Opinion
Cause No. 3:04-CV-0410 AS.
October 26, 2004
MEMORANDUM AND ORDER
David Burks-Bey, a prisoner confined at the Miami Correctional Facility ("MCF"), submitted a complaint under 42 U.S.C. § 1983, alleging that MCF officials violated rights protected by the United States Constitution. The court must review the merits of a prisoner complaint seeking redress from a governmental entity or officer or employee of a governmental entity, and dismiss it if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915A. Courts apply the same standard under § 1915A as when addressing a motion under Fed.R.Civ.P. 12(b)(6) to dismiss a complaint. Weiss v. Colley, 230 F.3d 1027, 1029 (7th Cir. 2000).
A claim may be dismissed only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. Accordingly, pro se complaints are liberally construed.
In order to state a cause of action under 42 U.S.C. § 1983, the Supreme Court requires only two elements: First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of the right acted under color of state law. These elements may be put forth in a short and plain statement of the claim showing that the pleader is entitled to relief. FED. R. CIV. P. 8(a)(2). In reviewing the complaint on a motion to dismiss, no more is required from plaintiff's allegations of intent than what would satisfy Rule 8's notice pleading minimum and Rule 9(b)'s requirement that motive and intent be pleaded generally.Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001) (citations, quotation marks and ellipsis omitted).
The Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 provides that prisoners must utilize any available prison grievance procedure before they may file a § 1983 claim regarding conditions of confinement. Pursuant to § 1997e(a), a prisoner must exhaust available administrative remedies before bringing an action with respect to prison conditions. Booth v. Churner, 532 U.S. 731 (2001); Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532, 537 (7th Cir. 1999). "§ 1997e applies to 'all inmate suits, whether they involve general conditions or particular episodes, and whether they allege excessive force or some other wrong.'" Dixon v. Page, 291 F.3d 485, 488 (7th Cir. 2002), quoting Porter v. Nussle, 534 U.S. 516, 122 (2002). The events Mr. Burks-Bey complains of occurred in April and May 2004, he signed his complaint on May 30, 2004, and the court received his complaint on June 16, 2004. It is not clear whether Mr. Burks-Bey adequately grieved the claims presented in this complaint by following all of the steps set forth in the Indiana Department of Correction's administrative grievance procedure before submitting his complaint in this case. For the purpose of this memorandum, however, the court will presume that he has exhausted his administrative remedies.
Mr. Burks-Bey brings this action under 42 U.S.C. § 1983, which provides a cause of action to redress the violation of federally secured rights by a person acting under color of state law. Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984). To state a claim under § 1983, a plaintiff must allege violation of rights secured by the Constitution and laws of the United States, and must show that a person acting under color of state law committed the alleged deprivation. West v. Atkins, 487 U.S. 42 (1988). The first inquiry in every § 1983 case is whether the plaintiff has been deprived of a right secured by the Constitution or laws of the United States. Baker v. McCollan, 443 U.S. 137, 140 (1979).
Mr. Burks-Bey, an adherent of the Moorish Science Temple, alleges the defendants violated rights protected by the Constitution's First and Fourteenth Amendments. He also asserts jurisdiction under 42 U.S.C. § 2000bb, the Religious Freedom Restoration Act ("RFRA"). The RFRA, however, has been declared unconstitutional. City of Bourne v. Flores, 521 U.S. 507 (1997).
I. CLAIMS AGAINST DEFENDANT JONES
In his first cause of action, Mr. Burks-Bey alleges that Casework Manager Jones violated rights protected by the Constitution's First and Fourteenth Amendments. Mr. Burks-Bey alleges that on March 27, 2004, Correctional Sergeant Loftis confiscated a television from him because it had been altered and placed it in Mr. Burks-Bey's property in storage to be sent to Mr. Burks-Bey's home. According to Sgt. Loftis, "(t)he original owner's name was covered up (and) offender Burks carved his name on top." (Exhibit 1(a)). Officer Mr. Burks-Bey alleges that on May 3, 2004, he received a note from defendant Jones, advising him she had recently acquired proof that the T.V. did not belong to him and that it would be donated to the facility. On May 3, 2004, Mr. Burks-Bey filed a grievance against the decision to donate his television to the facility.
