Opinion
No. C10-0149-LRR.
January 11, 2011
ORDER
This matter is before the court on the plaintiff's application to proceed in forma pauperis. The plaintiff submitted such application on December 23, 2010. Along with his application to proceed in forma pauperis, the plaintiff submitted a complaint pursuant to 42 U.S.C. § 1983 and an application for appointment of counsel.
During the course of his confinement, the plaintiff has filed multiple actions and appeals. Among those actions and appeals, several constituted a strike for purposes of 28 U.S.C. § 1915(g). In the Southern District of Iowa, the court dismissed several of the plaintiff's cases as frivolous or for failing to state a claim upon which relief could be granted. Those cases include: Losee v. Newton Correctional Facility, et al., No. 4:09-cv-00527-REL (S.D. Iowa 2010); Losee v. Maschner, et al., No. 4:97-cv-10219-REL (S.D. Iowa 1997); Losee v. Turner, et al., No. 4:95-cv-80203-CRW (S.D. Iowa 1995); Losee v. Hundley, et al., No. 4:94-cv-10491-REL (S.D. Iowa 1994); Losee v. Kansas, et al., No. 4:92-cv-80828-CRW (S.D. Iowa 1993). Similarly, the Tenth Circuit Court of Appeals dismissed as frivolous the plaintiff's appeal in Losee, et al. v. Davies, et al., No. 89-3375-S (D. Kan. 1992). See Losee v. Barkley, 1992 U.S. App. LEXIS 16554 (10th Cir. 1992); see also Losee v. Davies, 1992 U.S. Dist. LEXIS 2853 (D. Kan. 1992).
The court compiled relevant documents from the plaintiff's previous cases. Those documents are attached to the instant order.
In 1996, Congress enacted the Prisoner Litigation Reform Act ("PLRA") to deter frivolous prisoner litigation. Lyon v. Vande Krol, 127 F.3d 763, 764 (8th Cir. 1997). The PLRA requires all prisoners to pay the filing fee for civil cases and differentiates among prisoners on method of payment. See 28 U.S.C. § 1914(a) (requiring filing fee); 28 U.S.C. § 1915 (explaining proceedings in forma pauperis). Prisoners who have not had three prior cases dismissed as frivolous need only pay a percentage of the fee at the outset and the remainder over time. 28 U.S.C. § 1915(b)(1)-(4). Such litigants will not be barred from pursuing a claim by inability to make the required payment. Id. In contrast, 28 U.S.C. § 1915(g), commonly referred to as the "three strikes" provision, states:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
"The statute's bar does not preclude the inmate from filing additional actions but does deny him the advantages of proceeding in forma pauperis." Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003); see also Higgins v. Carpenter, 258 F.3d 797, 799-801 (8th Cir. 2001) (holding that the three strikes provision of 28 U.S.C. § 1915(g) is constitutional). Prior to filing the instant action, the plaintiff filed at least three frivolous actions or appeals. 28 U.S.C. § 1915(g); see also Owens v. Isaac, 487 F.3d 561, 563 (8th Cir. 2007) (determining what constitutes a strike). The court recognizes that some of the dismissals occurred prior to the enactment of the PLRA in 1996. Nevertheless, pre-PLRA dismissals for frivolousness, maliciousness or for failure to state a claim count as strikes for purposes of 28 U.S.C. § 1915(g). See In re Tyler, 110 F.3d 528, 529 (8th Cir. 1997) (determining number of strikes and implicitly recognizing as strikes pre-PLRA dismissals of civil actions or appeals). In addition, it is clear from the statements that the plaintiff included in his complaint that he is not under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). Accordingly, the plaintiff's application to proceed in forma pauperis shall be denied, and this action shall be dismissed without prejudice. The clerk's office shall file the complaint for the purpose of making a record. Having concluded that dismissal is appropriate, the court shall deny as moot the plaintiff's application for appointment of counsel.
IT IS THEREFORE ORDERED:
1) The plaintiff's application to proceed in forma pauperis (docket no. 1) is denied.
2) The plaintiff's action is dismissed without prejudice.
3) The clerk's office is directed to file the plaintiff's complaint for the purpose of making a record.
4) The plaintiff's application for appointment of counsel (docket no. 2) is denied as moot.DATED this 11th day of January, 2010.
INITIAL REVIEW ORDERS
IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF IOWA CENTRAL DIVISION JACK L. LOSEE, No. 4:09-CV-00527 REL Plaintiff, v. NEWTON CORRECTIONAL FACILITY, IOWA DEPARTMENT OF CORRECTIONS; JOHN BALDWIN; TERRY MAPES, FRANK FILIPPELLI; DONNA COOK; KATHY KERR; JILL DURSKY; KRISTINE WEITZEL; HARRY COLBERT; MARGARET CLINKENBEARD; SCOTT MILLER, D. RAMSEY, and VICKY FLOYD, Defendants. This matter is before the Court for initial review of a pro se complaint submitted by an inmate of the Newton Correctional Facility (NCF). The complaint is also signed by 40 other inmates. The complaint is brought under 42 U.S.C. § 1983 and jurisdiction is predicated on 28 U.S.C. § 1343. Plaintiffs seek declaratory and injunctive relief as well as monetary damages. Plaintiffs request leave to proceed without prepayment of fees. Plaintiffs also make a jury demand and seek authorization to bring this as a class action.Appropriateness of Combined Action
The Court first addresses whether this action may be brought as a combined action, either with multiple plaintiffs or as a class action. "Persons may join in one action as plaintiffs if (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences, and (B) any question of law or fact common to all plaintiffs will arise in the action." Fed.R.Civ.P. 20. Forty one plaintiffs have signed this complaint which contains ten separate claims. The claims raised in the complaint are varied and diverse, including Jack Losee's personal medical complaints, complaints regarding physical plant upkeep, general conditions and rights allowed in a lock up unit, access to canteen items provided at other Iowa institutions, NCF's failure to continue to supply religious items for Native American ceremonies, issues of overcrowding and noise, restrictions on inmates' mail and inability to communicate with girlfriends. In general, Losee contends that "NCF is so d[y]sfunctional in its running, policies and practices; and though some of the issues listed may not in and of themselves violate the constitution enough to satisfy the court, the totality of the conditions add up to create an overal[l] effect that is unconstitutional. Complaint at 39-40.
