Free Motion for Summary Judgment - District Court of Colorado - Colorado

Case 1:03-cv-01959-MSK-PAC

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we affirm. Briefs and Other Related Documents NOTICE: THIS IS AN UNPUBLISHED OPINION.(The Court's decision is referenced in a "Table of Decisions Without Reported Opinions" appearing in the Federal Reporter. Use FI CTA6 Rule 28 and FI CTA6 IOP 206 for rules regarding the citation of unpublished opinions.) United States Court of Appeals, Sixth Circuit. Gary Lee COLLMAR, Marvin Stewart, and James Ferrara, Plaintiffs-Appellants, v. Reginald A. WILKINSON, Richard Hall, Terry Knight, Lt. Brawley, Sgt. Minard, and Kathy Kessler, Defendants-Appellees. No. 97-4374. Aug. 11, 1999. On Appeal from the United States District Court for the Northern District of Ohio. Before GUY, COLE, and CLAY; Circuit Judges. GUY, Circuit Judge. *1 Plaintiffs. Gary Collmar. Marvin Stewart, and James Ferrara, appeal pro se from the dismissal of the prisoner civil rights action pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim for violation of their Eighth or Fourteenth Amendment rights. The plaintiffs, three Ohio state prisoners, filed this action under 42 U .S.C. § 1983, alleging that the Rule lnfraction Board (RIB) found them guilty of aiding and abetting the conveyance of drugs into the prison based solely upon the testimony of confidential informants, absent a determination that the informants were reliable. Plaintiffs were placed in segregation for about eight months, and claim that the convictions affected their security status and the likelihood of their being paroled. Plaintiffs sought monetary damages, expungement of the infraction from their records, reevaluation of their security status, and rehearing before the parole authorities. After review of the record and the arguments on appeal, I. During the relevant time periods, plaintiffs were all inmates at Mansfield Correctional Institution (ManCI) located in Mansfield, Ohio.FN1 On December 22, 1993, plaintiffs were placed in Security Control pending investigation. In January 1994, a panel of the RIB found plaintiffs guilty of aiding and abetting the conveyance of drugs into ManCI and sentenced them to fourteen days of Disciplinary Control, with no credit for the thirty days served in Security Control, and recommended that plaintiffs be transferred to Administrative Control. Plaintiffs claim that the RIB relied upon statements from confidential informants without determining their reliability despite plaintiffs' protestations at the hearing. Plaintiffs' administrative appeals were unsuccessful. FN1. The defendants were (1) the director of the Ohio Department of Rehabilitation and Correction (ODRC). Reginald Wilkinson. (2) the managing officer of ManCI, Richard Hall. (3) the investigating officer. Terry Knight and (4) the members of the RIB who conducted the disciplinary hearings. Lt Brawley, Sgt Minard, and Kathy Kessler. After a separate administrative hearing plaintiffs were placed in Administrative Control on February 9, 1994, where they remained until August 5, 1994. Defendants note that the RIB may recommend a change in security classification, but is not authorized to assign an inmate to administrative segregation. Plaintiffs allege that the conditions of confinement in Security Control, Disciplinary Control, and Administrative Control all included: lock-down for 22 3/4 hours a day; isolated recreation for one hour in a 20' x 20' cage; movement within the institution in shackles, belly chains, and cuffs; non-contact visitation only; and no phone calls or property. In contrast, plaintiffs described

