Opinion
CIVIL ACTION NO. 00-3781.
September, 26, 2001
ORDER AND REASONS
Before the Court are plaintiff Ronald Ganser's objections to, the Magistrate's Report and Recommendation. Having reviewed de novo the complaint, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge, and plaintiff's objections thereto, the Court approves the Report and Recommendation of the United States Magistrate Judge and adopts its opinion in this matter.
I. Background
Plaintiff, Ronald Ganser, is a prisoner currently incarcerated in the Washington Correctional Institute ("WCI") in Angie, Louisiana. Ganser was previously incarcerated at Allen Correction Center ("Allen") and at Hunt Correctional Center ("Hunt"). He filed a complaint pro se and in forma pauperis pursuant to 42 U.S.C. § 1983 against four Allen employees, Warden Andrews, Assistant Warden Estes, Lt. Rich and Officer Erica Chaumont; and against three WCI employees, Col. Mike Dunaway, Classification Officer Amy Penny and Col. Ronald Seals. He alleges claims of excessive force, failure to protect from excessive force, false disciplinary action, inadequate medical care, improper classification, threats and harassment. Plaintiff asks for a declaratory judgment and compensatory and punitive damages.
The Magistrate Judge conducted a Spears hearing on April 9, 2001. See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). After considering Ganser's Section 1983 claims against defendants, Col. Mike Dunaway, Classification Officer Amy Penny and Col. Ronald Seals, the Magistrate Judge recommended that they be dismissed with prejudice as legally frivolous and/or for failure to state a claim under 28 U.S.C. § 1915(e)(2) and 42 U.S.C. § 1997e(c)(1). The Magistrate Judge also recommended dismissal of Ganser's Section 1983 claims against all unnamed defendants/employees at Hunt Correctional Center as legally frivolous and/or for failure to state a claim under 28 U.S.C. § 1915(e)(2) and 42 U.S.C. § 1997e(c)(1). Lastly, the Magistrate Judge found that Ganser's claims against Allen Correctional Center Warden Andrews, Assistant Warden Estes, Lt. Rich and Officer Erica Chaumont should be dismissed without prejudice due to plaintiff's failure to exhaust all his administrative claims.
Ganser objects to the Magistrate Judge's Report and Recommendation on the grounds that the Magistrate Judge: 1) erroneously dismissed plaintiff's procedural due process claims, and 2) erred in requiring that plaintiff exhaust his administrative remedies under 42 U.S.C. § 1997a(e) because he does not assert prison conditions claims.
II. Discussion
The Court agrees with the Magistrate Judge that Ganser's claims in this case can be divided into three categories: 1) those arising from his incarceration at Allen; 2) those arising from his incarceration at Hunt; 3) those arising from his current incarceration at WCI. (Report and Recommendation, at 3.)
A. Allen and Exhaustion of Administrative Remedies
Ganser asserts that while he incarcerated at Allen, he was violently beaten by Warden Andrews without cause or provocation. (Report and Recommendation, at 7.) He claims that Allen officials were present while he was being beaten and that they failed to protect him. ( Id.) He further testified that after the beating, Lt. Rich sprayed a chemical agent in his eyes without cause or provocation. ( Id. at 9.) The Court agrees with the Magistrate's finding that these allegations state a cognizable Section 1983 claim. Ganser's other claims include allegations that he was denied adequate medical care, that he was falsely charged with being a threat to security and sentenced to six months' loss of good time credit and immediate transfer to another facility without due process, and that plaintiff was verbally threatened by Warden Andrews and two guards.
During his Spears hearing, Ganser testified that he had only filed a first-step grievance at Allen. (Report and Recommendation, at 3-4, 26.) Indeed, in his objection to the Magistrate's Report and Recommendation, Ganser does not dispute that he failed to exhaust his administrative remedies at Allen. (Pl.'s Objection to Report and Recommendation, at 5.)