On May 14, defendant Jones filed a disciplinary action against Mr. Burks-Bey for unauthorized possession or theft of property belonging to another. According to the conduct report, defendant Jones determined that the television actually belonged to another offender who had been transferred out of the facility. Mr. Burks-Bey alleges that defendant Jones prepared the false conduct report in retaliation for his having filed a grievance against her.
To establish a retaliation claim, Mr. Burks-Bey must establish first, that he engaged in a constitutionally protected activity and second, that engaging in that activity was a substantial or motivating fact in the defendant's actions against him. Mt. Healthy City School District v. Doyle, 429 U.S. 274 (1977); Brookings v. Kolb, 990 F.2d 308, 315 (7th Cir. 1993). Retaliation against a prisoner for filing a grievance or complaining about treatment by officials states a claim upon which relief can be granted. Sprouse v. Babcock, 870 F.2d 450 (8th Cir. 1989); Dixon v. Brown, 38 F.2d 379 (8th Cir. 1994).
The documents submitted by Mr. Burks-Bey on October 21, 2004, establish that on May 24, 2004, the disciplinary board found Mr. Burks-Bey guilty of the charges filed by defendant Jones and sanctioned him with loss of privileges and loss of sixty days of credit time. Mr. Burks-Bey appealed using the Indiana Department of Correction's administrative appeals procedure described in Markham v. Clark, 978 F.2d 993 (7th Cir. 1992). On July 21, 2004, the final reviewing authority affirmed the finding of guilt but modified the earned credit time deprivation from sixty to thirty days.
Section 1983 provides a cause of action to redress the violation of federally secured rights by a person acting under color of state law. Bell v. City of Milwaukee, 746 F.2d at 1232. Habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983. Preiser v. Rodriguez, 411 U.S. 475, 488-490 (1973). Because loss of earned credit time or demotion in credit time earning classification increases the length of a prisoner's confinement, habeas corpus is the appropriate remedy for a prisoner who has been deprived of good time credits or demoted in good time credit earning classification. Harris v. Duckworth, 909 F.2d 1057, 1058 (7th Cir. 1990).
Mr. Burks-Bey seeks damages for defendant Jones's actions; he does not ask for restoration of good time credits. But his damage claims against defendant Jones for allegedly retaliating against him by filing a false conduct report against him are barred at this point by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), which provides that if the remedy sought under § 1983 would require a finding or judgment that would have the effect of invalidating a conviction or sentence, the plaintiff must first "prove that the conviction was reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." The Heck doctrine applies to prison disciplinary hearings where the plaintiff lost good time credits or was demoted in credit time earning classification. Edwards v. Balisok, 520 U.S. 641 (1997).
To award damages to Mr. Burks-Bey on his retaliation claim would require a finding that the disciplinary board's finding of guilt was invalid. Because the relief Mr. Burks-Bey requests would render the disciplinary board's finding of guilt invalid, this portion of his § 1983 complaint is premature. If he succeeds in having the earned credit time demotion set aside, Mr. Burks-Bey may refile this claim.
II CLAIMS AGAINST DEFENDANT TOBIN
In his second cause of action, Mr. Burks-Bey alleges that on April 20, 2004, Counselor Amanda Tobin "arbitrarily placed him in disciplinary segregation (PHU) without due process guaranteed by the U.S. 14th Amendment to the Constitution." (Complaint at p. 17). Mr. Burks-Bey has no liberty interest in remaining in general population, and placing a convicted felon in segregation without notice or other process does not violate the Fourteenth Amendment's due process clause. Sandin v. Conner, 515 U.S. 472, 484 (1995). A convicted prisoner is entitled to due process before being segregated from general population only when the conditions imposed work an atypical and significant hardship on him in relation to the ordinary incidents of prison life or where the discipline imposed infringed on rights protected by the due process clause of its own force. Transferring a prisoner from the general population to a segregation unit, including investigatory segregation, does "not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest," and is "within the expected parameters of the sentence imposed by a court of law." Sandin v. Conner, 515 U.S. at 485.