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the conditions in general population to include: freedom of movement during the day within the institution; access to religious, educational, and recreational activities; and contact visitation with loved ones. Defendants maintain that placement in Administrative Control is not punishment, but is a management tool used to segregate inmates who have demonstrated assaultive, predatory, or other dangerous behaviors, and pose a threat to the security of the institution. Here, the alleged threat was aiding in the conveyance of drugs into the institution. *2 This action was commenced in April 1996. Defendants' motion to dismiss was referred to a magistrate judge, who recommended that the motion be granted. The district court granted the motion, but dismissed the Fourteenth Amendment claims for reasons other than those given by the magistrate judge. Judgment was entered accordingly. This appeal followed II. On a motion to dismiss, we must take the factual allegations as true and may dismiss only when it appears beyond doubt that plaintiffs were entitled to no relief under the facts alleged See Hishon v. King & Spalding. 467 U.S. 69.73 (1984). We review the district court's grant of a motion to dismiss de novo. A. Fourteenth Amendment Claim Plaintiffs claim that the RIB failed to assess the reliability of the informants upon which the serious misconduct charges were based, in violation of the procedural due process protections afforded to prisoners in disciplinary proceedings by this court in Hensley v. Wilson, 850 F.2d 269 (6th Cir.1988), in applying the principles established in Wolff v. McDonnell, 418 U.S. 539 (1974).FN2 It is alleged that the convictions resulted in plaintiffs' subsequent placement in Administrative Control. Before we may determine whether the

disciplinary proceedings violated plaintiffs' procedural due process rights, plaintiffs must first demonstrate they had a constitutionally protected liberty interest. FN2. In Hensley, we held that a prison disciplinary committee, substantially relying upon information from confidential informants in ordering the forfeiture of good time credits, must make an independent assessment of the informant's reliability and a contemporaneous record of that assessment. The protections in Wolff and thus presumably Hensley as well, only apply when the inmate is subjected to disciplinary action as opposed to segregation for administrative purposes Lesser due process protections are required when segregation is imposed for administrative reasons. See Hewiff v. Helms. 459 U.S. 460 (1983), Jones v. Baker, 155 F.3d 810, 816-17 (6th Cir.1998) (Gilman.J. concurring). In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court abandoned its prior approach to determining whether state procedures created a protected liberty interest and held. Following Wolff, we recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Id. at 483-84 (citations omitted). The Court explained that punishment of incarcerated prisoners serves the aims of effectuating prison management and rehabilitative goals and stated that "[d]iscipline by prison officials in response to a wide range of misconduct falls within the expec-

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ted perimeters of the sentence imposed by a court of law." Id. at 485. Even where punitive, the conditions must present a dramatic departure from the basic conditions of the prisoner's sentence. Id. In finding that the plaintiffs' discipline did not create a protected liberty interest, the Court emphasized that conditions of confinement in disciplinary segregation mirrored the conditions in administrative segregation and protective custody. Also, the Court found that the misconduct conviction would not "inevitably affect the duration of [plaintiff's] sentence," even though his misconduct record could be considered with respect to parole decisions. Id. at 487. To the extent that plaintiffs rely upon being transferred to more secure institutions as a result of their misconduct convictions, the Supreme Court has held that there is no due process right to be housed in any particular facility, or not to be transferred to a more restrictive institution. See Montayne v. Haynes, 427 U S 236, 242 (1976); Meachum v. Fano, 427 U.S. 215, 224 (1976). The Supreme Court also has held with respect to confinement in administrative segregation, that there is no right to remain in general population as the Due Process Clause, standing alone, does not confer a liberty interest in freedom from state action taken within the sentence imposed. See Sandin, 515 U.S. at 480 (citations omitted). *3 In this case, the magistrate judge concluded that the plaintiffs overcame the Sandin hurdle on a motion to dismiss, because of the alleged disparities between the conditions of confinement imposed on inmates in segregation and in general population, and the six-month duration of plaintiffs' confinement in administrative segregation. The district court rejected this recommendation, finding that plaintiffs' confinement (1) for 30 days under Security Control was not an atypical hardship because regulations permitted such placement during the investigation of alleged rule violations; (2) for 14 days under Disciplinary Control was not an atypical hardship for a class II

