Opinion
1:20cv777 (TSE/IDD)
2021-04-26
Tyrell MONTGOMERY, Plaintiff, v. Sgt. MEDIE, et al., Defendants.
Tyrell Montgomery, Big Stone Gap, VA, Pro Se.
Tyrell Montgomery, Big Stone Gap, VA, Pro Se.
ORDER
T.S. Ellis, III, United States District Judge
Tyrell Montgomery ("Montgomery" or "Plaintiff"), a Virginia inmate proceeding pro se, has filed a civil-rights action pursuant to 42 U.S.C. § 1983, alleging that defendant Sgt. Medie violated his constitutional right to due process by forging Montgomery's signature on a "penalty offer," which resulted in his conviction and the loss of telephone privileges for 60 days. [Dkt. No. 1-3 at 4; 5 at 5]. Plaintiff seeks $25,000 in monetary damages and expungement [Dkt. No. 5 at 4], and has also applied to be allowed to proceed in forma pauperis (IFP). [Dkt. No. 6]. The Court screened the complaint, pursuant to 28 U.S.C. § 1915A, to determine whether it was frivolous, malicious, or failed to state any claims upon which relief may be granted. By Order dated November 17, 2020, the Court noted deficiencies in the complaint and provided Plaintiff leave to file an amended complaint. Plaintiff filed his amended complaint on January 4, 2021. [Dkt. No. 5]. A review of the amended complaint reveals that this action must be dismissed for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915 A(b)(1). For the reasons stated below, plaintiff's § 1983 action will be dismissed without prejudice.
Section 1915A provides:
(a) Screening. —The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for dismissal. —On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint—
(1) is frivolous, malicious, or fails to state a claim upon which relief can be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
I. Plaintiff's Allegations
The complaint names Sgt. Medie and Lt. Cuevas as defendants and the claim concerns a misconduct charge that occurred on February 14, 2020 while Montgomery was housed at Sussex I State Prison. The summary of the description of the conduct indicated that on February 14, 2020, Montgomery threatened Correctional Officer Beswick and then a short time later spit in Beswick's face. [Dkt. No. 1-3 at 3]. The Disciplinary Report form indicates Correctional Officer Beswick was the reporting officer and the charge is for Offense Code 212, "Threatening bodily harm to any person verbally – by gesture – or action." [Id. ]. The Disciplinary Report form indicates it was approved by defendant Cuevas (the Officer-in-Charge) and was served by defendant Medie. After serving the Disciplinary Report, Medie filled in Montgomery's name on the signature line of the form and then indicated below that signature line that Montgomery had "refused to sign." [Id. at 3]. Later that day, defendant Medie presented Montgomery with a Penalty Offer form, which had been approved by defendant Cuevas, offering to resolve the matter if Montgomery accepted a loss of telephone privileges for sixty days. [Id. at 4]. Again, Medie filled in Montgomery's name on the signature line of the form and then in the same block on the form indicated that Montgomery had "refused to sign." [Id. at 4].
Montgomery appealed the disciplinary conviction stating that he was neither given nor had he received notice of the charge; that he did not have "any knowledge of this;" that the charge indicates Montgomery "refused to sign" but someone "forged [his] signature;" and the reporting officer had not signed the offense report. [Id. at 2]. Montgomery's appeal, however, did not contest the underlying facts in the charge that he had not only threatened Correctional Officer Beswick, but he also spit in the Beswick's face. [Id.].
For purposes of this motion, the Court will assume that Montgomery was not given notice and that defendant Medie filled in the line for the inmate's signature on both forms. Filling in the signatures and then noting that the inmate had refused to sign the form cannot be construed as a forgery.
The amended complaint expressly alleges that Montgomery Medie forged his "name on the penalty offer," which is dated February 14, 2020. Montgomery's allegation means that Montgomery saw Medie insert his name on the form and the notation that Montgomery had refused to sign the form. [Dkt. No. 1-3 at 5]. The penalty form has the date of the offense and the charge listed on it. Pursuant to Rule 10(c), exhibits attached to a complaint are considered as part of the complaint and in the event of a conflict between the complaint and an exhibit, the exhibit prevails. Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991). Montgomery also does not explain how he obtained the disciplinary offense report, the disposition, and the penalty offer forms that he used in his appeal. Montgomery had notice of some form at some time prior to his appeal, and his exhibit indicates it was at least later on the same day that the Disciplinary Report was filed.
II. Standard of Review
Pursuant to § 1915A, this Court must dismiss claims based upon " ‘an indisputably meritless legal theory,’ " or claims where the " ‘factual contentions are clearly baseless.’ " Clay v. Yates, 809 F. Supp. 417, 427 (E.D. Va. 1992). (quoting Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) ). The second standard is the familiar standard for a motion to dismiss under Fed. R. Civ. P. 12(b)(6). "A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citation omitted). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. See Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993) ; see also Martin, 980 F.2d at 952.
