Opinion
Civil Action 00-0620-CB-L.
February 2, 2001.
REPORT AND RECOMMENDATION
Plaintiff, an Alabama prison inmate proceeding pro se and in forma pauperis, filed a complaint under 42 U.S.C. § 1983. This action has been referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). It is recommended that the federal claims be dismissed without prejudice, prior to service of process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii) because Plaintiff's claims are either frivolous or fail to state a claim upon which relief may be granted and that Plaintiff's state law claims be dismissed without prejudice.
I. Nature of Proceedings.
Plaintiff filed a complaint (Doc. 1) wherein he chiefly complains about being removed from his "free-world" job for receiving a citation for the unauthorized use of a telephone. This citation resulted in him being returned to Loxley Work Release ("Loxley") and being placed on the maintenance staff at Loxley. Plaintiff further complains about the conditions of his confinement at Loxley. Plaintiff then filed a "Motion to Amend/Invoke the Criminal Jurisdiction" (Doc. 6) complaining about a citation dated August 3, 2000, for a violation of institutional mail rules and about being threatened with a citation on August 18, 2000. Plaintiff also filed a "Motion for Permission to Amend" (Doc. 9) wherein he complains about receiving an unidentified disciplinary and being transferred to a major prison. The Court will address each of these pleadings in turn.
The Court's docket reflects that Plaintiff previously filed another action, Boglin v. Thomas, 00-0035-CB-C (S.D. Ala. Jan. 2, 2001), notice of appeal filed, (Jan. 11, 2001), wherein he chiefly complained about a deprivation of his telephone privileges at Fountain Correctional Center. Plaintiff complained that he was not allowed to maintain on his inmate phone list the telephone number for the North Courtland City Hall where his mother worked as the city clerk so he could continue to call her collect. Plaintiff's action was dismissed on Defendants' summary judgment motion.
Plaintiff previously filed other actions in other federal district courts in Alabama, Boglin v. Rickard. et al., Civil Action No. 99-1864 (N.D. Ala. Nov. 30, 1999), and Boglin v. Nagle, et at, Civil Action No. 96-1839 (M.D. Ala. Aug. 1, 1997). Both of these actions were dismissed prior to service of process on the ground that it failed to state a claim upon which relief can be granted or it was frivolous.
II. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B) .
Because Plaintiff is proceeding in forma pauperis, the Court is reviewing Plaintiff's complaint and amendments under 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B)(i), a claim may be dismissed as "frivolous where it lacks an arguable basis in law or fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A claim is frivolous as a matter of law where,inter alia, the defendants are immune from suit, id. at 327, 109 S.Ct. at 1833, the claim seeks to enforce a right which clearly does not exist,id., or there is an affirmative defense that would defeat the claim, such as the statute of limitations, Clark v. Georgia Pardons Paroles Bd., 915 F.2d 636, 640 n. 2 (11th Cir. 1990). Judges are accorded "not only the authority to dismiss [as frivolous] a claim based on indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833. Moreover, a complaint may be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59(1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80(1957)).
The predecessor to this section was 28 U.S.C. § 1915(d).
III. Discussion.
A. Complaint (Doc. 1).
1. Plaintiff's Allegations.
Plaintiff named as Defendants Ronald Weaver, warden at Loxley; Gary Hetzel, a lieutenant at Loxley; Larry Weaver, an officer at Loxley; Sergeant Howell, a sergeant at Loxley; and "Rodney," an employee for the City of Robertsdale, Alabama. Plaintiff alleges that on May 25, 2000, he was transferred from Fountain Correctional Facility to Loxley and was assigned to work for the City of Robertsdale under the supervision of Rodney, pursuant to a contract with the city and Loxley. Plaintiff claims that on June 20, 2000, Rodney gave Plaintiff permission to use the telephone during lunch for legal purposes and that Defendants Ronald Weaver and Gary Hetzel drove up while Plaintiff was using the telephone. Plaintiff asserts that Defendant Ronald Weaver then ordered Defendant Hetzel to place handcuffs on Plaintiff, which Defendant Hetzel did and then searched Plaintiff for contraband. Plaintiff claims that they went into a rage because no contraband was found and took him back to Loxley and put him in "lock-up," from which he was released after a short period of time and then was given a citation. Attached to the complaint is a copy of the citation for unauthorized use of a telephone at the Minute Stop on Highway 59, Robertsdale, Alabama, which is a violation of institutional rules. The citation reflects that Plaintiff was then assigned to the maintenance squad at the facility. Plaintiff complains that as a result of this citation, he lost his Robertsdale job, and was assigned to the warden's brother, Defendant Larry Weaver. Defendant Larry Weaver threatened Plaintiff by stating that Plaintiff will cut the lawn all day or he would drop Plaintiff in Plaintiff's tracks. Plaintiff was told by Defendants Howell and Hetzel that Defendant Larry Weaver would not touch him. Plaintiff maintains, however, that he was forced to work in a hostile environment. Plaintiff summarily asserts that he was assaulted and battered by Defendants Ronald Weaver and Hetzel.