The complaint is drafted in broad terms. It does not state whether any inmate other than Losee himself suffered specific harm from the alleged violations. It appears that Losee's alleged injury relates solely to his personal medical issues. Some plaintiffs are identified with particular claims but most plaintiffs are not even mentioned specifically within the complaint, making it impossible to discern which claim applies to which plaintiff. Further, even though Losee alleges that all claims together demonstrate that NCF is presently "dysfunctional," the individual, disjointed claims do not support his statement. His medical claims pertain to the pain in his knees which is unrelated to leaky roofs or what items can be purchased at the canteen. The claims do not arise from the same transaction, occurrence, or series of transactions or occurrences, and the Court cannot discern any question of law or fact common to all plaintiffs.
For the same reasons set out above, neither does this complaint satisfy the requirements of Federal Rule of Civil Procedure 23 for a class action (class is so numerous that joinder is impracticable; questions of law or fact common to the class, claims or defenses of representative parties are typical, and representative parties will fairly protect the interests of the class). Because the claims are so varied and do not appear to have an overall commonality, certification as a class is not appropriate.
In sum, it does not appear that plaintiffs are properly joined in this action. Nonetheless, "[m]isjoinder of parties is not a ground for dismissing any action." Fed.R.Civ.P. 21. Instead, the Court will treat these as 41 separate actions and has directed the Clerk of Court to file them as such. Except for Losee, each plaintiff will be given an opportunity to amend his complaint to state specifically what claim[s] he is making, in what way he has suffered injury, and whether he wants to proceed in light of the fact that each plaintiff will owe $350 for his individual action.
All plaintiffs except Losee shall be dismissed from this case and shall proceed separately. The Court will now review the individual claims of Plaintiff Jack Losee.
Claims of Plaintiff Losee
"To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). A pro se complaint in a proceeding without prepayment of fees must be construed liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). However, it can be dismissed on initial review if the claim is malicious or frivolous, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e). A claim is "frivolous" if it "lacks an arguable basis in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Medical Claim — Knee Pain
Losee has severe pain and swelling in both knees. Apparently, Dr. Filippelli issued ibuprofen for Plaintiff but it had no effect. Losee also asserts that he should not have been given ibuprofen because such medication is hard on one's liver, especially Plaintiff who has Hepatitis C. Losee also states that when he received new medication, it made him sick. He states that Dr. Filippelli then stopped one of the medications completely, and Losee experienced one month of side-effects that caused body irritation and sleeplessness. Losee contends that Filippelli should have known the withdrawal was severe and that he should have withdrawn the medication slowly instead of at once.
Prison officials have a duty to provide medical care to inmates. Estelle v. Gamble, 429 U.S. 97 (1976). To demonstrate a violation of the Eighth Amendment, a plaintiff must show that the prison official knew of a substantial risk of serious harm to the plaintiff and disregarded that risk by failing to take reasonable measures to abate it. Farmer v. Brennan, 511 U.S. 825, 847 (U.S. 1994); see also Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996) ("prison officials knew that the condition created an excessive risk to the inmate's health and then failed to act on that knowledge.").
Losee does not assert that Dr. Filippelli failed to treat him, but only that he should not have treated him with ibuprofen, and that when withdrawing one of the medications, the doctor should have done so gradually rather than abruptly. Inmates have no constitutional right to receive a particular or requested course of treatment, and prison doctors remain free to exercise their independent medical judgment. Long, 86 F.3d at 765; see also Smith v. Marcantonio, 910 F.2d 500, 502 (8th Cir. 1990) (inmate's "mere disagreement with the course of his medical treatment" fails to state a claim of deliberate indifference). This claim will be dismissed.
When the ibuprofen was not working, Lose says he requested a stronger medication. He states he was charged an additional copay fee for this request even though inmates are not usually charged a separate copay for an ongoing issue. He states further that in September of 2009, he was charged another three dollar copay for requesting special shoes. Losee denies that he ever made such a request or saw anyone about his feet. He claims that making him pay this amount is theft, and that Health Care Administrator Donna Cook violated his rights when she charged these copays and refused to correct the violations
Losee is not challenging the constitutionality of the medical co-payment, but only that NCF is not fairly applying the co-pay rule. "[T]here is no federal constitutional liberty interest in having state officers follow state law or prison officials follow prison regulations. Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003) (no constitutional violation when inmate received disciplinary confinement without a hearing); Kennedy v. Blankenship, 100 F.3d 640, 643 (8th Cir. 1996) ("Due Process Clause does not federalize state-law procedural requirements). Losee may seek compensation through the grievance process and through Iowa's tort claims procedure if he believes that the money was taken wrongfully. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (neither intentional nor negligent deprivations of property violate due process if meaningful state post-deprivation remedies for the losses are available, because the post-deprivation state remedies provide due process of law);Parratt v. Taylor, 451 U.S. 527, 543 (1981) (negligent deprivations); see also Iowa Code Ch. 669, 670 (Iowa's statutory tort claims procedure). This claim will be dismissed.