III. Analysis
The Due Process Clause of the Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." U.S. CONST. AMEND. XIV, § 1. Montgomery's allegations, even if true, do not state a claim upon which relief can be granted because he has failed to identify a protected liberty interest that would trigger the application of the due process procedures set forth in Wolff v. McDonnell, 418 U.S. 539, 556-57, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
"To state a procedural due process violation, a plaintiff must (1) identify a protected liberty or property interest and (2) demonstrate deprivation of that interest without due process of law." Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir. 2015). Prisoners possess a liberty interest only in (1) state-created entitlements to early release from incarceration, see Bd. of Pardons v. Allen, 482 U.S. 369, 381, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987), and (2) being free from conditions that "impose[ ] atypical and significant hardship ... in relation to the ordinary incidents of prison life." See Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Where a plaintiff fails to identify a protectable liberty or property interest that the defendant's actions placed in jeopardy, he fails to establish that he is owed any level of procedural protection. See Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005) ("We need reach the question of what process is due only if the inmates establish a constitutionally protected liberty [or property] interest").
Thus, the due process question presents two related but distinct inquiries: whether the loss at issue implicates a liberty interest triggering procedural due process requirements; and, if so, whether the procedures afforded Plaintiff satisfied those requirements. See Dilworth v. Adams, 841 F.3d 246, 250-51 (4th Cir. 2016) ; see also Prieto, 780 F.3d at 259 ("Once a liberty interest is established, the question then becomes what process is due to protect it."). "Where a plaintiff fails to identify a protectable liberty or property interest that is placed in jeopardy by a defendant's actions, he fails to establish that he is owed any level of procedural protection." Williams v. Nesterick, No. 1:19cv1605, 2021 WL 415133, at *2, 2021 U.S. Dist. LEXIS 22709, *5 (E.D. Va. Feb. 5, 2021) (citing Wilkinson, 545 U.S. at 221, 125 S.Ct. 2384 ). Montgomery's claim is premised upon his implicit belief "that any state action taken for a punitive reason encroaches upon a liberty interest under the Due Process Clause." Sandin, 515 U.S. at 484, 115 S.Ct. 2293. His premise is mistaken because "[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights," temporarily losing privileges as "[d]iscipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law." Id. at 486, 115 S.Ct. 2293.
Here, Montgomery assumes his loss of telephone privileges is a loss that implicates a liberty interest and that a violation of the procedures outlined in Wolff entitles him to relief. Montgomery's position is incorrect. Montgomery's allegation that he was denied notice of the proceedings and the alleged forgeries fail to state a viable due process claim because a loss of telephone privileges does not involve a recognized liberty interest.
The minimum procedural due process requirements in a disciplinary hearing that involves a loss of a liberty interest are: (1) written notice of the claimed violation at least 24 hours prior to the disciplinary hearing; (2) a written statement by the adjudicator as to the evidence relied upon and the reasons for the disciplinary action; and (3) the right to call witnesses and present evidence, when doing so would not be "unduly hazardous to institutional safety or correctional goals." Wolff, 418 U.S. at 563-66, 94 S.Ct. 2963. The Fourth Circuit noted that Wolff held "inmates are not entitled to confront the witnesses against them, nor are they guaranteed the right to retained or appointed counsel." Brown v. Braxton, 373 F.3d 501, 504-05 (4th Cir. 2004) (citing Wolff, 418 at 567-70, 94 S.Ct. 2963 ).
It is well established that inmates do not have an absolute right to use a telephone. United States v. Alkire, No. 95-7885, 82 F.3d 411 (table), 1996 WL 166400, at *1 [published in full-text format at 1996 U.S. App. LEXIS 7021*1-2] (4th Cir. Apr. 10, 1996) ("Alkire's complaint that the portion of the sentence restricting his use of a telephone while in prison is without merit; there is no constitutional or federal statutory right to use of a telephone while in prison."). Thus, plaintiff's loss of telephone privileges simply does not rise to a level deserving of constitutional protection.