Plaintiff's complaint contains several other allegations which are not connected to any specific individual, but which are directed to the Loxley facility. The claims directed to the facility are as follows. Plaintiff generally claims that Loxley is a haven for constitutional violations. For example, the "barn," which has an air conditioner, a big-screen television, and spring beds, houses only "non-black" inmates, while Plaintiff, whose race is not identified, sleeps in housing that has no air conditioner. Plaintiff claims that the disciplinaries and citations issued at Loxley do not comply with the rules and regulations, in particular Administrative Regulations 403 and 414. The facility does not have a law library. Caucasian inmates who do not meet work release criteria, much less criteria for placement at Loxley, due to the seriousness of their offenses are "shielded" at Loxley. Overcrowding has risen to a constitutional violation. Loxley is affiliated with employers who employ only Caucasian inmates, e.g., Weaver's Construction. Inmates who are housed at Loxley are denied equal treatment as compared to those inmates who are housed at other Alabama Department of Corrections' work release centers.
For relief, Plaintiff seeks compensatory and punitive damages, an order prohibiting Loxley officials from writing any disciplinaries or citations until this action is decided, an order requiring Loxley officials to reveal the purpose of housing only "white" inmates in the "barn," an investigation of bed space and the "barn," a review of this action by the Court for possible class action certification due to the numerous "bogus" disciplinaries and citations that have been written, an order requiring officials to send to the Court the five disciplinaries and citations that Plaintiff received within the last 60 days which would show that the rules and regulations are not being followed, and an order to protect inmates from punishment or transfer if they assist the Court in finding the "culprits."
2. Analysis.
Plaintiff's original complaint was filed on this Court's form (Doc. 1). Plaintiff was advised in the complaint form that the persons whom he identifies in Section III of the complaint form are the Defendants to this action. Section III also provides spaces for describing a claim against each Defendant. However, Plaintiff does not describe any claim in Section III, but refers the Court to a narrative statement. When the Court devised this form, it provided spaces for a describing a claim against a particular Defendant. By properly completing Section III of the form, a plaintiff would give the required fair notice to a defendant of the claim against him and would plead the required causal connection for stating a claim under 42 U.S.C. § 1983. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517(1993) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80(1957)) (finding that a plaintiff is required to plead "`a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim' is and the grounds upon which it rests"); Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986) (holding that section 1983 requires a causal connection be demonstrated between each defendant's actions, orders, customs, or policies and a deprivation of a plaintiff's federal rights in order to state a claim upon which relief can be granted.);Williams v. Bennett, 689 F.2d 1370, 1380 (11th Cir.) (same), cert. denied, 464 U.S. 932, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983). By Plaintiff not properly completing Section III, the Court is left in the position having to discern the claims that Plaintiff is advancing against each Defendant. But see Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (holding that it is not a court's or a defendant's duty to discern a plaintiff's claim). Even though the courts give some leniency to pro se litigants, the courts will not act as a plaintiff's de facto attorney or rewrite a deficient complaint. GJR Investments. Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1368 (11th Cir. 1998).
The Court will address each of Plaintiff's claims which it is able to discern. Plaintiff complains that he received a citation for unauthorized use of a telephone by Defendant Hetzel, which resulted in the loss of his job assignment and in being assigned to work for the warden's brother at Loxley. In Plaintiff's request for relief, Plaintiff complains about "bogus" citations being written which have caused constitutional deprivations.
Plaintiff has not identified the ground on which he believes this citation is unconstitutional. Plaintiff merely complains that the citation is "bogus." Considering that Plaintiff's claim concerns the receipt of a citation, and because there must be a violation of the Constitution in order to state a claim under § 1983, Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420(1981),overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664, 88 L.Ed.2d 662(1986), the Court is liberally construing Plaintiff's claim as one for a due process violation. For Plaintiff to have suffered a due process violation, Plaintiff must be deprived of life, liberty, or property. Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935(1974); U.S. Const. amend. XIV, § 1 (providing, in part: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law. . . ."). The deprivation suffered by Plaintiff as a result of the citation dated June 22, 2000, is Plaintiff received counseling or a warning and assignment to the maintenance squad at the facility from his "free-world" job, according to the citation appended to the complaint.
The decision in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), controls this claim. In Sandin, a Hawaiian prisoner sued prison officials under § 1983 for allegedly being denied due process during a disciplinary hearing before he was confined to disciplinary segregation for 30 days. The Supreme Court found that there is no right inherent in the Constitution not to be placed in disciplinary segregation and that there was not a state-created liberty interest to be free from disciplinary segregation. Id. at 476, 487, 115 S.Ct. at 2296, 2302.
In considering whether the inmate had a state-created liberty interest to be free from confinement in disciplinary segregation, the Supreme Court altered the analysis for determining whether there was a state-created liberty interest that was protected by the Due Process Clause. Id. at 484-83, 115 S.Ct. at 2300. In reviewing the action, theSandin Court concluded that segregation as a form of punishment was not a dramatic departure from the ordinary conditions of incarceration. Id. at 485, 115 S.Ct. at 2301. The Court found that confinement to disciplinary segregation "did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest." Id. Unlike the loss of good-time credits at issue in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, the Court determined that mere confinement to disciplinary segregation was a type of discipline that should be expected by an inmate as an incident to his criminal sentence.Sandin, 515 U.S. at 485, 115 S.Ct. at 2301.
In concluding that confinement to disciplinary segregation did not implicate due process, the Court held that,
neither the Hawaii prison regulation in question, nor the Due Process Clause itself, afforded Conner a protected liberty interest that would entitle him to the procedural protections set forth in Wolff. The regime to which he was subjected as a result of the misconduct hearing was within the range of confinement to be normally expected for one serving an indeterminate term of 30 years to life.Id. at 487, 115 S.Ct. at 2302. In so holding, the Court explained that its ruling was a return to the due process principles established inWolff, supra, and Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451(1976), and stated that the Due Process Clause protects state-created liberty interests which "[are] generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, . . ., nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484, 115 S.Ct. at 2300.