Plaintiff states that since he came to NCF in September of 2006, he has never been checked by a health care employee to see how he is, has never had a routine physical, blood draw, check up or dentist visit. He states that such practice is neglectful and does not constitute adequate medical care. Negligence, alone, is not a constitutional violation and thus not an appropriate § 1983 claim. See Daniels v. Williams, 474 U.S. 327, 332-36 (1986). This claim will be dismissed.
Finally, Losee contends that Defendants Kerr, Weitzel, Dursky, Mapes and Baldwin violated his constitutional rights by allowing the above-described events to take place. As supervisors, these defendants were not directly involved in the alleged violation, and respondeat superior is not a basis for section 1983 liability. See Monell v. Department of Social Servs, 436 U.S. 658, 694 (1978).
For the reasons stated above, Losee's allegations against these defendants regarding his medical care will be dismissed.
Handicapped Cells
Plaintiff asserts that sewer gas is being vented back into the handicapped ceils. He asserts that not only does this violate the rights of handicapped inmates, it also is hazardous to all inmates at NCF because the gas causes severe acute respiratory syndrome (SARS). He also states that NCF officials failed to have inspections as required by the state and county codes.
Although Losee asserts it is potentially hazardous, he does not state that he lives in those cells, whether he is exposed to the air in those cells, and whether he has become ill as a result of exposure to the air in those cells.
"Because a § 1983 action is a type of tort claim, general principles of tort law require that a plaintiff suffer some actual injury before he can receive compensation." Irving v. Dormire, 519 F.3d 441, 448 (8th Cir. 2008) (citing Carey v. Piphus, 435 U.S. 247, 253-55 (1978)). Losee has alleged no harm or injury, and it is not sufficient to say that eventually all inmates will become ill as a result of the gas. Without a more imminent showing that he is in danger of harm, Losee cannot state a viable claim regarding this circumstances. This claim will be dismissed.
Leaking Roof
Losee asserts that every building at NCF has a roof that leaks in multiple places, violating health and safety standards (causes mold, fire hazard), and as such, creates an unsafe environment. He asserts that the showers also contain black mold, and one building is condemned because of the mold.
Again, Losee has failed to allege that he or anyone else has been specifically harmed or suffered injury as a result of the alleged leaking roofs. Without the requisite harm, Losee's allegations fail to state a claim and will be dismissed. See Irving, 519 F.3d at 448 (§ 1983 action requires that plaintiff suffer some actual injury).
Lockup Unit A
Plaintiff alleges that inmates who are held in Lockup Unit A are frequently denied legal materials, bibles, and personal papers. He asserts that while at Lockup Unit A, inmates may only purchase two envelopes per week for both personal and legal purposes. Other canteen purchases are also limited. Losee asserts that inmates are allowed showers and exercise during the night, and denied completely if they are sleeping. He stales that exercise pens are too small to be adequate, and inmates do not receive sufficient clothing to exercise outside in the winter.
Losee does not state that he has been in Lockup Unit A. He only asserts that he and all other inmates expect to be held in this Lockup Unit at sometime during their incarceration. Again, without the requisite harm, Losee's allegations fail to state a claim and will be dismissed. See Irving, 519 F.3d at 448 (§ 1983 action requires that plaintiff suffer some actual injury).
Canteen Items
Plaintiff states that inmates are charged for faulty electronics sold from the canteen. Further, he asserts that inmates at NCF are denied numerous items that are permitted to inmates at other institutions around the state. These items include toenail clippers, tweezers, headphone extension cords, scotch tape, plastic page protectors, dental floss, air freshener, carbon paper, tracing paper, hobby craft and art supplies. Plaintiff argues that it violates equal protection to allow these canteen items at one state institution but not at NCF.
Losee does not allege he is a member of a protected class or that a fundamental right was violated. Thus, in order to show an equal protection violation, "he must show that "similarly situated classes of inmates are treated differently, and that this difference in treatment bears no rational relation to any legitimate penal interest,'" as well as "intentional or purposeful discrimination." Phillips v. Norris, 320 F.3d 844, 848 (8th Cir. 2003) (quoting Weiler v. Purkett, 137 F.3d 1047, 1051 (8th Cir. 1998)).
Losee has not shown how inmates at NCF are similarly situated to those inmates in other Iowa penal institutions other than all are inmates. Different institutions have different levels of security and set many of their own policies and rules. Without any indication of how these inmates are similarly situated, the claim for equal protection must fail. See Nolan v. Thompson, 521 F.3d 983, 990 (8th Cir. 2008) ("A class-of-one plaintiff must therefore `provide a specific and detailed account of the nature of the preferred treatment of the favored class,' especially when the state actors exercise broad discretion to balance a number of legitimate considerations.") (internal citations omitted).
This claim will be dismissed.
Native American Items
Plaintiff states that as part of the Native American religion, Native American inmates have a sweat lodge ceremony each week. Plaintiff contends that it is NCF's responsibility to supply the inmates with wood and rock for their ceremonies. In December 2008, NCF stopped supplying these items and the inmates had to purchase them with their own money.
Losee does not state that he is a member of any Native American tribe or that participation in this activity is his religious belief and practice. Because Losee suffered no harm or injury, his section 1983 claim shall be dismissed. See Irving, 519 F.3d at 448 (§ 1983 action requires that plaintiff suffer some actual injury).
