Opinion
C.A. No. 03-049 ML
January 22, 2004
Report and Recommendation
Fred De Witt, pro se, filed a Complaint pursuant to 42 U.S.C. § 1983, naming as defendants A.T. Wall, Warden Whitman, Deputy Vierra, Investigator Rose, Lieutenant Oden, Officer Benevidies, Counselor Lomberto, and Lieutenant Burt (collectively referred to as "defendants"). All of the named defendants are officials and/or employees of the Rhode Island Department of Corrections ("RI DOC").
Currently before the Court is the motion of the defendants for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiff has objected This matter has been referred to me for a report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B). For the reasons that follow, I recommend that the defendants' motion for summary judgment be granted.
Undisputed Facts
Plaintiff Fred DeWitt, at all times pertinent in the Complaint, was an inmate lawfully incarcerated by the RI DOC at the Adult Correctional Institutions ("ACI"), Cranston, Rhode Island. In December 2003, the RI DOC terminated the plaintiff's visits with his wife. Thereafter, plaintiff filed suit in this Court seeking a restoration of his wife's visitation privileges. Plaintiff was not successful. See DeWitt v. Wall, 2002 WL 1364250 (1st Cir. 2002)(unpublished), cert. denied 123 S.Ct. 2642 (2003). Plaintiff then turned to the state courts for a round of litigation. Plaintiff filed suit challenging, inter alia, the failure of the RI DOC to page him when his visitors unexpectedly arrive at the prison.
While the state court litigation was pending, plaintiff wrote a letter that was confiscated by prison officials. Upon a review of the letter, plaintiff was placed in segregation and charged with a disciplinary infraction. Disciplinary hearings commenced and the plaintiff was found guilty of committing an overt mutinous act. The board sanctioned him to thirty days punitive segregation, thirty days loss of good time, and a recommended downgrade for classification purposes. Plaintiff appealed, but the appeal was denied. On April 15, 2002, plaintiff appeared before a classification board for a hearing on the recommended downgrade. Following the hearing, plaintiff was downgraded to a lower classification for ninety days.
During his incarceration, plaintiff was required to attend a sexual offender rehabilitation program. During a meeting of the program, plaintiff caused a disruption and was asked to leave. He was subsequently charged with a disciplinary infraction, found guilty, and ordered to serve ten days in segregation.
Following the disciplinary action against the plaintiff, plaintiff wrote to the state court judge who was hearing his lawsuit, claiming that he had been retaliated against for his litigiousness. The state court judge ordered hearings on the matter. Prior to the commencement of those hearings, the RI DOC obtained a stay from the state supreme court, and that court ultimately reversed the decisions of the trial court. See DeWitt v. Wall, 796 A.2d 470 (R.I. 2002). The state court then ordered the plaintiff to re-file the retaliation claim correctly.See Plaintiff's Response to Defendants' Motion for Summary Judgment at 7(hereafter referred to as "Plaintiff's Objection"). Despite being ordered to re-file his claims correctly, plaintiff chose to disregard that order. Plaintiff's state court case was ultimately dismissed for a failure to state a claim.
Plaintiff thereafter filed suit in this court, alleging a violation of his First and Fourteenth Amendment rights. Plaintiff claims that the defendants (1) interfered with his right to petition the courts (2) retaliated against him for filing lawsuits, and (3) violated his due process rights during disciplinary hearings. Plaintiff's first claim — that his right to petition the courts was infringed — was previously dismissed by the District Court. Thus, the only claims remaining are plaintiff's retaliation and due process claims. Defendants have now moved for summary judgment on those two claims. Plaintiff has opposed the motion.
Discussion
A. Summary Judgment Standard
Summary judgment's role in civil litigation is "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990). Summary judgment can only be granted when "the pleadings, depositions, answers to interrogatories, and admissions of file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56.
Rule 56 has a distinctive set of steps. When requesting summary judgment, the moving party must "put the ball in play, averring `an absence of evidence to support a nonmoving party's case.'"Garside, 895 F.2d at 48 (quoting Celotex v. Catrett, 477 U.S. 317, 325 (1986)). The nonmovant then must document some factual disagreement sufficient to deflect brevis disposition. Not every discrepancy in the proof is enough to forestall summary judgment; the disagreement must relate to some issue of material fact. See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-248 (1986).
On issues where the nonmovant bears the ultimate burden of proof, he must present definite, competent evidence to rebut the motion. See id. at 256-257. This evidence "cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve at an ensuing trial." Mack v. Great Atl. Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989). Evidence that is merely colorable or is not significantly probative cannot deter summary judgment. Anderson, 477 U.S. at 256-257.
Plaintiff has brought suit under 42 U.S.C. § 1983. Section 1983 provides, in pertinent part:
Every person who, under the color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .42 U.S.C. § 1983.
In order to maintain a section 1983 action, the conduct complained of must be committed by a person acting under color of state law and the conduct must have deprived the plaintiff of a constitutional right or a federal statutory right. Gomez v. Toledo, 446 U.S. 635 (1980);see also Baker v. McCollan, 443 U.S. 137 (1979) (constitutional deprivations): Maine v. Thiboutot, 448 U.S. 1 (1980) (statutory deprivations). Here, there is no dispute that the named defendants acted under the color of law. However, the defendants assert that the undisputed facts demonstrate (1) plaintiff's retaliation claims are barred by the doctrine of res judicata, and (2) that no due process violations occurred. I agree.
1. First Amendment Retaliation Claims
As his first basis for relief, plaintiff claims that he has been retaliated against by the defendants for filing lawsuits. To succeed on a retaliation claim, a prisoner must demonstrate that the action — the disciplinary charges — would not have occurred "but for" the his litigation. McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979). Defendants have moved for summary judgment on this claim. As their sole basis for summary judgment, defendants assert that this claim is barred by the doctrine of res judicata. Defendants claim that the plaintiff litigated, or could have litigated, the retaliation issue during the course of his state court litigation.