The Eleventh Circuit in Kirby v. Siegleman, 195 F.3d 1285 (11th Cir. 1999), expounded on the liberty interests that a prisoner retains once he is incarcerated.
Determining whether one was deprived of liberty presents a unique challenge with prisoners, who are already deprived of their liberty in the ordinary understanding of the word. The Supreme Court has identified two situations in which a prisoner can be further deprived of his liberty such that due process is required. The first is when a change in the prisoner's conditions of confinement is so severe that it essentially exceeds the sentence imposed by the court. See Sandin v. Conner 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418(1995); Vitek v. Jones 445 U.S. 480, 492-93, 100 S.Ct. 1254, 63 L.Ed.2d 552(1980) (holding that a prisoner is entitled to due process prior to being transferred to a mental hospital). The second situation is when the state has consistently bestowed a certain benefit to prisoners, usually through statute or administrative policy, and the deprivation of that benefit "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484, 115 S.Ct. 2300; Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935(1974) (prisoners may not be deprived of statutory "good-time credits" without due process). In the first situation, the liberty interest exists apart from the state; in the second, the liberty interest is created by the state. Bass, 170 F.3d at 1318.Id.at 1290-91.
As a result of the Court's decision in Sandin, no longer does the prospect of temporary confinement in disciplinary segregation alone mandate the due process procedures delineated in Wolff. Disciplinary segregation is not a "dramatic departure" from the ordinary conditions of confinement, nor is it a "major disruption in [a prisoner's] environment." Sandin, 515 U.S. at 486, 115 S.Ct. at 2301. Thus, under the authority of Sandin, a prisoner sentenced to a short term of disciplinary segregation has no protected liberty interest to which the due process protections of Wolff apply. Because there is no right to procedural due process before the imposition of disciplinary segregation, neither the lack of due process nor any deficiency in procedure actually used is actionable under § 1983.
In the present action, Plaintiff only received a citation, not a disciplinary, for the unauthorized use of the telephone. Counseling or a warning and removal from his "free-world" job to ajob at the facility were the only forms of punishment that se received. This punishment is neither "atypical" nor a "significant hardship" under the Sandin analysis. The loss of a "freeworld" job is not a dramatic departure from the ordinary conditions of confinement, nor is it a major disruption in Plaintiff's environment as a prisoner at a work release center. Moreover, the Court considers Plaintiff's punishment to be a less severe form of discipline than placement into disciplinary segregation. Cf.Sandin, 515 U.S. at 475, 115 S.Ct. at 2296 (holding that confinement to disciplinary segregation for thirty days was not a dramatic departure from the ordinary conditions of confinement, nor was it a major disruption in Plaintiff's environment). In comparison, most persons working in the "free-world" do not have a property or liberty interest in their employment, nor do inmates who work a job within the prison. Bulger v. United States Bureau of Prisons, 65 F.3d 48, 50 (5th Cir. 1995) (no interest in continuing UNICOR job); Adams v. James, 784 F.2d 1077, 1079 (11th Cir. 1986) (no interest in retaining position as prison law clerk); accord Sandin, 515 U.S. at 483, 115 S.Ct. at 2299-2300 (noting with disapproval a lower court's finding of a liberty interest in a prison job). Furthermore, the Supreme Court in Sandin envisioned that state-created liberty interests in the future will impose "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484, 115 S.Ct. at 2300. Plaintiff's punishment was not of this nature. See Williams v. Fountain, 77 F.3d 372, 374 n. 3 (11th Cir.) (finding that twelve months of solitary confinement "represent[s] substantially more `atypical and significant hardship[s] . . . in relation to the ordinary incidents of prison life,' [and] we assume that [a prisoner suffering such] a liberty deprivation and [is] entitled to due process"), cert. denied, 519 U.S. 952, 117 S.Ct. 367, 136 L.Ed.2d 257(1996); cf. Rodgers v. Singletary, 142 F.3d 1252, 1253 (11th Cir. 1998) (affirming that two months' confinement to administrative segregation was not a deprivation of constitutionally protected liberty interest). Accordingly, the Court finds that Plaintiff did not suffer a deprivation of a state-created liberty or of a constitutional interest when he was counseled or warned and was removed from his "free-world" job to a maintenance job at the facility. Consequently, Plaintiff's citation claim is frivolous and is, therefore, due to be dismissed.
Plaintiff complains of a hostile work environment caused by Defendant Larry Weaver threatening Plaintiff when he stated that Plaintiff will cut the lawn all day or he would drop Plaintiff in Plaintiff's tracks. Plaintiff does not allege a physical injury that he received from Defendant Larry Weaver or from cutting the lawn or facts that would support a finding of a physical injury. Plaintiff has therefore failed to state a claim under the Eighth Amendment for cruel and unusual punishment. See Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156(1992) ("Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights.") (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied sub nom. John v. Johnson, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 304(1973)); Harris v. Chapman, 97 F.3d 499, 505 (11th Cir.) (finding that de minimis use of force does not violate the Constitution), cert. denied, 520 U.S. 1257, 117 S.Ct. 2422, 138 L.Ed.2d 185(1997); Bennett v. Parker, 898 F.2d 1530, 1533 (11th Cir.) (holding that evidence beyond a minimal injury must be produced to sustain an Eighth Amendment claim), cert. denied, 498 U.S. 1103, 111 S.Ct. 1003, 112 L.Ed.2d 1085(1981); see also 42 U.S.C. § 1997e(e) (requiring that a physical injury be established before there can be a damages recovery for mental or emotional injury suffered while in custody). Accordingly, Plaintiff's Eighth Amendment claim is due to be dismissed.