As a result of Ganser's failure to exhaust his administrative remedies, the Magistrate Judge recommended that his entire claim against the Allen defendants be dismissed without prejudice pursuant to 42 U.S.C. § 1997e(a) (West 2001), which imposes an exhaustion requirement for prisoner lawsuits. (Report and Recommendation, at 27.) Section 1997e(a) states in pertinent part:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
Ganser objects to the Magistrate's finding on the grounds that he is not required to exhaust his administrative remedies because his claim does not involve "prison conditions." He cites Nussle v. Willette, in which the Second Circuit found that the exhaustion requirement under the Prison Litigation Reform Act (PLRA) is not required for Eighth Amendment assault and excessive force claims brought by inmates under section 1983. 224 F.3d 95, 106 (2d Cir. 2000), cert. granted, 121 S.Ct. 2213 (June 4, 2001). Cf. Higginbottom v. Carter, 223 F.3d 1259, 1260-61 (11th Cir. 2000) ( per curiam) (holding that an excessive use of force claim is subject to the PLRA's exhaustion requirement).
The Magistrate Judge thoroughly addressed the split in Circuits regarding this issue. (Report and Recommendation, at 27-28.) The Magistrate Judge noted that while the Fifth Circuit has not specifically addressed this issue, the Fifth Circuit in two recent cases has not questioned the applicability of Section 1997e(a) either to excessive force claims or to failure to protect claims. See Wendell v. Asher, 162 F.3d 887, 890-92 (5th Cir. 1998); Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999).
The Magistrate Judge also noted that the Supreme Court decision in Booth v. Churner, 531 U.S. 956, 121 S.Ct. 1819 (2001), and the Fifth Circuit decision in Wright v. Hollingsworth, No. 99-40063, 2001 WL 838861, at *1 (5th Cir. July 24, 2001), also indicate that plaintiff is required to exhaust his administrative claims. In Booth, the Supreme Court held that "an inmate must exhaust irrespective of the forms of relief sought and offered through administrative sources." 531 U.S. at *, 121 S.Ct. at 1825 (requiring an inmate to exhaust even if he sought only damages and prison administrative remedies did not offer monetary relief). In Wright, the Fifth Circuit broadly interpreted Booth to mean that "[q]uibbles about the nature of a prisoner's complaint, the type of remedy sought, and the sufficiency or breadth of prison grievance procedures were laid to rest." 2001 WL 838861, at *1 (holding that Section 1997e(a) required prisoner to exhaust available AEP on his claim of injury resulting from inadequate medical care). See also Dellis v. Corrections Corp., No. 99-6479, 2001 WL 803643, at *2-3 (6th Cir. July 8, 2001) (holding that prisoners must exhaust their ARP on claims of excessive force and failure to protect); Smith v. Zachary, No. 99-4084, 2001 WL 723010, at *2-3, *5 (7th Cir. June 28, 2001) (finding that prisoners must exhaust their ARP on claims of excessive force).
Based on the current state of the law, the Court agrees with the Magistrate Judge's finding that Section 1997e(a) applies to Ganser's Eighth Amendment claim of excessive force by Warden Andrews, Lt. Rich, Lt. Estes, and an unnamed guard at Allen. (Report and Recommendation, at 29.) The Court also agrees that Section 1997a(e) applies to Ganser's claims that Allen officials subjected him to a false disciplinary report, failed to protect him from harm, denied him adequate medical care and threatened him. ( Id.)
The Court also notes that plaintiff did not object to the Magistrate Judge's recommendation that Ganser's First Amendment Section 1983 claim be dismissed without prejudice under Fed.R.Civ.P. 41(a)(2).
The Court therefore adopts the Magistrate's recommendation that. all of plaintiff's claims against the Allen defendants be dismissed without prejudice.
B. Hunt and WCI: Improper Classification
Plaintiff argues that the Magistrate Judge erred in dismissing his improper classification claims against the Hunt and WCI defendants. At both Hunt and WCI, Ganser was placed in working cellblocks and on extended lockdown, rather than in the general population. (Report and Recommendation, at 18.) The Magistrate was correct that a prisoner does not have a constitutional right to a particular status or classification within a prison. Id. ( citing Jones v. Diamond, 636 F.2d 1364, 1376 (5th Cir. 1981) ( en banc)). Classification of inmates is a discretionary function of prison administration and should not be disturbed absent an abuse of discretion. Id. The Court agrees with the Magistrate's factual finding that based on Ganser's testimony at the Spears hearing, prison officials did not violate his constitutional rights when they placed him on extended lockdown and in working cellblocks. (Report and Recommendation, at 19.) Therefore, the Court agrees with the Magistrate's determination that Ganser's improper classification claims should be dismissed as legally frivolous.