Electrical Systems
Losee contends that the electrical system throughout NCF is not up to International Electrical Code. He believes the electrical system is a fire hazard that could potentially affect every inmate.Again, Losee has failed to allege that he or anyone else has been specifically harmed or suffered injury as a result of the alleged defective electrical system, or that the inmates are in imminent danger as a result of the current system. Without the requisite allegation of harm, Losee has failed to state a cognizable claim. See Irving, 519 F.3d at 448 (§ 1983 action requires that plaintiff suffer some actual injury).
Overcrowding
Losee asserts that the living units at NCF are not soundproof, resulting in a "ridiculously high" noise level. Losee states that he gets headaches as a result, and that other inmates who work nights cannot sleep because of the noise. Losee alleges that such an environment is dangerous because it could allow inmates to be assaulted. Plaintiff states that at least two inmates fought and incurred damages because no guard could hear the commotion.
Losee states that the inmates are housed three to a cell. If there is flooding, the lowest bunk is flooded with waste from the toilet. Plaintiff states that he witnesses these unsanitary events when he worked in the maintenance department last summer.
Plaintiff's only allegation of harm based on overcrowding is that he gets headaches from the noise. He does not state that he sought any medical treatment for his head pain or made any other specific statement regarding his pain. "Claims under the Eighth Amendment require a compensable injury to be greater than de minimis." Irving, 519 F.3d at 448 (citing Cummings v. Malone, 995 F.2d 817, 822-23 (8th Cir. 1993)). This claim will also dismissed.
Restrictions on Inmate's mail
Losee makes very broad allegations that defendants withhold mail without proper notice, open legal mail outside the presence of inmates, and that there has been theft and destruction of mail. He states that inmates cannot receive catalogs or travelogs, are denied puzzle page books and some greeting cards. He asserts that inmates are only allowed to purchase books from three sources, they cannot own any maps, and are not allowed to have photographs of infant children wearing only diapers. He states further that correctional officers read inmate letters before passing them out for the sole purpose of their own enjoyment, that they open legal mail and mail from the social security. He asserts that inmates are not allowed to send legal and personal mail in the same envelope, and inmates are not allowed to correspond with anyone under age 18 who is not one's own child.With respect to his own situation, Losee states that he has had four legal letters from his attorney opened in the mailroom. He also states that mailroom staff opened a letter from his girlfriend and removed a picture she had drawn of the face of Jesus. He states that a letter from his girlfriend postmarked November 10, 2008, was not received by him until November 25, 2008, without explanation. One letter was denied altogether because the girlfriend did not add her last name to the envelope. Also on November 25, 2008, Losee received a rejection notice for the rules and copyright information for a game he invented called Dragon Chess. Losee said he was told the reason for the rejection was because the information might have codes. Losee attempted to explain and provide a government website but was still denied the information.
To claim access to the courts was denied, an inmate must give specific allegations of prejudice. See Lewis v. Casey, 518 U.S. 343, 349, 351 (1996) (access to the courts claim requires allege actual injury or prejudice to a nonfrivolous claim). Losee does not assert that any of these alleged actions on the part of the prison officials ever caused him prejudice or interfered with his access to the courts. As such, the claim will be dismissed.
Communication with Girlfriends
Losee says that at least three of the plaintiffs in the lawsuit have been denied the right to communicate with their girlfriends by mail or phone. Further, he asserts that prison officials have written disciplinary reports or threatened to write disciplinary reports against plaintiffs for attempting to write or call those girlfriends.Again, Losee has alleged no harm or injury to himself. As such, the claim will be dismissed. See Irving, 519 F.3d at 448 (§ 1983 action requires that plaintiff suffer some actual injury).
Conclusion
For the reasons stated above, all of Plaintiff Losee's claims thus "lack[] an arguable basis in law," Neitzke, 490 U.S. at 325, and must be dismissed.
The motion for class action [Doc. #2] is denied. All plaintiffs except Losee are dismissed from this action with their claims filed as separate and individual cases. The claims of the other plaintiffs will be addressed individually in separate actions.
The motion for the appointment of specific counsel [Doc. #3] is denied.
Plaintiff Losee's request for permission to proceed in forma pauperis is granted. Plaintiff is assessed the initial partial filing fee of $13.69, payable to the Clerk of Court. See 28 U.S.C. § 1915(b). The remainder of the $350.00 fee owed by Losee shall be paid to the clerk of court from the prisoner's account in accordance with 28 U.S.C. § 1915(b). A notice of this obligation shall be sent to plaintiff and the appropriate prison official.
The complaint is dismissed. See 28 U.S.C. § 1915A(b). This dismissal, and any appeal of this order if affirmed as frivolous, will count against plaintiff for purposes of the three-dismissal rule in 28 U.S.C. § 1915(g).
IT IS SO ORDERED.
Dated this 15th day of January, 2010. CASE NUMBER: Jury Verdict. X
United States District Court SOUTHERN DISTRICT OF IOWA — CENTRAL DIVISION JUDGMENT IN CIVIL CASE JACK L. LOSEE, Plaintiff v. 4-97-CV-10219 HERB MASCHNER (WARDEN); JIM HELLING (ASSISTANT WARDEN); DEB NICHOLS (PUBLIC SERVICES SUPERVISOR), Defendants ___ This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict. Decision by Court. This action came to consideration before the Court. The issues have been considered and a decision has been rendered. IT IS ORDERED AND ADJUDGED:
The complaint is dismissed without prejudice. This dismissal, and any appeal of this order if dismissed as frivolous, will count against plaintiff for purposes of the three-dismissal rule in 28 U.S.C. 1915(g).April 16, 1997 Date IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF IOWA CENTRAL DIVISION JACK LOSEE, * No. 4-95-CV-80203 * (Control No. 056) Plaintiff, * * vs. * * MACK TURNER, JOHN EMMITT, * INITIAL REVIEW ORDERS LARRY MOLINE, PAUL HEDGPETH, * * Defendants. * The court has before it for initial review a pro se complaint submitted by an inmate of the Iowa State Penitentiary (ISP). The complaint is brought under 42 U.S.C. § 1983 and jurisdiction is predicated on 28 U.S.C. § 1343. Plaintiff seeks injunctive and declaratory relief and damages and requests leave to proceed in forma pauperis.
