Opinion
CIVIL ACTION No. 99-3148-CM.
September 20, 2001.
MEMORANDUM AND ORDER
Plaintiff Brandon Kelsch, an inmate at Hutchinson Correctional Facility, brings this action against corrections officers Mike Hill and Lt. Darwin Thomas and Secretary of Corrections Charles Simmons. Specifically, plaintiff claims that his First and Sixth Amendment rights were violated. This matter is before the court on defendants' motion for summary judgment (Doc, 21).
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 defendants' facts 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.
On November 14, 1998, plaintiff was observed by defendant Hill committing what appeared to be an act of sodomy. Specifically, defendant Hill reported that he saw plaintiff laying on the back of another inmate in a cell, both with their pants and underwear down to their ankles. Moreover, once plaintiff raised off the other inmate, defendant Hill saw that plaintiff had an erection. Plaintiff was charged with violating Kan. Admin. Reg. 44-12-314, which prohibits sodomy between inmates. Specifically, that regulation prohibits "penetration, however slight" between inmates. Defendant Hill issued a disciplinary report against plaintiff.
A disciplinary hearing was held on November 23, 1998. The administrative hearing officer, defendant Thomas, received testimony from defendant Hill, and plaintiff was able to ask defendant Hill questions. Plaintiff also was allowed to submit two written questions to defendant Thomas to be directed to defendant Hill. Defendant Thomas found plaintiff guilty and sentenced him to 28 days disciplinary segregation, 60 days restriction, and a $10.00 fine. Plaintiff appealed the conviction to the Secretary of Corrections, defendant Simmons. Defendant Simmons found that there was sufficient evidence to support the finding and affirmed the conviction.
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 670-7 1. 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. I (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
In Count II of his complaint, plaintiff alleges that his Sixth Amendment rights were violated because, the claims, the incident was not properly and fully investigated by the defendants and the defendants had a pre-determined disposition against him. Plaintiff further contends that, had the incident been fully investigated, defendants would have found that an act of sodomy would have been impossible due to the health condition of the other inmate involved.
Plaintiff's claim under the Sixth Amendment fails. Prison disciplinary hearings are not criminal proceedings, Wolff v. McDonnell, 418 U.S. 539, 556 (1974), and the reach of the Sixth Amendment is only limited to the criminal setting, id. at 576;Kirby v. Illinois, 406 U.S. 682, 689 (1972) (the Sixth Amendment's protections are limited to criminal proceedings). Thus, plaintiff cannot state a claim under the Sixth Amendment for defendants' failure to fully investigate the incident. However, plaintiff appears to be complaining about the process afforded him during the investigation, hearing, and appeal of his disciplinary action. Keeping in mind that plaintiff appears pro se, the court will therefore consider plaintiff's Sixth Amendment claim as one asserted under the Fourteenth Amendment's Due Process Clause.
The Supreme Court in Sandin v. Conner, 515 U.S. 472 (1995), defined those prisoner interests which are subject to due process protections. The Court held that liberty interests protected by the due process clause generally are limited to freedom of restraint which "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484. The Court further held that 30 days of disciplinary segregation did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest. Id. at 486.
In the case at hand, plaintiff was sentenced to 28 days of disciplinary segregation. Pursuant to Sandin, the court finds that plaintiff's sentence of 28 days' disciplinary segregation fails to implicate the protections afforded by the Due Process Clause. Accordingly, Count II of plaintiff's complaint is dismissed.
Plaintiff alleges in Count I of his complaint that his First Amendment rights were violated when defendant Hill published an "incorrect and slanderous" report against him. Plaintiff further claims that defendant Thomas found him guilty, thereby making the "slanderous and defamatory words a matter of published record," and that defendant Simmons upheld the finding and made the defamatory and slanderous words a matter of published record and plaintiff's institutional record. The court finds 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 defendants' alleged slander of him implicated a right secured by the constitution. Defendants are entitled to summary judgment on this count.
IT IS THEREFORE ORDERED that defendants' motion for summary judgment (Doc. 21) is granted. Plaintiff's complaint is hereby dismissed in its entirety.