Opinion
Case No. 99-3293-JWL
January 29, 2001
MEMORANDUM AND ORDER
Plaintiff brought this action on August 31, 1999, alleging that, in retaliation for plaintiff exercising his right of access to the courts, officers employed by the Wisconsin Department of Corrections ("Wisconsin defendants") and by the United States Penitentiary at Leavenworth, Kansas ("federal defendants") conspired to murder or seriously injure him and deliberately failed to protect him from attacks by other inmates. Thereafter, both sets of defendants filed motions to dismiss plaintiff's complaint for failure to state a claim upon which relief could be granted. In a Memorandum and Order issued on September 22, 2000, the court concluded that the majority of plaintiff's claims failed because "the allegations underlying these claimed constitutional violations [were] vague and conclusory." (Doc. 76 at 8). Thus, the court granted the Wisconsin defendants' motion to dismiss and granted the federal defendants' motion to dismiss except as to the First and Eighth Amendment claims against Officers Walker, Nikes, and Preston, which the court found supported by well-pleaded facts. The court granted plaintiff leave, however, "to amend his complaint in order that he may reassert the dismissed claims by pleading specific facts in support of those claims." (Doc. 76 at 3).
Plaintiff filed an amended complaint on October 25, 2000, which not only attempted to correct the pleading deficiencies of plaintiff's original complaint, but which also named new parties as defendants. Acting pursuant to 28 U.S.C. § 1915A, Magistrate Judge Catherine Walter examined plaintiff's amended complaint and issued a Report and Recommendation on December 27, 2000 (Doc. 102). Magistrate Judge Walter recommended that all defendants, other than the three federal defendants that remained in the case following the court's September 22, 2000 Memorandum and Order, be dismissed. Plaintiff has filed a number of objections (Docs. 104 106) to Magistrate Judge Walter's Report and Recommendation. Plaintiff has also filed a motion for the issuance of a preliminary injunction or a temporary restraining order against officials of the Wisconsin Department of Corrections (Doc. 79) and a motion to supplement said motion (Doc. 97). Finally, plaintiff has moved for leave to file a second amended complaint (Doc. 106). For the reasons stated below, the magistrate's Report and Recommendation is adopted, except as to the recommendation that plaintiff's First Amendment retaliation claim against Lt. Acosta be dismissed; plaintiff's motion for the issuance of a preliminary injunction or a temporary restraining order and motion to supplement are denied; and plaintiff's motion for leave to amend his complaint is denied.
Magistrate Judge Walter's Report and Recommendation
Pursuant to Fed.R.Civ.P. 72(b), the court may "accept, reject, or modify" recommendations of a magistrate judge that are dispositive of claims in a case. When specific written objections are made to such recommendations, the district court must make a "de novo determination upon the record" of the issues raised in the objections. Fed.R.Civ.P. 72(b). With these standards in mind, the court will now review Magistrate Judge Walter's Report and Recommendation and plaintiff's objections thereto.
A. Conspiracy Claims
The court concluded in its September 22, 2000 Memorandum and Order that plaintiff's complaint could not support plaintiff's allegation that defendants "conspired" to retaliate against him because plaintiff "completely failed to allege any specific facts which would tend to show that defendants had an agreement and acted in concert." (Doc. 76 at 14) (citing Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir. 1989)). The court then granted plaintiff leave to amend his complaint to plead specific facts of such an agreement or concerted action. After reviewing plaintiff's amended complaint, Magistrate Judge Walter concluded that the amended complaint failed to correct this pleading deficiency. Plaintiff objects to the magistrate's conclusion, stating that he can produce evidence of a number of facts related to the conspiracy, such as evidence showing that defendants punished plaintiff more severely than other inmates, evidence showing that defendants "planned" the assaults upon plaintiff, and evidence that defendants knew plaintiff's life was in danger in federal prisons. (Pl. Objs. 9-12).
The court agrees with Magistrate Judge Walter's conclusion and rejects plaintiff's objections. First, as the court noted in its earlier Memorandum and Order, the court does not consider evidence outside the pleadings when deciding whether plaintiff has adequately stated a claim for relief. (Doc. 76 at 7). Thus, plaintiff is not prejudiced by the fact that he has not yet been permitted to submit outside evidence related to his conspiracy claims. Second, the court has carefully examined plaintiff's amended complaint and has found no allegations of specific facts demonstrating that the defendants acted in concert. While plaintiff asserted that defendants "planned" to have plaintiff transferred from the Wisconsin state prison system to the federal prison system and "planned" the attacks by inmates in the federal system, "planned" is simply another word for "conspired." Such conclusory allegations cannot support a conspiracy claim. See Simmons v. Beinvenu, 81 F.3d 173 (10th Cir. 1996). Accordingly, the court dismisses plaintiff's conspiracy claims with prejudice.
