Opinion
No. 00-205 S
February 11, 2003
Report and Recommendation
Plaintiff Troy Hewes, an inmate formerly confined at the Adult Correctional Institution ("ACI"), Cranston, Rhode Island, has filed an amended complaint pursuant to 42 U.S.C. § 1983 and § 1985. Plaintiff names as defendants the Rhode Island Department of Corrections ("R.I. DOC"), Assistant Director Albert Gardiner, Warden Stafford Quick, Lieutenant Nagy, Lieutenant Bailey, Special Investigator Jeffrey Aceto, Correctional Officer Monroe, and R.I. DOC Counselor Lamboy.
Defendants R.I. DOC, Quick, Nagy, Bailey, Aceto, Monroe, and Lamboy (collectively referred to as the "defendants") have moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff has not opposed the motion. This matter has been referred to me for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons that follow, I recommend the motion to dismiss be granted.
Defendant Gardiner has already been dismissed from this case by Chief Judge Torres in an Order dated March 27, 2001.
I. Facts
The following are the factual allegations contained in the amended complaint and the second amended complaint, which are taken as true for purposes of the instant motion:
Plaintiff filed an amended complaint on November 20, 2000. He filed a second amended complaint on January 16, 2001, wherein he did not add any new facts, just conclusory theories of liability. The Court has considered both for purposes of this Report and Recommendation.
At the times pertinent in the amended complaint(s), plaintiff was an inmate incarcerated at the ACI, in Cranston, Rhode Island. On March 24, 2000, Defendant Aceto charged the plaintiff with a disciplinary infraction for receiving contraband while on a job site outside of the prison confines. Thereafter, a hearing commenced before a disciplinary board. The disciplinary board consisted of defendants Bailey, Monroe and Lamboy. During the hearing, the board refused to allow the plaintiff to call a witness on his behalf. The board ultimately found the plaintiff guilty and sanctioned him to thirty days punitive segregation, thirty days loss of good time, and a recommended down grade from minimum to medium security.
On March 31, 2000, plaintiff received another disciplinary booking for providing false information and for the unauthorized use of a telephone. Plaintiff appeared again before the disciplinary board, consisting of the same members. The board found him guilty and sanctioned him to ten days punitive segregation per charge.
Plaintiff appealed the guilty findings to Defendant Quick. Quick affirmed the action of the disciplinary boards. Plaintiff contends that his federal rights were violated because he was not allowed to present a witness at the first hearing, and he contends there were overall deficiencies in his appeal of the guilty findings. Defendants have moved to dismiss. Plaintiff has not objected.
II. Discussion
A. Rule 12(b)(6) Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of actions which fail to state a claim upon which relief can be granted. In ruling on a motion filed under Rule 12(b)(6), the court must "accept the well pleaded averments of the * * * complaint as true, and construe these facts in the light most favorable to the [plaintiff]."Chongris v. Board of Appeals, 811 F.2d 36, 37 (1st Cir. 1987); A rule 12(b)(6) motion will only be granted when, viewed in this manner, it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-6 (1957). Under a Rule 12(b)(6) motion, "a reviewing court is obliged neither to credit bald assertions, periphrastic circumlocutions, unsubstantiated conclusions, or outright vituperation, nor to honor subjective characterizations, optimistic predictions, or problematic suppositions." United States v. AVX Corp., 962 F.2d 108, 115 (1st Cir. 1992). Unverifiable conclusions, not supported by the stated facts, deserve no deference. Id. Thus, in ruling on the motion to dismiss, the pertinent inquiry is whether plaintiffs complaint sets forth sufficient factual allegations which, if proven, would support his claims of deprivations of federal rights.
Plaintiff has brought suit under 42 U.S.C. § 1983. Section 1983 provides, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .42 U.S.C. § 1983.
In order to maintain a section 1983 action, the conduct complained must be committed by a "person" acting under color of state law and the conduct must have deprived the plaintiff of a constitutional right or federal statutory right. Gomez v. Toledo, 446 U.S. 635, 640 (1980); see also Baker v. McCollan, 443 U.S. 137 (1979) (Constitutional deprivations); Maine v. Thiboutot 448 U.S. 1 (1980) (statutory deprivations).
Here, the defendants assert that the facts alleged fail to set forth a deprivation of plaintiffs constitutional rights. In his amended and second amended complaint, plaintiff primarily attempts to allege a violation of his due process rights under the Fourteenth Amendment. Plaintiff also appears to invoke the Fifth, Sixth and Eighth amendments as a basis for relief. 1. Plaintiff's Fourteenth Amendment Due Process Clause Claim.
His second amended complaint reads, in relevant part: "Because the violations of plaintiffs' [sic] due process and constitutional amendment [sic] 5, 6, 8, and 14, the defendants under the color of law did willfully and flagrantly violate due process . . ." The Court does not know whether the plaintiff intended the Fifth, Sixth and Eighth Amendments to be a basis for relief or whether this is merely a restatement of his due process claim. In any event, I will discuss these constitutional provisions briefly.
The due process clause of the Fourteenth Amendment provides that a state shall not ". . . deprive any person of life, liberty, or property, without due process of law. . . ." U.S. Const. amend.XIV. Here, plaintiff, an inmate legally confined at the ACI, seeks relief based upon purported interference by the state with his liberty interest. That is, plaintiff contends that the defendants' actions in sanctioning him to thirty days punitive segregation for the first charge, coupled with an additional ten days punitive segregation for the each of the second and third charges, deprived him of liberty without due process of law.