Furthermore, threats in themselves are not actionable under § 1983. Edwards v. Gilbert, 867 F.2d 1271, 1273 n. 1 (11th Cir. 1989);McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.), cert. denied, 464 U.S. 998, 104 S.Ct. 499, 78 L.Ed.2d 691(1983); Johnson v. Glick, 481 F.2d 1028, 1033 n. 7 (2d Cir. 1983), cert. denied sub. nom. John v. Johnson, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324(1973); Stacey v. Ford, 554 F. Supp. 8, 9 (N.D. Ga. 1982). Plaintiff's allegation of threats has failed to establish a deprivation of a constitutional right. Considering the nature of Plaintiff's allegation, the Court finds Plaintiff's threats claim to be frivolous and to be subject to dismissal.
Plaintiff further alleges that Defendants Hetzel and Ronald Weaver "assaulted and battered" him. No other information is provided. As presented, Plaintiff's allegations are vague and conclusory because they fail to provide the required notice to a defendant and to advise that Plaintiff is entitled to relief. Plaintiff's claims are, therefore, due to be dismissed for failure to state a claim upon which relief may be granted. Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984) (ruling that a vague and conclusory complaint is due to be dismissed).
Plaintiff next complains that Defendant Hetzel placed handcuffs on him pursuant to Defendant Ronald Weaver's order and placed him in a holding cell. Plaintiff contends that this was excessive force. Plaintiff's allegations do not demonstrate a violation of the Constitution. Sandin, 515 U.S. at 475, 115 S.Ct. at 2296 (finding that placement for 30 days in disciplinary segregation did not violate the Constitution); Gold v. City of Miami, 121 F.3d 1442, 1446-47 (11th Cir.) (finding that handcuffs which were too tight did not violate the Constitution), cert. denied, 525 U.S. 876, 119 S.Ct. 165, 142 L.Ed.2d 135(1998); Harris, 97 F.3d at 505 (holding that de minimis use of force does not violate the Constitution); 42 U.S.C. § 1997e(e) (requiring that a physical injury be established before there can be a damages recovery for mental or emotional injury suffered while in custody). Accordingly, the Court finds that Plaintiff's handcuff claim and holding cell claim are frivolous and are due to be dismissed.
Plaintiff also alleges that Defendant Rodney, City of Robertsdale employee, "did by contract and affiliation with the Loxley Center, violate Plaintiff's constitutional rights, while acting under the color of state law." Plaintiff provides no other facts to support this allegation. This allegation against Defendant Rodney is vague and conclusory and is subject to dismissal for failure to state a claim upon which relief can be granted. Fullman, 739 F.2d at 556-57.
Plaintiff then makes numerous allegations about the conditions of confinement at Loxley which concern the lack of compliance with the rules and regulations for disciplinaries, "the barn" which has more desirable amenities being available only to non-African Americans, lack of a law library, Caucasian inmates who do not qualify for placement at Loxley being placed there to protect them, overcrowding, affiliation with companies who have discriminatory hiring practices in that they do not hire African-American inmates, and inmates at Loxley being denied equal protection when compared to inmates at other work release facilities. These allegations are not connected to any named Defendant. Therefore, Plaintiff has failed to establish the causal connection necessary for stating a claim upon which relief can be granted under § 1983.Zatler, 802 F.2d at 401 (holding that section 1983 requires a causal connection be demonstrated between each defendant's actions, orders, customs, or policies and a deprivation of a plaintiff's federal rights in order to state a claim upon which relief can be granted.); Williams, 689 F.2d at 1380 (same). Accordingly, these allegations concerning the conditions at Loxley are due to be dismissed for failure to state a claim upon which relief can be granted.
Plaintiff has named Sgt. Howell as a Defendant. However, the only allegation connected to this Defendant is that he told Plaintiff that Defendant Larry Weaver would not hurt Plaintiff. This allegation does not establish a violation of the Constitution. The claim against Defendant Howell is, therefore, frivolous and is due to be dismissed.
B. Plaintiff's Motion to Amend/Invoke the Criminal Jurisdiction (Doc. 6)
1. First Amendment's Allegations.
The Court is treating this motion as an amendment to the complaint because Plaintiff's motion contains the matters that he wishes to bring before the Court and it is identified as a motion to amend. Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999).
Plaintiff identifies other persons as Defendants in this amendment: Paul Sides, internal investigator; Michael Haley, Commissioner of the Alabama Department of Corrections; Betty Teague, Director of Records; William Pryor, Alabama Attorney General; Jeffrey Smith, an officer at Loxley; Chuck Singleton, a classification officer; and Randall White, an officer at Loxley. Plaintiff conclusorily states at the beginning of his amendment that he has been denied his constitutional rights by the officials named in the amendment, he is suffering from retaliation by state officials, the same officials are conspiring to do bodily harm to him, he is being threatened on a daily basis while at Loxley, and his life has been placed in jeopardy since he filed his complaint against Ronald Weaver in federal court and Randall White in state court. These statements are not connected to any specific Defendant. Therefore, Plaintiff has failed to establish the required causal connection, and as a consequence, these claims are due to be dismissed for failure to state a claim upon which relief may be granted. Zatler, 802 F.2d at 401;Williams, 689 F.2d at 1380.