The court gave plaintiff notice in its September 22, 2000 Memorandum and Order that "if his amended complaint again fails to properly allege facts on which a claim could proceed, the court will dismiss those claims with prejudice." (Doc. 76 at 18).
B. Remaining Claims Against Wisconsin Defendants
Until this point, the court has left open the possibility that the Wisconsin defendants named in plaintiff's complaint could remain as defendants in this action. The court did so on the premise that plaintiff may have had a valid conspiracy claim connecting the Wisconsin defendants to the actions taken by the federal defendants within the state of Kansas. As discussed above, however, both plaintiff's complaint and plaintiff's amended complaint failed to adequately plead facts that support a conspiracy claim. All of the actions allegedly taken by the Wisconsin defendants occurred within the state of Wisconsin. Thus, the court accepts the recommendation of the magistrate judge and orders that all claims against the Wisconsin defendants be dismissed for lack of personal jurisdiction."Before a federal court can assert personal jurisdiction over a defendant in a federal question case, the court must determine (1) whether the applicable statute potentially confers jurisdiction by authorizing service of process on the defendant and (2) whether the exercise of jurisdiction comports with due process." Peay v. Bellsouth Medical Assistance Plan, 205 F.3d 1206, 1209 (10th Cir. 2000) (quotations and citations omitted). Neither of these two prongs is met in the instant case. First, the Tenth Circuit has held that 42 U.S.C. § 1983 does not provide for nationwide service of process. See McChan v. Perry, No. 00-2053, 2000 WL 1234844 (10th Cir. Aug. 31, 2000). Second, plaintiff has made no factual allegation that the Wisconsin defendants had any contacts whatsoever with Kansas related to plaintiff's claim, such that the court could find that they purposefully availed themselves to the privilege of conducting activities in Kansas and could reasonably anticipate being brought into court in this state. See Rambo v. American S. Ins. Co., 839 F.2d 1415, 1417 (10th Cir. 1988) (discussing due process requirements). Accordingly, the court dismisses the Wisconsin defendants from this action. If plaintiff believes that he has valid constitutional claims against the Wisconsin defendants, he should file a separate action in a court that has the power to exercise personal jurisdiction over these defendants.
In his objection to the magistrate's finding of no personal jurisdiction, plaintiff asserts that he pled jurisdiction in his amended complaint (Pls. Obj. 3). The court has reviewed the jurisdictional statement in plaintiff's amended complaint and finds that it addresses subject matter jurisdiction, rather than personal jurisdiction. The court must have both types of jurisdiction before it may hear a case.
C. Remaining Claims Against Federal Defendants
The court's September 22, 2000 Memorandum and Order granted plaintiff leave to file an amended complaint to allege specific facts which would support a claim against federal defendants Booker, Acosta, Harmon and Simek. Plaintiff's amended complaint voluntarily dismissed Lt. Simek from this action, but set forth allegations against Warden Booker, Lt. Acosta and Officer Harmon. The amended complaint further named two additional federal defendants, paramedics Rubiaiie and Selazar. Magistrate Judge Walter recommended that the claims against all of these defendants be dismissed. Plaintiff filed a number of objections to that recommendation. The court will now address those objections.
1. First Amendment Retaliation Claims
As stated by the court in its first order, the law clearly prohibits prison officials from harassing or retaliating against inmates for the exercise of their First Amendment rights to access the courts. (Doc. 76 at 9) (citing Penrod v. Zavaras, 94 F.3d 1399, 1404 (10th Cir. 1996)). Magistrate Judge Walter's Report and Recommendation concluded that plaintiff's amended complaint failed to state a First Amendment retaliation claim against Lt. Acosta and Officer Harmon. Plaintiff has objected on the basis that Magistrate Judge Walter failed to consider a number of facts pled in plaintiff's amended complaint (Pls. Obj. 4). The court has reviewed plaintiff's amended complaint in its entirety and agrees with plaintiff that allegations not mentioned by the magistrate judge support a retaliation claim against Lt. Acosta, but disagrees with plaintiff that allegations support a retaliation claim against Officer Harmon.