rule violation; and (3) six to eight months in Administrative Control was not an atypical hardship because it is not punitive or disciplinary placement but, rather, is a management tool used to segregate those inmates who pose a threat to the security of the institution from the general population. We agree with the district court and find that the diminished freedom experienced by plaintiffs in this case during their confinement in security, disciplinary, and administrative segregation was not of such a degree or duration to constitute an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484. In fact, we have found that comparable conditions of administrative segregation of significantly longer duration imposed for purposes of management and security did not constitute an atypical and significant hardship on inmates. See Jones v. Baker, 155 F.3d 810, 812 (6th Cir.1998) (administrative segregation for two and a half years did not satisfy Sandin ); Mackey v. Dyke, III F.3d 460, 463 (6th Cir.1997) (administrative confinement for 117 days for lack of bed space, could not satisfy Sandin ); Rimmer-Bey v. Brown, 62 F.3d 789 (6th Cir.1995).FN3 FN3. We also find that dismissal of this civil rights action should be affirmed because, as the magistrate judge concluded, it impermissibly implied the invalidity of the plaintiffs' misconduct convictions. See Edwards v. Balisok, 520 U.S. 641 (1997), Heck v. Humphrey, 512 U.S. 477 (1994), Biddv v. Zummer, 173 F 3d 428 (6th Cir.1999) (unpublished) Even a plaintiff who seeks damages for the use of the wrong procedures may not maintain an action under § 1983 if the alleged procedural defect necessarily implies the invalidity of the misconduct conviction. See Spencer v. Kemna, 118 S.Ct. 978, 988 (1998)

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B. Eighth Amendment Claim To establish an Eighth Amendment violation, the plaintiffs must show that the conditions of confinement involved the wanton and unnecessary infliction of pain, were grossly disproportionate to their crimes, or constituted a deprivation of minimal civilized measures of life's necessities. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981). There is also a subjective requirement that the prison officials acted with deliberate indifference. See Wilson v. Seiter, 501 U.S. 294 (1991). Plaintiffs argue that the district court erred in dismissing their Eighth Amendment claims despite the allegation that defendants deliberately found plaintiffs guilty of the misconduct, knowing the informants were unreliable and the plaintiffs were not guilty. The district court properly found that plaintiffs failed to state a claim under the Eighth Amendment because the restrictions on movement within the institution, participation in religious or educational activities, and telephone or visitation privileges, do not rise to the level of an Eighth Amendment violation. C. Failure to Consider Plaintiffs' Reply Brief *4 Plaintiffs argue that the district court committed plain error by dismissing their claims, over objections to the magistrate judge's report and recommendation, without considering the plaintiffs' reply to defendants' objections to the report and recommendation. Plaintiffs question why their reply was not docketed or filed in their case by the district court clerk's office. Their own documentation shows, however, that they did not send it to the clerk's office, but addressed it to the chambers of the district judge. Further, our review of this document shows that it was a cumulative repetition of the arguments plaintiffs had made previously and would not have changed the result in this case. AFFIRMED.

CLAY, Circuit Judge, concurring in part and dissenting in part. CLAY, Circuit Judge. I agree that Plaintiffs' claim under the Eighth Amendment warrants dismissal for failure to state a claim upon which relief can be granted. However, because I believe that Plaintiffs have sufficiently alleged they were deprived of a con stitutionally-protected liberty interest so as to survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), I respectfully dissent from the majority's dismissal of Plaintiffs' Fourteenth Amendment claim. I. On December 22, 1993, Plaintiffs, then inmates at Mansfield Correctional Institution ("ManCI") in Ohio, were placed in Security Control while the Rule Infractions Board ("RIB") investigated allegations that Plaintiffs had aided and abetted the conveyance of drugs into the prison. Plaintiffs remained in Security Control for thirty days pending the investigation and outcome of the RIB hearings. In January 1994, a RIB panel found Plaintiffs guilty of these charges and imposed a penalty of fourteen days in Disciplinary Control, with no credit for time served in Security Control, and recommended that each plaintiff thereafter be transferred to Administrative Control.FN1 FN1. An inmate may be placed in Security Control while prison officials investigate allegations of a rules infraction See Ohio Admin Code § 5120-9-11(A) Disciplinary Control placement occurs once an inmate is formally found to have violated a prison rule See Ohio Admin Code § 5120-9-8 Administrative Control placement is for those prisoners considered likely to pose a threat to institutional safety and order, it is used to segregate inmates who have demonstrated "assaultive, predatory or other dangerous" behavior See Ohio Admin Code § 5120-9-13

