Free Response to Motion - District Court of Delaware - Delaware

Case 1:06-cv-00053-JJF

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JAMES A. WILSON, et al., Plaintiffs, v. HELEN LOHMAN, SCOTT MORGAN, TOM CARVAN, JAY PLUMMER and JOE FIELDS Defendants. ) ) ) ) ) ) ) ) ) ) )

C.A. No. 06-053-KAJ

DEFENDANTS' RESONSE TO PLAINTIFF'S AMENDMENT TO HIS COMPLAINT STATEMENT OF FACTS 1. James Wilson ("Plaintiff" or "Wilson") filed this lawsuit on January 27, 2006

(D.I. 1). Defendants filed their motion to dismiss and memorandum of points and authorities in support of their motion on July 31, 2006. (D.I. 69 and 70). On July 18, 2006, Plaintiff filed a motion to amend his complaint to add a claim for retaliation. (D.I. 66). The motion was subsequently granted by this Court on August 16, 2006 (D.I. 72). On September 1, 2006, Plaintiff filed his amendment. (D.I. 75). 2. As Defendants have already filed a motion to dismiss the original complaint, they

incorporate that motion and memorandum (D.I. 69 and 70), with this response to Plaintiff's amendment, which appears to focus on a claim of retaliation. MEMORANDUM OF LAW I. PLAINTIFF CANNOT SHOW A COGNIZIBLE CLAIM FOR RETALIATION BECAUSE HE HAS FAILED TO ALLEGE A CONSTITUTIONAL VIOLATION. In his amendment to his complaint, Plaintiff claims he was subjected to retaliation for

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filing grievances and lawsuits. Wilson was moved from the Sussex Correctional Institution ("SCI") to the Delaware Correctional Center ("DCC") on June 5, 2006, approximately five months after filing this lawsuit. None of the defendants had any input into the decision about Wilson's transfer. (See Affidavit of Pat Ditto, attached as Exhibit "A" at ¶8). "Government actions, which standing alone do not violate the Constitution, may nevertheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right." Allah v. Seiverling, 229 F.3d 220, 224-25 (3d Cir. 2000)(citing Thaddeus-X v. Blatter, 175 F.3d 378, 386 (6th Cir. 1999). A prisoner alleging violation of his Constitutional rights due to retaliation against him must show: (1) "the conduct which led to the alleged retaliation was constitutionally protected"; (2) "he suffered some `adverse action' at the hands of the prison officials"; and (3) "a causal link between the exercise of his constitutional rights and the adverse action." Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)(citations omitted). Wilson claims that the constitutionally protected conduct consists of filing lawsuits and grievances, and that the move from one institution to another is the retaliatory result of filing the suits. However, Plaintiff fails to show how the move from SCI to DCC is an adverse action, or that it is connected to filing the lawsuits or grievances. Many inmates are moved from one institution to another regardless of whether they have filed lawsuits or grievances. Further, Wilson has no constitutional right to a particular housing situation or a job. Wilson's transfer to DCC enables him to complete a substance abuse program and take advantage of other educational opportunities. (See Affidavit of Ron Hosterman, attached as Exhibit "B"). II. PLAINTIFF HAS NO LIBERTY INTEREST IN HIS SECURITY CLASSIFICATION, EMPLOYMENT OR HOUSING LOCATION AND THEREFORE HIS AMENDED CLAIM MUST FAIL. A. Plaintiff has no liberty interest in a particular housing unit.

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Plaintiff's claims in this amendment to his complaint are almost identical to his claims of retaliation in a concurrent lawsuit in the United States District Court, number 05-399-JJF. Wilson claims that he was removed from the Merit housing unit in retaliation for filing this lawsuit. In order to legally state a cause of action, Plaintiff must demonstrate a protected liberty interest. Sandin v. Conner, 515 U.S. 472 (1995). "It is plain that the transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence." Hewitt v. Helms, 459 U.S. 460, 468 (1983). Hewitt makes clear that the Fourteenth Amendment Due Process Clause does not by force of its own words create a liberty interest in a prison inmate "being confined to a general population cell, rather than the more austere and restrictive administrative segregation quarters. Leyton v. Beyer, 953 F.2d 839, 845 (3d Cir. 1992). In relation to an incarcerated individual's liberty interests, the Supreme Court has held that such liberty interests are limited to "freedom from restraint" which imposes an "atypical and significant hardship" in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 483-84 (1995) (emphasis added). [T]he baseline for determining what is "atypical and significant" is ascertained by what a sentenced inmate may reasonably expect to encounter as a result of his or her conviction in accordance with due process of law. Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir. 1997). There are two factors the Court must consider in determining whether an inmate has suffered an "atypical and significant hardship". The Court must consider: 1) the amount of time the prisoner was placed into disciplinary segregation; and 2) whether the conditions of his confinement in disciplinary segregation were