Plaintiff has pled that Lt. Acosta "threatened Lee with transfer and segregation, . . . directed Harmon to Approach Lee about dropping the Complaints . . . and began to invent lies against Lee saying Lee was extorting other inmates, threatening other inmates, and [participating in] gang activity" to pressure plaintiff into dropping complaints that plaintiff had filed relating to the inmate attacks that occurred while he was housed in the Segregated Housing Unit ("SHU") at the United States Penitentiary at Leavenworth ("USPL"). Under the relatively liberal federal pleading standards, the court will dismiss a cause of action for failure to state a claim only when it appears beyond a doubt that plaintiff can prove no set of facts in support of a theory of recovery that would entitle him to relief, and the court accepts as true all well-pleaded facts. See Conley v. Gibson, 255 U.S. 41, 45-46 (1957); Intercom, Inc. v. Bell Atlantic, 205 F.3d 1244, 1247 (10th Cir. 2000). Accepting plaintiff's allegations as true, the court finds that plaintiff could possibly present evidence that Lt. Acosta harassed plaintiff for using the inmate grievance system. Thus, the court will allow plaintiff's First Amendment retaliation claim against Lt. Acosta to go forward. On the other hand, the allegation that Officer Harmon simply "approached" plaintiff about dropping the complaints does not support a retaliation claim and any such claim asserted against Officer Harmon is dismissed with prejudice.
The court agrees with the magistrate judge that the allegation that Lt. Acosta and Officer Harmon directed that plaintiff be subject to a host of cell searches and body searches for a three to four week period following an inmate altercation does not support a retaliation claim. Nor does the conclusory statement that "Acosta and Harmon . . . targeted Lee and planned the assaults against Lee and directed the SHU subordinate officer to place Lee in the cage with his enemy's [sic]," state a claim.
The magistrate's Report and Recommendation also found that plaintiff's allegations against Warden Booker failed to support a First Amendment retaliation claim. Plaintiff objects to this finding on two grounds (Pls. Obj. 4). First, plaintiff asserts that when Warden Booker overheard Lt. Finnerty say to plaintiff that he was lucky that he was not dead as a result of assaulting officers in Illinois, "it was as if Booker himself made the threat" because of "Booker's inaction on this threat." The fact remains, however, that Warden Booker did not make the statement. "Individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation." See Foote v. Spiegal, 118 F.3d 1416, 1423 (10th Cir. 1997). Thus, this allegation cannot support a retaliation claim against Warden Booker. Second, plaintiff objects to the magistrate's finding on the ground that Warden Booker did not investigate the two inmate attacks suffered by plaintiff allegedly at the hands of the prison guards in retaliation for plaintiff filing a lawsuit. This allegation, however, in no way links Warden Booker to the allegedly retaliatory attacks; plaintiff does not state facts that demonstrate that Warden Booker knew or should have known that the attacks were imminent prior to their occurrence. Accordingly, this allegation fares no better than the first in showing that Warden Booker was personally involved in the alleged retaliatory attacks. Plaintiff's First Amendment retaliation claim asserted against Warden Booker is dismissed with prejudice.
Plaintiff alleges that the federal defendants read a court decision issued by the United States District Court for the District of Illinois which contained language noting plaintiff's threats and assaults against correctional officers in Illinois.
2. Eighth Amendment Failure to Protect Claims
As discussed in the court's September 22, 2000 Memorandum and Order, prisoners have an Eighth Amendment right to reasonable protection from attack by other inmates. (Doc. 76 at 14) (citing Northington v. Jackson, 973 F.2d 1518, 1525 (10th Cir. 1992)). A prison official may be held liable under a "deliberate indifference" standard for failing to protect an inmate if he or she knows that the inmate faces a "substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." McKay v. Farnsworth, 48 F.3d 491, 493 (10th Cir. 1995). The court previously held that plaintiff's complaint "failed to state specific facts showing that Warden Booker, Lt. Simeck, Officer Harmon, and [Lt.] Acosta played a role in arranging-or deliberately failing to prevent-[inmates] Mr. Brown and Mr. Leblanc's attacks on plaintiff." (Doc. 76 at 16). Plaintiff's amended complaint attempts to reassert failure to protect claims against Warden Booker, Officer Harmon, and Lt. Acosta. Magistrate Judge Walter's Report and Recommendation contends that plaintiff has again failed to plead facts that would support such claims. Plaintiff objects to that finding on the same grounds that he objected to the magistrate's findings on his First Amendment claims (Pls. Obj. 4). The court has performed a de novo review of plaintiff's amended complaint and accepts Magistrate Judge Walter's conclusion.