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Plaintiffs then appealed the disposition of their RIB hearings up to, and through, defendant Reginald Wilkinson, director of the Ohio Department of Rehabilitation and Correction. Plaintiffs challenged the evidence presented to the RIB, particularly the statements of confidential informants, as unreliable and insufficient to establish their guilt. In addition, Plaintiffs claimed that the prison officials failed to produce a written independent assessment of the credibility of the informants as provided for in Ohio Admin. Code § 5120-9-09(F)(2). Finding that there was some evidence to support the RIB's findings, Plaintiffs' institutional appeals were denied. On February 9, 1994, Plaintiffs were placed in Administrative Control where they remained until August 5, 1994. Plaintiffs characterize their sixmonth stay in Administrative Control ("A/C") as a continuation of the disciplinary segregation that began with Security Control ("S/C") and Disciplinary Control ("D/C"). Plaintiffs describe these segregated conditions as follows: *5 In S/C, D/C and Local Control (herein after L/ C), and A/C, inmates at ManCI are locked down twenty-two-and-three-quarter hours a day. They have recreation for approximately one hour a day, which consists of going into a fenced cage measuring approximately 20 x 20 where they can walk. Going to and from either of the above, they are in shackles, belly chains, and cuffs. They can have one hour visit by phone, in those shackles, belly chains, and cuffs, behind glass that separates the visitor from the inmate, if their family can stand to come see them in that condition. If they choose, a Chaplain will visit at their door for ten minutes. They have no phone calls, no property of their own, and no freedom to walk outdoors or mingle with other inmates. (J.A. at 114.) Plaintiffs contrast these restrictive conditions with the more lax environment enjoyed by the general prison population, where Plaintiffs resided prior to being charged with a rules infrac-

tion:Previously, from 8:00 a.m. until 9:45 p.m., with the exception of a thirty minute count at 3:30 p.m., Plaintiffs enjoyed the freedom of access to the institutional grounds. Specifically, they all had good jobs; when off, they could attend Church services where outside preachers preached the Good-News and outside Gospel Bands came in to Jam-for-the-Lamb, these services were held three times a week. Plaintiffs enjoyed outside recreation where they could lift weights, play hand ball, basketball, horse shoes, compete in boxing, or run the track. They have participated in the music program, art, and wood-shop programs, as well as attend college programs. They enjoyed the use of the phones at anytime in between the afternoon count to call loved ones. They enjoyed contact visits with their loved ones. They enjoyed the freedom they had in mingling with other inmates and not being cooped up in a 9 x 12 cell all day. (J.A. at 115-16.) In their suit filed under 42 U.S.C. § 1983, Plaintiffs allege that Defendants violated their constitutional rights under the Eighth and the Fourteenth Amendments. Plaintiffs' complaint seeks compensatory and punitive damages, expungement of the RIB conviction from their disciplinary records, and a rehearing of Plaintiff Collmar's case by the Adult Parole Authority. II. While I agree with the majority that Plaintiffs have failed to state a claim of cruel and unusual punishment in violation of the Eighth Amendment, I believe that they have sufficiently alleged that their placement in disciplinary segregationwhere they had to endure restrictive conditions far more limiting than those imposed on the general population-deprived them of a constitutionally protected liberty interest without due process of law in violation of the Fourteenth Amendment. In order to state a procedural due process claim