Broadly stated, the doctrine of res judicata operates to bar the re-litigation of issues that were or could have been raised in an earlier action between the same parties. Carvalho v. Carvalho, 335 F.3d 45, 49 (1st Cir. 2003). With respect to a judgment entered by a state court, as here, this court must look to state law to determine the res judicata effect of the state court's judgment. Kremer v. Chemical Construction Corp., 456 U.S. 461, 481-82 (1982), Cruz v. Melecio, 204 F.3d 14, 18 (1st Cir. 2000). In Rhode Island, three elements are essential for the invocation of res judicata: (1) identity of the parties, (2) identity of the issues, and (3) finality of judgment in the earlier action. Gaudreau v. Blasbalg, 618 A.2d 1272, 1275 (R.I. 1993). When res judicata is invoked, it renders the original judgment conclusive with respect to any issues that were raised or that could have been raised. Rhode Island Student Loan Authority v. NELS, Inc., 600 A.2d 717, 720 (R.I. 1991).
Here, defendants assert that the each of the three elements are present, requiring a dismissal of plaintiff's retaliation claim. Defendants assert that DeWitt's prior state court lawsuit was brought against A.T. Wall, but could have been brought against all of the named defendants here; the issues were the same; and that there was a final judgment in the state court action. Plaintiff, for his part, does not dispute that the parties were or could have been the same nor does he dispute that there was a final judgment entered in the state court — plaintiff's claims were ultimately dismissed for a failure to state a claim. Thus, the only issue for this Court to decide is whether the issues are identical. Plaintiff contends in his Objection that he "never raised any such claim (retaliation) in his state [court] action," despite his previous admissions to the contrary. See Complaint at 9, ¶¶ 26, 27; see also Plaintiff's Objection at 7.
Plaintiff brought suit in the state court, alleging violations of his rights under state law. During the course of that litigation, Plaintiff brought the retaliation issue to the attention of the state court by means of a letter to a state court judge."[T]he State court ordered the plaintiff to refile [sic] correctly adding the proper claims in the form of a complaint. . . . However, plaintiff chose not to refile [sic] in the State Court . . .". Plaintiff's Objection at 7 (emphasis added). Thus, plaintiff could have filed the retaliation claim in state court, but did not. The doctrine of res judicata bars the re-litigation of any issues that were raised, orcould have been raised in the earlier proceeding. Rhode Island Student Loan Authority, 600 A.2d at 720(emphasis added). Plaintiff does not dispute that he could have raised the retaliation issue in the state court.
Accordingly, since the plaintiff had the opportunity to present this claim in state court but did not, even after being ordered to do so, since the parties are the same, and since a final judgment was entered in that state court litigation, plaintiff's retaliation claims are barred by the doctrine of res judicata. Summary judgment should enter for the defendants on this claim. I so recommend.
2. Fourteenth Amendment Due Process Claims
As his next basis for relief, plaintiff claims that his due process rights were violated during disciplinary hearings that were conducted. Defendants have moved for summary judgment on this claim, asserting that the plaintiff has no identifiable liberty interest that would implicate the due process clause. I agree.
The due process clause of the Fourteenth Amendment provides that a state "shall not deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV. The United States Supreme Court has made it clear that "[t]he Due Process Clause standing alone confers no liberty interest in freedom from state action taken `within the sentence imposed.'" Sandin v. Conner, 515 U.S. 472, 480 (1995)(quoting Hewitt v. Helms, 459 U.S. 460, 468 (1983).
A state, however, "may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will generally be 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." Sandin, 515 U.S. at 484 (internal citations omitted). In Sandin, the plaintiff inmate claimed a state-created liberty interest in being free from thirty days punitive segregation based upon the language of a prison regulation. However, the Supreme Court rejected the language based approach and instructed that the determination of a state created liberty interest should, instead, focus on the nature of the deprivation.Id. at 483-484. "After Sandin, prisoners may no longer peruse state statutes and prison regulations searching for the grail of limited discretion." Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995).
Here, the deprivations that the plaintiff complains of are not "atypical and significant." The undisputed facts demonstrate that the plaintiff was charged with a disciplinary infraction, appeared at a hearing before a disciplinary board, was found guilty, sanctioned to thirty days of segregation with thirty days loss of good time credit, and given a recommendation for a downgrade in classification. Thereafter, on a separate occasion, plaintiff was charged with another disciplinary infraction, appeared before the disciplinary board for a hearing, and sanctioned to ten days in segregation. These sanctions are not an "atypical and significant" hardship as contemplated by Sandin. These sanctions are completely reasonable and well within the prison's discretion to impose. Plaintiff has failed to demonstrate that he has an identifiable liberty interest necessary to implicate the due process clause.
To the extent that plaintiff may claim to have an identifiable liberty interest in remaining in particular classification, such a claim is equally without merit. Inmates have no identifiable liberty interest in remaining in the general population at a prison, see, e.g. Hewitt v. Helms, 459 U.S. 460, 467 (1983); Rodi v. Ventetuolo, 941 F.2d 22, 25 (1st Cir. 1991), nor do inmates have a constitutional right to any particular security classification. See Palmigiano v. Mullen, 491 F.2d 978, 980 (1st Cir. 1974).
Accordingly, since the plaintiff has failed to demonstrate an identifiable liberty interest, I recommend that the defendants' motion for summary judgment on plaintiff's Fourteenth Amendment due process claims be granted.
Conclusion
For the reasons set forth above, I recommend that defendants' motion for summary judgment be granted. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes a waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart. Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).