The only allegation in plaintiff's amended complaint that would suggest that Lt. Acosta or Officer Harman had knowledge that plaintiff faced a substantial risk of serious harm at the hands of inmates Brown and Leblanc is the statement that "Acosta and Harmon of Special Investigation Services targeted Lee, and planned the assaults against Lee and directed the SHU subordinate officer to place Lee in the cage with his enemy's [sic]." This statement is wholly conclusory and cannot support a failure to protect claim. Plaintiff's Eighth Amendment claims against Lt. Acosta and Officer Harmon are dismissed with prejudice.
Similarly, the allegations in plaintiff's amended complaint against Warden Booker do not support an Eighth Amendment claim. Plaintiff alleged that Warden Booker overheard Lt. Finnerty tell plaintiff that plaintiff was lucky that he was not dead as a result of assaulting prison officers in Illinois. Viewing this fact in the light most favorable to plaintiff, the court can not find that Lt. Finnerty's statement put Warden Booker on notice that plaintiff faced a serious risk of harm while confined at USPL (as opposed to the Illinois prison). Plaintiff also alleged that Warden Booker failed to investigate after plaintiff was attacked by inmates Brown and Lablanc, but this allegation does not speak to whether Warden Booker failed to protect plaintiff by preventing the attacks before they began. Thus, the court overrules plaintiffs objections and dismisses plaintiff's Eighth Amendment failure to protect claim against Warden Booker with prejudice.
Plaintiff also alleged that Officer Pierce and Lt. Finnerty told him that "if he gave jailers at Leavenworth a chance he would be murdered," but plaintiff does not contend that Warden Booker overheard this statement.
3. Reference to the Fourth, Fifth, and Sixth Amendments
In its September 22, 2000 Memorandum and Order, the court stated that "Plaintiff has summarily alleged that defendants have . . . violated his Fourth, Fifth, and Sixth Amendment rights. Plaintiff has failed to set forth in his complaint his reasons for believing that his rights protected by these amendments were violated, and a claim under these amendments is not obvious to the court from the facts set forth in plaintiff's complaint." (Doc. 76 at 17). The court then granted plaintiff leave to identify a legal theory pursuant to any such constitutional amendments in his amended complaint.
Magistrate Judge Walter's Report and Recommendation found that plaintiff's amended complaint again "failed to include specific facts in support of his claims for relief under the Fourth, Fifth or Sixth Amendments." Plaintiff objects to this finding and "invites the court to review his pleadings with a broader scope of understanding." (Pls. Obj. 6). The court has independently reviewed plaintiff's amended complaint and any potential claims under the Fourth, Fifth, or Sixth Amendments are no clearer in the amended complaint than they were in plaintiff's original complaint. Thus, the court concurs with the magistrate's finding and accepts the magistrate's recommendation that these claims be dismissed with prejudice. It is so ordered.
4. Claims Asserted Against Individuals Not Previously Parties to this Action
In addition to clarifying plaintiff's claims against defendants named in plaintiff's original complaint, plaintiff's amended complaint names two new individuals as federal defendants. Plaintiff asserts claims of inadequate medical care against two paramedics at USPL, Mr. Rubiaiie and Mr. Selazar. After a responsive pleading has been served in an action, a plaintiff may not amend his or her complaint to add new parties without receiving leave of the court to do so. Fed.R.Civ.P. 15(a); Fed.R.Civ.P. 21. Defendants have filed a number of responsive pleadings in this action, and the court has only granted plaintiff leave to correct the specific pleading deficiencies identified by the court in the claims asserted against the defendants named in plaintiff's complaint. Plaintiff had no authority to add new parties to this action. Thus, the claims asserted against Mr. Rubiaiie and Mr. Selazar are dismissed without prejudice.
Because Mr. Aubaiie and Mr. Salazar have been dismissed from this action, plaintiff's objections to the portion of the magistrate's report related to these two individuals (Pls. Objs. 5 13) are moot.