"To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). A pro se complaint in a proceeding in forma pauperis must be construed liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). However, it can be dismissed on initial review if the claim is malicious or frivolous. 28 U.S.C. § 1915(d); Horsey v. Asher, 741 F.2d 209, 211 (8th Cir. 1984). A claim is "frivolous" if it "lacks an arguable basis in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Plaintiff alleges that the punishment for an inmate placed in punitive segregation at ISP consists of loss of or restrictions on various privileges, such as use of the telephone, number of showers, amount of exercise, ability to work outside his cell, access to the library, and others. He alleges that upon completion of a period of punitive segregation he was placed in a status called "close management." He asserts that the conditions of confinement in Level 1 of this status are indistinguishable from those of punitive segregation.
Plaintiff contends that the portion of Policy 85-11-01-700 which reads "close management is not a form of punishment, but a means of monitoring movement, close supervision, and of segregation when necessary for the good of all" creates a liberty interest in not being placed in close management, as opposed to general population. This is incorrect. The portion of the policy quoted does not contain the "substantive predicates" or "mandatory language" necessary to create a liberty interest. See Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 463 (1989). As pleaded, plaintiff has failed to state an arguable claim that he is being deprived of a liberty interest without due process of law.
Plaintiff also contends that the close management policy is facially unconstitutional. The policy, he alleges, provides that the close management committee only reviews the inmate's behavior and recommends whether he should be placed in close management, or continued in close management, and whether level changes are appropriate; the final decision is made by the warden. The policy provides that if the inmate disagrees with the committee's recommendation he may present his position in writing to the warden within three days. The warden's decision is final. Plaintiff contends that because the warden is the actual decision-maker, he should not be the person to whom the inmate "appeals."
Plaintiff misinterprets the procedure. The committee makes a recommendation, and the inmate may challenge that in writing to the warden, who then makes the final decision. At least as described by plaintiff, there is no appeal procedure. None is constitutionally required. See Wolff v. McDonell, 418 U.S. 539, 565 (1974) (in discussion of due process requirements for prison disciplinary proceedings, court did not include requirement of administrative appeal mechanism; the state involved in the case, Nebraska, did not have an appeal procedure).
Plaintiff also contends the close management policy is unconstitutional as applied to him. He asserts that it lacks guidelines as to how he can progress out of close management. As the court has found that plaintiff has no liberty interest in not being placed in close management on the facts pleaded, any lack of such procedures is not a constitutional violation.
Plaintiff also contends defendant Turner allowed a black inmate to have a hotpot and typewriter in the same close management level plaintiff is in, while plaintiff was not allowed to have these items. Plaintiff alleges that Turner and the inmate who was allowed to have the hotpot and typewriter are black; he does not allege his race. He contends that Turner's ostensible basis for distinguishing between the two inmates (which is not described) was not "rational." This contention is too conclusory to state an arguable equal protection claim. See Davis v. Hall, 992 F.2d 151, 153 (8th Cir. 1993) (per curiam) ("Civil rights pleadings . . . must not be conclusory. . . ."). Plaintiff's allegation that the institution's discrimination policy as quoted creates a liberty interest is incorrect. Kentucky Department of Corrections, 490 U.S. at 463 (substantive predicates required to create liberty interest).
Plaintiff contends that defendant Emmett should not serve on the close management committee because he was involved in writing the disciplinary report which indirectly resulted in his being placed in that status. Because plaintiff has not pleaded facts sufficient to show a liberty interest in not being placed in close management, due process protections are not triggered. This claim is frivolous.
Plaintiff contends that the committee may not consider his refusal to attend his review hearings as a factor in keeping him in close management. He contends that his refusal to "acquiesce" in the committee's allegedly unconstitutional proceedings may not be the basis for "punishing" him by keeping him in close management. As plaintiff has not stated an arguable claim that the committee's proceedings are unconstitutional, this claim is not arguable.
Plaintiff's claims thus "lack[] an arguable basis in law . . .," Neitzke, 490 U.S. at 325, and must be dismissed.
Plaintiff's request for permission to proceed in forma pauperis is denied. The complaint shall be filed for the purpose of making a record.
The complaint is dismissed without prejudice as frivolous. See 28 U.S.C. § 1915(d).
IT IS SO ORDERED.
Dated this 27 day of March, 1995. CASE NUMBER: 4:95-cv-80203 Jury Verdict. X Decision by Court.
United States District Court SOUTHERN DISTRICT OF IOWA — CENTRAL DIVISION JUDGMENT IN CIVIL CASE JACK LOSEE, Plaintiff v. MACK TURNER; JOHN EMMITT; LARRY MOLINE; PAUL HEDGEPETH; Defendants __ This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict. This action came to consideration before the Court. The issues have been considered and a decision has been rendered. IT IS ORDERED AND ADJUDGED:that this complaint is dismissed without prejudice as frivolous.