The following is a description of Plaintiff's allegations that are connected to a specific Defendant and that are found in pages coming after Plaintiff's initial statement. Plaintiff avers that on July 10, 2000, he sent to Defendant Sides, Haley, and Pryor a complaint requesting that the Internal Investigation Division intervene because his constitutional rights were being violated at Loxley due to the manner in which the facility was being operated and that threats were being made against his life. Plaintiff claims that these Defendants have a duty to intervene, but failed to do so, and have not responded to his complaint.
Plaintiff maintains that Defendant Smith wrote him a citation that did not comply with Administration Regulation 414 and that citation was based on a conspiracy because Defendant Hetzel directed Defendant White or Defendant Smith to write the citation. (Plaintiff mentions both officers, but later the allegations reflect that Defendant Smith wrote the citation.) Plaintiff alleges that Defendant Singleton conspired with the other Defendants when he entered Defendant Smith's "bogus" citation into Plaintiff's file when he should have known that it should not be placed in Plaintiff's file because it did not comply with Administrative Regulation 414 and that it would deny Plaintiff a certain custody or status, namely, work release. Plaintiff complains that Defendant Teague violated his constitutional rights when on June 23, 2000, she entered Defendant Smith's citation in Plaintiff's file even though it did not comply with Administrative Regulation 414 and then reflected it on Plaintiff's summary sheet which was sent to him.
There appears to be an inconsistency in Plaintiff's allegations because Defendant Smith's citation occurred on August 3, 2000, and Plaintiff claims that Defendant Teague entered the citation on June 23, 2000. This inconsistency is not of consequence due to the Court's disposition of this amendment. However, the Court observes that the citation about which Plaintiff complains in the original complaint was approved on June 22, 2000.
Plaintiff claims that Defendant Hetzel conspired with the other Defendants to place the "bogus" citation in Plaintiff's file even though he knew that it did not comply with Administration Regulation 414. Plaintiff further claims that Defendants Singleton and Ronald Weaver did conspire to deny Plaintiff a certain custody status and liberties afforded through administrative rules and regulations, policies and customs, and general practices when Defendant Ronald Weaver signed his name to the "bogus" citation received from Defendant Smith which did not comply with Administrative Regulation 414, but did not complete Section III, and then forwarded it to Defendant Singleton for entry into Plaintiff's file. Plaintiff attached a copy of the behavior citation he received on August 3, 2000, which was issued by Defendant Jeffrey W. Smith and was signed by Defendant Ronald Weaver on August 9, 2000, for a violation of institutional mail rules, for which Plaintiff received one hour of extra duty for 30 days and the loss of telephone privileges for 30 days.
The citation itself reflects in Section II that Defendant Smith recommended that Plaintiff receive as punishment one hour of extra duty for 30 days and the loss of telephone privileges for 30 days. It further shows that in Section III Defendant Ronald Weaver signed and dated Plaintiff's citation for a violation of institutional mail rules and set out the dates that Plaintiff's punishment was to begin and end, August 9, 2000, to September 9, 2000, which amounts to 30 days. It also reflect that Defendant Ronald Weaver did not check a space in another area in Section III indicating whether he concurred or did not concur with the punishment. Thus, it appears to the Court that Plaintiff is complaining that Defendant Weaver did not check the appropriate space as to whether or not he concurred with the recommended citation. However, Plaintiff does not articulate his claim in this manner. He merely states that the Defendant Weaver did not complete Section III.
Plaintiff further complains that Defendant Singleton conspired with the other Defendants when he responded to Plaintiff's request slip concerning placement on work release. Plaintiff attached a copy of the request slip dated August 7, 2000, which states that Plaintiff was requesting work release because the 60-day period required by Defendant Ronald Weaver had expired. Defendant Singleton responded, "You will be reviewed when Warden says you can." Plaintiff contends that this response denied him certain constitutional rights as the classification manual permits Defendant Singleton, not Defendant Ronald Weaver, to review certain inmates and specifies the time frames for review. Plaintiff contends that Defendants conspired to harass and intimidate him when they wrote on a time sheet — "no work release until 11-00."
Plaintiff then attached to his amendment his affidavit concerning yet a different incident. Plaintiff claims that Defendant Ronald Weaver ordered Plaintiff be "stopped up" from his job at the City of Fairhope on August 18, 2000, and that while Plaintiff was waiting for Defendant Weaver, Defendant White came to his bed and wanted Plaintiff to work for him that day and harassed Plaintiff for eight hours when Plaintiff would not work for him. Plaintiff states that Defendant White called Plaintiff at 4:30 p.m. to Defendant Weaver's office where Defendant Weaver told Plaintiff that he would receive a disciplinary for lying about an officer and all of Plaintiff's good time credits would be taken if Plaintiff continued to tell other inmates that Defendant White received a D.U.I. Plaintiff asserts that Defendant White told him that if he heard anyone say that he had a D.U.I., he would mess up Plaintiff.
Plaintiff seeks to invoke the Court's criminal jurisdiction and requests injunctive relief to prohibit Defendants from retaliating, harassing, threatening, or assaulting Plaintiff, and to be transferred to another honor camp.
2. Analysis.
a. Request for Relief.
Plaintiff's request to invoke the Court's criminal jurisdiction is a frivolous request. "[A] private citizen has no judicially cognizable interest in the prosecution or non-prosecution of another." Otero v. United States Attorney General, 832 F.2d 141, 141 (11th Cir. 1997) (citing Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536(1973)).
