Opinion
CIVIL ACTION No. 99-3006-CM.
July 31, 2001.
MEMORANDUM AND ORDER
Plaintiff Louis Cotton, an inmate at Lansing Correctional Facility (LCF), brings this civil rights action pursuant to 42 U.S.C. § 1983 against Charles Simmons, Secretary of Corrections; David McKune, Warden at LCF; Roger Bonner, Chief Investigator at LCF; Michael Ralls, Special Agent at LCF; Pat West, Disciplinary Administrator at LCF; and Connie Lawson, (former) Correctional Officer at LCF. Plaintiff's suit involves an investigation into the publication of a book of poetry by plaintiff and the subsequent disciplinary actions taken as a result of that investigation. This matter is before the court on defendants' motion for summary judgment (Doc. 33).
In pro se prisoner litigation, the Tenth Circuit endorses the completion and filing of a "Martinez report" where prison officials construct an administrative record detailing the factual investigation of the events at issue. Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 1978). The Martinez report "is treated like an affidavit, and the court is not authorized to accept the factual findings of the prison investigation when the plaintiff has presented conflicting evidence." Green v. Branson, 108 F.2d 1296, 1302 (10th Cir. 1997).
In the present case, plaintiff's complaint was accompanied by a statement made by plaintiff under penalty of perjury and, therefore, can be treated as an affidavit. Id. In response to defendants' motion for summary judgment, plaintiff failed to specifically controvert defendant's facts and further failed to include a statement of material facts as to which plaintiff contends a genuine issue exists as required by D. Kan. Rule 56.1. However, since plaintiff appears pro se, and pursuant to Federal Rule of Civil Procedure 56, the court will liberally construe any facts alleged by plaintiff in his verified complaint in the light most favorable to plaintiff.
A book of poetry that was published by plaintiff became the subject of an investigation by LCF officials. The investigation was commenced because of concerns that plaintiff had failed to procure proper authorizations to use other inmates' works and that there might be submissions from a staff member contained in the book.
On July 29, 1998, defendant Bonner, a lieutenant at LCF, spoke with plaintiff about the book, which was entitled "Caged Freedom." When asked to explain the origin of the book, plaintiff initially explained that all material in the book was from a previous publication that he had worked on while at the El Dorado Correctional Facility (EDCF) and that the had obtained proper releases from all of the inmates involved. Plaintiff also told defendant Bonner that all the authors were inmates at EDCF.
Defendant Bonner then attempted to identify all of the authors listed in the book's table of contents. Defendant Bonner's review indicated that only eleven out of the thirteen authors could be identified as inmates. Two authors, Jean Cournoyer and Connie L. could not be identified as inmates. Moreover, according to the back of the book, the poems were authored by inmates at EDCF. Yet, defendant Bonner's review of movement records found that very few of the inmates had ever been assigned to EDCF.
Plaintiff was re-interviewed that same day. Plaintiff alleges that defendant Bonner and defendant Ralls started the interview by saying, "You're a Goddamn, black liar and I'm to lock your ass up forever." Defendants deny making this statement. In any event, during the interview, plaintiff admitted that much of the material was new and that he assumed he had permission from the inmates to use the material but that he had no written authorizations. When questioned about the two authors that defendant Bonner could not identify as inmates, plaintiff stated that Cournoyer was a French-Canadian who was incarcerated at LCF from 1981 through 1983 but could give no explanation as to why Cournoyer would not be listed in the computer. Plaintiff also stated that Connie L. was an inmate at LCF but provided no other information.
Plaintiff was placed in segregation pending the investigation and charged with violating Kan. Admin. Reg. 44-12-1001 (Violation of Statute (Copyright Act, 17 U.S.C. § 101 et seq.)) and Kan. Admin. Reg. 44-12-303 (Lying). In addition, plaintiff's paperwork and related materials were confiscated for investigation. Included in the confiscated materials were numerous letters from the publisher of the book concerning the book's progress, several different versions of the book, and letters indicating that plaintiff was attempting to find a publisher and market the book to religious and civil organizations. Not included in the confiscated materials were releases for any of the materials contained in the book.
On September 9, 1998, defendant Bonner contacted the publisher of the book, Julie Zimmerman. Ms. Zimmerman stated that she did not have any of the copyrights or releases for the materials contained in the book and that, in similar situations, she leaves the legal issues to the authors.
Several copies of the book which were confiscated from plaintiff showed Connie L. to be Connie Lawson, an officer at LCF. On September 14, 1998, defendant Bonner interviewed defendant Lawson. Defendant Lawson stated that some of the poems were indeed hers. Defendant Lawson explained that nine or ten years ago she was working on a manuscript regarding the history of LCF, which included poems she had written, and that she had several people review the materials, including plaintiff. Defendant Lawson stated that she did not give the poems to plaintiff for use in his book and that she did not know plaintiff was publishing a book. Defendant Lawson maintained that she had copyrighted her project prior to showing it for review and that plaintiff's use of her poems was without her permission, written or oral, and in violation of her copyright. Defendant Lawson provided defendant Bonner with materials showing that she in fact had the copyright to the poems that plaintiff had used.