See Freitas v. Ault, 109 F.3d 1335, 1337-38 (8th Cir. 1997) (finding that an involuntary transfer to a higher-security facility and loss of work and phone privileges did not constitute atypical and significant hardship); Boriboune v. Litscher, 91 F. App'x 498, 500 (7th Cir. 2003) (loss of telephone privileges while in disciplinary segregation implicated no liberty interest and triggered no due process protection); Smith v. Roper, 12 F. App'x. 393, 396 (7th Cir. 2001), cert, denied, 534 U.S. 1093, 122 S.Ct. 839, 151 L.Ed.2d 718 (2002) ("In light of Sandin, the deprivations that Smith suffered as a result of the disciplinary proceedings — namely, 22 days in segregation, a six-month loss of privileges associated with his demotion to C class, and six days without phone privileges — do not implicate a liberty interest."); see, e.g., Johnson v. Vroman, No. 1:06cv145, 2006 WL 1050497, at *2, 2006 U.S. Dist. LEXIS 21021, *7 (W.D. Mich. 2006) (finding that a six-month restriction on telephone privileges does not amount to an atypical or significant hardship in relation to the ordinary incidents of prison life that would warrant due process protection); Smart v. Goord, 441 F. Supp.2d 631, 640 (S.D.N.Y. 2006) (loss of phone, packages, and commissary privileges does not give rise to a protected liberty interest); Tanney v. Boles, 400 F. Supp. 2d 1027, 1040 (E.D. Mich. 2005) (citations omitted) (concluding that an inmate's loss or restriction of telephone privileges for disciplinary reasons is not considered an atypical significant hardship, even when the disciplinary charges are allegedly false, and therefore does not implicate a liberty interest protected by due process); Husbands v. McClellan, 990 F. Supp. 214, 217 (W.D.N.Y. 1998) ("The temporary loss of the various privileges alleged in this case — i.e., telephone, package, commissary, and recreation privileges — does not represent the type of deprivation which could reasonably be viewed as imposing an atypical and significant hardship on an inmate."); see also Wright v. Shartle, 699 F. App'x 733, 733 (9th Cir. 2017) (citation omitted) (explaining that claims regarding the loss of phone privileges are "not cognizable under section 2241 because they do not concern the manner, location, or conditions of [an inmate's] sentence's execution").
Further, the inability to avail oneself of Wolff’s protections, standing alone, does not constitute a due process violation. Bills v. Heyns, No. 15-cv-11415, 2015 U.S. Dist. LEXIS 150198, *4 (E.D. Mich. Nov. 5, 2015) ("the procedural protections established in Wolff are not implicated" unless the disciplinary conviction involves a "liberty interest").
the procedural mandates of Wolff are not applicable absent disciplinary punishment
that results in an actual deprivation of a constitutionally protected liberty or property interest. In other words, even if the plaintiff had sufficiently shown a violation of procedural due process in connection with the disciplinary charge, the resulting punishment would have to be such that it "impose[d] atypical and significant hardship on [him] in relation to the ordinary incidents of prison life."
Perdue v. White, No. 7:14-cv-2143, 2015 U.S. Dist. LEXIS 87809, *4-5 (N.D. Ala. May 4, 2015), adopted by, 2015 WL 4086390, 2015 U.S. Dist. LEXIS 87130 (N.D. Ala., July 6, 2015) ; cf. Fraley v. Spaventa, No. 5:17cv201-FDW, 2020 WL 370050, at *8, 2020 U.S. Dist. LEXIS 10345 *25 (W.D.N.C. Jan. 22, 2020) (finding plaintiff's claim that he "was not allowed to attend" his disciplinary hearing immaterial to due process claim where plaintiff had not been stripped of a protected liberty or property interest at disciplinary hearing); Hines v. Ray, No. 7:05cv565, 2005 WL 2333468, at *3, 2005 U.S. Dist. LEXIS 37616, at *8-9 (W.D. Va. Sept. 22, 2005) ("[P]risoners are only afforded procedural due process protections, such as written notice of charges and the right to call witnesses, when the loss of statutory good time credits or some other liberty interest is at issue. Hines' sole punishment for this conviction was a $10.00 fine .... Therefore, Hines was not entitled to any procedural safeguards during the institutional hearing.") (citation omitted).
Accordingly, it is hereby
ORDERED that this action be and is DISMISSED WITH PREJUDICE for failure to state a claim, pursuant to 28 U.S.C. § 1915A(b)(1) ; and it is further
ORDERED that the motion to proceed in forma pauperis is DENIED as MOOT; and it is further
ORDERED that, pursuant to 28 U.S.C. § 1915(g), this dismissal may affect plaintiff's ability to proceed in forma pauperis in future civil actions; and it is further
28 U.S.C. § 1915(g) provides:
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.
ORDERED that the Clerk record this dismissal for purposes of the Prison Litigation Reform Act.
To appeal, plaintiff must file a written notice of appeal with the Clerk's Office within thirty (30) days of the entry of this Order. See Fed. R. App. P. 4(a). A written notice of appeal is a short statement indicating a desire to appeal this Order and noting the date of the Order plaintiff wants to appeal. Failure to timely file a notice of appeal waives the right to appeal this decision. Plaintiff need not explain the grounds for appeal until so directed by the court.
The Clerk is directed, pursuant to Fed. R. Civ. P. 58, to enter final judgment in favor of defendants Sgt. Medie and Lt. A. N. Cuevas, to send a copy of this Order to plaintiff, and to close this civil action.