The remaining relief that Plaintiff seeks is injunctive relief. Since Plaintiff filed his first amendment, he has been transferred away from Loxley and is presently incarcerated at Limestone Correctional Facility.See Doc. 10 — Motion for Legal Inquiry/New Address. This transfer from Loxley affects Plaintiff's claims because he seeks only injunctive relief on these claims. "[A]n inmate's request for injunctive and declaratory relief in a section 1983 action fails to present a case or controversy once an inmate has been transferred." Spears v. Thigpen, 846 F.2d 1327, 1328 (11th Cir.), cert. denied, 488 U.S. 1046, 109 S.Ct. 876, 102 L.Ed.2d 999(1989).
In the present action, Plaintiff has not specifically directed his claims for injunctive relief to a particular Defendant. However, the bulk of Plaintiff's requests appear to be connected to Loxley officials as compared to Defendants Sides, Teague, Pryor or Haley. Nevertheless, due to Plaintiff not identifying the specific relief that he seeks from a Defendant, the Court finds that Plaintiff's amendment fails to state a claim upon which relief can be granted. Accord Zatler, 802 F.2d at 401 (requiring a causal connection); Fullman, 739 F.2d at 556-57 (vague and conclusory claims are subject to dismissal); Brancaccio v. Reno, 964 F. Supp. 1, 2 n. 4 (D.D.C.) (dismissed action against defendants in their individual capacities pursuant to Fed.R.Civ.P. 12(b)(6) because complaint did not contain a statement showing that plaintiff was entitled to relief and a demand for judgment for the relief sought), aff'd, 1997 WL 634544 (D.C. Cir. 1997); Player v. Phoenix, No. 92 Civ. 401 (CSH), 1992 WL 350780, at *1 (S.D.N.Y. Nov. 13, 1992) (unpublished) (dismissed action sua sponte for failure to state a claim due to the lack of a demand for judgment in the amended complaint); Dupree v. Lubbock County Jail, 805 F. Supp. 20, 21 (N.D. Tex. 1992) (dismissed action sua sponte for failure to state a claim because there was no demand for judgment in the complaint or amended complaint).
Furthermore, in regard to Plaintiff's transfer request, a court generally does not have the power to transfer an inmate to another facility as a transfer of a prisoner is an administrative decision left to the discretion of prison officials who are experienced in these matters. See Sandin, 515 U.S. at 482-83, 115 S.Ct. at 2299-00 (holding that "federal courts ought to afford appropriate deference and flexibility to state officials trying to manage a volatile environment. . . . Such flexibility is especially warranted in the fine tuning of the ordinary incidents of prison life. . ." and commenting that this deference should have been given to officials' decision regarding an inmate's transfer to a smaller cell without electric outlets for a television and a prison job); Turner v. Safley, 482 U.S. 78, 84-85, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64(1987) ("[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. . . . Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. . . . Where a state penal system is involved, federal courts have, as we indicated in Martinez, additional reason to accord deference to the appropriate prison authorities.");Meachum v. Fano, 427 U.S. 270, 96 S.Ct. 2532, 49 L.Ed.2d 451(1976) ("[T]he Due process Clause in and of itself [does not] protect a duly convicted prisoner against transfer from one institution to another within the state prison system. Confinement in any of the State's institutions is within the normal limits or range of custody which the conviction has authorized the State to impose. That life in one prison is much more disagreeable than in another does not in itself signify that a Fourteenth Amendment liberty interest is implicate when a prisoner is transferred to the institution with more severe rules.").
b. First Amendment's Substantive Allegations.
Even though Plaintiff's first amendment fails to state a claim upon which relief can be granted, the Court will address Plaintiff's claims contained in his amendment. The only citation that can be identified is the citation that Plaintiff received on August 3, 2000, for a violation of institutional mail rules for which he received one hour of extra duty for 30 days and the loss of telephone privileges for 30 days. The decision in Sandin, supra, also applies to Plaintiff's claims concerning this citation. The loss of telephone privileges and the one hour of extra duty for 30 days are forms of punishment that are neither "atypical" nor a "significant hardship" under the Sandin analysis. The loss of telephone privileges and performing one hour of extra duty for a short period of time are not a dramatic departure from the ordinary conditions of confinement, nor is it a major disruption in Plaintiff's environment as a prisoner. Moreover, the Court considers it to be a considerably lighter form of discipline than placement in disciplinary segregation. Cf.Sandin, 515 U.S. at 475, 115 S.Ct. at 2296 (finding that a prisoner had no liberty interest in not being confined to disciplinary segregation because confinement to disciplinary segregation for thirty days was not a dramatic departure from the ordinary conditions of confinement, nor was it a major disruption in the prisoner's environment). Furthermore, the Supreme Court in Sandin envisioned that state-created liberty interests in the future will impose "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484, 115 S.Ct. at 2300. Plaintiff discipline was not of this nature. Cf.Williams, 77 F.3d at 374 n. 3 (finding that twelve months of solitary confinement represent[s] substantially more "atypical and significant hardship[s] . . . in relation to the ordinary incidents of prison life,' [and] we assume that [a prisoner suffering such] a liberty deprivation and [is] entitled to due process"). Accordingly, the Court finds that Plaintiff did not suffer a deprivation of a state-created liberty interest or a constitutional interest when he received the citation for a violation of institutional mail rules. Plaintiff's citation claim is, therefore, frivolous and Plaintiff's claims against Defendants Jeffrey Smith, Chuck Singleton, Betty Teague, Gary Hetzel, and Ronald Weaver which are predicated on their involvement with Plaintiff's citation are frivolous. Williams, 77 F.3d at 374, 376 (affirming the district court's grant of summary judgment to the disciplinary charging officer, the investigator, prosecuting officer, hearing officer, appeals officer, warden, and deputy commissioner when it was determined that inmate received due process in his disciplinary hearing).