On September 23, 1998, defendant Bonner again spoke with Ms. Zimmerman. Ms. Zimmerman stated that, because of the copyright issue, she was going to pull the book from the market. She stated that she also would remove the book from future catalogs.
Defendant Bonner issued plaintiff a disciplinary report for violations of Kan. Admin. Reg. 44-12-1001 and Kan. Admin. Reg. 44-12-303. On September 30, 1998, a disciplinary hearing against plaintiff was held. At that hearing, plaintiff presented twenty-five documents in his defense. Plaintiff stated that the documents were part of his manuscript and that on the manuscript were handwritten editing notes. Plaintiff proffered that he had shown the manuscript to defendant Lawson and had asked for her assistance in editing the book for printing. Plaintiff also stated that defendant Lawson had provided him with her poems and that she was fully aware of the project. Plaintiff expressed that he did not disclose this information in his previous interviews because he did not want to get defendant Lawson in trouble. Defendant Bonner confiscated the documents for further investigation, and the hearing was placed on continued status pending the results of that investigation.
On October 1, 1998, defendant Bonner interviewed defendant Lawson again. This time, defendant Lawson stated that two of the poems could have come from her manuscript when she gave it to plaintiff to review. Defendant Lawson further stated that she must have given plaintiff the third poem but that she did not remember doing so. Defendant Lawson admitted she assisted plaintiff, but not for the purpose of publication. While defendant Lawson eventually admitted that she must have given the poems to plaintiff, she maintained that she did not know plaintiff was working on a manuscript for publication. As a result of this investigation, defendant Lawson was terminated from state employment for undue familiarity with an inmate.
On October 14, 1998, another hearing was held. At that hearing, defendant Bonner cited the charges against plaintiff and then stated that, in an interview with defendant Lawson, she had said that she did not give plaintiff permission to use her poems in any publication, that she had not seen any such publication, and that she was the copyright holder of the poems. Plaintiff responded by presenting a proof of his book, which contained defendant Lawson's handwriting several times on each page. Plaintiff stated that, not only had defendant Lawson given plaintiff permission to publish her work, but also had assisted in the editing of the complete book, even her own works. Defendant Bonner stated that he was confiscating the material plaintiff had presented for his investigation. Plaintiff initially refused, reminding defendant Bonner that he already had confiscated property for which a confiscation slip had not yet been issued. Plaintiff alleges that defendant Bonner promised that a confiscation slip regarding all property that had been taken would be issued within three days. Plaintiff was found guilty of violating Kan. Admin. Reg. 4-12-11 and Kan. Admin. Reg. 44-12-303, for which he received forty-five days of disciplinary segregation and a twenty dollar fine.
On October 22, 1998, a final hearing was held on plaintiff's charge of violating Kan. Admin. Reg. 44-12-328 (Relationships with Staff). Plaintiff alleges that, as he was escorted into the hearing room, defendant West was removing from her carrying case notes from the previous hearing. Plaintiff alleges that defendant West took a new notebook and began to copy notes of the prior hearing, stating that she couldn't read her own notes and was re-doing them. The hearing got underway, and plaintiff ultimately was found guilty of the violation and sentenced to forty-five days of disciplinary segregation. None of plaintiff's disciplinary convictions has been overturned, reversed, or expunged.
Plaintiff alleges that, on November 2, 1998, he submitted his fifth request to defendant Bonner concerning the confiscation slip of his property. Several days later, plaintiff received a reply, which consisted of a list of the general materials taken. Plaintiff alleges that there were some photos that were previously confiscated but that did not appear on the list. Plaintiff further alleges that he then filed a grievance to the Secretary of Corrections appealing the issue and that the grievance was returned with "an attached form."
II. Summary Judgment Standards
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way."Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant," Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id. Finally, the court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
The court acknowledges that plaintiff appears pro se and his response is entitled to a somewhat less stringent standard than a response filed by a licensed attorney. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, this does not excuse plaintiff from the burden of coming forward with evidence to support his claims as required by the Federal Rules of Civil Procedure and the local rules of this court. Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 649 (10th Cir. 1988). Even a pro se plaintiff must present some "specific factual support" for his allegations. Id.