C. Hunt and WCI: Improper Punishment
Ganser asserts that since punishment imposed on him during an allegedly procedurally deficient hearing at Allen carried over to his incarceration at WCI and Hunt, he has a claim against WCI and Hunt for improper punishment. The Court disagrees.
The record shows that the imposition of "punishment" at both Hunt and WCI consisted of Ganser's being placed on extended lockdown and being placed on working cellblocks, (Report and Recommendation at 22.) The Court agrees with the Magistrate that these cell restrictions are merely changes in the conditions of a prisoner's confinement, which do not necessarily raise any due process concerns. (Report and Recommendation at 20.) See Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997). These types of "penalties" do not constitute an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." (Report and Recommendation at 20-21.) See Sandin v. Connor, 515 U.S. 472 (1995)
The Court additionally agrees with the Magistrate's factual finding that the plaintiff did not lose any additional good time credit as a result of his classification or appearance before any disciplinary board at Hunt or WCI. (Report and Recommendation, at 22.) Accordingly, the minimal due process protections discussed in Wolff v. McDonnell, 418 U.S. 539, 556 (1974), and its progeny are not applicable. Further, the Court agrees with the Magistrate's finding that even if the loss of good time imposed at Allen carried over into his sentence at Hunt or WCI, under Fifth Circuit precedents, only minimal due process is required to deprive a prisoner of good time. (Report and Recommendation, at 22.) See Henson v. United States Bureau of Prisons, 213 F.3d 897, 898 (5th Cir. 2000). The Court adopts the Magistrate's factual finding that Ganser's Allen hearing provided the applicable minimum due process. Id. Accordingly, Ganser's improper punishment claim against WCI and Hunt should be dismissed as legally frivolous.
D. WCI-Verbal Harassment
Plaintiff does not object to the Magistrate's finding that his claim against the WCI guards for verbal harassment should be dismissed as legally frivolous. (Report and Recommendation, at 23.) See Robertson v. Piano City, 70 F.3d 21, 24 (5th Cir. 1995). After reviewing de novo the claim and the law, the Court agrees with the Magistrate's finding that this claim should be dismissed as legally frivolous.
III. Conclusion
For the foregoing reasons, the Court approves the Report and Recommendation of the United States Magistrate Judge and adopts it as the Court's opinion. Accordingly:
It is ordered that the motion to dismiss or, alternatively, for summary judgment filed by defendants, Lt. Col. Mike Dunaway and Classification Officer Amy Penny, is dismissed as moot.
It is further ordered that all of plaintiff's claims against WCI employees, Col. Mike Dunaway, Classification Officer Amy Penny and Col. Ronald Seals, are dismissed with prejudice as legally frivolous and/or for failure to state a claim under 28 U.S.C. § 1915(e)(2) and 42 U.S.C. § 1997e(c)(1)
It is further ordered that all of plaintiff's claims against all unnamed defendant/employees at Hunt Correctional Center are dismissed with prejudice as legally frivolous and/or for failure to state a claim under 28 U.S.C. § 1915(e)(2) and 42 U.S.C. § 1997e(c)(1).
It is further ordered that plaintiff's First Amendment claim against Allen Correctional Center employees, Warden Andrews, Assistant Warden Estes, Lt. Rich and Officer Chaumont, is dismissed without prejudice pursuant to Fed.R.Civ.P. 41(a)(2).
It is further ordered that the remainder of plaintiff's charges against Allen Correctional Center employees. Warden Andrews, Assistant Warden Estes, Lt. Rich and Officer Chaumont, are dismissed without prejudice for failure to exhaust administrative remedies.