Even though this Court's decision disposes of Plaintiff's claims related to his August 3, 2000, citation, the Court will further address Plaintiff's assertions that there has been a violation of Regulation 414 by certain officials who were in a conspiracy against Plaintiff. Once a court has determined that there is no interest that is constitutionally protected, a claim for a violation of procedures is without merit because there is no entitlement to procedural due process. See generally Sandin, 515 U.S. at 487, 115 S.Ct. at 2302; cf. Moody v. Daggett, 429 U.S. 78, 87, 97 S.Ct. 274, 279, 50 L.Ed.2d 236(1976) ("We have rejected the motion that every state action carrying adverse consequences of prison inmates automatically activates a due process right."). Even in non-prison disciplinary situations, "not every violation by a state agency of its own rules rises to the level of a due process infringement." Smith v. State of Georgia, 684 F.2d 729, 732 n. 6 (11th Cir. 1982); see United States v. Caceres, 440 U.S. 741, 754-55, 99 S.Ct. 1465, 1472-73, 59 L.Ed.2d 773(1979) (a violation of I.R.S. rules on taping did not warrant the suppression of tape the taxpayer's prosecution of attempting to bribe an agent). Thus, if there was a violation of Regulation 414, the provision of which Plaintiff has not provided, a violation of the regulation does not present a constitutional claim because there is no liberty interest for which Plaintiff was to be accorded due process.
Moreover, the Court can only surmise, due to the lack of specificity in Plaintiff's pleading, that Defendant Weaver's failure to check whether he concurs in the recommendation is the violation about which Plaintiff is complaining. Defendant Weaver set out the specific dates that Plaintiff was to serve his punishment, which amounted to the exact length of time recommended, and signed and dated the citation. This provided Plaintiff notice of the punishment that he would receive and was clearly an implicit concurrence by Defendant Weaver with the recommendation. The Court, therefore, determines that Plaintiff's claim for a violation of Regulation 414 is lacking in legal and factual merit and consequently is frivolous.
Plaintiff also contends that there was a conspiracy. In order to state a conspiracy claim under 42 U.S.C. § 1983, a plaintiff "must show an underlying actual denial of [his] constitutional rights." GJR Investments, 132 F.3d at 1370. "[A] plaintiff `must show that the parties `reached an understanding' to deny the plaintiff his or her rights [and] prove an actionable wrong to support the conspiracy.'" Bailey v. Board of County Comm'rs of Alachua County, 956 F.2d 1112, 1122 (11th Cir.) (quoting Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir.), cert. denied, 500 U.S. 932, 111 S.Ct. 2053, 114 L.Ed.2d 459(1991)), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 581(1992). "[T]he linchpin for conspiracy is agreement, which presupposes communication."Id. The mere stringing together of events of a process without a showing of contacts demonstrating that an understanding was reached is not sufficient to establish a conspiracy. See Harvey v. Harvey, 949 F.2d 1127, 1133 (11th Cir. 1992) (ruling that stringing together the discreet steps in the commitment process without alleging contacts that would prove an understanding was reached did not state a conspiracy claim). Moreover, vague and conclusory conspiracy allegations are subject to dismissal.Fullman, 739 F.2d at 556-57.
Plaintiff's allegations of a conspiracy are not based an underlying constitutional violation. That is, Plaintiff's claims concerning his citation have been determined by the Court not to involve a deprivation of constitutional right. Plaintiff's conspiracy claim is, therefore, frivolous due to Plaintiff's failure to establish an actual denial of his constitutional rights. GJR Investments, 132 F.3d at 1370.
Plaintiff further alleges that Defendants Singleton and Ronald Weaver conspired to deprive him of certain custody and liberties due to their involvement in the citation procedure. Plaintiff has not identified the custody or liberties. The Court can only assume because these vague allegations are connected to the citation that Plaintiff will be unable to receive a certain custody or liberties as result of receiving this citation. This is a perfectly acceptable result of receiving a citation.Sandin, 515 U.S. at 487, 115 S.Ct. at 2302 (holding that "the chance that a finding of misconduct will alter the balance [of being granted parole in the future] is simply to attenuated to invoke the procedural guarantees of the Due Process Clause"); Moody, 429 U.S. at 88 n. 9, 97 S.Ct. at 279 n. 9 (denying the prisoner's argument that the pending warrant and detainer adversely affected his qualification for programs at the prison and his classification when it held that "[w]e have rejected the notion that every state action carrying adverse consequences for prison inmates automatically activates a due process right"); accord Kincaid v. Duckworth, 689 F.2d 702, 704 (7th Cir.) (holding that "any expectation an inmate may have in being considered for a lower security clearance is too insubstantial to rise to the level of due process protection"), cert. denied, 461 U.S. 946, 103 S.Ct. 2126, 77 L.Ed.2d 1305(1983). These unidentified consequences of the citation do not invoke the protection of the Due Process Clause. Accordingly, Plaintiff's claims regarding his custody and liberties are frivolous.
Next, Plaintiff complains that he submitted his request to be reviewed for work release in accordance with the classification manual and Defendant Singleton responded that Plaintiff would be reviewed for work release when the warden says that Plaintiff can be reviewed. Plaintiff's use of the term "work release" is confusing to the Court because Plaintiff was incarcerated at work release at that time. The Court deduces that a possible meaning for this term is a "free-world" job. The exact definition of this term does not need to be resolved, however, due to this claim's disposition. Nevertheless, Plaintiff claims that this violated his constitutional rights because Defendant Singleton knows that his duties come from the commissioner, and not the warden, and that the classification manual "permits and instructs" him to review inmates at certain time frames.