March 27, 1995 Date CASE NUMBER: Jury Verdict. x
United States District Court SOUTHERN DISTRICT OF IOWA — CENTRAL DIVISION JUDGMENT IN CIVIL CASE Jack L. Losee, Jr., Plaintiff V. 4-94-cv-10491 Thomas Hundley, et al, Defendants __ This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict. Decision by Court. This action came to consideration before the Court. The issues have been considered and a decision has been rendered. IT IS ORDERED AND ADJUDGED:that the complaint is dismissed without prejudice as frivolous.
July 27, 1994 Date
IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF IOWA CENTRAL DIVISION JACK LOSSEE, * NO. 4-92-cv-80828 * Plaintiff, * * vs. * * STATE OF KANSAS; WILLIAM L. * CUMMINGS; STEVEN J. DAVIS; * FURTHER INITIAL FRANK STRICKLER; TERRY SMITH; * REVIEW ORDERS D. BROWNFIELD; Major RALLS; * Sgt. ANDRIX; STATE OF IOWA; * PAUL GROSSHEIM; CHARLES LEE; * JIM FELKER; RUSTY ROGERSON, * * Defendants. * This is an action brought by an inmate pro se under 42 U.S.C. § 1983. Plaintiff is an Iowa prisoner who was transferred to Kansas under the Interstate Corrections Compact. He has since returned to Iowa. In his complaint plaintiff contended that defendants violated his constitutional rights relating to a disciplinary report he received while in Kansas. He was found guilty of the disciplinary violation in Kansas, and this decision was "affirmed" by the Iowa defendants. Upon his return to Iowa he was required to complete the disciplinary time.In the initial order the court ordered plaintiff to state the date the disciplinary hearing in Kansas was held, the date he was transferred back to Iowa, and the date the Iowa defendants affirmed the Kansas disciplinary action and took good time from him. Plaintiff has amended.
In his amendment plaintiff asserts the disciplinary hearing decision was on December 15, 1988, he was transferred back to Iowa on September 10, 1991, and the Iowa defendants affirmed the Kansas disciplinary decision and took good time from him on July 24, 1989. In view of this, it is clear that plaintiff's claim is barred by the statute of limitations. See Wycoff v. Menke, 773 F.2d 983, 984 (8th Cir. 1985) (statute of limitations for section 1983 cases in Iowa is two years). This claim will therefore be dismissed.
The complaint shall be dismissed as frivolous. See 28 U.S.C. § 1915(d).
IT IS SO ORDERED.
Dated this 12 day of February, 1993. United States District Court Decision by Court.
SOUTHERN DISTRICT OF IOWA — CENTRAL DIVISION JUDGMENT IN CIVIL CASE JACK LOSSEE, Plaintiff, V. CASE NUMBER: 4:92-cv-80828 BOB E. RICE; Unknown STATE OF KANSAS; WILLIAM L. CUMMINGS; STEVEN J. DAVIS; FRANK STRICKLER; TERRY SMITH; D. BROWNFIELD; Major RALLS; Sgt. ANDRIX; STATE OF IOWA; PAUL GROSSHEIM; CHARLES LEE; JIM FELKER; RUSTY ROGERSON, Defendants. __ __X This action came to consideration before the Court. The issues have been considered and a decision has been rendered. IT IS ORDERED AND ADJUDGED: that this case is dismissed as frivolous.February 12, 1993 Date Search Get a Document Shepard's® More History Alerts FOCUS TM Legal / . . . / Federal Court Cases, Combined jack TM TM
Switch Client | Preferences | Help | LiveSupport | Sign Out Terms Jack Search Within Original Results (1-27) View Advanced . . . Tutorial Source: Terms: name(losee) (Edit Search | Suggest Terms for My Search) Focus: (Exit FOCUS) Select for FOCUS or Delivery 1992 U.S. Dist. LEXIS 2853, * JACK LOSEE and JAMES JOSEPH SULLIVAN, Plaintiffs, v. STEVE DAVIES, JIM (NI) BARKLEY, FRANK (NMI) STRICKLER, TERRY (NMI) SMITH, Lt., D. (NMI) BROWNFIELD, Defendants. CASE No. 89-3375-S UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS 1992 U.S. Dist. LEXIS 2853 February 27, 1992, Decided February 27, 1992, FiledCASE SUMMARY
PROCEDURAL POSTURE: Plaintiff inmates were disciplined by a prison disciplinary board for sodomy and commenced a 42 U.S.C.S. § 1983 action against defendant corrections officers. The inmates claimed the disciplinary proceedings violated their rights to due process because they were not permitted to call additional staff witnesses they requested, and they claimed the findings of guilt resulted in cruel and unusual punishment. The officers sought summary judgment.OVERVIEW: Administrative records showed that the evidence against the inmates included the incident report and testimony given at a hearing. One inmate was allowed to make a proffer of the testimony of other witnesses he wished to call, and the other was allowed to question the reporting officer regarding the charges. Requests to call additional witnesses were denied under Administrative Regulation 44-13-405a, which allowed the board to consider the inmate's request in light of prison needs, including the need to avoid irrelevant, immaterial, or unnecessary testimony or evidence. The court noted that a prisoner was entitled to 24-hour advance notice of a disciplinary hearing, to present evidence and witnesses if it would not jeopardize institutional safety or correctional goals, and to receive a written statement of the evidence relied upon and the reasons for the disciplinary action. Further, the court stated that a finding of a prison disciplinary body must only be supported by some evidence in the record. The court held the inmates were not entitled to relief because their right to call witnesses was not absolute, and there was some evidence to support the charges.