III. Discussion
Defendants first argue that plaintiff is challenging the propriety of his disciplinary convictions and that, as a result, his action is not proper under 42 U.S.C. § 1983. In his complaint, plaintiff asserts that: Defendant Lawson violated the First Amendment and slandered his character (Count I); Defendant Simmons, Secretary of Corrections, violated his rights under the Fourteenth Amendment (Count II); Defendants Bonner and Ralls falsely charged plaintiff with copyright violations (Count III); Defendant West violated the Fifth and Fourteenth Amendments by not securing due process and equal protection of the laws (Count IV); and Defendant McKune's failure to insure that all rules, policies, and directives were properly followed resulted in a violation of plaintiff's First, Fifth, and Fourteenth Amendment rights (Count V).
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that when a prisoner seeks damages in a suit filed pursuant to § 1983, "the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction and sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." Heck, 512 U.S. at 487. In subsequent decisions, Heck has been applied to judgments in prison discipline proceedings. Edwards v. Balisok, 520 U.S. 641, 648 (1997). In Balisok, the Court concluded that a plaintiff prisoner's due process challenge to a disciplinary proceeding necessarily implied the invalidity of the sanction imposed at that proceeding (the forfeiture of good time credits). The Court held that the plaintiff prisoner's claims for declaratory relief and money damages were not cognizable under § 1983.
With the exception of Count I, plaintiff's complaint challenges the disciplinary proceedings brought against him, claiming that the rules and policies were not followed during the course of the proceedings. In Count II, plaintiff alleges that he filed a grievance that he claims was dismissed. Count III regards plaintiff's assertions that he was falsely charged with violating 17 U.S.C. § 101 et seq., that his property was improperly confiscated during the course of the investigation, that defendants called plaintiff's publisher and demanded the book be taken off the market, that defendants froze his personal account during the course of the investigation, that defendants failed to provide legal representation to plaintiff during the two initial interrogations, and that defendants made discriminatory racial remarks in the interrogation room. In Count IV, plaintiff alleges that defendant West re-copied her notes from the first hearing "to coincide with the false information submitted by defendants Bonner and Lawson." Count V alleges that the warden failed to maintain his authority to ensure that rules, policies, and directives were followed.
Plaintiff mistakenly argues that the Copyright Act is merely a civil statute.
While the court is unsure why plaintiff raises this as an argument, the court notes that 17 U.S.C. § 506, entitled "Criminal offenses," lists various types of criminal offenses actionable under the Act.
Pursuant to Kan. Admin Reg. 44-5-111(d)(2), prison officials are authorized to confiscate property if that property constitutes the subject of some violation.
There exists no evidence that defendants in fact demanded the book be taken off the market. To the contrary, defendants claim that they merely contacted the publisher as part of their investigation and that the publisher herself chose to withdraw the book from the market due to copyright issues.
Pursuant to Kan. Admin. Reg. 44-5-109(d) (e), prison officials are authorized to restrict certain privileges and rights of inmates subject to administrative and disciplinary segregation.
Inmates have no right to retained or appointed counsel at prison disciplinary proceedings. Wolff v. McDonnell, 418 U.S. 539, 570 (1974).
Derogatory racial remarks and verbal threats by a correctional officer or prison official are insufficient grounds for relief under § 1983. Black Spotted Horse v. Else, 767 F.2d 516, 517 (8th Cir. 1985) (racially discriminatory statements, alone, do not give rise to liability under § 1983).
The court finds that plaintiff's claims regarding the disciplinary proceedings are barred under Balisok. Plaintiff's disciplinary determination has not been reversed, and he has apparently not pursued a state habeas action to obtain a judgment that the prison ruling was invalid. Plaintiff's claims set forth in Count II, III, IV, and V are, therefore, not cognizable under § 1983. Summary judgment on these counts is granted.
Count I of plaintiff's complaint alleges that defendant Lawson violated his First Amendment rights and slandered his character. Defendants argue that plaintiff's claim does not implicate any rights secured by the constitution and that, therefore, Count I is not cognizable under § 1983.
Damage to one's reputation alone does not constitute a liberty interest. Paul v. Davis, 424 U.S. 693, 709 (1976). In Paul, the Court noted that, where a stigma caused by a defamation involved the deprivation of a liberty or property interest protected under the constitution, an individual could maintain a cause of action sounding in constitutional tort. Id. at 709-12. Thus, plaintiffs must demonstrate damage to their reputation plus a deprivation of some other constitutionally cognizable interest in order to state a claim. Corbitt v. Anderson, 778 F.2d 1471, 1474-75 (10th Cir. 1985).
In this case, plaintiff has failed to demonstrate, or even allege, that defendant Lawson's alleged slander of him implicated a right secured by the constitution. In his complaint, plaintiff merely alleges that the slander of his character brought about disgrace, ridicule, and contempt. At most, such an allegation may assert a state law tort claim, but it is not cognizable under § 1983. Defendants are entitled to summary judgment on this count.
IT IS THEREFORE ORDERED that defendants' motion for summary judgment (Doc. 33) is granted. Plaintiff's complaint is hereby dismissed in its entirety.