Mr. Burks-Bey assets that placing him in PHU "works an atypical and significant hardship on him in to the ordinary incidents of prison life because he is forced to forsake the commandments of his religion." (Complaint at p. 17). But that a prisoner may not do things in a segregation unit that he can in general population does not constitute a significant hardship on him in to the ordinary incidents of prison life.
Under the First Amendment, prisoners "retain the right to practice their religion to the extent that such practice is compatible with the legitimate penological demands of the state." Al-Alamin v. Gramley, 926 F.2d 680, 686 (7th Cir. 1991). A prison regulation or policy that might otherwise unconstitutionally impinge on an inmate's First Amendment rights will survive a challenge if it is reasonably related to legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89 (1987) and O'Lone v. Estate of Shabazz, 482 U.S. 342, 353 (1987). "The 'free' exercise of religion thus is rather a misnomer in the prison setting." Johnson-Bey v. Lane, 863 F.2d 1308, 1310 (7th Cir. 1988). "[T]he prison is entitled to curtail these rights to the extent necessary to protect security." Johnson-Bey v. Lane, 863 F.2d 1308, 1310 (1988). That Mr. Burks-Bey may not have been able to practice his religion as fully in the segregation unit as he had in general population does not state a claim either under the First Amendment or the Fourteenth Amendment's due process clause.
III. CLAIMS AGAINST DEFENDANTS VANNATTA AND STEVENSON
In his third cause of action, Mr. Burks-Bey alleges that after Counselor Tobin placed him in segregation, Superintendent John VanNatta and Assistant Superintendent Sally Stevenson violated his First Amendment rights by "denying the plaintiff any access to religious worship and study consistent with the commandments of the plaintiff's religion ( e.g. Islamism)." (Complaint at p. 20). He asserts that he petitioned these defendants for redress and resolution of the denial of religious worship and study in PHU, but never received a response.
That defendants VanNatta and Stevenson did not respond to complaints or grievances Mr. Burks-Bey directed to them states no claim upon which relief can be granted. "(T)he First Amendment right to petition the government for a redress of grievances protects a person's right to complain to the government that the government has wronged him, but it does not require that a government official respond to the grievance." Jones v. Brown, 300 F.Supp.2nd 674, 679 (N.D.Ind. 2003).
Mr. Burks-Bey also alleges that Superintendent VanNatta violated his First Amendment rights because "less restrictive means were/are available to accommodate the plaintiff's religious beliefs and practises (sic) at little or no cost to the facility." (Complaint at p. 21). This language appears to arise from the Religious Freedom Restoration Act, which has been declared unconstitutional. City of Bourne v. Flores, 521 U.S. 507 (1997). The RFRA required courts to apply the compelling interest test to prison inmates' free exercise claims, and prison officials must show that they implemented the least restrictive means to further the asserted compelling state interest. Jolly v. Coughlin, 76 F.3d 468, 475 (2nd Cir. 1996(; Jihad v. Wright, 929 F.Supp. 325, 329 (N.D. Ind. 1996).
As this court noted when addressing Mr. Burks-Bey's second cause of action, under the First Amendment, prisoners "retain the right to practice their religion to the extent that such practice is compatible with the legitimate penological demands of the state." Al-Alamin v. Gramley, 926 F.2d at 686. A prison regulation or policy that might otherwise unconstitutionally impinge on an inmate's First Amendment rights will survive a challenge if it is reasonably related to legitimate penological interests. See Turner v. Safley, 482 U.S. at 89 and O'Lone v. Estate of Shabazz, 482 U.S. at 353. That Mr. Burks-Bey may not have been able to practice his religion as fully in the segregation unit as he had in general population states no claim either under the First Amendment or the Fourteenth Amendment's due process clause.
IV CONCLUSION
For the foregoing reasons, the court DISMISSES the plaintiff's complaint pursuant to 28 U.S.C. § 1915A(b)(1). The dismissal of the plaintiff's retaliation claim against defendant Jones is without prejudice to his right to refile that claim if he is able to have the disciplinary board's finding of guilt set aside.