It has long been recognized that the full panoply of rights due a defendant in a criminal prosecution does not apply to prison disciplinary proceedings. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). More importantly, a liberty interest is not implicated in a prison setting unless the changes in prison conditions constitute "atypical" and "significant" hardships on inmates in relation to the ordinary incidents of prison life. Sandin v. Conner, 515 U.S. 472, 484 (1995) (thirty day segregation was not an atypical and significant hardship on an inmate). Here, plaintiff complains of being subject to thirty days punitive segregation for his first offense and ten days for each of the last two offenses. No liberty interest is implicated here. See id. Plaintiffs segregated confinement fails to set forth an-atypical and significant hardship that would implicate a liberty interest under the Fourteenth Amendment.
Similarly, the board's recommended downgrade that the plaintiff be housed in a more restrictive confinement area also does not implicated a liberty interest. "An essential tool of prison administration. . . is the authority to offer inmates various incentives to behave. The Constitution accords prison officials wide latitude to bestow or revoke these perquisites as they see fit." McKune v. Lile, 122 S.Ct. 2017, 2027 (2002). The due process clause does not protect every change in the condition of confinement having a substantial adverse impact upon a prisoner. Meachum v. Fano, 427 U.S. 215, 222 (1976). Whatever expectation a prisoner may have in remaining at a particular confinement facility (i.e. minimum vs. medium) so long as he behaves himself is too ephemeral and insubstantial to trigger procedural due process protections. Id. at 228. Thus, plaintiffs transfer to a less desirable facility does not implicate a liberty interest.
Lastly, to the extent that plaintiff seeks relief for the loss of good time credit, plaintiffs sole federal remedy lies in a writ of habeas corpus. Preiser v. Rodriquez 411 U.S. 475, 500 (1973). A writ of habeas corpus is the only remedy for state prisoners attacking the validity or the length of their confinement. Id. at 490.
Since plaintiff has failed to assert facts demonstrating that the state interfered with a liberty interest, plaintiffs Fourteenth Amendment due process claims should fail. I so recommend.
2. Other Constitutional Provisions.
In his second amended complaint, plaintiff, without articulating in any detail whatsoever, invokes the Fifth, Sixth, and Eighth Amendment as a basis for relief Since the plaintiff did not set forth any other facts indicating his basis for relief under these constitutional provisions, and since the plaintiff has failed to object to the motion to dismiss, this court will address these issues briefly.
Plaintiff first invokes the Fifth Amendment. The Fifth Amendment due process clause applies to the actions of the federal government and its agents, and not the state government or its agents. Gerena v. Puerto Ricoe Legal Services, Inc., 697 F.2d 447, 448 (1st Cir. 1983). Here, there is no assertion that any of the action complained of was committed by the federal government or its officers. Thus, plaintiffs Fifth Amendment claim is misplaced.
The Court is assuming, based upon the facts presented, that this is the clause the plaintiff sought to invoke. Plaintiff failed to provided any detail of his claim thereunder.
Next plaintiff invokes the Sixth Amendment. The Sixth Amendment provides, "In criminal prosecutions, the accused shall . . . have compulsory process for obtaining witnesses in his favor. . . ." The key words are "[i]n criminal prosecutions." Here, there was no criminal prosecution. Plaintiffs complaints revolve around disciplinary proceedings while incarcerated. The Sixth Amendment is not applicable in such proceedings. Wolf, 418 U.S. at 556; Cf. Alabama v. Shelton, 122 S.Ct. 1764 (2002), Lewis v. United States, 518 U.S. 322 (1996), United States v. Gouveia, 467 U.S. 180 (1984) (application of the Sixth Amendment in criminal prosecutions).
See Note 4.
Lastly, plaintiff invokes the Eighth Amendment as a basis for relief. The Eighth Amendment proscribes "cruel and unusual punishments." After an individual is incarcerated, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishments. Whitely v. Albers, 475 U.S. 312, 318-319 (1986). In conditions of confinement cases, as here, only those deprivations "denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violations." Wilson v. Seiter, 501 U.S. 294, 297 (1991) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Here, plaintiffs confinement in segregation, without more, is not sufficiently serious to come within the reach of the Eighth Amendment.
See Note 4.
Accordingly, since plaintiff failed to set forth facts sufficient enough to allege a deprivation of his constitutional rights, plaintiffs claims pursuant to 42 U.S.C. § 1983 should be dismissed. I so recommend.
In his second amended complaint, plaintiff also invokes 42 U.S.C. § 1985 as a basis for relief. Plaintiff does not indicate which subsection of Section 1985 he is proceeding. In any event, a claim brought under either subsection requires that the plaintiff allege a conspiracy. See 42 U.S.C. § 1985(1), (2) and (3). Here, plaintiff has failed to allege a conspiracy of any sort. Accordingly, plaintiffs claim under Section 1985 should be dismissed. I so recommend.
D. Morris Rules Claims
Finally, plaintiff asserts alleged violations of the Morris Rules. Claims made on alleged violations of the Morris Rules, however, are not entertained in this Court. See Cugini v. Ventutoulo. 781 F. Supp. 107 (D.R.I. 1992); Doctor v. Wall, 143 F. Supp.2d 203 (D.R.I. 2001). Accordingly, plaintiffs claims based upon violations of the Morris Rules should be dismissed. I so recommend.
Conclusion
Accordingly, for the reasons state above, I recommend that defendants' motion to dismiss be granted. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of the Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes a waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart. Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).