OUTCOME: The matter was dismissed and all relief denied. CORE TERMS: disciplinary proceedings, prison, disciplinary, reporting, unusual punishment, cruel, disciplinary board, proffer, inmate's, disciplinary action, disciplinary hearing, correctional, staff LEXISNEXIS® HEADNOTES Hide
Civil Rights Law Prisoner Rights DisciplineHN1 At a minimum, a prisoner is entitled (1) to receive advance notice of charges no less than 24 hours before a disciplinary hearing, (2) to present evidence and witnesses in his defense where this will not jeopardize institutional safety or correctional goals, and (3) to receive a written statement of the evidence relied upon and the reasons for the disciplinary action. More Like This Headnote
Administrative Law Judicial Review Standards of Review Substantial Evidence
Civil Rights Law Prisoner Rights Discipline
HN2 To withstand judicial review, the finding of a prison disciplinary body must be supported by some evidence in the record. In reviewing the findings of a prison disciplinary board, a court need not examine the complete record, assess the credibility of the witnesses, nor weigh the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. More Like This Headnote
Civil Rights Law Prisoner Rights Discipline
HN3 The right to call witnesses in a prison disciplinary proceeding is not absolute, and officials may deny a request for witnesses where institutional safety would be jeopardized or where the hearing would be unduly prolonged. More Like This Headnote
COUNSEL: [*1] For the Plaintiffs:
Jack (nmi) Losee, 403522, [COR LD NTC] [PRO SE], Box 316, Fort Madison, IA 52627.
James J Sullivan, 8559, [COR LD NTC] [PRO SE], KANSAS, PO Box 2, Lansing, KS 66043.
For the Defendants:
Terry D. Hamblin, [COR LD NTC], Office of the Attorney General, Kansas Judicial Center, 301 West Tenth St. — 2nd Fl., Topeka, KS 66612, 913-296-2215.
JUDGES: SAFFELS
OPINION BY: DALE E. SAFFELS
OPINION
MEMORANDUM AND ORDER
42 U.S.C. § 1983 FifthEighthFourteenth Amendments
The factual basis for this complaint is relatively simple. On or about December 14, 1988, each of the plaintiffs received a disciplinary report alleging the commission of sodomy in violation of K.A.R. 44-12-314. Following [*2] a continuance sought by the plaintiffs, administrative disciplinary proceedings were held on these charges on January 12, 1989. Both plaintiffs were found guilty. Each plaintiff was sentenced to serve 45 days in disciplinary segregation, with credit for time served. It does not appear either plaintiff lost good time as a result of these findings.
Each plaintiff pursued internal appellate review of the disciplinary conviction. Relief was denied in each case.
The relevant administrative records reflect that plaintiff Losee was found guilty based on the incident report and on the testimony given at the hearing. The summary of the hearing shows the reporting officer, defendant Brownfield, was a witness. Plaintiff Losee was permitted to make a proffer of the testimony of the other witnesses he wished to call. The records further indicate plaintiff Sullivan's hearing also afforded him an opportunity to question defendant Brownfield regarding the charges. The record further shows both plaintiffs requested witnesses at their hearings. These witnesses were denied by the members of the disciplinary board pursuant to Kansas Administrative Regulation 44-13-405a, which permits the board [*3] to consider the inmate's request in light of prison needs, including "(7) the need to avoid irrelevant, immaterial, or unnecessary testimony or evidence". It appears both inmates requested the presence of other corrections officers as witnesses, and plaintiff Losee was permitted to make a proffer of the testimony of one Sergeant Lawson at his hearing. From the record, it appears plaintiffs expected these witnesses to state they received no report of the acts alleged from the reporting officer at the time of the alleged incident and that they were in the area where the acts were reportedly observed but observed nothing.
In this action, plaintiffs allege the disciplinary proceedings violated their rights to due process as they were not permitted to call the additional staff witnesses they requested. Plaintiffs further allege the findings of guilt have resulted in cruel and unusual punishment.
Discussion Due Process in Disciplinary Proceedings
Before examining plaintiffs' claims, the court finds it appropriate to review the due process requirements applicable to prison disciplinary proceedings and the standard of review for such proceedings. In Wolff v. McDonnell, 418 U.S. 539 (1974), [*4] the United States Supreme Court held that, HN1 at a minimum, a prisoner is entitled (1) to receive advance notice of charges no less than 24 hours before the disciplinary hearing, (2) to present evidence and witnesses in his defense where this will not jeopardize institutional safety or correctional goals, and (3) to receive a written statement of the evidence relied upon and the reasons for the disciplinary action. Wolff, 418 U.S. at 563-69.
Next, HN2 to withstand judicial review, the finding of a prison disciplinary body must be supported by some evidence in the record. Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 454-55 (1985). In announcing this standard, the Supreme Court stated that in reviewing the findings of a prison disciplinary board, a court need not examine the complete record, assess the credibility of the witnesses, nor weigh the evidence. Instead, "the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Id. at 455-56.
Having examined the record in light of these standards, the court concludes [*5] the plaintiffs are not entitled to relief in this action. It is clear HN3 the right to call witnesses in a prison disciplinary proceeding is not absolute, and officials may deny a request for witnesses where institutional safety would be jeopardized or where the hearing would be unduly prolonged. Wolff, 418 U.S. at 566. In the present case, the court is persuaded the denial of the staff witnesses sought was an act within the discretion of the presiding officials. It is clear both plaintiffs were permitted to testify and to confront the reporting official at their hearings, and the reporting officer's report satisfies the standard of "some evidence" necessary to support the board's decision. While the production of requested witnesses at disciplinary hearings is generally a beneficial practice, the court cannot find that the witnesses denied in this matter were so critical to the proceedings that their absence was a denial of due process. The court further concludes the acceptance of a proffer of testimony at plaintiff Losee's hearing was an acceptable resolution of the competing interests of the plaintiff and the institution.
