
anticipate receiving at some point in their incarceration." Hewitt v. Helms, 359 U.S. 460, 468
(1983). There is no evidence or issue of fact here suggesting Defendant had actual knowledge of
any risk of harm arising from the UDOC executive decision to move Plaintiff to administrative
Plaintiff has not stated a constitutional claim against Defendant. As a matter oflaw,
Plaintiff has no liberty interest at issue. If anything, his assignment to be housed in the Elm and
Dogwood was arguably in Plaintiffs best interest at the time. There is no evidence Defendant
was aware of a substantial risk of harm, or that he was deliberately indifferent to any implicit
harm to Plaintiff. Accordingly, Defendant is entitled to qualified immunity.
3. The Law Is Not Clearly Established Such that Defendant Would Have Known
He Was Committing Any Constitutional Violations.
In addition, qualified immunity is appropriate because there is no clearly established law
holding that assessing, categorizing or segregating an inmate due to his suspected gang
affiliation violates a constitutional right. To be clearly established, '"[t]he contours of the right
must be sufficiently clear that a reasonable official would understand that what he is doing
violates that right."' Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995) (citation
omitted). The inquiry is "whether the law put officials on fair notice that the described conduct
was unconstitutional." Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004). The cases
cited above show the opposite: that Defendant was well within constitutional boundaries and
Plaintiff was not deprived of due process.
Even "officials who are mistaken about the lawfulness of their conduct may still be
entitled to qualified immunity if the mistake is reasonable in light of the applicable law and the
facts known to them at the time." Gomes v. Wood, 451 F.3d 1122, 1136 (10th Cir. 2006). At
minimum, Defendant had reason to identify Plaintiff as being affiliated with the Juggalo gang.
No clearly established law put Defendant "on fair notice that the described conduct was
unconstitutional." Pierce, 359 F.3d at 1298. Thus, because the evidence indicates that
Defendant's actions were objectively reasonable, he is entitled to qualified immunity. Mecham
v. Frazier, 500 F.3d 1200, 1203 (10th Cir. 2007).
Accordingly, IT IS HEREBY ORDERED that:
(1) For the same reasons stated in the Court's denials of Plaintiffs earlier motions for
appointed counsel, (see Docket Entry #s 18, 28 & 49), Plaintiffs fifth motion for appointed
counsel is also DENIED. (See id. # 57.)
(2) Defendant's Motion for Summary Judgment is GRANTED. (See id.# 53.)
(3) This case is CLOSED.
26~ of March 2015.
BY THE COURT:
United States District Judge
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