Plaintiff is claiming that he has an expectation of receiving a type of classification within a certain time. The Constitution does not mandate that an inmate be entitled to a certain classification, see Moody, 429 U.S. at 88 n. 9, 97 S.Ct. at 279 n. 9, nor has Plaintiff established that Alabama law entitles him to a certain classification, Francis v. Fox, 838 F.2d 1147 (11th Cir. 1988) (finding that there is no state-created liberty interest in eligibility for participation in Alabama's work release program). Moreover, as discussed supra, an inmate does not have a state-created right to a certain job. Because there is no state-created right, due process does not attach. Thus, a violation of a requirement of the classification manual does not provide a basis for a violation of a constitutional right. See Smith, 684 F.2d at 732 n. 6 ("[N]ot every violation by a state agency of its own rules rises to the level of a due process infringement.").
Furthermore, Plaintiff contends such practice is a conspiracy. This vague allegation fails to state a claim upon which relief can be granted because it is not based on a violation of a constitutional right. GJR Investments, 132 F.3d at 1370 (finding that in order to state a § 1983 conspiracy claim, a plaintiff "must show an underlying actual denial of [his] constitutional rights"). Plaintiff also contends that placing "no work release until 11-00" is harassment and intimidation. Taking Plaintiff's characterization of this language as true, the Court finds that there has not been a violation of a constitutional right. See Edwards, 867 F.2d at 1273 n. 1 (finding that more than verbal taunts must be alleged); McFadden, 713 F.2d at 146 (holding that "mere threatening language and gestures. . . do not, even if true, amount to constitutional violations"); Stacey, 554 F. Supp. at 9 (ruling that verbal abuse and threats are not cognizable under § 1983). Accordingly, Plaintiff's claims concerning classification, conspiracy, and threats are frivolous and are due to be dismissed.
Plaintiff complains that Defendant Sides, Haley, and Pryor did not intervene when they were notified by his complaint that his constitutional rights were being violated at Loxley due to the manner in which the institution is being operated and because threats were being made against him. "Supervisor liability occurs either when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional deprivation." Dolohite v. Maughon by and through Videon, 74 F.3d 1027, 1052 (11th Cir.), cert. denied, 519 U.S. 870, 117 S.Ct. 185, 136 L.Ed.2d 123(1996). This rule of law requires in each instance that there be an underlying constitutional violation that a plaintiff suffered in order to impose liability on a supervisor. Plaintiff has not established through his allegations that there has been a constitutional violation of his rights. Accordingly, there is no basis on which Defendants Sides, Haley, and Pryor may be held liable. Cf. Post v. City of Fort Lauderdale, 7 F.3d 1552 (11th Cir.), modified, 14 F.3d 583 (11th Cir. 1994) (finding that a police officer had a duty to intervene when confronted with the use of excessive force, but a building inspector did not)
C. Plaintiff's Motion for Permission to Amend. (Doc. 9)
The Court is treating this motion as Plaintiff's second amendment to the complaint. Long, 181 F.3d at 1279.
Plaintiff complains that the "Defendants" have retaliated against him for filing this action by harassing and threatening him and that he eventually received a disciplinary, which resulted in him being transferred to a more restrictive and secure facility. Plaintiff contends that the disciplinary is invalid on its face because state officials did not comply with Regulation 403 governing disciplinary proceedings, and in particular Lt. Curenton (a non-Defendant) did not comply with the regulation's requirement for confidential informants. Plaintiff maintains that the disciplinary punishment that he received was three months' loss of good-time credits, a custody upgrade, and a transfer to major prison. Plaintiff also claims a violation of state law, Ala. Code § § 14-11-1 13. For relief, Plaintiff requests that Defendants be ordered to show cause why he received the disciplinary and why he was placed in holding cell on August 24, 2000; to forward a copy of the disciplinary and of the incident report with associated documents; and to respond within 10 days of the order's issuance. Plaintiff did not attach a copy of the disciplinary report.
In pleading this second amendment, Plaintiff has simply referred to the "above defendants." A specific Defendant has not been connected to an allegation in this amendment. In a § 1983 action, a plaintiff must establish a causal connection between a defendant's actions, orders, customs, policies, or breaches of statutory duty and a deprivation of the plaintiff's constitutional rights in order to state a claim upon which relief may be granted. See Zatler, 802 F.2d at 401; Williams, 689 F.2d at 1380. Because Plaintiff's amendment fails to establish this causal connection, Plaintiff's second amendment (Doc. 9) fails to state claim upon which relief may be granted and is, therefore, due to be dismissed.
Furthermore, Plaintiff claims a violation of state law, Ala. Code § § 14-11-1 13. In the event that Plaintiff is attempting to assert a claim based on state law by this allegation, it is recommended that the supplemental jurisdiction be declined because there are no federal claims remaining in this action. 28 U.S.C. § 1367(c)(3);Scarfo v. Ginsberg, 175 F.3d 957, 962 (11th Cir.), cert. denied, ___ U.S. ___, 120 S.Ct. 1267, 146 L.Ed.2d 217 (2000); Nolin v. Isbell, 207 F.3d 1253, 1258 (11th Cir. 2000). Therefore, it is recommended that Plaintiff's state law claims be dismissed without prejudice from this action.