5. Claims Brought Against Ms. Hawk-Sawyer
The court noted in its September 22, 2000 Memorandum and Order that, although named in plaintiff's complaint, Ms. Hawk-Sawyer, Director of the Federal Bureau of Prisons, was dismissed from this action by Judge Kessler in the Memorandum and Transfer Order filed in the District Court for the District of Columbia on August 31, 1999, No. 99-1595. (Doc. 76 at 2, n. 1). Nonetheless, plaintiff again asserted claims against Ms. Hawk-Sawyer in his amended complaint. In a footnote, plaintiff informed the court that he had filed a writ of mandamus with the District Court for the District of Columbia "requesting reinstatement of Sawyer." The District of Columbia court denied the writ of mandamus for lack of jurisdiction, as it had already transferred the case to this district. (Doc. 85, exh. G-1). Magistrate Judge Walter's Report and Recommendation did not address plaintiff's claims against Ms. Hawk-Sawyer, and plaintiff objects to the omission (Pls. Obj. 7). The court again finds that Judge Kessler ordered Ms. Hawk-Sawyer dismissed from this action with prejudice. Therefore, under the doctrine of law of the case, plaintiff is not entitled to proceed further against her in this action. See Arizona v. California, 460 U.S. 605, 618 (1982).D. Plaintiff's Objection to the In Camera Review of Documents
Finally, plaintiff objects to the magistrate's review of "in camera attachments" to the federal defendants' Memorandum in Support of Motion to Dismiss (Doc. 58). There is absolutely no indication that Magistrate Judge Walter examined such attachments. In fact, the court finds it very unlikely that Magistrate Judge Walter would ever examine material outside of the pleadings when examining the sufficiency of the allegations in a plaintiff's complaint. As discussed in the court's first Memorandum and Order, courts are prohibited from considering evidence outside of the pleadings when determining whether a plaintiff's complaint states a claim upon which relief may be granted. (Doc. 76 at 7) (citing Prager v. LaFaver, 180 F.3d 1185, 1188-89 (10th Cir. 1999)). Thus, the court overrules this objection.
After considering plaintiff's objections to the magistrate's Report and Recommendation and reviewing plaintiff's amended complaint de novo, the court concludes that the only new claim arising from plaintiff's amended complaint is a new First Amendment retaliation claim against Lt. Acosta. This case will proceed on that claim, as well as on the First and Eighth Amendment claims against Officers Walker, Nikes, and Preston recognized in the court's September 22, 2000 Memorandum and Order.
II. Plaintiff's Motion to Amend Complaint
Plaintiff's supplement to his objections to the magistrate's Report and Recommendation contains a request to amend his complaint (Doc. 106). Plaintiff lists no reason for his request, other than that he wishes the amended complaint to "include evidence" attached to his brief in opposition to the federal defendants' motion to dismiss. Plaintiff's motion is denied. As a general rule, "evidence" is not filed with a complaint. Moreover, the court has dismissed with prejudice a number of the claims asserted against the federal defendants and all of the claims asserted against the Wisconsin defendants.
III. Plaintiff's Motion for a Preliminary Injunction or a Temporary Restraining Order
On October 17, 2000, plaintiff filed a Motion for a Preliminary Injunction or a Temporary Restraining Order (Doc. 79), asking the court to order seven non-party Wisconsin prison guards to refrain from taking certain actions. Plaintiff's request is based on actions that he alleged the guards took in the Supermax Correctional Institution in Boscobel, Wisconsin. On December 15, 2000, plaintiff filed a motion to supplement his Motion for Preliminary Injunction and Temporary Restraining Order (Doc. 97), in which he describes additional actions taken by the guards at the Supermax facility. In neither of the motions has plaintiff alleged that the Wisconsin prison guards had any contacts with the state of Kansas related to this action. Under the legal standards discussed above, therefore, the court has no personal jurisdiction over the prison guards named in plaintiff's motions. Plaintiff's Motion for a Preliminary Injunction or a Temporary Restraining Order (Doc. 79) and plaintiff's Motion to Supplement (Doc. 97) are denied.
IT IS THEREFORE ORDERED BY THE COURT THAT the Report and Recommendation issued by Magistrate Judge Walter (Doc. 102) is adopted except as to the recommendation that plaintiff's First Amendment retaliation claim against Lt. Acosta be dismissed. Plaintiff's conspiracy claims are dismissed with prejudice as to all defendants. The Wisconsin defendants are dismissed with prejudice for lack of personal jurisdiction. Plaintiff's First Amendment claims are dismissed with prejudice as to Officer Harmon and Warden Booker; plaintiff's First Amendment claim against Lt. Acosta will go forward. Plaintiff's Eighth Amendment claim is dismissed with prejudice as to Lt. Acosta, Officer Harmon, and Warden Booker. Plaintiff's claims brought pursuant to the Fourth, Fifth, and Sixth Amendments are dismissed with prejudice. Plaintiff's claims against Mr. Rubiaiie and Mr. Selazar are dismissed without prejudice.
IT IS FURTHER ORDERED THAT plaintiff's motion for the issuance of a preliminary injunction or a temporary restraining order (Doc. 79) and motion to supplement said motion (Doc. 97) are denied.
IT IS FURTHER ORDERED THAT plaintiff's motion for leave to file an amended complaint (Doc. 106) is denied.
IT IS SO ORDERED.
Dated this ___ day of January, 2001 at Kansas City, Kansas.