Claim of Cruel and Unusual Punishment
[*6] Plaintiffs' claim of cruel and unusual punishment was considered and rejected by the court in its Order of November 27, 1990. Having now considered this claim in the context of the entire record, the court reiterates its conclusion that plaintiffs have not shown a deprivation of their right to be free from cruel and unusual punishment and are entitled to no relief on this claim.
IT IS THEREFORE ORDERED this matter is hereby dismissed and all relief denied.
The clerk of the court is directed to transmit copies of this order to plaintiffs and to counsel for defendants.
DATED: This 27 day of February, 1992 at Topeka, Kansas.
DALE E. SAFFELS, United States District Judge
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In About LexisNexis | Privacy Policy | Terms Conditions | Contact Us Copyright © 2011 LexisNexisx a division of Reed Elsevier Inc. All rights reserved. Switch Client | Preferences | Help | LiveSupport | Sign Out ® Terms Search Within Original Results (1 — 1) View Advanced . . . Tutorial Service: ® Citation: 1992 U.S. App. LEXIS 16554, * JACK LOSEE, Plaintiff-Appellant, and JAMES J. SULLIVAN, Plaintiff, v. JIM BARKLEY, FRANK STRICKLER, TERRY SMITH, LT., Defendants-Appellees, and STEVEN J. DAVIES, D. BROWNFIELD, Defendants. No. 92-3089 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT 1992 U.S. App. LEXIS 16554 July 8, 1992, Filed NOTICE: [*1] THIS ORDER AND JUDGMENT HAS NO PRECEDENTIAL VALUE AND SHALL NOT BE CITED, OR USED BY ANY COURT WITHIN THE TENTH CIRCUIT, EXCEPT FOR PURPOSES OF ESTABLISHING THE DOCTRINES OF THE CASE, RES JUDICATA, OR COLLATERAL ESTOPPEL. 10TH CIR. R. 36.3.SUBSEQUENT HISTORY: Reported as Table case at 1992 U.S. App. LEXIS 23854 PRIOR HISTORY: (D.C. No. 89-3375-5). (D. Kan.)
DISPOSITION: DENY AND DISMISS
CASE SUMMARY
PROCEDURAL POSTURE: Plaintiff inmate sought review of a decision from the United States District Court for the District of Kansas which denied plaintiff's request to appeal in forma pauperis its decision denying all relief to plaintiff. Plaintiffs action alleged that his civil rights pursuant to 42 U.S.C.S. § 1983 were violated by defendant prison officials.
OVERVIEW: Plaintiff inmate alleged that he was denied the opportunity to present-witnesses and to be represented by counsel in a disciplinary proceeding conducted by defendant prison officials. Plaintiff filed an action alleging that his civil rights pursuant to 42 U.S.C.S. § 1983 were violated by defendants. The district court denied relief to plaintiff and refused to allow him to proceed with his appeal in forma pauperis. The court agreed that plaintiff's appeal was frivolous and affirmed the district court's decision. Plaintiff was permitted to testify and confront the reporting official during the proceeding. Thus, not allowing some of plaintiffs witnesses to testify at the proceeding did not constitute a denial of due process. Finally, the district court did not base its opinion on a finding that plaintiff did not lose "good time credit," but it applied the appropriate due process requirements to the facts of the case. OUTCOME: The decision denying plaintiff inmate the right to appeal in forma pauperis the determination of his action alleging that his civil rights were violated by defendant prison officials was affirmed. Plaintiff's appeal was frivolous because he was allowed to testify and to question the reporting prison official during his disciplinary hearing.
CORE TERMS: disciplinary proceedings, oral argument, leave to proceed, frivolous, pauperis, perjured, forma, good time credits
JUDGES: Before MOORE, TACHA, and BRORBY, Circuit Judges.
OPINION BY: DEANELL REECE TACHA
OPINION
ORDER AND JUDGMENT
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
This appeal is from an order of the district court denying all relief in a case in which plaintiff Losee alleges that his civil rights pursuant to 42 U.S.C. § 1983 were violated during disciplinary proceedings at Lansing Correctional Facility in Lansing, Kansas. The district court found the appeal frivolous and refused plaintiff leave to proceed on appeal in forma pauperis. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
Plaintiffs pro se complaint alleges that he was denied the opportunity to present witnesses and [*2] to be represented by counsel in a disciplinary proceeding. Plaintiff alleges that some of the testimony at the disciplinary proceeding was perjured and that he was precluded from presenting witnesses that would refute the alleged perjured testimony. Having reviewed the record in this casee, we agree with the district court that the denial of some of the witnesses in this matter was not so critical to the proceedings that is constituted a denial of due process. See Wolff v. McDonnell, 418 U.S. 539 (1974). Plaintiff was permitted to testify and to confront the reporting official at the hearing. The acceptance of the proffer of the testimony at plaintiff's hearing was a means by which the competing interests of the plaintiff within the institution were constitutionally met.
Plaintiff also contends that the district court erred in finding that he did not lose good time credits as a result of this disciplinary action. After reviewing the district court's order, we conclude that the district court did not base its decision on whether or not plaintiff lost good time credits. Instead, the district court applied the appropriate due process requirements to the facts [*3] of this case.
We agree that this appeal is frivolous and therefore DENY the plaintiff leave to proceed in forma pauperis and DISMISS because the plaintiff failed to make a rational argument. The mandate shall issue forthwith.
ENTERED FOR THE COURT
Deanell Reece Tacha
Circuit Judge
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