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arising out of an inmate's removal from the general prison population, a plaintiff must allege (i) that he enjoyed a protected liberty interest, and (ii) that the process due him was denied. See Board of Regents v. Roth, 408 U.S. 564, 569-70 (1972). "In order to determine whether segregation of an inmate from the general prison population involves the deprivation of a state-created liberty interest protected by the due process clause, courts are to determine if the segregation imposes an `atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." ' Jones v. Baker, 155 F.3d 810, 812 (6 th Cir.1998) (quoting Sandin v. Conner, 515 U.S. 472, 483 (1995)). A. *6 In Jones, as here, the plaintiff was a ManCI inmate confined to Administrative Control for a lengthy period. This Court granted summary judgment to the defendants on the prisoner's claim that his two and one-half years of confinement in administrative segregation violated his rights under the Fourteenth Amendment. The majority concluded that, where the inmate had been held in Administrative Control during the course of an investigation that resulted in his conviction for an in-prison murder, his prolonged stay did not deprive him of any liberty interests. The majority explained: We note that our holding here does not mean that every administrative segregation regardless of length or the reason for the segregation will not implicate a liberty interest. The facts of this case and the extraordinarily good reasons for holding plaintiff in segregation form the basis for this decision. Jones, 155 F.3d at 813. Notably, the concurrence concluded that while the inmate had been deprived of a protected liberty interest, there was no Fourteenth Amendment violation because he had been provided with sufficient procedural protections to satisfy due process.

The concurrence explained its view-which echoes the position of Plaintiffs here-that placement in Administrative Control at ManCI constitutes an "atypical and significant hardship" when compared to the restraints on the general prison population: Inmates in the general prison population at the Mansfield Correctional Institute are given work assignments, freely interact with other inmates, participate in educational, vocational, and recreational activities, and eat their meals with other inmates. Inmates housed in administrative segregation, in contrast, have a noticeable curtailment in the degree of "freedom" enjoyed by nonsegregated inmates. Jones, for example, did not have the benefit of receiving work assignments, educational and vocational opportunities, or the ability to freely interact with other inmates. Jones was also required to eat his meals alone in a smaller cell. Given the length of time that Jones was forced to endure such a diminished level of freedom as compared to that experienced by other inmates in the general prison population, I would hold that a liberty interest arose that subjects his administrative segregation to a due process analysis. Id. at 815 (Gilman, J., concurring). B. Particularly against this backdrop. I believe that Plaintiffs have sufficiently alleged that their sixmonth confinement in Administrative Control at ManCI constituted a significant and atypical hardship in relation to the experiences of the general prison population Plaintiffs allege that segregated inmates are locked up 22-3/4 hours a day, with only an hour's recreation in a 20 x 20 fenced cage where they can walk. Going to and from recreation, they are in shackles, belly chains and cuffs. These inmates are permitted only a one-hour visit by phone in those restraints, and are denied the right to possess property. In contrast, prisoners in the general population enjoy considerably greater

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freedoms, as alleged in Plaintiffs' pleadings and detailed in the Jones concurrence. *7 Viewing these facts as true for purposes of this motion to dismiss, I believe that a reasonable jury could find that Plaintiffs' placement in Administrative Control constituted "a dramatic departure from the basic conditions of [Plaintiffs'] sentence," and, therefore, deprived them of a c onstitutionally-protected liberty interest under the Fourteenth Amendment. Sandin, 515 U.S. at 485. It is of no moment that the state labels this segregation as administrative rather than punitive or disciplinary. See Ohio Admin. Code § 5120-913. By granting Defendants' motion to dismiss on the basis of the state's self-designated classifications, this Court runs afoul of its obligation to assess Plaintiffs' claim in light of the actual nature of the deprivation. See Sandin, 515 U.S. at 485-86; McClary v. Kelly, 4 F.Supp.2d 195, 199 (W.D.N.Y.1998) (stating that "a due process analysis that would allow correctional personnel to avoid the creation of `liberty interests' by simply assigning misbehaving inmates to a segregated confinement unit for `administrative' (as opposed to `disciplinary') reasons seems to encourage the same `standardless discretion' which the Supreme Court found offensive in Sandin" ). Dismissal under Rule 12(b)(6) precludes any individualized inquiry into Plaintiffs' allegations to determine whether they have in fact been deprived of a constitutionally-protected liberty interest. In noted contrast, the Jones court dismissed the prisoner's claims only on summary judgment. Jones, 155 F 3d at 811 Indeed, before the Jones court heard the appeal on the summary judgment motion, a prior panel had denied the state's motion to dismiss Jones's complaint. The inmate thus had the opportunity to develop a full factual record, and his case was dismissed only after this Court determined that the evidence presented did not sufficiently support his claim. Plaintiffs here deserve the same opportunity to advance beyond the