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significantly more restrictive that those imposed on other inmates in solitary confinement. Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000). "Sandin instructs that placement in administrative confinement will generally not create a liberty interest." Allah v. Seiverling, 229 F.3d 220, 224 (3d Cir. 2000)(emphasis added). "The decision where to house inmates is at the core of prison administrators'expertise." McKune v. Lile, 536 U.S. 24, 26 (2002)(citing Meachum v. Fano, 427 U.S. 215, 225 (1976)). Wilson alleges that he was moved from the Merit building without being given a reason. The privations described by Plaintiff in his motion to amend his complaint are not the type that pose an "atypical and significant hardship." Sandin , 515 U.S. at 483-84. Wilson's claims do not add up to a the "atypical and significant hardship" discussed in Sandin. In Wilson's situation he claims that his transfer to the Delaware Correctional Center ("DCC"), is in retaliation for filing grievances and filing a lawsuit. Plaintiff has no liberty interest in remaining in any particular housing unit or institution. Although the Court in Shoats addressed administrative segregation, the same principle applies to Plaintiff's situation. Placement in administrative confinement does not invoke a liberty interest, nor does movement to another housing unit or institution. The prison is not required by the constitution to tell Plaintiff why he was moved. As the Third Circuit Court of Appeals in Leyton held, there is no liberty interest in being placed in a particular housing unit. Leyton 953 F.2d at 845. Nor, as the Supreme Court held in Hewitt, is there a constitutional violation created because Plaintiff was moved to a more restrictive, environment with fewer amenities for apparently non-punitive reasons. Hewitt, 459 U.S. at 468. Plaintiff was transferred to DCC so that he could take part in the Greentree treatment program. (Ex.A). When he was moved from the Merit building, Wilson was offered the opportunity to attend the Greentree program at DCC

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or work in the kitchen at the Sussex Correctional Center ("SCI"). Wilson refused to choose, so the treatment administrator made the choice. (Ex. A at ¶ 6). Wilson was transferred to DCC and subsequently enrolled in the Greentree program and a computer course. (Ex. B). He will receive good time credits for the computer course. Therefore, Wilson is not being denied the opportunity to obtain good time credits. Although the Greentree program is not required as part of his sentence, the Superior Court has made completion of a substance abuse program part of his sentence. (Ex. B at ¶ 4 and Superior Court Sentencing Order at p. 11, attached as Exhibit "C"). B. Plaintiff has no liberty interesting maintaining employment in prison.

Wilson claims that he was removed from his job as an education assistant when he was moved from the Merit building. Wilson does not have the right to maintain a particular job. Abdul-Akbar v. Dep't of Correction, 910 F. Supp. 986 (D. Del. 1995)(inmates have no "legitimate entitlement" to employment or rehabilitation). Because Plaintiff has no right to a particular job, or any job, the fact that he lost his job does not state a claim for a constitutional violation. C. Plaintiff does not have a constitutional right to a prison grievance process.

Plaintiff claims that he has suffered retaliation because he wrote grievances. Plaintiff says only "the institution was trying to move him because he write [sic] grievances which is exercising his constitutional rights." (D.I. 75 at ¶ 4). Yet Plaintiff fails to show that there is a causal connection between writing grievances and the alleged retaliation.1

Plaintiff does not have a protected constitutional right to a prison grievance procedure. Burnside v. Moser, 138 Fed. Appx. 414, 416 (3rd Cir. 2005)(citing finding in Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991, that there is no liberty interest in having access to a grievance procedure in prisons).

1

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III.

PLAINTIFF FAILS TO ESTABLISH THE CAUSAL CONNECTION REQUIRED TO SUPPORT A CLAIM OF RETALIATION. Wilson does engage in the constitutionally protected activity of filing lawsuits.

However, the move from SCI to DCC is for the purpose of allowing Wilson to attend a substance abuse treatment program which is required as part of his sentence. He also continues to accrue good time credits while enrolled in the computer course. Therefore, Wilson has not suffered an adverse action. Finally, he does nothing to establish the causal connection between filing the lawsuits and being moved. Simply announcing that he has suffered retaliation is not enough.

Plaintiff has the burden show how the protected activity caused and adverse action. Plaintiff has not established that connection, and thus the retaliation claim should be dismissed with the rest of the lawsuit for failure to state a claim. CONCLUSION For the reasons stated above and in Defendants' memorandum of points and authorities in support of their motion to dismiss, already filed with this Court, Defendants request that this Court enter an order granting Defendants' motion to dismiss for failure to state a claim.

STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Lisa Barchi Deputy Attorney General 820 N. French Street, 6th floor Wilmington, DE 19801 (302) 577-8400 [email protected] Date: September 14, 2006 Attorney for Defendants

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CERTIFICATE OF SERVICE I hereby certify that on September 14, 2006, I electronically filed Defendants' Reply Memorandum of Points and Authorities in Support of their Motion to Dismiss with the Clerk of Court using CM/ECF. I hereby certify that on September14, 2006, I have mailed by United States Postal Service, the document to the following non-registered participants: James Wilson, Gilbert Williams, Jerome Green, Jose Serpa, Wiliam Coleman, Marvin Smith, DeShawn Tatman, Jerel Custin, and Fred Newsome. STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Lisa Barchi Lisa Barchi, I.D. # 3927 Deputy Attorney General Department of Justice 820 N. French Street, 6th Floor Wilmington, DE 19801 (302) 577-8400 [email protected]

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