pleadings stage and to present whatever evidence they can in support of their allegations. The Jones court's ultimate holding in no way requires a different result. The majority there expressly based its conclusion in large part on "the extraordinarily good reasons for holding plaintiff in segregation": the prisoner was found guilty of killing a guard during a prison riot. Jones, 155 F.3d at 812-13. Here, however, the very crux of Plaintiffs' claim is that they were confined in disciplinary segregation without just cause, on the basis of unreliable confidential informants who alleged Plaintiffs were distributing drugs in the prison. Plaintiffs contend that they were confined in disciplinary segregation even though the RIB failed to make the constitutionally and statutorily required findings as to the informants' reliability. See Hensley v. Wilson, 850 F.2d 269 (6 th Cir.1988) (holding that prisoners' due process rights were violated where the prison disciplinary board failed to evaluate for itself the reliability of the confidential informant testimony relied upon). Accepting these allegations as true for purposes of this motion to dismiss. Plaintiffs present a substantially different case than the one considered in Jones.FN2 FN2. Nor do I agree that dismissal is required because Plaintiffs' suit impermissibly implied the invalidity of Plaintiffs' misconduct convictions Under this logic, no prisoner could state a Fourteenth Amendment claim for a due process violation under Hensley because any attack on the credibility of an anonymous informant is inherently an attack on the validity of the prison disciplinary board's findings and ensuing decision In any event, the majority's reliance on Heck v. Humphrey, 512 U S 477 (1994), and its progeny is misplaced As the district court below correctly observed, these cases apply only where the procedural defect implicates the

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validity or duration of the prisoner's underlying sentence and judgment of conviction See, e.g., Edwards v. Bastlock, 520 U.S. 641 (1997) (holding that prisoner could not maintain suit under § 1983 where he claimed that the procedural defect resulted in the loss of "good time" credit) Plaintiffs' claim here, on the other hand, speaks only to the validity of the RIB's findings C. *8 There can be no doubt that Plaintiffs have sufficiently alleged that the disciplinary proceedings violated their due process rights because the RIB made no finding regarding the reliability of the confidential informants whose testimony the board relied upon in finding Plaintiffs guilty. Plaintiffs charge that the RIB convicted them of a felony drug offense solely on the basis of the confidential testimony of two informants. They further allege that "at no point during the hearing, and nowhere in the hearing record, was an independent assessment made concerning the credibility of the informants." (J.A. at 61.) Because Plaintiffs allege that the RIB made no finding in support of the informants' credibility and made no written record of the evidence relied upon, they state a claim for a due process violation. See, e.g., Hensley, 850 F.2d at 277 (holding that due process requires a prison disciplinary board both to have at least some evidentiary basis for assessing a confidential informant's credibility and to make a contemporaneous written record of the evidence relied upon); Butler v. Compton, 1995 WL 98781 (6 th Cir. Mar. 8, 1995) (unpublished disposition) (holding that district court erred in dismissing prisoner's claim that prison board violated his due process rights by sentencing him to disciplinary segregation on the basis of a confidential informant's testimony, where the board failed to provide a contemporaneous written assessment of the informant's reliab-

ility) III. If Plaintiffs' allegations are supported by the evidence, then Plaintiffs have suffered a harm of constitutional dimensions: deprivation of liberty without the due process required by law. I believe that the majority's ruling today only compounds this injury by denying Plaintiffs the opportunity to present evidence in support of their claim. Accordingly, for the reasons set forth above, I respectfully dissent from the majority's dismissal of Plaintiffs' Fourteenth Amendment claim. C.A.6 (Ohio),1999. Collmar v. Wilkinson 187 F.3d 635, 1999 WL 623708 (C.A.6 (Ohio)) Briefs and Other Related Documents (Back to top) · 97-4374 (Docket) (Dec. 02, 1997) END OF DOCUMENT

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